Karnail
Singh sV. State of Rajasthan [2000] INSC 481 (13 September 2000)
K.T.
Thomas & R.P. Sethi. SETHI, J.
L.I.T.J
Leave granted.
The
appellant, a truck driver was apprehended and arrested on 21st August, 1992 by a Preventive Party, on the Kota-Bundi Road in Rajasthan as he was shown to be
carrying 96.600 kgs. of opium in his Truck No.PCT 9997. The opium was found
concealed in three gunny bags containing 21 raxine bags. After compliance of
the requisite legal formalities, a case under Section 8/18 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the
Act") was registered. The seized goods and samples were kept in double
lock malkhana. On conducting tests, the articles seized were found to be opium.
On trial, the appellant was found guilty of the offences with which he was
charged under the Act. He was convicted and sentenced to rigorous imprisonment
for 15 years and to pay a fine of Rs.1.5 lakhs or in default of the fine to
undergo rigorous imprisonment for one year. In appeal, the High Court upheld
the conviction but reduced the sentence of imprisonment to 10 years and fine of
Rs.1 lakh, vide the order impugned in this appeal.
Mr.Jayant
Bhushan, Advocate who appeared as amicus curaie has raised some legal questions
which, according to him, had not been taken note of either by the Trial Court
or by the High Court. He contended that as the procedure prescribed under the
Act was not followed, the appellant was entitled to acquittal. It was further
submitted that no presumption under Section 35 of the Act could be drawn
against the appellant. Relying upon the judgment of this Court in Abdul Rashid Ibrahim
Mansuri v. State of Gujarat [2000 (2) SCC 513] he contended
that the appellant had discharged the onus of proof regarding his plea of
absence of culpable mental state which should have been accepted and the
appellant acquitted.
Regarding
violation of the procedural safeguard under the Act, it has been contended on
behalf of the appellant that
the mandate of Section 55 of the Act has not been followed and as the Trial Court as well as the Appellate Court arrived at the
guilt of the appellant on wrong assumptions, the appeal be accepted by setting
aside the impugned judgment.
In
order to appreciate this submission some facts of the case are required to be
noticed. There is no dispute that the truck, when intercepted, was not
stationary but was in transit being driven by the appellant. The raiding party
comprised of Nand Lal Rai, Inspector (PW8), Mohan Lal (PW1), Bajrang Lal (PW2)
and Zaheen Ahmad (PW7). Suspecting that in the truck some narcotic drugs might
be transported, Inspector Nand Lal Rai (PW8) called independent witnesses Onkar
and Ram Lal and in their presence told the appellant that he had a suspicion of
opium being transported in the truck. As he wanted to take search of the truck,
he inquired from the appellant whether he would get the truck searched in the
presence of a Gazetted Officer or a Magistrate. He was told by the accused that
the truck may be searched by any officer or employee. As by that time rain had
started and there was no arrangement of light at the place of checking, the
preventive party took the truck along with its driver to the Control Room of
Central Narcotics Bureau, Kota. PW8, Nand
Lal Rai along with other employees searched the truck in the presence of Anand
Singh Negi and other witnesses and found three gunny bags containing opium, as
noticed earlier. From each of the gunny bags 2-2 samples of 24-24 grams opium
was taken for chemical examination and the samples seized in the presence of
the witnesses. The raxine bags containing opium were placed in the gunny bags
in the condition as it were and each of the gunny bags was wrapped in white
cloth and sealed. Nand Lal Rai, Inspector(PW8), Anand Singh Negi (PW4) and
other employee-witnesses of the Department put their signatures on the samples
and the three bundles. They also signed the Panchanama. The appellant was
arrested under the Act. Inspector Nand Lal Rai then went to the office of the
Superintendent, Central Narcotic Bureau, Kota
and lodged the First Information Report. The Superintendent, Central Narcotic
Bureau, Kota handed over the investigation to
Inspector Shiv Narain. The information of the incident was sent to the higher
authorities on 23rd
August, 1992. Samples
taken from the seized opium were sent to the General Manager, Government Opium
and Alkaloid Works, Neemach. On examination, the samples were found to be of
opium.
In the
trial Court, the defence counsel argued that the provisions of Section 42, 50,
52A, 52(1)&(2), 55 and 57 had not been complied with. The Court, however,
held that the provisions of Section 42 of the Act were not applicable and under
Section 49, which was the relevant Section for the case, it was not necessary
for Inspector Nand Lal Rai (PW8) to reduce in writing, the reason for suspicion
before taking the actual search. The alleged violation of Section 52A of the
Act did not affect the merits of the case. No prejudice was held to have been
caused on account of alleged non-compliance of the provisions of Section 52(1)&(2)
of the Act. Section 52(3) of the Act was held to have been complied with. So
far as compliance of Section 55 of the Act was concerned, the Trial Court held:
"On
the basis of above discussion of evidence, I am of the view that mandatory
provisions of Section 55 of the Act have been duly complied with. Bundles
containing remaining opium and samples were sealed at the site by officer Incharge
of the police station i.e. Nand Lal Rai Inspector under his own seal. And it is
proved beyond reasonable doubt that these bundles of Opium were produced in the
court in the same sealed condition and that samples were sent to laboratory for
examination in the same sealed condition.
Not
only this that after examination samples were produced in the court in open
condition and bundles of Opium were also produced in the court in sealed
condition, but also PW4 Anand Singh Negi and PW5 Rama Shanker Prasad have
deposed, while giving statement and after seeing above samples and packets,
that these packets and samples bear the same wax seal of Nand Lal Rai which was
affixed by him at the time of sealing these packets and samples at the site.
The chits affixed on above packets and samples bear today also the same
signatures of Anand Singh which were put by him at the time of sealing these
packets and samples. Therefore, in my opinion mandatory provisions section 55
of the Act have been duly complied with." The High Court also found that
the provisions of Section 42 of the Act were not applicable in the case and as
resort was not had to the procedure prescribed under Clause (a) of sub-section (3)
of Section 52, the compliance of Section 55 was not necessitated.
The
Act was enacted to consolidate and amend the law relating to narcotic drugs, to
make stringent provisions for the control and regulation of operations relating to
narcotic drugs and psychotropic substances to provide for the forfeiture of
property derived from, or used in, illicit traffic in narcotic drugs and psychotropic
substances, to implement the provisions of the International Conventions on
Narcotic Drugs and Psychotropic Substances and for the matters connected
therewith. Chapter V comprising of Sections 41 to 68 deals with the procedure
relating to issuance of warrants and authorisation, power of entry, search,
seizure and arrest without warrant or authorisation, procedure where seizure of
goods liable to confiscation not practicable, conditions under which searches
shall be conducted, disposal of persons arrested and articles seized,
presumptions regarding possession of illicit articles, punishment for vexatious
entry, search, seizure and arrest, confiscation of goods used for concealing
illicit drugs and substances, procedure for making confiscation and power to
tender immunity from prosecution, etc. Section 42 provides that any Authorised
Officer of the Departments of Central Excise, Narcotics, Customs, Revenue
Intelligence or any other Department of the Central Government or the Border
Security Force, specially empowered by general or special order by the Central
Government, or any such officer of the Revenue, Drugs Control, Excise, Police
or any other Department of a State Government empowered in that behalf by
general or special order, if he has reason to believe from personal knowledge
or information given by any person that any narcotic drug or psychotropic
substance, in respect of which an offence punishable under Chapter IV has been
committed or any document or other article which may furnish evidence or the
commission of such offence is kept or concealed in any building, conveyance or
enclosed place, may, between sunrise and sunset, enter into any such building,
conveyance or place and in case of resistance, break open any door and remove
any obstacle to such entry.
Such
officer has the power to seize the drug or substance and all material used in
manufacture thereof and any other article or conveyance which he has reason to
believe to be liable to confiscation under the Act and detain and search, and
if he thinks proper, arrest any person whom he has reason to believe to have
committed any offence punishable under Chapter IV. If such officer has reason
to believe that such warrant and authorisation cannot be obtained without
affording opportunity for the concealment of evidence or facility for escape of
an offender, he has the authority to enter such building, conveyance or
enclosed place any time between sunset and sunrise but after recording the
grounds of his belief. For attracting the applicability of Section 42, it is
necessary that the officer empowered thereunder, before exercise of his right,
has reason to believe from personal knowledge or information regarding the
movement of narcotic drug or psychotropic substance. However, if the action is
taken not upon his personal knowledge or information, the requirements of
Section 42 would not be applicable. Section 43 of the Act provides:
"Power
of Seizure and arrest in public places.-- Any officer of any of the departments
mentioned in section 42 may-- (a) seize, in any public place or in transit, any
narcotic drug or psychotropic substance in respect of which he has reason to
believe an offence punishable under Chapter IV has been committed, and, along
with such drug or substance, any animal or conveyance or article liable to
confiscation under this Act, and any document or other article which he has
reason to believe may furnish evidence of the commission of an offence
punishable under Chapter IV relating to such drug or substance.
(b)
detain and search any person whom he has reason to believe to have committed an
offence punishable under Chapter IV, and, if such person has any narcotic drug
or psychotropic substance in his possession and such possession appears to him
to be unlawful, arrest him and any other person in his company.
Explanation--For
the purposes of this section, the expression "public place" includes
any public conveyance, hotel, shop or other place intended for use by, or
accessible to, the public." Section 49 of the Act provides:
"Power
to stop and search conveyance --Any officer authorised under Section 42, may,
if he has reason to suspect that any animal or conveyance is, or is about to
be, used for the transport of any narcotic drug or psychotropic substance, in
respect of which he suspects that any provisions of this Act has been, or is
being, or is about to be, contravened at any time, stop such animal or
conveyance, or, in the case of an aircraft, compel it to land and-- (a) rummage
and search the conveyance or part thereof;
(b) examine
and search any goods on the animal or in the conveyance;
(c) if
it becomes necessary to stop the animal or the conveyance, he may use all
lawful means for stopping it, and where such means fail, the animal or the
conveyance may be fired upon." Section 53 of the Act empowers the Central
Government, after consultation with the State Government to invest any officer
of the Department of Central Excise, Narcotics, Customs, Revenue Intelligence
or Border Security Force or any other class of such officers with the powers of
an officer-incharge of a police station for the investigation of the offences
under the Act. The provisions of the Code of Criminal Procedure, 1973 have been
made applicable in so far as they are not inconsistent with the provisions of
the Act to all warrants issued and arrests, searches and seizure under the Act.
Section 52 of the Act requires an officer arresting a person under Sections 41,
42, 43 or 44, as soon as may be, to inform him of the grounds for such arrest.
Every
person arrested and articles seized under warrant issued under sub- section (1)
of Section 41 is required to be forwarded without necessary delay to Magistrate
by whom the warrant was issued. Sub-section (3) of Section 52 provides:
"(3)
Every person arrested and article seized under sub- section (2) of section 41,
section 42, section 43 or section 44 shall be forwarded without unnecessary
delay to-- (a) the officer-in-charge of the nearest police station, or (b) the
officer empowered under section 53." Section 55 mandates an officer
in-charge of a police station to take charge and keep in safe custody of
articles seized under the Act within the local area of that police station
which may be delivered to him (Emphasis supplied) and shall allow any officer
who may accompany such article to the police station or who may be deputed for
the purpose to affix his seal to such articles or to take samples of and from
them and all samples so taken shall also be sealed with a seal of the officer-incharge
of the police station.
Relying
upon this Section Mr.Jayant Bhushan, learned amicus curaie, submitted that as
after the seizure the goods were sent to the Superintendent, Central Narcotic
Bureau, Kota, who, as per law, being incharge of a police station, had not
affixed his seal on the articles and the samples, the whole of the procedure
followed being illegal, entitled the appellant to be acquitted. The argument,
though attractive on the face of it, when analysed in depth, is found to be
without any substance. With the application of Section 51 read with Sections 52
and 53 of the Act, the officer required to affix the seal etc., under Section
55 of the Act, would be "the officer incharge of the nearest police
station" as distinguishable from and officer incharge of a police station
empowered under Section 53 of the Act. If resort is had to the procedure
prescribed under sub-section 3(a) of Section 52, the applicability of Section
55 of the Act would be attracted but if the arrested person and the seized
articles are forwarded under Clause (b) of sub-section (3) of Section 52 of the
Act to the officer empowered under Section 53 of the Act, the compliance of
Section 55 cannot be insisted upon. The distinction between the officer incharge
of the nearest police station and the officer empowered under Section 53 of the
Act is distinct and clear. The distinction is apparently based upon a
reasonable object, because as in case the person and the seized articles are
referred to the 'officer incharge of the nearest police station', a distinct
agency, than the 'officers contemplated under Section 53' of the Act, comes
into the picture which requires the taking of sufficient safeguards to protect
the seized property in the interests of the arrested persons. The distinction
is also evident from Section 52A(2) of the Act. Keeping in view the
multifarious activities and the duties cast upon the officer incharge of the
police station under the Code of Criminal Procedure and he being apparently
busy with the duties under the Code, the officers mentioned in Section 53 of
the Act have been mandated to take action for disposal of seized narcotic drugs
and psychotropic substances by filing application which, when filed, has to be
allowed by the Magistrate as soon as may be. We are of the opinion that in the
present case the procedure prescribed under Section 49 read with Section 43 was
attracted, which, on facts, has been found to be followed. Keeping in mind the
facts and circumstances of the case and the mandate of law, as explained by
this Court in Abdul Rashid Ibrahim Mansuri's case (supra), we are of the
opinion that the appellant had not discharged the burden of proof in any manner
to rebut the presumption envisaged under Section 35 of the Act. He has been
proved to be transporting the opium with a conscious mind and full knowledge.
All ingredients of the offences with which he has been convicted and sentenced
had been proved by the prosecution.
We
find no merit in this appeal which is accordingly dismissed.
Back