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CASE NO.: Special Leave Petition (crl.) 982  of  1999

PETITIONER: KARNAIL SINGH

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       13/09/2000

BENCH: K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI, J. L...I...T.......T.......T.......T.......T.......T.......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@@               JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

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that  the  mandate  of Section 55 of the Act  has  not  been@@ JJJJJJJJJJJJJJJJJJJJJJ 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

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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@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ was  not had to the procedure prescribed under Clause (a) of@@ JJJJJJJJJJJJJJJJJJJ 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@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the  control  and  regulation  of  operations  relating   to@@ JJJJJJJJJJJJJJJJJ 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

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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;

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   (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

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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.