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FORM 1 : REGISTER OF MANUFACTURE OFCONTROLLED
SUBSTANCES.
FORM 2 : REGISTER OF CONSUMPTION, SALE, IMPORT OR
EXPORT OFCONTROLLED SUBSTANCE.
FORM 3 : CONSIGNMENT NOTE
FORM4 : QUARTERLY RETURN OF MANUFACTURE OF CONTROLLED SUBSTANCE
FORM 5 : QUARTERLY RETURN OF RECEIPT, IMPORT, SALE,
CONSUMPTION OR EXPORT OF CONTROLLED
SUBSTANCE
FORM 6 : QUARTERLY REPORT ON TRANSPORT OF
CONTROLLED SUBSTANCE TO A CONSIGNEE
OUTSIDE THE ZONE OF A CONSIGNOR

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HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. – 52

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 32609 of 2010

Petitioner :- Nisar Hussain Dar
Respondent :- Union Of India
Petitioner Counsel :- Preet Pal Singh Rathore
Respondent Counsel :- Sanjav Kumar Singh

Hon’ble Vikram Nath,J.
1. This is a second bail application. The First Bail Application No.30144 of 2009 was rejected by a detail order dated 21st October, 2010.
2. Search of the premises of M/s National Biotech, Village Serondhan, District Ghaziabad was made on 13th August, 2008 by the officials of the Narcotic Control Bureau (NCB). In that search 187.5 kg of ‘Anthralinic Acid’ was recovered from the premises.
3. Notices were given to the owner (the applicant) under Section 67 of the NDPS Act. The statement under Section 67 of the NDPS Act was recorded on 13th and 14th August, 2008 wherein applicant admitted his involvement in the offence of manufacturing of Anthralinic Acid.
4. After due investigation compliant was lodged under the provisions of the NDPS Act before the appropriate court, which was registered as Case Crime No.35 of 2008 under Sections 9-A and 25-A of the NDPS Act, Police Station NCB Delhi (Dhaulana), District Ghaziabad.
5. I have heard Sri F.A. Wani and Sri Preet Pal Singh Rathore, learned counsel appearing for the applicant and Sri Sanjay Kumar Singh, learned counsel appearing for the Narcotics Control Bureau.
6. Learned counsel for the applicant submits:
Anthralinic Acid is a controlled substance defined under Section 2 (viid) of the NDPS Act. Section 9-A of the Act confers the power on the Central Government to control and regulate the production, manufacturing, sale, supply etc. of controlled substances. The Central Government has issued the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 1993 (hereinafter referred to as RCS Order 1993). Clause 3 of RCS Order 1993 provides that every person who manufactures or distributes or sells or imports or exports or consumes any controlled substance is required to maintain daily accounts of his activities in Form 1 or Form 2, as the case may be and such records or activities are to be preserved for a period of two years. The same is quoted hereunder :-
” Clause 3. Manufacture, distribution, sale, imports, exports and consumption of controlled substance — (1) Every person who manufactures or distributes or sells or imports or exports or consumes any controlled substance shall maintain daily accounts of his activities in Form 1 or Form 2, as the case may be. The records of his activity shall be preserved for a period of two years from the date of last entry in the register.

(2) He shall report to the Director General, Narcotics Control Bureau, Wing No.-5,West Block – I, R.K. Puram, New Delhi – 110 066 immediately regarding any loss or disappearance of the controlled substances under his control. A copy of the report shall also be endorsed to the Zonal Director of the Narcotics Control Bureau within whose area of jurisdiction such loss or disappearance occurred.”

The applicant has maintained the daily accounts in Form 1 and 2 and as such there is no violation of RCS Order 1993.
7. In reply learned counsel for the NCB submits:
Section 25-A of the NDPS Act provides for punishment for contravention of the orders issued under Section 9-A of the NDPS Act. Clause 7 of the RCS Order 1993 requires filing of returns. According to it every person mentioned in clause 3 is required to send quarterly returns by registered post in Form 4 and Form 5 to the authority defined therein. The same is quoted hereunder:
“Clause 7. Filing of returns — (1) Every person mentioned in clause 3 of this Order shall send quarterly return by registered post in Form 4 or Form 5, as the case may be, to the concerned Deputy Director, Narcotics Control Bureau, whose address is given in the Form. The quarters of this purpose shall be January to March, April to June, July to September and October to December. The return shall be dispatched before the last day of the month following the quarter.

(2) Schools, Colleges, Universities, Government or autonomous institutions, Registered Scientific Societies and Hospitals using the controlled substance for educational scientific and analytical purposes are only exempted from maintaining records as prescribed under clause 3 and sending returns as prescribed under this clause. But they shall comply with other provisions of this Order.

(3) The persons who are to send quarterly returns under this clause shall intimate in Form No.4 or Form No.5, as the case may be, to the concerned Zonal Director, Narcotics Control Bureau, whose address is given in the Form upto the 15th day of May, 1993 regarding the opening balance of stock of the controlled substance possessed by him as on the 15th day of April, 1993. The first regular shall be sent for the period from 15th April, 1993 to 30th June, 1993.”

The applicant has failed to comply with the conditions mentioned in Clause 7 of the RCS Order 1993 by not filing the quarterly returns. There is violation of the same and as such the applicant is liable for punishment under Section 25-A of the NDPS Act.
In the first bail application all these pleas have been raised and have been considered as such no new ground warranting consideration of the second bail application is made out.
8. In rejoinder learned counsel for the applicant submits:
Clause 7 of the RCS Order 1993 does not apply for the reason that the applicant has only manufactured the Anthralinic Acid and has not made any sale nor has distributed nor has exported nor consumed the controlled substance as such he was not obliged under law to submit the return in Form 4 or Form 5.
The applicant has neither transported the controlled substance nor has made any sale nor has dispatched any consignment as such Clause 4, 5 and 6 of the RCS Order 1993 would not be applicable. Clause 7 thereof which comes after Clause 4, 5 and 6 also would not be applicable to the applicant.
9. Having considered the submissions advanced, it would be appropriate to first deal with the provisions as contained in the Act and the RCS Order 1993.
10. Controlled substance is defined in Clause (viid) which is quoted hereunder:
(viid) “Controlled substance” means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance;

Section 9-A of the NDPS Act confers power on the Central Government to control and regulate controlled substance, the same is reproduced hereunder.
“9-A. Power to control and regulate controlled substances
(1) If the Central Government is of the opinion that having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the power conferred by subsection (1), an order made thereunder may provide for regulating by licences, permits or otherwise, the production, manufacture, possession, transport, import interstate, export interstate sale, purchase, consumption, use, storage distribution, disposal or acquisition of any controlled substance.”

Section 25-A defines the punishment for contravention of the Orders issued under Section 9-A of the NDPS Act as such same is also being reproduced:-
25-A. Punishment for contravention of orders made under Section 9-A :
If any person contravenes an order made under Section 9-A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees.”

Clause 3 and 7 of the RCS Order 1993 which are relevant have already been reproduced above.
Further the headings of the various forms is also quoted below :
FORM 1 : REGISTER OF MANUFACTURE OFCONTROLLED
SUBSTANCES.
FORM 2 : REGISTER OF CONSUMPTION, SALE, IMPORT OR
EXPORT OFCONTROLLED SUBSTANCE.
FORM 3 : CONSIGNMENT NOTE
FORM4 : QUARTERLY RETURN OF MANUFACTURE OF CONTROLLED SUBSTANCE
FORM 5 : QUARTERLY RETURN OF RECEIPT, IMPORT, SALE,
CONSUMPTION OR EXPORT OF CONTROLLED
SUBSTANCE
FORM 6 : QUARTERLY REPORT ON TRANSPORT OF
CONTROLLED SUBSTANCE TO A CONSIGNEE
OUTSIDE THE ZONE OF A CONSIGNOR

11. From a perusal of the complaint which has been filed as Annexure 3 to the affidavit filed in support of the bail application, the offence alleged against the applicant is in para 15 thereof which is quoted hereunder:
15.That from the above it is clear that the accused has committed offences punishable under section 9A and 25A of NDPS Act, 1985 as the accused had manufactured and transported Anthranilic acid a ‘Controlled Substance’ in violation of the provisions of NDPS Act and further did not file any return regarding this with NCB which is requirement of law and thus committed an offence punishable under the provisions of NDPS.

12. According to the above applicant failed to file any return with regard to manufacturing and transportation of Anthralinic Acid. It is admitted to the applicant that no return in Form 4 or Form 5 as required under Clause 7 of the RCS 1993 was ever filed.
13. The contention raised on behalf of the applicant with regard to para 15 of the complaint wherein it has been mentioned that the applicant had also transported Anthralinic Acid, which assertion is not substantiated by any evidence apparently no liability can be fixed upon the applicant to file return in Form 5.
14. From a reading of Clause 3 and 7 of the RCS 1993, it is apparent that every person who manufactures or distributes or sells or imports and exports or consumes any controlled substances is required to submit a quarterly return by registered post in Form 4 or Form 5. Admittedly the applicant has been manufacturing Anthralinic Acid. He was required to submit quarterly returns in Form 4, which undisputedly has not been filed. The applicant having failed to submit any return in Form 4, the violation of the RCS Order 1993 is apparent and as such the applicant committed an offence punishable under Section 25-A of the NDPS Act. The argument on behalf of the applicant therefore fails.
15. In that view of the matter, I do not find any new ground for entertaining the second bail application. The second bail application is accordingly rejected.
Order Date :- 10.5.2011

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR.

S.B. CR.APPEAL NO.1772/03

SHOBHA RAM —ACCUSED APPELLANT

VS.

THE STATE OF RAJ.& ANT.— RESPONDENTS

DATE OF JUDGMENT:- 16.1.2012

HON’BLE MS. JUSTICE BELA M. TRIVEDI

Mr. R.S. Tanwar, for the appellant,

Mr. Laxman Madnani, Spl. P.P.(C.B.I.))

REPORTABLE BY THE COURT

The accused appellant, by way of present appeal, filed under Section 374 Cr. P.C. has challenged the legality and validity of the judgment of conviction and the order of sentence dated 12th of November, 2003, passed by the Special Judge, NDPS Act Cases, Chhabra, district Baran,(hereinafter referred to as the ‘trial court’), in Sessions Case No. 7/2003, whereby the trial court has convicted the appellant-accused for the offence under Sec. 17 read with Sec.8 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the said ‘Act’), and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1,00,000/-, in default thereof to undergo further imprisonment for a period of six months. (2) As per the case of the prosecution before the trial court, a team was constituted at the office of Dy. Narcotic Bureau, Kota, on 13.7.2002 for conducting search of suspected persons and vehicles. Accordingly, the members of the said team headed by the Superintendent Mr. M.C. Vijay had left Kota for Eklera. On 14.7.2002, at about 8.30 a.m. the said team members had reached to Chhipa Barod Road and were carrying out the checking of the vehicles. At that time, one jeep bearing the Registration No. RJ-28-P-0371 came from the Chhipa Barod side, driven by a driver and carrying one passenger. The said jeep was intercepted by the Inspector Shri Niranjan Guru. One another motor bike coming behind the said jeep was also stopped. The two persons riding on the said motorbike were requested to act as independent witnesses as the said jeep was to be searched. It was further case of the prosecution that on being asked, the driver of the jeep disclosed his name to be Shobha Ram s/o Prabhu Lal and the passenger disclosed his name to be Mohd. Ibrahim Mansoori. After giving the said two persons the notices under Section 50 of the said Act,the Inspector Sh. Niranjan Guru, carried out their personal search, however, no incriminating article was found from them. Thereafter, the checking of the said jeep was carried out and one secret chamber, on the back side of the right seat of the jeep was found. The said secret chamber was got opened through the said driver Shobha Ram and ten packets kept in a bag were found lying therein. After taking out the said ten packets, the weight was carried out and the total weight of the said ten packets was found to be 5.210 Kg. The substance contained in the said packets was suspected to be Heroin. Thereafter the samples, each weighing 5 grams from each of the said ten packets, were taken separately and then sealed by giving marks and were accordingly seized. As per the further case of the prosecution, after the drawing up of necessary Panchnama, map and preparing other documents on the spot, the said two persons Shobha Ram and Mohd. Ibrahim were arrested and an F.I.R. bearing Case No. 6/2002, was registered against them at the office of Narcotic Bureau, Kota. The report about the arrest of the accused and the seizure of the articles was sent to the Special Judge, N.D.P.S. Act, Chhabra district Baran. Thereafter the Inspector Sudhir Yadav was appointed as Investigating Officer. The said Mr. Sudhir Yadav carried out the investigation partly, and on he having proceeded on leave, the Inspector Shri S.C.Sarkar, was appointed as the Investigating Officer for completing the investigation.

(3). It further appears that during the course of investigation, the sample articles were sent to the F.S.L. and as per the report of the Chemical Examiner, all the ten samples by qualitative and quantitative analysis were found to be ‘Morphine’ within the meaning of the said Act. It further transpires that after the completion of the investigation, the Investigating Officer had submitted the charge sheet against said Shobha Ram, who was the driver of the jeep in question and against his father Prabhu Lal, who was the owner of the said jeep, however,further submitted that there was no offence found to have been committed by the accused Mohd. Ibrahim Mansoori. Hence the said accused Mohd. Ibrahim Mansoori was discharged by the trial court vide order dated 6.3.2003. The charge was thereafter framed against the accused Shobha Ram for the offence under Section 21 read with Section 8, and against the accused Prabhu Lal for the offence under Section 25 read with Section 8 and under Section 27 read with Section 8 of the said Act. Both the accused pleaded not guilty and claimed to be tried. Therefore the trial was conducted against them. (4). The prosecution, in order to prove the charges levelled against the accused had examined as many as ten witnesses and adduced number of documentary evidence. The statements of both the accused were recorded under Section 313 Cr.P.C. wherein they denied the allegations levelled against them and further stated that they were falsely implicated in the case. The trial court after appreciating the evidence on record, convicted the accused-appellant Shobha Ram for the offence under Section 17 read with Section 8 of the said Act and sentenced him as stated here-in- above, however, acquitted the accused Prabhu Lal from the charges levelled against him by the impugned judgment and order. Being aggrieved by the same, the present appeal has been filed by the appellant accused Shobha Ram. (5). Before adverting to the submissions made by the learned counsels for the parties, it is required to be noted that as transpiring from the order sheets, the appeal was listed for final hearing time and again, and was required to be adjourned most of the time as none had remained present for the appellant. The Court, therefore, vide order dated 5.12.2011, had appointed one advocate Mr. Kamlendra Sihag as an Amicus Curiae for the accused. However, thereafter, the learned counsel Mr. R.S. Tanwar, had filed his appearance for the accused-appellant. When the matter was listed on 3.1.2012, Mr. R.S.Tanwar for the appellant made his submissions before this Court, however, sought some time for making further submissions. The matter therefore, was kept on the next day i.e. on 4.1.2012. Mr. Tanwar, however did not turn up on that date and the matter was adjourned to 5.1.2012. On 5.1.2012 also Mr. Tanwar did not turn up. The Court, therefore, heard the submissions of the learned Special Public Prosecutor Mr.Laxman Madnani for the respondents and kept the matter on 6.1.2012, giving last opportunity to Mr. Tanwar for making his further submissions. On 6.1.2012 also Mr. Tanwar did not appear in the Court and, therefore, the Court presumed that he had nothing further to submit. The Court finally heard learned Special Public Prosecutor Mr. Madnani on 6.1.2012. (6). It was sought to be submitted by learned counsel Mr. Tanwar for the appellant that the story put forth by the prosecution did not inspire confidence as both the independent witnesses P.W. 9 and P.W. 10 did not support the case of prosecution and were declared hostile. Taking the Court to the evidence adduced by the prosecution, Mr. Tanwar submitted that P.W. 7 Satya Narayan, who had allegedly made the secret chamber in the jeep also did not identify the accused during the course of his evidence and thus did not support the case of the prosecution that the accused had got the secret chamber made in the jeep. According to Mr. Tanwar, there were number of discrepancies appearing in the oral evidence of witnesses in the documentary evidence allegedly prepared at the place of incident. He further submitted that though as per the version of the witnesses, the samples, each weighing 50 grams were taken from the ten packets allegedly found from the secret chamber of the jeep, the weight of some of the samples was less than 5 grams as per the F.S.L. Report Ex.P.42, and, therefore, it was required to be presumed that all the samples were tampered with during the course of investigation. Pressing into service the various provisions of the said Act, Mr. Tanwar submitted that though there are provisions in the Act for raising presumption against the accused, the same can not be raised in the instant case, as the prosecution had not proved the possession of the contraband substance with the accused beyond reasonable doubt. (7). Per contra, learned special Public Prosecutor Mr. Madnani supporting the judgment and order passed by the trial court, submitted that the accused was caught red-handed having possessed the contraband substance in the jeep driven by him, which was intercepted by the checking squad specially constituted by the office of Narcotic Bureau, Kota. According to Mr. Madnani, the said team consisting of the Inspectors and Superintendents of the Bureau, had after following the due procedure made search of the accused and the jeep and also seized the ten packets found from the secret chamber of the said jeep driven by the accused. Mr. Madnani also referred to the oral evidence led by the prosecution, and submitted that the samples taken from the said ten packets were deposited in the sealed condition in the Malkhana and thereafter at the F.S.L. On the proper analysis having been made by the Chemical analyzer, the said samples were found to be ‘Morphine’ within the meaning of the N.D.P.S. Act as per the report Ex.P. 42. Mr. Madnani relying upon the judgments of Hon’ble Supreme Court in the case of Dharam Pal Singh vs. State of Punjab (2010)9 Supreme Court Cases 608, in the case of Dehal Singh Vs. State of H.P. (2010) 9 S.C.C. 85, in the case of State of Punjab Vs. Lakhwinder Singh (2010)4, SCC 402, submitted that when the possession of contraband substance with the accused is established by the prosecution, the presumptions, that the accused had culpable mental state and that he had committed the offence charged against him, were required to be drawn as per S. 35 and Section 54 of the said Act. Mr. Madnani further submitted that merely because the Panch Witnesses had turned hostile, that itself would not make the case of prosecution weak,more particularly when official witnesses have duly proved the charges levelled against the accused. He has relied upon the decision of Apex Court in the case of State of Haryana Vs. Mai Ram (2008)8 Supreme Court Cases 292 and the decision of this Court in the case of Sadhu Ram Vs. State of Rajasthan 2006 Cr.L.R.(Raj.), 207. Mr. Madnani also relying upon the said decisions further submitted that minor variation in the weight of sample mentioned in the ‘Panchnama’ and in the F.S.L. report would not be fatal to the case of prosecution. Lastly, he submitted that considering the nature and gravity of offence, no lenient view be taken in the matter. (8). In the instant case, having regard to the record and proceedings of the case, it appears that the prosecution in support of its case had examined as many as ten witnesses, out of whom, the P.W.1 was Mahendra Singh, who happened to be the Inspector at the Office of Dy. Narcotic Bureau, Kota, at the relevant time. He had stated about the constitution of the team headed by Superintendent Shri M.C. Vijay at the said Bureau, on 13.7.2002 and about the random checking being made by the said team, of the persons and the vehicles on the Chipa Barod Road on 14.7.2002. He had, in detail stated in his evidence as to how the jeep driven by accused Shobha Ram was intercepted and how the search of the accused and the jeep was made after following the procedure, and how the ten packets containing the contraband substance found from the secret chamber of the jeep and how the same were seized and sealed. The prosecution had also examined P.W. 2 Ishwar Sindhi, who happened to be the Constable at the said Narcotic Bureau and he had stated in his evidence that he was given ten packets in sealed condition for being deposited at the Govt. Opium and Works, Neemuch, in respect of the case filed against the accused Shobha Ram and Ibrahim. According to him he had deposited the said ten packets at the said Works at Neemuch, and obtained the receipt Ex.P. 10. P.W. 3 Sudhir Yadav, who happened to be the Inspector at the said Narcotic Bureau, at the relevant time, had stated in his evidence inter alia that on 14.7.2002, he was handed over with the investigation of the case No. 6/2002 in which the substance ‘Heroin’ weighing 5.210 Kg. was seized. He had narrated about the investigation carried out by him and further stated that he having proceeded on long leave, the further investigation was handed over to the Investigating officer Shri S.C. Sarkar. P.W. 4 Niranjan Guru, who happened to be the Inspector of the said Bureau, was also examined by the prosecution. He had also stated in his statement as to how he had intercepted the jeep and made search and seizure under the instructions of the Superintendent Shri M.C. Vijay and in presence of the other team members and the independent witnesses. P.W.5 Shri M.C. Vijay, Superintendent of the said Bureau had also in his evidence reiterated the proceedings of search, seizure and arrest of the accused in respect of the alleged incident. P.W. 6 Chotu Lal Verma was the Malkhana Incharge at the said Bureau and he had stated inter alia that the Inspector Shri Sudhir Yadav had deposited in all 31 packets in the Malkhana, out of which 20 sealed packets were sample packets and the ten sealed packets were of the contraband substance, and one Packet was of the article purse. According to him, he had made the relevant entries in the Malkhana Register at Ex.P. 27 and on 16.7.2002, he had sent ten sample packets in sealed condition to the Govt. Opium and Alkloid Works, Neemuch, through the constable Shri Ishwar Sindhi. (9). P.W. 7 Satya Narain was examined by the prosecution, who had allegedly made the secret chamber in the jeep in question at the instance of the accused. However,the said witness Shri Satya Narayan while admitting that he had made the said secret chamber in the said jeep, denied to identify the accused sitting in the court by stating that the said chamber was not made at the instance of said accused. P.W. 8 Shri S.C. Sarkar, who had carried out the further investigation had stated about the statements of witnesses having been recorded by him. The two Panch witnesses P.W. 9 Satya Narain and P.W. 10 Jagdish, examined by the prosecution had not supported the case of prosecution and were declared hostile, on their stating inter alia that no such search or seizure was carried out in their presence and that their signatures were obtained by the police on blank papers. (10). As stated earlier, the further statement of the appellant accused was recorded u/S. 313 of Cr.P.C., giving him an opportunity to explain about the incriminating evidence having come on record, however, except denying the allegations, he had not made any further statement. During the cross examination of the concerned witnesses also, appellant accused had not raised any substantive defence.

(11). Now, if the above referred oral evidence is appreciated in the light of the documentary evidence adduced by the prosecution, it clearly transpires that the prosecution had duly proved that on 14.7.2002 at about 8.30 a.m. the specially constituted checking squad headed by the Superintendent Shri M.C. Vijay had intercepted the jeep driven by the appellant accused Shobha Ram, and who was also accompanied by the passenger Mohd. Ibrahim Mansoori. It was also established that there was a secret chamber made on the back side of the right seat of the said jeep from which ten packets of the contraband substance were found. From the ‘Panchnama’ Ex. 3 , and ‘Panchnama’ Ex.9, drawn on the spot in presence of the accused and the Panch Witnesses,it emerges that the documents, pertaining to the said jeep including the license book in the name of the appellant Shobha Ram, were found. It is true that the two independent witnesses P.W.9 & P.W. 10 had not supported the case of prosecution as regards the search and seizure allegedly carried out in their presence, however, they have admitted their respective signatures in all the documents prepared on the spot. (12). It is the settled legal position that the evidence of hostile witnesses could not be discarded in toto, and the same could be used to corroborate the other evidence led by the prosecution. In the instant case, all the official witnesses who were the members of the checking squad constituted at the office of Dy. Narcotic Bureau, Kota have stated in detail as regards the interception of the jeep in question, search of the accused as well as of the vehicle, seizure of the contraband substance as also the arrest of the accused after following the due procedure and formalities under the Act. As against that there is no material on record produced by the accused to discredit the evidence of the said official witnesses. As observed by the Apex Court decision in the case of State of Haryana Vs. Mai Ram (supra) in absence of any material to discredit the evidence of official witnesses and in absence of any infirmity found in the statements of the official witnesses, the Panch Witnesses turning hostile would not be fatal to the case of prosecution. It is also pertinent to note that though the P.W. 7 Satyanarayan did not identify the accused sitting in the Court during the course of his deposition, he had admitted to have made the secret chamber in the jeep in question. Since the jeep was driven by the appellant accused and the ten packets of contraband substance were found from the said secret chamber made in the said jeep, there is no hesitation in holding that the appellant accused was found to be in conscious possession of the said contraband substance which as per the F.S.L. Report was ‘Morphine’ within the meaning of the said Act. (13). As rightly submitted by learned Special Public Prosecutor, once the possession is established, the Court could presume that the accused had culpable mental state and had committed the offence charged against him in view of Section 35 read with Section 54 of the said Act. At this juncture, a beneficial reference of the observations made by the Apex court in this regard in the case of Dharam Pal Singh (supra) are required to be reproduced.

13.It needs no emphasis that the expression ‘possession’ is not capable of precise and completely logical definition of universal application in the context of all the statutes. ‘Possession’ is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18 of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge.

14.Section 54 of the Act raises presumption from possession of illicit articles. It reads as follows :

“54. Presumption from possession of illicit articles. – In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of –

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.”

 

15.From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to satisfactorily account for the possession of opium.

(14). The said legal position has also been reiterated by the Apex Court in the case of Dehal Singh(supra) following the ratio of the decision rendered in case of Madan Lal Vs. State of H.P., 2003 S.C.C.(7), 465.

(15). In the instant case, the prosecution having proved that the accused was found to be having conscious possession of contraband substance, the burden was shifted on the appellant-accused to prove that the possession was not conscious in the logical back ground of Section 35 and 54 of the Act. The appellant neither in the cross-examination of the witnesses nor in the opportunity given to him while recording the statement under Section 313 of Cr.P.C., had tried to rebutt the said presumption or to explain much less satisfactorily as to how the said ten packets, weighing 5.210 grams of contraband substance, were lying in the secret chamber of the jeep in question driven by him. The trial court therefore, has rightly come to the conclusion that the contraband substance was found from the accused as per the case of the prosecution and this Court does not find any infirmity or illegality in the said finding arrived at by the trial court. (16). So far as the mandatory requirement as contemplated under Section 50 of the Act is concerned, it may be noted that the contraband substance was found from the secret chamber made in the jeep in question driven by the accused appellant and, therefore, as such procedure under Section 50 of the Act, was not required to be followed. Nonetheless, since the personal search of the appellant-accused and the passenger Mohd. Ibrahim was also carried out, the Inspector Niranjan Guru had given them the notice as required under Section 50 of the said Act, if they desired to get themselves searched before the Gazetted Officer or the Magistrate. The said notices were produced on record as Ex.P. 1 and Ex.P. 2 before the trial court. The said fact also finds place in the Panchnama Ex.3 and also in the oral evidence of the official witnesses examined before the trial court. The said Inspector Shri Niranjan Guru had also submitted the report of the arrest of the accused and the seizure of the contraband substance to his superior officer i.e. Superintendent (Preventive) Office of the Dy.Narcotic Bureau, Kota, as per Ex.P. 11, in compliance of Section 57 of the said Act, and the case having been registered as No. 6/2002, the investigation was handed over to the Inspector Shri Sudhir Yadav, by the Superintendent, Narcotic Bureau, Kota, on the same day. The copy of the said F.I.R. was also forwarded without any delay to the Special Judge, N.D.P.S. Act Cases, Chabbra, as per the endorsement made by the Court on the back side of the document Ex.P.11. Thus the prosecution had duly proved that the said mandatory provisions of the Act were duly complied with by the trapping party and that there was no violation thereof. (17). As regards the issue of forwarding the samples, taken from the said ten packets found from the secret chamber of the jeep to the FSL is concerned, the concerned witnesses have stated in their respective evidence that the two sets of samples i.e. 20 samples, each sample weighing 5 grams were taken from each of the ten packets, and then said 20 sample packets, and the 10 packets containing remaining substance were duly sealed on the spot. The said version of the witnesses also finds support from the Panchnama Ex.3 and the sample of seal Ex.P.4. The jeep in question was also seized as per the Panchnama Ex.8.The P.W.3 Sudhir Yadav, who was appointed as the I.O. had categorically stated in his evidence that he had received 20 sample packets in sealed condition along with other sealed packets and had deposited the same in the Malkhana, and that at the relevant time Shri C.L.Verma was the Malkhana Incharge. P.W. 2 Ishwar Nirmal Das, the constable had stated in his evidence that the ten packets of samples in sealed condition were received by him from the Malkhana Incharge Shri C.L. Verma and he had deposited the same in sealed condition before the Govt. Opium and Alkaloid Works, Neemuch (M.P.) as per receipt Ex.P. 10. In the said receipt, it has been stated that the ten packets in sealed condition were received in respect of the case of the accused Shobha Ram and Mohd. Ibrahim Mansoori. Now, on the Chemical examination carried out at the said Govt. Works, the Assistant Chemical Examiner, had opined that each of the ten samples was found by qualitative and quantitative analysis to be ‘Morphine’ within the meaning of the N.D.P.S. Act 1985, (Ex.P. 42). From the said evidence it clearly transpires that the samples taken and sealed at the scene of offence had reached in sealed condition to the said Govt. Opium Alkaloid Works , Neemuch(M.P.) and that the substance contained in the said samples was ‘Morphine’ as per the report Ex.P. 42. (18). The main contention raised by the learned counsel for the appellant was with regard to the variation in the weight of samples mentioned in the said report Ex.P. 42, in as much as in some of the sample packets, the weight of the substance was found little less than five grams i.e. about 4.71 grams, 4.85 grams, 4.79 grams etc. There is no substance in the said contention. It is needless to say that when the sample packets were found to be in sealed condition, negligible difference in the weight of the sample packets mentioned in the Panchnama and that of in the report would not be fatal to the case of the prosecution, more particularly when there is no other infirmity found in the evidence of the prosecution. In the case of Dehal Singh(supra), it has been observed interalia that small difference in the weight of the substance taken for sample mentioned in the Panchnama and the weight found at the F.S.L., looses its significance in view of the fact that the weighing scales used at difference places would be different. This Court in the case of Sadhu Ram(supra), had also upheld the conviction holding that negligible difference in the weight of samples would not be fatal to the case of prosecution. (19). As per the said report Ex.P. 42, percentage of ‘Morphine’ found in each sample was more than thirty eight percentage. Therefore, as rightly held by the trial court, the suspected substance found in ten packets from the possession of the appellant-accused was the ‘prepared opium’ as per the definition contained in the Act.

(20). In that view of the matter, the Court does not find any illegality or infirmity, much less perversity in the judgment of conviction and order of sentence passed by the trial court, which would call for interference of this Court. The appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.

(Bela M. Trivedi)J.

37. Offences to be cognizable and non-bailable.

1[37. Offences to be cognizable and non-bailable

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), –

(a) Every offence punishable under this Act shall he cognizable;

(b) No person accused of an 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.]

—————————————————————————————————————————————-

Narcotics Control Bureau vs Dilip Pralhad Namade on 18 March, 2004
Author: J Arijit Pasayat
Bench: D Raju, A Pasayat

CASE NO.:

Appeal (crl.) 349 of 2004

PETITIONER:

Narcotics Control Bureau

RESPONDENT:

Dilip Pralhad Namade

DATE OF JUDGMENT: 18/03/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

JUDGMENT

O R D E R

(Arising out of SLP (Crl.) No. 2783/2003)

ARIJIT PASAYAT,J

Leave granted.

Grant of bail to the respondent by a learned Single judge of Bombay High Court is questioned by the Narcotics Control Bureau (in short the “NCB”). The respondent is facing trial for alleged commission of offences punishable under Section 29 read with Sections 8(c),22,28 and 30 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the ‘NDPS Act’). The allegations against the respondent Dilip Pralhad Namade (hereinafter referred to as `the accused’) were that he was involved in the manufacturing of mandrax tablets and he is the person who has supplied the technical know how of preparation for the tablets.

Officers of the appellant- Bureau , Mumbai Zonal Unit, got information that one Suresh Faturmal Jain was travelling in a red Ford Escort car and was carrying 20,000 Mandrax Tablets to be delivered to two persons at a particular place. Acting on the information, two officers of the Bureau went to the vicinity of the place where the tablets were to be delivered. Two persons were called to act as Panchas. They found that there were three persons travelling in the car. The officers searched the car and arrested all the three occupants. One of them were Suresh Futormal Jain and others were Karakutti Karan Anthony and Rajeev Shirook. From the bags, 20 Kgm. of Mandrax Tablets were recovered. Statement of all the three accused persons were recorded and on the basis of certain facts disclosed in the statements, a search was taken up by the Officers and 650 Kgs. of chemicals used for manufacturing Mandrax tablets were recovered. During the course of investigation, other persons were also searched and enquiries were made. The case against the respondent-accused was that he was instrumental in helping the other accused persons in setting up a plant and machinery for manufacture of Methaqualone Powder and Mandrax Tablets. With the help of others, the respondent alongwith accused No. 10 manufactured eleven lakhs Mandrax tablets on three occasions for other accused persons. He had also visited the factory of accused No. 13 for the purpose of procurement of the Mandrax Tableting Machineries etc.

A bail application was filed by the respondent- accused, which was rejected on 27.8.2001 by the Special judge Subsequently an application was filed on 21.6.2002 before the Special Judge for direction to the prosecuting agency to supply copies of certain documents purported to have been recovered from his house. The Special Judge directed the prosecution to furnish the copies. Subsequently an application for bail was filed by the respondent-accused before the Bombay High Court on 27.8.2002. By the Impugned order dated 19.12.2002 the High Court granted bail to the respondent-accused primarily on the term that the direction given by the Special Judge for supply of copies of documents was not complied with, though the bail application was opposed.

In support of the appeal Mr. L. Nageshwara Rao, learned Additional Solicitor General submitted that while granting bail the provisions of Section 37 of the Act were not kept in view. There is a prohibition on the grant of bail in terms of Section 37 of the NDPS Act and only under the specified conditions bail can be granted. Non-supply of documents pursuant to the court’s order is not one of the grounds on which bail can be granted. In fact the High Court recorded a wrong conclusion by observing that the order was not complied with and there was also no challenge to the order directing supply of documents. As a matter of fact claiming privilege the Bureau had filed an application before the Special Judge clearly indicating that it would not be in the interest of justice to grant copies, and prayer was made to the Court that instead of granting copies the accused, if he so desires, could inspect the documents in presence of officials of the Bureau. That offer was not accepted by the accused respondent. The Bureau wanted to avoid the possibility of any tampering with the original documents and also further dissemination of the formula in public and that is why inspection, as indicated above was offered. The accused having not chosen to inspect the documents could not have made a grievance about non-supply of copies or alleged non-compliance of the directions of the learned Special Judge.

Per contra Mr. E.C. Agrarwala, learned counsel appearing for the respondent-accused submitted that stand taken by the appellant-Bureau is nothing but a camouflage to hide its inaction and non-compliance with the orders of the Special Judge. There was a specific direction for supply of copies and there is no ground indicated to substantiate the claim of privilege. In any event, the order granting bail was passed on 19.12.2002 and this Court was approached in May 2003 and in the meantime nearly 1= years have elapsed without any allegations of the respondent-accused having misused his liberties. He submitted that in two cases i.e. SLP (Crl.) No. 1136/2002

( N.C.B. vs. Amar Pal Singh ) and SLP(Crl.) No. 434/2003, ( N.C.B. vs. Smt. Hamida Sayyed Ali Shaikh) this Court did not interfere with order granting bail on the sole ground of long passage of time. Therefore, it is submitted that liberty granted to the respondent-accused should not be withdrawn.

It would be appropriate to take note of few provisions which have relevance i.e. Section 2(xxiii) defining “psychotropic substances”, and Section 37 dealing with bail. They read as follows:

Section 2(xxiii)

“psychotropic substance” means any

substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.

Section 37:

Offences to be cognizable and non-bailable – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), –

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence

punishable for a term of imprisonment of five years or more under this Act shall be

released on bail or on his own bond unless –

(i) the Public Prosecutor has been given an opportunity to oppose the application

for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for

believing that he is not guilty of such offence and that he is not likely to

commit any offence while on bail.

(2) The limitation on granting of bail

specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”

As observed by this Court in Union of India v. Thamisharasi & Ors. (JT 1995 (4) SC 253) clause (b) of sub- section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused-respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessitates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when, at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37.

The circumstances under which the bail can be granted in the background of Section 37 have been indicated above.

The case is not one to which the exceptions provided in Section 37 can be applied.

Coming to the plea reqarding long passage of time it is to be noted that the two orders passed by this Court in SLP (crl.) Nos. 1136/2002 and 434/2003 referred to above do not lay down any principle of law of invariable nature to be universally applied. Furthermore, disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order passed in any SLP at threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. (see Union of India and others vs. Jaipal Singh2003(7) Supreme 676). This court cannot and does not reverse or modify the decree or order appealed against while deciding the petition for special leave to appeal and that too when the SLP was being dismissed. What is impugned before this Court can be reversed or modified only after granting leave and then assuming appellate jurisdiction over it. If the order impugned before this Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage (see Kunhayammed and others vs. State of Kerala and another (2000)6 SCC 359) and Sri Ramnik Vallabhdas Madvane and Ors. vs. Taraben Pravinlal Madhvani 2003 (8) Supreme 208). The inevitable conclusion is that the judgment has no legal sanction. We, therefore, set aside the impugned judgment of the High Court granting bail to the respondent. The respondent-accused is directed to surrender to custody forthwith.

Appeal is allowed.

section 29 of NDPS Act.

Punishment for abetment and criminal conspiracy.

(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence.

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which-

(a) Would constitute an offence if committed within India; or

(b) Under the laws of such place, is an offence relating to narcotic drugs or psychotropic substance having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.

21. Punishment for contravention in relation to manufactured drugs and preparations.

1[21. Punishment for contravention in relation to manufactured drugs and preparations

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,-

(a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;

(b) Where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(c) Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]

Section 50 of NDPS Act

. Conditions under which search of persons shall be conducted.

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974)

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]

 

“while dealing with Section 50 in State of Himachal Pradesh v. Pirthi Chand and Anr. (1996 (2) SCC 37), another two-Judge Bench of this Court referred to and relied upon the judgment in Pooran Mals case (supra) and held that the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The Court further observed that even if search was found to be in violation of law, what weight should be given to the evidence collected was a question to be gone into during trial. With the above observations, the Bench recorded a finding that the Sessions Judge was not justified in discharging the accused after filing of the charge sheet holding that mandatory requirements of Section 50 had not been complied with. It, however, appears that the Courts attention was not drawn to Ali Mustaffa (supra). The view expressed in Pirthi Chand (supra ) was reiterated in State of Punjab v. Labh Singh (1996 (5) SCC 520) wherein this Court considered the case of Balbir Singh (supra), besides other cases and held as follows :- In State of H.P. v. Pirthi Chand, this Court further elaborately considered the effect of the violation of Section 50 and held that any evidence recorded and recovered in violation of the search and the contraband seized in violation of the mandatory requirement does not ipso facto invalidate the trial.

From the above resume, it would thus appear that though a two-Judge Bench of this Court considered the earlier judgments of this Court, it held in the case of Pirthi Chand, [ and affirmed in the case of Labh Singh (supra)], that breach of Section 50 does not affect the trial while in the case of Ali Mustaffa (supra), another Bench categorically laid down that breach of Section 50 makes the conviction illegal. In view of the divergent opinions so expressed, we deem it fit to refer these matters to a larger Bench.”

 

The State Of Punjab vs Baldev Singh on 21 July, 1999

Author: D A.S.Anand

Bench: S.B.Majmudar, S V Manohar, K Venktaswami, V.N.Khare

PETITIONER:

THE STATE OF PUNJAB

Vs.

RESPONDENT:

BALDEV SINGH

DATE OF JUDGMENT: 21/07/1999

BENCH:

S.B.Majmudar, Sujata V. Manohar, K. Venktaswami, V.N.Khare

JUDGMENT:

DR. A.S.ANAND, CJI :

On 15.7.1997 when this batch of appeals/special leave petitions was placed before a two-Judge Bench, it was noticed that there was divergence of opinion between different Benches of this Court with regard to the ambit and scope of Section 50 of Narcotic Drugs and – Psychotropic Substances Act, 1985 (hereinafter NDPS Act) and in particular with regard to the admissibility of the evidence collected by an investigating officer during search and seizure conducted in violation of the provisions of Section 50 of NDPS Act. In the cases of State of Punjab v. Balbir Singh, 1994 (3) SCC 299, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994 (6) SCC 569, Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, 1995 (3) SCC 610 and a number of other cases, it was laid down that failure to observe the safeguards, while conducting search and seizure, as provided by Section 50 would render the conviction and sentence of an accused illegal. In Ali Mustaffas case (supra), the judgment in Pooran Mal v. The Director of Inspection (Investigation), New Delhi & Ors., 1974 (1) SCC 345, was also considered and it was opined that the judgment in Pooran Mals case could not be interpreted to have laid down that a contraband seized as a result of illegal search or seizure could by itself be treated as evidence of possession of the contraband to fasten liability, arising out of unlawful possession of the contraband, on the person from whom the alleged contraband had been seized during an illegal search conducted in violation of the provisions of Section 50 of NDPS Act. However, in State of Himachal Pradesh v. Pirthi Chand and Anr., 1996 (2) SCC 37, and State of Punjab v. Labh Singh, 1996 (5) SCC 520, relying upon a judgment of this Court in Pooran Mals case (supra), a discordant note was stuck and it was held that evidence collected in a search conducted in violation of Section 50 of NDPS Act did not become inadmissible in evidence under the Evidence Act The two-Judge Bench, therefore, on 15.7.1997, by the following order, referred the batch of cases to a larger bench : One of the questions that has been raised in these appeals/special leave petitions is whether compliance with Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 is mandatory and, if so, what is the effect of the breach thereof. This question has had been engaging the attention of this Court and answered in a number of cases. In State of Punjab v. Balbir Singh (1994 (3) SCC 299), a two-Judge Bench of this Court held that the above section is mandatory and it is obligatory on the part of the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. It was further held that non-compliance with the above section would affect the prosecution case and vitiate the trial. This Judgment was affirmed by a three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat (1995 (3) SCC 610). In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala (1994 (6) SCC 569) a submission was made on behalf of the State of Kerala to reconsider the judgment in Balbir Singhs case (supra) keeping in view the judgment of this Court in Puran Mal v. Director of Inspection (1974 (1) SCC 345). It was contended that even if the search and seizure of the contraband was held to be illegal and contrary to the provisions of Section 50, it would not affect the conviction because the seized articles could be used as evidence of unlawful possession of the contraband. In repelling the contention, the Court observed : The judgment in Pooran Mal case only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against the party under the Income Tax Act. The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act.

In view of the law laid down in Balbir Singh case we hold that there has been violation of the provisions of Section 50 of the NDPS Act and consequently the conviction of the appellant cannot be sustained. (Emphasis supplied)

It, however, appears that while dealing with Section 50 in State of Himachal Pradesh v. Pirthi Chand and Anr. (1996 (2) SCC 37), another two-Judge Bench of this Court referred to and relied upon the judgment in Pooran Mals case (supra) and held that the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The Court further observed that even if search was found to be in violation of law, what weight should be given to the evidence collected was a question to be gone into during trial. With the above observations, the Bench recorded a finding that the Sessions Judge was not justified in discharging the accused after filing of the charge sheet holding that mandatory requirements of Section 50 had not been complied with. It, however, appears that the Courts attention was not drawn to Ali Mustaffa (supra). The view expressed in Pirthi Chand (supra ) was reiterated in State of Punjab v. Labh Singh (1996 (5) SCC 520) wherein this Court considered the case of Balbir Singh (supra), besides other cases and held as follows :- In State of H.P. v. Pirthi Chand, this Court further elaborately considered the effect of the violation of Section 50 and held that any evidence recorded and recovered in violation of the search and the contraband seized in violation of the mandatory requirement does not ipso facto invalidate the trial.

From the above resume, it would thus appear that though a two-Judge Bench of this Court considered the earlier judgments of this Court, it held in the case of Pirthi Chand, [ and affirmed in the case of Labh Singh (supra)], that breach of Section 50 does not affect the trial while in the case of Ali Mustaffa (supra), another Bench categorically laid down that breach of Section 50 makes the conviction illegal. In view of the divergent opinions so expressed, we deem it fit to refer these matters to a larger Bench.

Let the records be placed before the Chief Justice for necessary orders.

The batch of cases was thereafter listed before a three-Judge Bench. However, when the three-Judge Bench took up the matter, it was of the opinion that the judgment of a three-Judge Bench inSaiyad Mohd. Saiyad Umar Saiyad and ors. v. State of Gujarat, (supra), required reconsideration and, therefore, the cases were required to be considered still by a larger bench and on 19.11.1997, the three-Judge Bench made the following order : 1. In this bunch of appeals/special leave petitions the following questions of law (besides other questions of law and facts) fall for determination:

(i) Is it the mandatory requirement of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (Act for short) that when an officer, duly authorised under Section 42 of the Act, is about to search a person he must inform him of his right under sub- section (1) thereof of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search?

(ii) If any search is made without informing the person of his such right would the search be illegal even if he does not of his own exercise his right under Section 50(1)? And

(iii) Whether a trial held in respect of any recovery of contraband articles pursuant to such a search would be void ab initio?

2. The above questions came up for consideration before a two-Judge Bench of this Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299, and it answered them as under: (SCC p.322, para 25) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. (Emphasis supplied)

3. In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala (1994) 6 SCC 569, a submission was made on behalf of the State of Kerala to reconsider the judgment in Balbir Singhs case (supra) in view of the judgment of the Constitution Bench of this Court in Pooran Mal v. The Director of Inspection (Investigation), New Delhi & others, (1974) 1 SCC 345 wherein it was observed that where the test of admissibility of evidence lay on relevancy (as in India and England), unless there was an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure was not liable to be shut out. Relying upon the above observation it was contended that even if the search and seizure of the contraband were held to be illegal and contrary to the provisions of Section 50 it would not affect the conviction because the seized articles could be used as evidence of unlawful possession. In repelling this contention the two-Judge Bench of this Court observed as under:

The judgment in Pooran Mals case (supra) only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against the party under the Income Tax Act. The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten that liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act.

In view of the law laid down in Balbir Singhs case (supra) we hold that there has been violation of the provisions of Section 50 of NDPS Act and consequently the conviction of the appellant cannot be sustained.

4. The judgment in Balbir Singhs case (supra) was affirmed by a three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, (1995) 3 SCC 610.

5. A discordant note was however struck by a two-Judge Bench of this Court in State of H.P. v. Pirthi Chand & another, (1996) 2 SCC 37, relying upon the judgment of this Court in Pooran Mals case (supra), when it held that the evidence collected in a search in violation of law did not become inadmissible in evidence under the Evidence Act. The Court further observed that even if the search was found to be in violation of law, what weight should be given to the evidence collected was a question to be gone into during trial. The same view was reiterated by a two-Judge Bench in State of Punjab v. Labh Singh, (1996) 5 SCC 520, with the observation that any evidence recorded and recovered in violation of the search and the contraband seized in violation of the mandatory requirement did not ipso facto invalidate the trial. (Emphasis supplied) 6. In our considered opinion the judgment of this Court in Saiyad Mohd. Saiyad Umar Saiyads case (supra) (which was delivered by a three-Judge Bench) requires re-consideration and the questions formulated above answered by a larger Bench, not only in view of the subsequent judgments of this Court (delivered by a two- Judge Bench) referred to above, but also in view of the Constitution Bench judgment in Pooran Mals case (supra).

7. Let these matters be, therefore, placed before the Honble Chief Justice for necessary orders.

That is how this batch of Criminal Appeals/Special Leave Petitions has been placed before this Constitution Bench. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice. The United Nations Conventions Against Illicit Trafficking In Narcotic Drugs & Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this convention. Prior to the passing of the NDPS Act, 1985 control over Narcotic drugs was being generally exercised through certain Central enactments though some of the States also had enacted certain statutes with a view to deal with illicit traffic in drugs. The Opium Act, 1857 related mainly to preventing illicit cultivation of poppy, regulating cultivation of poppy and manufacture of opium. Opium Act, 1878, supplemented Opium Act, 1875 and made possession, transportation, import, export, sale, etc. of opium also an offence. The Dangerous Drug Act, 1930, was enacted with a view to suppress traffic in contraband and abuse of dangerous drugs, particularly derived from opium, Indian hemp and coca leaf etc. The Act prescribed maximum punishment of imprisonment for three years with or without fine, insofar as first offence is concerned and for the second or the subsequent offence the punishment could go upto four years RI. These Acts, however, failed to control illicit drug traffic and drug abuse on the other hand exhibited an upward trend. New drugs of addiction known as Psychotropic Substances also appeared on the scene posing serious problems. It was noticed that there was an absence of comprehensive law to enable effective control over psychotropic substances in the manner envisaged by the International Convention of Psychotropic Substances, 1971. The need for the enactment of some comprehensive legislation on Narcotics Drug and Psychotropic Substances was, therefore, felt. The Parliament with a view to meet a social challenge of great dimensions, enacted the NDPS Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalties particularly for trafficking and various other offences. The NDPS Act, 1985 provides stringent penalties for various offences. Enhanced penalties are prescribed for second and subsequent offences. The NDPS, Act 1985 was amended in 1988 w.e.f. 29th May, 1989. Minimum punishment of 10 years imprisonment which may extend upto 20 years and a minimum fine of Rs.1 lakh which may extend upto Rs.2 lakh have been provided for most of the offences under the NDPS Act, 1985. For second and subsequent offences, minimum punishment of imprisonment is 15 years which may extend to 30 years while minimum fine is Rs.1.5 lakh which may extend to Rs.3 lakhs. Section 31(a) of the Act, which was inserted by the Amendment Act of 1988, has even provided that for certain offences, after previous convictions, death penalty shall be imposed, without leaving any discretion in the Court to award imprisonment for life in appropriate cases. Another amendment of considerable importance introduced by the Amendment Act, 1988 was that all the offences under the Act were made triable by a special court. Section 36 of the Act provides for constitution of special courts manned by a person who is a Sessions Judge or an Additional Sessions Judge. Appeal from the orders of the special courts lie to the High Court. Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail. However, despite the stringent provisions of the NDPS Act, 1985 as amended in 1988 drug business is booming; addicts are rapidly rising; crime with its role to narcotics is galloping and drug trafficking network is ever growing. While interpreting various provisions of the statute, the object of the legislation has to be kept in view but at the same time the interpretation has to be reasonable and fair. With a view to answer the questions framed by the referring Bench and resolve the divergence of opinion expressed by different benches particularly on the applicability of the law laid down in Pooran Mals case (supra) to the admissibility of evidence collected as a result of search conducted in violation of the provisions of Section 50 of the NDPS Act, to offences under the NDPS Act, it would be appropriate to first notice some of the relevant statutory provisions. For the purpose of this batch of cases we are primarily concerned with Chapter V in general and Sections 35, 41, 42, 43, 50, 51, 54 and 57 of the Act in particular. Section 35 lays down :

35. Presumption of culpable mental state. (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation In this section culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. Section 41 reads as follows:-

41. Power to issue warrant and authorisation.- (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe 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 of the commission of such offence is kept or concealed.

(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf 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 as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub- section (2) shall have all the powers of an officer acting under section 42.

Section 42 provides:-

42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, 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 of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be 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 any offence punishable under Chapter IV relating to such drug or substance; and

(d) 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 relating to such drug or substance:

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.

43. 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 50 of the N.D.P.S. Act reads as follows :

50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

Section 51 provides :

51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.– The provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.

Section 52 reads thus :

Disposal of persons arrested and articles seized. (1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.

(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

(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.

(4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article.

Section 54 provides :

54. Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of

(a) any narcotic drug or psychotropic substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured.

for the possession of which he fails to account satisfactorily. Section 57 reads as follows:-

57. Report of arrest and seizure.- Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official. Section 132 (13) of the Income Tax Act, 1961 provides :

132. Search and seizure.

xxx xxx xxx

(13) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizure shall apply, so far as may be, to searches and seizure under sub-section (1) or sub-section (1A).

Search and seizure are essential steps in the armoury of an investigator in the investigation of a criminal case. The Code of Criminal Procedure itself recognises the necessity and usefulness of search and seizure during the investigation as is evident from the provisions of Sections 96 to 103 and Section 165 of the Criminal Procedure Code. In M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi and others, [1954] S.C.R. 1077, the challenge to the power of issuing a search warrant under Section 96(1) Cr.P.C. as violative of the fundamental rights was repelled by the Constitution Bench on the ground that the power of search and seizure in any system of jurisprudence is an overriding power of the State for the protection of social security. It was also held that a search by itself is not a restriction on the right to hold and enjoy property, though a seizure may be a restriction on the right of possession and enjoyment of the seized property, but it is only temporary and for the limited purpose of an investigation. The Court opined : A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.

The Court also opined : A search and seizure is, therefore, only a temporary interference with the right to hold the premises searched and the articles seized. Statutory regulation in this behalf is necessary and reasonable restriction cannot per se be considered to be unconstitutional. The damage, if any, caused by such temporary interference if found to be in excess of legal authority is a matter for redress in other proceedings. We are unable to see how any question of violation of article 19(1) (f) is involved in this case in respect of the warrants in question which purport to be under the first alternative of Section 96(1) of the Criminal Procedure Code.

Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of and for search of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Vide sub-Section (2) the power has also been vested in Gazetted Officers of the Department of Central Excise, Narcotics, Customs, Revenue Intelligence or any other Department of the Central Government or of Border Security Force, empowered in that behalf by general or special order of the State Govt. to arrest any person, who he has reason to believe to have committed an offence punishable under Chapter IV or to search any person or conveyance or vessel or building etc. with a view to seize any contraband or document or other article which may furnish evidence of the commission of such an offence, concealed in such building or conveyance or vessel or place. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief.

The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought before such a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Vide Section 51, the provisions of the Code of Criminal Procedure, 1973, shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Thus, the NDPS Act, 1985 after incorporating the broad principles regarding search, seizure and arrest etc. in Sections 41, 42, 43, 49 and 50 has laid down in Section 51 that the provisions of the Code of Criminal Procedure shall apply insofar as they are not inconsistent with the provisions of the NDPS Act. The expression insofar as they are not inconsistent with the provisions of this Act occurring in Section 51 of the NDPS Act is of significance. This expression implies that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under NDPS Act also except to the extent they are inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singhs case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. What is the import of the expression if such person so requires he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ? Learned counsel appearing for the State of Punjab as also the learned counsel appearing for the State of Gujarat argued that it would not be proper to read into the provisions of Section 50, any legislative intent of prescribing a duty on the part of the empowered Officer to inform the suspect that if he so requires, the search would be conducted before a Gazetted Officer or a Magistrate, as the case may be. According to the learned counsel, the view expressed in State of Punjab v. Balbir Singh (supra), laying down that it is obligatory on the part of such an officer to so inform the person to be searched or if such person requires, failure to take him for search before the Gazetted Officer or the Magistrate, would amount to non- compliance with the provisions of Section 50 and would affect the prosecution case and vitiate the trial requires reconsideration. As a matter of fact, the order of the referring bench itself, centers around whether there is any requirement of Section 50, making, it obligatory for the empowered officer, who is about to search a person, to inform him of his right of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search if he so requires. Learned counsel for the parties, however, agree that in case the obligation to inform the suspect of his right to be searched before a Gazetted Officer or a Magistrate is read as a duty cast on the empowered officer, then failure to give information regarding that right to the suspect would be a serious infirmity amounting to denial of a valuable right to an accused and would render his conviction for an offence under the NDPS Act bad and unsustainable. The question as to what is the effect of non-compliance with the provisions of Section 50 on the recovery of the contraband was answered in State of Punjab v. Balbir Singh (supra). The common question which arose for consideration in a batch of appeals filed by the State of Punjab was whether any arrest or search of a person or search of a place conducted without conforming to the provisions of the NDPS Act would be rendered illegal and consequently vitiate the conviction? The Trial Court in those cases had acquitted the accused on the ground that the arrest, search and seizure were conducted in violation of some of the relevant and mandatory provisions of the NDPS Act. The High Court declined to grant appeal against the order of acquittal. The State of Punjab thereupon filed appeals by special leave in this Court. In some other cases, where the accused had been convicted, they also filed appeals by special leave questioning their conviction and sentence on the ground that their trials were illegal because of non-compliance with the safeguards provided under Section 50 of the NDPS Act. A two-Judge Bench speaking through K. Jayachandra Reddy, J. considered several provisions of the NDPS Act governing arrest, search and seizure and, in particular, the provisions of Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57 of the NDPS Act as well as the provisions of the Code of Criminal Procedure relating to search and seizure effected during investigation of a criminal case. Dealing with Section 50, it was held that in the context in which the right had been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires he shall be searched before a Gazetted Officer or Magistrate and on such request being made by him, to be taken before the Gazetted Officer or Magistrate for further proceedings. The reasoning given in Balbir Singhs case was that to afford an opportunity to the person to be searched if he so requires to be searched before a Gazetted Officer or a Magistrate he must be made aware of that right and that could be done only by the empowered officer by informing him of the existence of that right. The Court went on to hold that failure to inform the person to be searched of that right and if he so requires, failure to take him to the Gazetted Officer or the Magistrate, would mean non-compliance with the provisions of Section 50 which in turn would affect the prosecution case and vitiate the Trial. The following conclusions were arrived at by the two-Judge Bench in State of Punjab v. Balbir Singh (supra) : The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an empowered officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (Emphasis ours)

(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.

A three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat (supra), upheld the view taken in Balbir Singhs case (supra) on the point of duty of the empowered officer to inform the suspect about his right to be searched before a Gazetted Officer or a Magistrate. It considered the provisions of Section 50 and opined : 8. We are unable to share the High Courts view that in cases under the NDPS Act it is the duty of the court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by Section 50, that he had in fact done so. When the officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty- bound to conclude that the accused had not had the benefit of the protection that Section 50 affords; that, therefore, his possession of articles which are illicit under the NDPS Act is not established; that the precondition for his having satisfactorily accounted for such possession has not been met; and to acquit the accused.” (Emphasis ours)

In State of Himachal Pradesh v. Shri Pirthi Chand & Anr., (supra), the Bench agreed with the view in Balbir Singhs case regarding the duty to inform the suspect of his right as emanating from Section 50 of the NDPS Act. The Court opined : Compliance of the safeguards in Section 50 is mandatory obliging the officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazetted Officer or a Magistrate. The possession of illicit articles has to be satisfactorily established before the court. The officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazetted Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit articles was not established. The presumption under Article 114 Illustration (e) of the Evidence Act, that the official duty was properly performed, therefore, does not apply…

In State of Punjab v. Labh Singh, (supra) again it was reiterated that the accused has been provided with a protection of being informed of his right to be searched in presence of a Gazetted Officer or a Magistrate and failure to give an opportunity to the concerned person to avail of the protection would render the prosecution case unsustainable. In State of Punjab v. Jasbir Singh & others, (1996) 1 SCC 288, it was opined : Having considered the evidence we find it difficult to set aside the order of acquittal recorded by the Additional Sessions Judge. Though the offence involved is of a considerable magnitude of 70 bags containing 34 kgs. Of poppy husk, each without any permit/licence, this Court is constrained to confirm the acquittal for the reasons that the mandatory requirements of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 has not been complied with. Protection given by Section 50 is a valuable right to the offender and compliance thereof intended to be mandatory. In case the police officers had prior knowledge that illegal transport of the contraband is in movement and persons are in unlawful possession and intends to intercept it, conduct search and consequentially to seize the contraband, they are required to inform the offender that he has the right that the search will be conducted in the presence of a gazetted officer or a Magistrate. Thereafter on their agreeing to be searched by the police officers, the search and seizure of the contraband from their unlawful possession would become legal and valid. However, the evidence collected in breach of mandatory requirement does not become inadmissible. It is settled law that evidence collected during investigation in violation of the statutory provisions does not become inadmissible and the trial on the basis thereof does not get vitiated. Each case is to be considered on its own backdrop. (Emphasis added) In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, (supra), two-Judge Bench of this Court, (to which one of us (CJI) was a party) it had been found that the appellant had not been given any choice as to whether he desired to be searched in the presence of a Gazetted Officer or a Magistrate as envisaged under Section 50 of the NDPS Act. The argument raised in that case to the effect that Section 50 of the Act could not be said to have been violated because the appellant did not require to have himself searched before a Gazetted Officer or a Magistrate was rejected following the law laid down in Balbir Singhs case (supra). The Court opined that to enable the concerned person to require that his search be carried out in the presence of a Gazetted Officer or a Magistrate makes, it is obligatory on the part of the empowered officer to inform the concerned person that he has a right to require his search to be conducted in the presence of a Gazetted Officer or a Magistrate. Mohinder Kumar v. State, Panaji, Goa, (1998) 8 SCC 655, a three-Judge Bench (to which one of us, Sujata V. Manohar, J. was a party) once again considered the requirements of Sections 42 and 50 of the Act. In that case the police officer accidentally reached the house while on patrol duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party, he would perhaps not have had any occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion, he went into the house and effected the search, seized the illicit material and caused the arrest. The Court opined that in the facts and circumstances of the case, when the Investigating Officer accidentally stumbled upon the offending articles and himself not being the empowered officer, then on coming to know that the accused persons were in possession of illicit articles, then from that stage onwards he was under an obligation to proceed further in the matter only in accordance with the provisions of the Act. On facts it was found that the Investigating Officer did not record the grounds of his belief at any stage of the investigation, subsequent to his realising that the accused persons were in possession of charas and since he had made no record, he did not forward a copy of the grounds to his superior officer nor did he comply with the provisions of Section 50 of the Act, inasmuch as he did not inform the person to be searched that if he required, his search could be conducted before a Gazetted Officer or a Magistrate, the Bench held that for failure to comply with the provisions of Sections 42 and 50, the accused was entitled to an order of acquittal and consequently the appeal was allowed and the order of conviction and sentence against the accused was set aside. It would, thus, be seen that none of the decisions of the Supreme Court after Balbir Singhs case have departed from that opinion. At least none has been brought to our notice. There is, thus, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad. To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with. The safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of Illicit Drugs and Narcotic Substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in presence of a Gazetted Officer or a Magistrate is a necessary sequence for enabling the concerned person to exercise that right under Section 50 because after Maneka Gandhi v. Union of India, (1978) 1 SCC 248, it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not reasonable, fair and just and when a statute itself provides for a just procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a Gazetted Officer or a Magistrate, would be violative of the reasonable, fair and just procedure and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be fair, just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, if he so requires, would place any premium on ignorance of law. The argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a reasonable, fair and just procedure. Requirement to inform has been read in by this Court in other circumstances also, where the statute did not explicitly provide for such a requirement. While considering the scope of Article 22(5) of the Constitution of India and various other provisions of COFEPOSA Act and the NDPS Act as amended in 1988, a Constitution Bench of this Court inKamelesh Kumar Ishwardas Patel vs. Union of India & Ors., (1995) 4 SCC 51, concluded : Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation. (Emphasis ours)

This Court cannot over-look the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right “that if he requires” to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend creditibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, it was opined : We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hardcore criminals like extremists, terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself.

(Emphasis ours)

In D.K. Basus case (supra), the Court also noticed the response of the Supreme Court of the United States of America to such an argument in Miranda v. Arizona, 384 US 436 : 16 L Ed 2d 694 (1966), wherein that Court had said : The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be right, just and fair (Emphasis supplied)

There is indeed, a need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50, by intimating to the concerned person about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, would cause prejudice to an accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible it cannot be disregarded by the prosecution except at its own peril. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial. The next question which arises for our consideration is whether evidence collected in a search conducted in violation of Section 50, is admissible in evidence? This question arises in the context of the judgment of the Constitution Bench in Pooran Mals case (supra). A submission was made in Ali Mustaffa Abdul Rahman Moosas case (supra) before the Bench on behalf of the State of Kerala to reconsider the judgment in Balbir Singhs case in view of the judgment of this Court in Pooran Mal v. The Director of Inspection (Investigation), New Delhi and others. It was urged in Ali Mustaffa’s case that even if search and seizure of the contraband was held to be illegal having been conducted in violation of the provisions of Section 50, it could not affect the conviction because the recovered articles could still be used as “admissible evidence” under the Evidence Act to establish unlawful possession of the contraband on the concerned person from whom it was recovered during that search. This Court repelled that contention and held that the judgment in Pooran Mals case (supra) could not be read to have laid down that a contraband seized as a result of an illegal search or seizure could still be used as admissible evidence of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. The Bench in Ali Mustaffas case (supra) observed : The last submission of the learned counsel for the respondents is that even if the search and seizure of the contraband are held to be illegal and contrary to the provisions of Section 50 of the NDPS Act, it would still not affect the conviction because the seized articles could be used as evidence of unlawful possession of a contraband. Reliance for this submission is placed on the judgment of this Court in Pooran Mal v. Director of Inspection. We are afraid the submission is misconceived and the reliance placed on the said judgment is misplaced. The judgment in Pooran Mal case only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against the party under the Income Tax Act. The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten that liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act.

However, a later two-Judge Bench in Pirthi Chands case (supra) relying upon Pooran Mals case (supra), observed : The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in Panchnama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected, i.e., Panchnama etc., nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into (Emphasis supplied)

This view was reiterated in Jasbir Singhs case also. It appears that the earlier judgment in Ali Mustaffas case was not brought to the notice of their Lordships in both the above cases. Let us, therefore, first examine the fact situation and the law as laid down in Pooran Mals case and the question of its applicability to cases arising out of offences under the NDPS Act, based only on proof of unlawful possession of an illicit drug or a psychotropic substance on the person of an accused, where the illicit article only was seized during the search conducted in breach of the provisions of Section 50. In Pooran Mals case, the relief claimed by the main appellant in his case was in respect of action taken under Section 132 of the Income Tax Act, 1961 by way of search and seizure of certain premises on the ground that the authorisation for the search as also the search and seizure of the materials were illegal. In that case articles consisting of account books and documents besides some cash, jewelry and other valuables were seized by the Income Tax Authorities purporting to act under the authorisation of a search and seizure issued under Section 132 of the Income Tax Act. The Constitution Bench dealt both with the challenge on constitutional and non-constitutional grounds to the search and seizure. The Court opined that the power of search and seizure in any system of jurisprudence is an overriding power of the State for the protection of social security and that power is necessarily regulated by law. The Court then noticed the safeguards provided in Section 132 of the Act and observed : We are, therefore, to see what are the inbuilt safeguards in Section 132 of the Income-tax Act. In the first place, it must be noted that the power to order search and seizure is vested in the highest officers of the department. Secondly the exercise of this power can only follow a reasonable belief entertained by such officer that any of the three conditions mentioned in Section 132(1)(a), (b) and (c) exists. In this connection it may be further pointed out that under sub-rule (2) of Rule 112, the Director of Inspection or the Commissioner, as the case may be, has to record his reasons before the authorisation is issued to the officers mentioned in sub-section (1). Thirdly, the authorisation for the search cannot be in favour of any officer below the rank of an Income-tax Officer. Fourthly, the authorisation is for specific purposes enumerated in (i) to (v) in sub-section (1) all of which are strictly limited to the object of the search. Fifthly when money, bullion, etc. is seized the Income- tax Officer is to make a summary enquiry with a view to determine how much of what is seized will be retained by him to cover the estimated tax liability and how much will have to be returned forthwith. The object of the enquiry under sub-section (5) is to reduce the inconvenience to the assessee as much as possible so that within a reasonable time what is estimated due to the Government may be retained and what should be returned to the assessee may be immediately returned to him. Even with regard to the books of account and documents, seized, their return is guaranteed after a reasonable time. In the meantime the person from whose custody they are seized is permitted to make copies and take extracts. Sixthly, where money, bullion, etc. is seized, it can also be immediately returned to the person concerned after he makes appropriate provision for the payment of the estimated tax dues under sub-section (5) and lastly, and this is most important, the provisions of the Criminal Procedure Code relating to search and seizure apply, as far as they may be, to all searches and seizures under Section 132. Rule 112 provides for the actual search and seizure being made after observing normal decencies of behaviour. The person in charge of the premises searched is immediately given a copy of the list of articles seized. One copy is forwarded to the authorising officer. Provision for the safe custody of the articles after seizure is also made in Rule 112. In our opinion, the safeguards are adequate to render the provisions of search and seizure as less onerous and restrictive as is possible under the circumstances. The provisions, therefore, relating to search and seizure in Section 132 and Rule 112 cannot be regarded as violative of Article 19(f) and (g).

(Emphasis supplied) Dealing with the effect of search and seizure conducted in breach of the provisions of Section 132 of the Income Tax Act,

the Court opined : In that view, even assuming, as was done by the High Court, that the search and seizure were in contravention of the provisions of Section 132 of the Income-tax Act, still the material seized was liable to be used subject to law before the Income-tax authorities against the person from whose custody it was seized and, therefore, no Writ of Prohibition in restraint of such use could be granted. It must be, therefore, held that the High Court was right in dismissing the two writ petitions. The appeals must also fail and are dismissed with costs.

Now, if the Evidence Act, 1872 which is a law consolidating, defining and amending the law of evidence, no provision of which is challenged as violating the Constitution permits relevancy as the only test of admissibility of evidence (See Section 5 of the Act) and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence

It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search. (Emphasis supplied)

On facts, the Court in Pooran Mals case, however, found : On the whole, therefore, we are not inclined to hold that the search and seizure in this writ petition was vitiated by any illegality.

Similarly, in the other writ petitions dealt with in Pooran Mals case, the Court opined : .The search and seizure, therefore, impugned in this illega l. writ petition cannot be regarded as ( Emphasis supplied ) The Judgement in Pooran Mals case (supra) has to be considered in the context in which it was rendered. It is well-settled proposition of law that a decision is an authority for what it decides and not that everything said therein constitutes a precedent. The courts are obliged to employ an intelligent technique in the use of precedents bearing it in mind that a decision of the court takes its colour from the questions involved in the case in which it was rendered. In C.I.T. v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363, this Court rightly pointed out : It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete law declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.

(Emphasis supplied)

The judgment in Pooran Mals case (supra), therefore, cannot be understood to have laid down that an illicit article seized during the search of person, on prior information, conducted in violation of the provisions of Section 50 of the Act can be used as evidence of unlawful possession of the illicit article on the person from whom that contraband had been seized during an illegal search. Apart from the position that in Pooran Mals case, on facts, it was found that the search and seizure conducted in the cases under consideration in that case were not vitiated by any illegality, the import of that judgment, in the present context, can only be to the effect that material seized during search and seizure, conducted in contravention of the provisions of Section 132 of the Income Tax Act cannot be restrained from being used, subject to law, before the Income Tax Authorities in other legal proceedings against the persons, from whose custody that material was seized by issuance of a writ of prohibition. It was not the seized material, in Pooran Mals case, which by itself could attract any penal action against the assessee. What is implicit from the judgment in Pooran Mals case is that the seized material could be used in other legal proceedings against an assessee, before the Income Tax authorities under the Income Tax Act, dealing with escaped income. It is, therefore, not possible to hold that the judgment in Pooran Mals case can be said to have laid down that the recovered illicit article can be used as proof of unlawful possession of the contraband seized from the suspect as a result of illegal search and seizure. If Pooran Mals judgment is read in the manner in which it has been construed in The State of Himachal Pradesh v. Pirthi Chand and Anr. (though that issue did not strictly speaking arise for consideration in that case), then there would remain no distinction between recovery of illicit drugs etc. seized during a search conducted “after” following the provisions of Section 50 of the NDPS Act and a seizure made during a search conducted “in breach of” the provision of Section 50 of the NDPS Act. Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by a conduct of which prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on the record it is found by the court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded. In R. vs. Collins : 1987 (1) SCR 265 the Supreme Court of Canada speaking through Lamer, J. (as His Lordship, Chief Justice of the Supreme Court of Canada then was) opined that the use of evidence collected in violation of the Charter rights of an accused would render a trial unfair and the evidence inadmissible. In the words of the Supreme Court of Canada: The situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial. (Emphasis ours)

The opinion in Collins case has been relied upon by the majority of the Supreme Court of Canada in R. v. Stillman, [1997] 1 R.C.S. 607 also. The question of admissibility of evidence, which may be relevant to the question in issue, has thus to be decided in the context and the manner in which the evidence was collected and is sought to be used. In view of the provisions of Chapter IV of NDPS Act, mere unlawful possession of a contraband amounts to an offence and is punishable with rigorous imprisonment for terms which shall not be less than 10 years but can extend to 20 years or 30 years in addition to a fine which shall not be less than one lakh of rupees but which may extend to two lakhs or three lakhs of rupees. On a charge of possession of a dangerous drug or a psychotropic substance, if it is established that the accused had the contraband in his possession without authority, he is liable to be punished. “Unlawful possession” of the contraband is the sine qua non for recording conviction under the NDPS Act and the most important ingredient of an offence under the NDPS Act. Explaining the concept of possession, in Bocking v. Roberts, (1973) 3 All E.R. 962, Lord Widgery, C.J. observed : In my judgment it is quite clear that when dealing with a charge of possession of a dangerous drug without authority, the ordinary maxim of de minimis is not to be applied, in other words if it is clearly established that the accused had a dangerous drug in his possession without authority, it is no answer to him to say : oh, but the quantity of the drug which I possessed was so small that the law should take no account of it. The doctrine of de minimis as such in my judgment does not apply but, on the other hand, since the accused is possessing a dangerous drug, it is quite clear that the prosecution have to prove that there was some drug in the possession of the accused to justify the charge ( Emphasis ours )

In R. v. Young, (1984) 2 All E.R. 164, it was held that if an accused being in possession of the prohibited substance on seeing the police party swallows the same to avoid detection, he can be convicted for possession of the prohibited substance and not for consumption thereof. Similarly, in Louis Beaver v. Her Majesty The Queen, [1957] S.C.R. 531, the Supreme Court of Canada while dealing with a case relating to an offence of possession of forbidden narcotic substance held that the element of knowledge formed a part of the ingredient of possession, where mere possession of the forbidden substance amounts to an offence. A Constitution Bench of this Court in Sanjay Dutt v. The State through C.B.I., Bombay (II), (1994) 5 SCC 410, while dealing with Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), which reads : Section 5 Possession of certain unauthorised arms, etc., in specified areas. Where any person is in possession of any arms and ammunition specified in Columns 2 and 3 of Category I or Category III (a) of Schedule I to the Arms Rules, 1962, or bombs, dynamite or other explosive substances unauthorisedly in a notified area, he shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

spelt out the ingredients of the offence created by Section 5 of TADA and opined : The position which emerges is this. For constituting the offence made punishable under Section 5 of the TADA Act, the prosecution has to prove the aforesaid three ingredients. Once the prosecution has proved unauthorised conscious possession of any of the specified arms and ammunition etc. in a notified area by the accused, the conviction would follow on the strength of the presumption unless the accused proves the non-existence of a fact essential to constitute any of the ingredients of the offence. Undoubtedly, the accused can set up a defence of non-existence of a fact which is an ingredient of the offence to be proved by the prosecution.

(Emphasis ours)

The Constitution Bench in Sanjay Dutt’s case, thus clearly held that once the prosecution has proved unauthorised conscious possession of any of the specified arms and ammunition etc. in a notified area by the accused, the offence is complete and the conviction must follow on the strength of the statutory presumption, unless the accused proves the non-existence of a fact essential to constitute any of the ingredient of that offence. Indeed, the presumption, even though statutory in nature, was held to be rebuttable. Thus, even if, it be assumed for the sake of argument that all the material seized during an illegal search, may be admissible as relevant evidence in other proceedings, the illicit drug or psychotropic substance seized in an illegal search cannot by itself be used as proof of unlawful conscious possession of the contraband by the accused. An illegal search cannot also entitle the prosecution to raise a presumption under Section 54 of the Act because presumption, is an inference of fact drawn from the facts which are known as proved. A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. We, therefore, hold that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case. Thus, considered we are of the opinion that the judgment in Ali Mustaffas case correctly interprets and distinguishes the judgment in Pooran Mals case and the broad observations made in Pirthi Chands case and Jasbir Singhs case are not in tune with the correct exposition of law, as laid down in Pooran Mal’s case. On the basis of the reasoning and discussion above, the following conclusions arise : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- sho rt a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal’s case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa’s case correctly interprets and distinguishes the judgment in Pooran Mal’s case and the broad observations made in Pirthi Chand’s case and Jasbir Singh’s case are not in tune with the correct exposition of law as laid down in Pooran Mal’s case. The above conclusions are not a summary of our judgment and have to be read and considered in the light of the entire discussion contained in the earlier part.

We, accordingly, answer the reference in the manner aforesaid.

Let the Criminal Appeals and Special Leave Petitions be now placed for disposal before an appropriate Bench.

 

 

 

Section 66 of NDPS Act,

. Presumption as to document in certain cases.

Where any document-

(i) Is produced or furnished by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or

(ii) Has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed by the Central Government) in the course of investigation of any offence under this Act alleged to have been committed by a person,

And such document is tendered in any prosecution under this Act in evidence against him, or against him and any other person who is tried jointly with him, the court shall-

(a) Presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by or to be in the handwriting of any particular person, is in that person’s handwriting; and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;

(b) Admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence;

(c) In a case falling under clause (i) also presume, unless the contrary is proved, the truth of the contents of such document.

 

“the appellant was found to possess 6 ampoules of the same psychotropic substance. This Court allowed the appeal preferred by the accused giving him the benefit of Rule 66 of the NDPS Rules which permitted the appellant to keep in his possession for his personal medicinal use the psychotropic substance upto 100 dosage units at a time.”

 

 

Sajan Abraham vs State Of Kerala on 26 February, 2004

Author: B Singh

Bench: N S Hegde, B Singh

CASE NO.:

Appeal (crl.) 1022 of 1997

PETITIONER:

Sajan Abraham

RESPONDENT:

State of Kerala

DATE OF JUDGMENT: 26/02/2004

BENCH:

N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT:

J U D G M E N T

B.P. Singh, J.

The appellant herein was charged of having committed the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’) and was put up for trial before the Ist Additional Sessions Court, Ernakulam. The case of the prosecution was that on 10th October, 1993 at about 7.45 p.m. he was found in possession of 25 ampoules of manufactured drug, namely  Buprenorphine Hydrocholride (Tidigesic) alongwith three syringes when he was apprehended on the road near Blue Tronics Junction, Palluruthy. The learned Additional Sessions Judge by his judgment and order dated 5th March, 1994 acquitted the appellant of the charge levelled against him. On appeal by the State being Criminal Appeal No. 533 of 1994 the acquittal of the appellant was set aside and the appeal preferred by the State was allowed. The appellant was found guilty of the offence punishable under Section 21 of the NDPS Act and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of rupees one lakh, in default to undergo simple imprisonment for one year.

The appellant preferred an appeal before this Court being Criminal Appeal No. 1022 of 1997 but the same was dismissed by this Court by judgment and order dated 7th August, 2001. The appellant then filed a review petition being Review Petition (Crl.) No.1236 of 2001 which was allowed by this Court and the appeal restored to its original number. The appeal has now been placed before us for disposal.

While allowing the review petition this Court observed that the appellant should have taken up a plea in the light of the decision of this Court in Hussain vs. State of Kerala : (2000) 8 SCC 139 in which the same article Buprenorphine Hydrocholride (Tidigesic) was found to be a psychotropic substance and the quantity which was found in possession of the accused was within the prescribed limit, being a small quantity. Consequently benefit of the same was granted to the accused in that case and he was acquitted. This Court felt, while allowing the review petition, that the appellant should be permitted to take up that contention in this case in order to prevent a miscarriage of justice. This Court noticed that the total quantity involved is 25 ampoules of Buprenorphine Hydrocholride (Titidigesic) of 2 ml. each. Counsel for the State of Kerala submitted that the limit of small quantity as per the Notification is 1 gm. Thus the total quantity seized from the appellant would fall within the limit of small quantity used for medicinal purposes. The appellant was permitted to file a petition seeking permission to raise additional grounds in the appeal.

An application has been filed by the appellant for permission to urge additional grounds in his appeal. We allow the said application.

It was not disputed before us by the learned counsel appearing on behalf of the State that the total quantity seized from the appellant would fall within the limit prescribed under Section 27 of small quantity to be used for medicinal purpose, namely  1 gm. It is also not contended that the quantity seized from the appellant was in excess of the quantity prescribed under Rule 66.

Section 21 of the NDPS Act, as it stood at the relevant time provided as follows :-

“21. Punishment for contravention in relation to manufactured drugs and preparations.  Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder manufactures, possesses, sells, purchases, transports, imports inter State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees ;

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

It is thus apparent that what is made punishable under Section 21 is, – possession, sale, purchase etc. of the drugs and preparations mentioned therein in contravention of any provision of the Act or any rule or order made or condition of licence granted thereunder. Obviously, therefore, if any rule permits a person to possess any psychotropic substance within the limits specified under the rule and subject to such conditions as the rule may prescribes, such a person cannot be held guilty of the offence under Section 21 of the Act if it is shown that his possession is not in contravention of such rule.

Rule 66 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as ‘the NDPS Rules’) provides as follows :-

“66. Possession, etc. of psychotropic substances.  (1) No person shall possess any psychotropic substance for any of the purpose covered by the 1945 Rules, unless he is lawfully authorized to possess such substance for any of the said purposes under these Rules.

(2) Notwithstanding anything contained in sub-rule (1), any research institution, or a hospital or dispensary maintained or supported by Government or local body or by charity or voluntary subscription, which is not authorized to possess any psychotropic substance under the 1945 Rules, or any person who is not so authorized under the 1945 Rules, may possess a reasonable quantity of such substance as may be necessary for their genuine scientific requirements or genuine medical requirements, or both for such period as is deemed necessary by the said research institution or, as the case may be, the said hospital or dispensary or person :

Provided that where such psychotropic

substance is in possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred dosage units at a time.

(3) The research institution, hospital and dispensary referred to in sub-rule (2) shall maintain proper accounts and records in relation to the purchase and consumption of the psychotropic substance in their possession.”

Sub-rule (2) therefore permits a person to keep in his possession for his personal medicinal use the psychotropic substance upto one hundred dosage units at a time.

In the instant case there is evidence on record which indicates that the appellant used the said drug and this is obvious from the deposition of the Investigating Officer, PW-3 as well as the deposition of his mother, DW.1. Moreover three syringes were also recovered from the appellant which also is indicative of the fact that the psychotropic substance recovered from him was for his personal consumption and not for trading purposes.

In similar circumstances this Court in Ouseph @ Thankachan vs. State of Kerala (Criminal Appeal No. 1256 of 2001 disposed of on 6th December, 2001) drew such an inference. There also the accused was found to possess 110 ampoules of the same psychotropic substance together with two syringes.

In Hussain vs. State of Kerala (supra) the appellant was found to possess 6 ampoules of the same psychotropic substance. This Court allowed the appeal preferred by the accused giving him the benefit of Rule 66 of the NDPS Rules which permitted the appellant to keep in his possession for his personal medicinal use the psychotropic substance upto 100 dosage units at a time.

Learned counsel for the State submitted that unless the appellant held a permit granted under Rule 66 of the NDPS Rules, he cannot claim benefit under the provisions of that Rule. We find no substance in the argument because having regard to the provisions of Section 9 of the NDPS Act under which the Rules have been framed, the Central Government is empowered by Rules to permit and regulate the matters mentioned therein. Rule 66 itself permits possession of psychotropic substance below a specified quantity and subject to the conditions stated therein. Thus if the possession of psychotropic substance is justified under the said Rule, no separate permit is required to be issued to the person possessing such psychotropic substance because the Rule itself permits possession of such psychotropic substance to the extent mentioned in the Rule and subject to the conditions laid down therein. Thus following the principle laid down in Hussain vs. State of Kerala (supra) and having regard to the provisions of Rule 66 of the NDPS Rules read with Section 21 of the NDPS Act, we are satisfied that the psychotropic substance namely, – Buprenorphine Hydrocholride (Tidigesic) found in possession of the appellant was not in breach of Rule 66 of the NDPS Rules and having regard to the fact that the same was for his personal consumption, no offence under Section 21 of the NDPS Act is made out.

In the result this appeal is allowed and the appellant is acquitted of the charge levelled against him. The appellant is on bail. His bail bonds are discharged.

 

Section 67 of NDPS Act.

 

 Power to call for information, etc.

 

Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act, –

(a) Call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

(b) Require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) Examine any person acquainted with the facts and circumstances of the case.

68. Information as to commission of offences.

No officer acting in exercise of powers vested in him under any provision of this Act or any rule or order made thereunder shall be compelled to say whence he got any information as to the commission of any offence.

 

 

Husen Bhenu Malad vs State Of Gujarat on 26 February, 2003

Equivalent citations: 2003 CriLJ 5070, (2003) 4 GLR 916

Author: A Kapadia

Bench: A Kapadia, H Mehta

JUDGMENT

A.M. Kapadia, J.

1. This appeal which is filed under Section 374 (2) of the Code of Criminal Procedure, 1973 (‘the Code’ for short) read with Section 36B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’ for short) through jail, is directed against a judgment and order dated February 4, 1997 rendered by Special Judge, Kachchh at Bhuj, in Special Case No. 122 of 1994 by which appellants/original accused Nos. 1 to 5 (‘the accused’ for short) have been convicted of the offences under Section 20(b)(ii) read with Section 29 of the NDPS Act and sentenced to undergo R.I. for 15 years and fine of Rs.1 lakh, i.d., S.I. for two years whereas A-1 and A-4 have also been convicted of the offences punishable under Section 23 read with Section 29 of the NDPS Act and sentenced to undergo R.I. for 15 years and fine of Rs. 1 lakh i.d., S.I. for two years. It is also ordered by the learned Special Judge that both the sentences awarded to A-1 and A-4 to run concurrently and all the five accused are given the benefit of set-off.

2. Facts of the case have been detailed in the judgment of the learned Special Judge and, therefore, it is not expedient to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal are that:

2.1. One Yashwantsinh Rupsinh (P.W.1), Officer Commanding, BSF Water Wing, in company of Narpatram, S.I., A.K. Devnath, Head Constable, Engine Driver Mandal, Arjun Singh and other officers, on 20.7.1994, while patrolling creek area of Koteshwar, at about 4.30 P.M., saw a wooden boat having engine, in a suspicious condition. When the boat of B.S.F. was seen by the persons fishing in the wooden boat, they tried to run away with their boat. However, since the BSF personnel had a high-speed boat they reached at the wooden boat within 5/6 minutes. The said wooden boat was stopped at the creek by the BSF officers and the persons who were found in the boat were directed to be alighted from it. In the said boat there were five persons.Upon preliminary inquiry they stated that they were Pakistani citizens and they were doing fishing illegally in the water of Indian territory. In the meanwhile, because of low tide, water level receded and the wooden boat in which they were fishing was kept stationary there. A night halt was done there near the creek and all of them were placed under the surveillance of the guards.

2.2. On the next day, i.e., 21.7.1994, P.W.1 and other BSF officers reached Koteshwar Jetty around 9 A.M. and alighted there from the boat alongwith them. During the inquiry made by P.W.1 with them, he informed them that if they give information regarding smuggling or some illegal activities which may be known to them, they would be released. Thereupon they told that if they were to be released they would show something to the BSF personnel. Thereupon, Husen Malad, A-1 was taken in the BSF Boat with PW 1 and they went in creek area. As per information given by A-1 the boat was taken to Vaniya Vadi creek area where he showed Charas secreted in mud which was recovered. Thereafter around 5 P.M. PW -1 and other BSF officers came back to BSF Camp at Koteshwar with charas. In the BSF camp P.W.1 instructed his subordinate Inspector Tulshasing to inform the fact of recovery of Charas to the Inspector of Customs. Accordingly, this fact was informed to the Customs Department and pursuant thereto Sanjay Baviskar, Customs Inspector and N.C. Bildani, Customs Superintendent came alongwith panch witnesses.Muddamal Charas was thereafter seized after following due procedure and after making panchnama in presence of Panchas. During the aforesaid procedure, police from Narayan Sarovar Police Station reached there and they were handed over to Narayan Sarovar police on 21.7.1994 itself.

2.3. Initially, during the pendency of investigation into this case, complaint for violation of provisions of the Foreigners Act, 1946 and the Indian Passport Regulations Act was filed against the accused. Thereafter Customs Officer made an application on 6.8.1994 before learned Chief Judicial Magistrate, Kachchh at Bhuj for custody of the accused for the purpose of inquiry which was granted. Pursuant to the order passed by the learned Chief Judicial Magistrate, Kachchh at Bhuj, the Customs Department was given the custody of the accused on 7.8.1994. Statements of the accused under Section 108 of the Customs Act and under Section 67 of the NDPS Act were recorded on the same day. Second statement of A-1 was recorded on 8.8.1994 and his third statement was recorded on 9.8.1994. Second statement of A-2 was recorded on 9.8.1994. No further statement of other accused was recorded.

2.4. On 8.8.1994 formal arrest of the accused was made for violation of the provisions of the NDPS Act by the Customs Department and arrest report was submitted to the Assistant Commissioner of Customs on 8.8.1994 itself. During the investigation, report of Forensic Science Laboratory (‘FSL’ or short) on the sample which was collected in presence of panchas and sent for analysis was received which revealed that the contraband article was Charas. On the basis of the statements of the accused recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act it was divulged that all the accused have committed offence under the provisions of the NDPS Act and, therefore, a written complaint for the offences punishable under Sections 20, 23 and 30 of the NDPS Act came to be filed by K.S. Joshi, the then Superintendent of Customs, Kachchh at Bhuj on behalf of the Union of India, in the Court of Special Judge (Sessions Judge), Kachchh at Bhuj which was registered as Special Case No. 122 of 1994. Alongwith the complaint, list of documents like Panchnama, seizure report under Section 57 of the NDPS Act, statements recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act, arrest report, inventory report and FSL report, was also produced.

2.5. The learned Special Judge, on the basis of the averments and allegations made in the complaint, framed charge against all the accused at Ex. 9 for commission of the offences punishable under Sections 20(b)(ii), 23, 29 and 30 of the NDPS Act. The charge was read over and explained to the accused. The accused pleaded not guilty to the charges levelled against them and claimed to be tried.

2.6. In order to bring home the charge framed against the accused, prosecution has examined following witnesses and relied upon their oral testimonies:

P.W.1 – Yashwantsinh Rupsinh – Officer Commanding, BSF, Water Wing, Bhuj- Ex.21.

P.W.2 – Sava Vela Maheshwari – Ex.25.

P.W.3 – Mulji Khimji Joshi – Panch No.2 – Ex. 27. P.W.4 – Narendra Chandumal, Superintendent of Customs, Kandla – Ex. 28.

2.7. Prosecution also placed reliance on the following documents to prove the culpability of the accused:

Sr. Particulars of documents Ex. No. No. ———————————————————

1. Copy of letter F.No.Elops/Seizure/KOT/

94 dated 21.7.1994 of 141 BN BSF

addressed to the Customs Officer,

Narayan Sarovar, Kutch. 29

2. Original seizure panchnama prepared

in presence of panch witness Sava

Vela Maheshwari and Mulji Khimji

Maheshwari before N.C. Bildani,

Superintendent of Customs. 30

3. Copy of letter F.No.VII/10-1/KOT/

94/702 of Inspector of Customs,

Koteshwar addressed to Incharge

Police Station, Narayan Sarovar

dated 22.7.1994. 31

4. Original report of seizure u/s. 57

of NDPS Act submitted by N.C. Bildani,

Superintendent of Customs, Gadhuli to the

Assistant Collector of Customs, Bhuj

dated 22.7.1994. 32

5. Copy of letter F.No.LIB/BA/2665/94

of DSP, Bhuj addressed to the

Assistant Collector, Customs, Bhuj

dated 6.8.1994. 35

6. Copy of application in the Court of

CJM, Bhuj (K) bearing F.No.VIII/17-8/

LEGAL/94 for the transfer of custody

of five Pak nationals, dated 6.8.1994. 36

7. Copy of letter F.No. VIII/17-8/LEGAL/

94 addressed to Superintendent of Sub

Jail, Nakhatrana of Superintendent of

Customs, Bhuj dated 6.8.1994 37

8. Original statement of Husen Bhenu

Malad recorded by N.C. Bildani,

Superintendent of Customs, Gadhuli

under Section 108 of the Customs

Act and under section 67 of NDPS

Act dated 7.8.1994. 38

9. Original statement of Siddique Umar

Malad recorded by N.C. Bildani,

Superintendent of Customs, Gadhuli

under Section 67 of the NDPS Act

and 108 of the Customs Act dated

7.8.1994. 39

10. Original statement of Aechar Umar

Malad recorded by N.C. Bildani,

Superintendent of Customs, Gadhuli

under Section 67 of NDPS Act and

108 of the Customs Act dated

7.8.1994. 40

11. Original statement of Khemu Alaya

Malad recorded by N.C. Bildani,

Superintendent of Customs, Gadhuli

under Section 67 of NDPS Act and

108 of the Customs Act dated

7.8.1994. 42

12. Original statement of Hanif Ishaque

Malad recorded by N.C. Bildani,

Superintendent of Customs, Gadhuli

under Section 67 of NDPS Act and

108 of Customs Act dated 7.8.1994. 41

13. Original further statement of

Husen Bhenu Malad recorded by

N.C. Bildani, Superintendent

of Customs, Gadhuli under Section

67 of NDPS Act and

108 of Customs

Act dated 8.8.1994. 43

14. Original further statement of

Husen Bhenu Malad recorded by

N.C. Bildani, Superintendent

of Customs, Gadhuli under Section

67 of NDPS Act and

108 of Customs

Act dated 9.8.1994. 44

15. Original further statement of

Siddique Umar Malad recorded by

N.C. Bildani, Superintendent

of Customs, Gadhuli under Section

67 of NDPS Act and

108 of Customs

Act dated 9.8.1994. 45

16. Report of arrest under Section 57 of

NDPS Act to the Assistant Collector,

Customs, Bhuj by A.R.Chavda,

Inspector of Customs, Gadhuli dated

8.8.1994. 46

17. Copy of NCB 1 (Test Report) sent to

FSL, Ahmedabad for testing dated

22.7.1994, alongwith the forwarding

letter and its dated receipt 33

18. Inventory in original in respect of

seized charas prepared before

Executive Magistrate, Bhuj as per

the provisions of NDPS Act dated

12.9.1994. 47

19. Original test report received from

FSL, Ahmedabad alongwith letter

addressed to the Superintendent of

Customs, RCP, Gadhuli dated 4.10.94. 34

2.8. After recording of the evidence of the prosecution witnesses was over, the learned Judge explained to the accused the circumstances appearing against them in the depositions of the witnesses. Thereafter further statements of the accused were recorded under Section 313 of the Code. In further statement also they denied the prosecution case in toto and reiterated that they are innocent, they have not committed any offence, they are Pakistani citizens doing fishing and without interrogation after beating them their signatures were obtained on blank papers and they have been falsely entrapped in the alleged commission of offences under the NDPS Act. They did not lead any evidence in defence nor they examined themselves on oath.

2.9. On appreciation, evaluation and analysis of the evidence adduced by the prosecution, the learned Judge held that the prosecution has proved beyond doubt that all the accused who are Pakistani citizens have illegally under the guise of fishing entered into the water of Indian Territory, near Savla Pir, as per the information supplied by A-1 about Charas, large quantity of Charas weighing 265 Kgs. valued at Rs.1.28 crores was taken out from the place shown by him, and therefore, all the accused were connected with the said illegal trafficking of Charas by aiding each other and thereby they have committed offences under Section 20(b)(ii) read with Section 29 of the NDPS Act whereas A-1 and A-4 have also committed offences under Section 23 read with Section 29 of the NDPS Act and resultantly the learned Judge has convicted and sentenced the accused to which reference is made in earlier paragraphs of this judgment, which has given rise to the present appeal.

3. Mr. G. Ramakrishnan, learned advocate who is appointed by Legal Aid Committee to render assistance to the accused, contended that the prosecution has not been able to establish the involvement and indulgence of the accused in the alleged offence beyond reasonable doubt and the learned Judge has also committed grave error in outrightly believing the so-called evidence of the prosecution which was not tenable in the eye of law. It is emphasised by him that when it is undoubtedly the fact to reckon with that the mandatory as well as directory provisions of law have all been flouted with, no credence can be given to such evidence laid therein by the prosecution as also to the findings of the learned Judge. It is also emphasized by him that there has been clear flouting of the mandatory provisions as well as directory provisions contained under Sections 42 (1) and (2), 55 and 57 of the NDPS Act which in the resultant would render the conviction unsustainable. What is asserted by him is that various provisions of the Code, though directory in nature, have not been complied with and noncompliance of the same would invite adverse inference against the prosecution case. It is also highlighted by him that even several provisions contained in the Constitution of India as well as in Customs Act have not been complied with. According to him, it, therefore, goes to show that means of justice have been taken for granted.

4. In support of the aforesaid contention, Mr. G. Ramakrishnan, learned advocate for the accused, elaborately highlighted certain aspects which, according to him, are serious infirmities to the prosecution case which can be catalogued as under:

(i) The complaint is a delayed one as there was delay of 4 months and 10 days in filing it, which has not been explained.

(ii) The complainant has not been examined before the trial court.

(iii) The nature of involvement of the accused with the contraband article is not spelt out in clear terms in the complaint.

(iv) The investigating officer is also the complainant and hence the said complaint and trial thereto are not maintainable.

(v) The complaint otherwise could have been filed by the BSF personnel who are also empowered with extended powers of the Police under the Code as also envisaged under the BSF Law Manual. Therefore, there was no requirement to involve the Superintendent of Customs and the said Department.

(vi) The alleged offence is pertaining to one under the NDPS Act and not the one for evasion of Customs Duty which ought to be under the Customs Act, 1962.

(vii) The complainant is only a hearsay witness to the alleged incident.

(viii) The complainant has not followed the mandatory provisions of the NDPS Act.

(ix) The entire complaint failed to establish even prima facie the aspect of conscious possession of the accused with the contraband article.

(x) Mere knowledge about the contraband article does not establish the fact of guilt of conscious possession.

(xi) P.W.1 was not present at the place of incident or during the interrogation of the accused.

(xii) So-called information supplied by A-1 ought to have been reduced into writing by BSF personnel as Section 42 of the NDPS Act is applicable and on the facts of the case Section 43 cannot be made applicable.

(xiii) BSF personnel have no right to entrust the muddamal to the Customs Department.

(xiv) Doubt is raised about the authenticity of the sample taken from the contraband article whether it is the same substance which was sent to FSL for analysis from the original contraband article Charas.

(xv) Panch witnesses have turned hostile and it has not come on record who has weighed the muddamal while sample was taken for sending to FSL. According to Panch witnesses presence of the accused at the time of drawing sample and preparing Panchnama is not established.

(xvi) Statements of the accused recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act are hit by Article 20(3) of the Constitution of India as they were in judicial custody.

(xvii) P.W.4 is a hearsay witness who ought not have gone to the creek at Vaniya Vadi nor he was present at the time of seizure or preparing panchnama and drawing sample.

5. Pointing out the aforesaid infirmities which, according to the learned advocate, are serious in nature and fatal to the prosecution case, it is contended that the accused are innocent and not in any way involved in the alleged incident and there was noncompliance of various provisions of the NDPS Act and, therefore, serious doubt is raised on the prosecution case and the so-called statements recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act during the arrest and at the time of their being in judicial custody, would not be sufficient as conclusive piece of evidence to sustain conviction as there has also to be other corroborative and independent piece of evidence to establish the authenticity and credibility of those so-called confessional statements and hence the entire prosecution case fails as there is no substratum in the prosecution case and thus the order of conviction and sentence passed by the trial court against the accused deserves to be quashed and set aside by allowing this appeal. He, therefore, urged to allow this appeal and thereby to acquit the accused.

6. To buttress the aforesaid submission, the learned advocate also relied upon following decisions of the Supreme Court:

(i) Revatram Ratanchand Thakur v. State of Goa, III (1995) CCR 217 (DB) Bombay High Court, 217.

(ii) Koluttumottil Razak v. State of Kerala, 2000 SCC (Cri) 829.

(iii) Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC

513.

(iv) State of Punjab v. Balbir Singh, (1994) 3 SCC 299.

(v) Roy V.D. v. State of Kerala, (2000) 8 SCC 590.

7. In answer to these submissions, Mr. Asim Pandya, learned counsel who appears on behalf of the Union of India, has supported the impugned judgment and order throughout. According to him, no infirmity is found in the judgment and order rendered by the learned trial Judge as he has given cogent reasons for coming to the conclusion that the accused are guilty of the offences with which they are charged. It is also asserted by him that the prosecution has proved beyond doubt the involvement and indulgence of the accused in the alleged offences as large quantity of contraband article – Charas was recovered at their instance. What is asserted by him is that there is a positive evidence that all the accused have illegally entered into the water of Indian territory for the purpose of illegal trafficking of the contraband article – Charas which they were to export from the Indian territory to Pakistan territory, which was concealed in Indian territory. Not only that in past also they exported 225 Kgs., of Charas from the same place but on that particular day, i.e., 20.7.1994 they came to the water of Indian territory to export Charas from Vaniya Vadi creek to Pakistan. Therefore they had knowledge about the contraband article and since they were to lift the said contraband article it is proved that they were in conscious possession of the same. It is also emphasised by him that the prosecution evidence is consistent in this regard. Panchnama was prepared in the presence of Panchas. They have supported the procedure carried out by the Customs Department while taking sample which was sent to FSL for analysis. It is true that the Panchas have not supported the prosecution case so far as presence of accused is concerned. However, on this ground the entire evidence of the panchas cannot be treated as effaced or washed off the record altogether as part of their evidence which is otherwise acceptable can be acted upon. It is also stressed by the learned counsel that all the accused are consistent in their statement recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act and they have given detailed background of their families which otherwise would have been impossible if they have not voluntarily given their statement. It is emphasised by the learned counsel that while the statement of the accused was recorded they were not in police custody but were in judicial custody in connection with the offences for violation of the provisions of the Foreigners Act and Indian Passport Regulations Act. At that time neither complaint was lodged against the accused in connection with the offences under the NDPS Act, nor they were arrested in connection therewith, therefore, much credence can be given to the said statement as the same got corroboration from other independent witnesses like P.W.1, P.W.4 as well as panch witnesses P.W.2 and P.W.3. While criticizing the submission made by the learned advocate for the accused with regard to the so-called infirmities it is contended by the learned counsel for the Union of India that those infirmities which have been pointed out by the learned advocate for the accused cannot be termed as infirmities. Besides this it is also pointed out that the statutory and mandatory requirements of the provisions of the NDPS Act have been fully complied with. Lastly it is contended that the accused had never retracted their statements at any point of time inspite of the fact that several opportunities were given to them to retract from it. A-1 has only for the first time stated in his further statement that his statement was recorded under compulsion, duress by beating him and it was not voluntarily made by him.

8. On the aforesaid premises, the learned counsel for respondent No. 2 submitted that there is no infirmity in the impugned judgment and order. The learned trial Judge has also considered all the aspects and reached to the correct conclusion as on the facts and in the circumstances of the case no other conclusion was possible except the one reached by the learned trial Judge in connection with the guilt of the accused. In this view of the matter, the appeal lacks merit and deserves to be dismissed. He, therefore, urged to dismiss the appeal and thereby to confirm the impugned judgment and order of conviction and sentence of the accused passed by the learned trial Judge.

9. To buttress the aforesaid submissions, learned counsel has relied upon following authorities:

(i) Sayar Puri v. State of Rajasthan, (1998) 7 SCC 441.

(ii) Aslambhai Ibrahimbhai Memon and another v. The State of Gujarat, 1990 Cri.LJ 1787.

(iii) Ravishankar Bhagwatiprasad Mishra v. State of Gujarat, 2000 (1) GLR 137.

(iv) Raghubhai Gandabhai Bharwad v. State, judgment dated 5/6-2-2002 delivered by this Court (Coram: J.M. Panchal & JR. Vora, JJ.) in Criminal Appeal No. 12 of 2002.

(v) Ramji Duda Makwana v. The State of Maharashtra, 1994 Cri.LJ 1987.

(vi) K.C. Jaya Kumar v. The State, 1997 Cri.LJ 10.

(vii) Utpal Mishra, Air Customs Officer, IGI Airport v. Nicelai Christensen, 1997 (4) Crimes 108.

(viii) Satyanarayan Das v. State of Orissa, 1999 Cri.LJ 974.

(ix) Karnail Singh v. State of Rajasthan, 2000 Cri.LJ 4635.

(x) K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997) 3 SCC 721.

(xi) Bipinbhai A. Patel v. State of Gujarat, 1998 (1) GLR 589.

(xii) Gulam Hussain Shaikh Chougule v. S. Reynolds, Superintendent of Customs, Marmgoa, AIR2001 SC 2930.

(xiii) Sumarkhan Sidiqkhan Sindhi v. Collector of Customs (Preventive), 1999 (1) GLR 863.

(xiv) Bhana Khalpabhai Patel v. Assistant Collector of Customs, Bulsar and another, 1998 (2) GLR 1319.

10. Mr. B.D. Desai, learned APP who appears on behalf of respondent No. 1 – State of Gujarat has supported the impugned judgment and order recorded by the learned trial Judge and has adopted all the submissions advanced by Mr. Asim Pandya, learned counsel for respondent No. 2 – Union of India and urged that the appeal may be dismissed by confirming the impugned judgment and order of conviction and sentence recorded by the trial court.

11. We have considered the submissions advanced at the bar by the learned advocates appearing for the parties and reappreciated, reevaluated and reanalysed the whole evidence on record. We have gone through the entire record of the case. We have also considered the judgments cited at the bar by them.

12. Before dealing with the contentions advanced by the learned advocates appearing for the parties, it would be profitable to refer to the salient aspects emerging from the oral testimony of the prosecution witnesses, in brief, which would throw abundant light on the prosecution case.

13. P.W.1 – Yashwantsinh Rupsinh, Officer Commanding, BSF Water Wing, testified at Ex. 21, has stated that he and other BSF Officers spotted the accused on 20.7.1994 while fishing in the Water of Indian Territory in a suspicious condition. He stopped the boat of the accused and asked them preliminary questions. On 21.7.1994 he took A-1 Husen Malad to Vaniya Vadi Creek and Charas was recovered from the place shown by him. He confirmed the presence of Custom Inspector Baviskar and Superintendent of Customs N.C. Bildani. He instructed Tulshasing to inform Narayan Sarovar Police Station about the recovery of Charas. Ex. 29 which is claimed to be the seizure memo was prepared as per the instructions given by Company Commander. When the accused were handed over to Customs Department and at the time of preparing Panchnama he was present.

14. Now adverting to the evidence of P.W.4, Superintendent of Customs, N.C. Bildani recorded at Ex. 28 it is seen that on 21.7.1994 at about 5.30 P.M. a person from BSF Camp came to give a message regarding recovery of Charas by BSF. He was informed by Tulshasing that BSF personnel took A-1 to the spot where Charas was secreted and came back with Charas. On sample covers he put his signature. He also identified his signature on Muddamal cover. Panchnama and seizure procedure was carried out in his presence and he submitted seizure report on 22.7.1994 to Assistant Commissioner of Customs, Bhuj. On 24.7.1994 he wrote a letter to FSL, Ahmedabad and the said letter as well as sample were taken to Ahmedabad by himself. On 6.8.1994 he received letter from D.S.P., Kachchh at Bhuj in which it was stated that Customs Department should take the custody of the accused from Nakhatrana Jail. On 7.8.1994 custody of the accused was obtained and thereafter statements of accused were recorded under section 67 of the NDPS Act and 108 of the Customs Act. He put his signature beneath the same. On 8.8.1994 he prepared arrest memo and thereafter the accused were produced before the learned Chief Judicial Magistrate and remand was sought. Thereafter further statement of A-1 and A-2 was recorded on 8.8.1994 and 9.8.1994 respectively. On 12.9.1994 he informed the Executive Magistrate, Bhuj about the Charas.The Executive Magistrate came and inventory of the recovered Muddamal was made. The inventory contained hand writing of the Executive Magistrate and himself. Thereafter he was transferred and in his place one Joshi who took charge filed complaint on the basis of the inquiry papers. In cross-examination he unequivocally stated that he had explained the accused about the provisions of Section 108 of the Customs Act and Section 67 of the NDPS Act before recording their statements. It may be appreciated that nothing substantial has been brought out by the defence during cross-examination of P.W.1 and P.W.4 which is capable of raising a doubt on their oral testimony, their presence and the procedure which they have undertaken. According to us, both P.W.1 and P.W.4 withstood the test of cross-examination.

15. Now coming to the evidence of P.W.2 -Sava Vela Maheshwari, Ex. 25 (Panch witness No. 1) and P.W.3 Mulji Khimji Joshi Ex. 27 (Panch witness No. 2), it is gathered that P.W.3 has completely supported the prosecution case except stating that at the time of preparation of Panchnama he did not see the accused. Otherwise his examination-in-chief and cross-examination unequivocally suggested that he was present while panchnama was being prepared. He also specifically stated that Yashwantsinh BSF Officer was present in the BSF Camp. Panchnama was prepared in his presence. He specifically denied the suggestion put forward by the advocate for the accused that their signatures were obtained on 22.7.1994 i.e., on the next day. He also admitted his signature on all the pages of the Panchnama and the covers in which samples were drawn by the Customs Department for sending them to FSL. It may be noted that P.W.2, Save Vela Maheshwari, is not very consistent and he denied the presence of the accused at the time of preparing Panchnama. However, he admitted that he had signed the covers containing muddamal as well as the Panchnama. He also stated that Panchnama was read over to him and only thereafter he had put his signature. He confirmed that another Panch was also present.

16. In view of the aforesaid evidence of Panch Witnesses there is no manner of doubt that they have supported the prosecution case so far as preparation of Panchnama, taking sample and sealing the same in their presence and their signatures on the Panchnama as well as the covers in which samples were drawn by the Customs Department for sending them to FSL for analysis. They have not supported the prosecution case so far as the presence of the accused at the relevant time is concerned.

17. In the aforesaid backdrop of the prosecution evidence, now let us examine the contentions advanced by Mr.G. Ramakrishnan, learned advocate for the accused and replied by Mr. Asim Pandya, learned counsel for respondent No. 2 – Union of India.

18. According to Mr. G. Ramakrishnan, learned advocate for the accused, since A-1 gave prior information regarding Charas which was secreted in Vaniya Vadi Creek, the information ought to have been reduced into writing and procedure contemplated under Section 42 of the NDPS Act should have been complied with but since the said procedure is not complied with, the trial is vitiated and hence conviction and sentence should be set aside.

18.1. According to us, this contention is without any merit and substance as in the present case provisions of Section 42 of the NDPS Act are not at all attracted. Section 42 of the NDPS Act applies to the case where search or seizure is to be carried out in respect of contraband goods kept or concealed in any building, conveyance or enclosed place. In the present case, the contraband article – Charas was not concealed or kept in any building, conveyance or enclosed place but it was recovered from the mud in the Creek area which is a public place within the meaning of Section 43 of the NDPS Act. The explanation of Section 43 of the NDPS Act provides inclusive definition of the term “public place”. The explanation reads as under:-

“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.”

There is no manner of doubt that Creek area is a place used by and accessible to public and the said area is also used for fishing by Indian fishermen and hence it squarely falls within the aforesaid term “public place”.

18.2. In Sayar Puri’s case (supra), the Supreme Court held that evidence showed that the accused was found to be in possession of opium while sitting on a bench on a particular public road and in such circumstances, procedure under section 42(2) of the NDPS Act was not required to be followed.

18.3. In Aslambhai’s case (supra) a Division Bench of this Court held that whenever any search or seizure is to be made in any public place or in a vehicle in transit or any person is to be arrested or detained from a public place, it is not intended by the Legislature to take down the said information in writing. It is further held that it is important to know that wordings of Sections 41 and 42 of the NDPS Act with regard to information taken in writing have been deliberately omitted by the legislature in Section 43 and that has been done advisedly inasmuch as the police officer may get information about the person in public place at the last moment and if he has to undergo the procedure of taking it in writing and recording the reasons for his belief, possibly such information may not be useful.

18.4. In Ravishankar’s case (supra) a Division Bench of this Court had an occasion to consider the question whether the provisions of Sections 41(2) and 42(2) of the NDPS Act should be complied with when search and seizure of a person sitting on otta portion of a building is made. In the said case, the appellant who was sitting on otta portion of a building, was searched. The contention which was raised before the Division Bench was that the provisions of Sections 41(2) and 42(2) of the NDPS Act were not complied with and, therefore, the conviction of the appellant was illegal. The Division Bench after interpreting the provisions of Sections 41(2) and 42(2) of the NDPS Act held that those provisions would not be applicable inasmuch as it was not a case where a building or a conveyance or a private place was required to be searched. The ratio laid down by the Division Bench of this Court in that case is squarely applicable to the present case and, therefore, it was not required for the officers to comply with the mandatory provisions of Sections 41(2) and 42(2) of the NDPS Act as search and seizure were made at a public place.

18.5. Similar question arose before a Division Bench of this Court (Coram: J.M. Panchal & J.R. Vora, JJ.) in Raghubhai’s case (supra), in Criminal Appeal No. 12 of 2002 which was decided on 5/6-2-2002. The Division Bench aptly considered this question and replied in paragraphs 10.3 and 10.4 of the said judgment by referring to Sayar Puri’s case (supra) and Aslambhai’s case (supra) and held that provisions of Section 42 of the NDPS Act would not be applicable where search or seizure is made at any public place or in a vehicle in transit or any person is to be arrested or detained from any public place.

18.6. Applying the principles laid down by the Supreme Court as well as this Court in the above referred to four judgments to the facts of the present case and more particularly in view of the evidence which we have adverted in earlier paragraphs of this judgment, there cannot be any dispute that contraband article Charas was recovered from a “public place”. It hardly needs to be emphasized that “public Place” described under Section 43 of the NDPS Act is inclusive and it is settled principle of law that when there is inclusive definition of any term given in a statute, that term would not only embrace within its sweep the things embodied in the definition but also other things. In substance, when inclusive definition is given, it should be construed in the widest possible sense and the restricted meaning of the term should be avoided.

18.7. In aforesaid view of the matter, we are of the considered opinion that the contraband article Charas was recovered from a public place as per the explanation given in Section 43 of the NDPS Act and, therefore, compliance of provisions of Section 42 are not at all required and hence the first contention raised by Mr. G. Ramakrishnan, learned advocate for the accused lacks merit and it is accordingly rejected.

19. The second contention advanced by Mr. G. Ramakrishnan, learned advocate for the accused, is that presence of P.W.1 has not been established by the prosecution and, therefore, no credence can be given to his oral testimony.

19.1. This contention, according to us, appears to be absolutely feeble as it is without any basis. From the evidence of P.W.3 (Panch witness) and P.W.4 (Officer of Customs Department) presence of P.W.1 is established. It may be noted that so far as the oral testimony of the witnesses are concerned, they are consistent in saying that at the relevant time they all were together. Therefore, this contention is required to be rejected and accordingly it is rejected.

20. The third contention canvassed by learned advocate for the accused is that information regarding recovery of Charas should have been given to the nearest police station and complaint ought to have been given to the police or Magistrate immediately. It is also canvassed by him that BSF has no power to entrust the muddamal to Customs Department and, therefore, adverse inference should be drawn against the prosecution. It is contended that Muddamal should have been handed over to the concerned police officer for safe custody under Section 55 of the NDPS Act as the Customs Department is not entitled to keep the muddamal with them.

20.1. According to us, the aforesaid contention raised by Mr. G. Ramakrishnan, learned advocate for the accused, is contrary to the provisions of NDPS Act. Under the provisions of Sections 36A and 42 read with sections 67 and 53 of the NDPS Act, the Central Government has issued Standing Order Nos. 822 (E), Standing Order No. 823 (E) and Standing Order No. 763 (E) empowering the officers of Customs, Central Excise, D.R.I. etc., to carry out search, seizure, to file complaint and to exercise same powers of “officer in-charge of police station” as available under the Code. In view of this, BSF is entitled to give information regarding recovery of Charas to any of the empowered agencies and the requirement of law is not that the said information should be given to the State Police only. It is relevant to note that from the facts disclosed by the accused in their statements recorded under Section 67 of the NDPS Act and under Section 108 of the Customs Act, it is very clear that the muddamal Charas was imported into Indian Territory from Pakistan without any valid licence or permit. It is also disclosed in their statements that on one occasion a part of Charas brought into Indian Territory from Pakistan was exported (transported) by the accused to Pakistan illegally. Thus, essentially the case was pertaining to illegal export and import. In such a circumstance, the Customs Department is the only appropriate Department to whom the information should be given and BSF has rightly done so in informing the Customs Department and handing over the muddamal to Customs Department. The Customs Officers are entitled to keep the seized goods in safe custody at their own godown or head quarters and there is no illegality in handing over and retaining the said goods by the Customs Department. Thus the contention that the muddamal article should have been kept by the police in safe custody under Section 55 of the NDPS Act is without any merit and hence the said contention is also rejected.

20.2. In Ramji Duda’s case (supra), a Division Bench of the Bombay High Court held that if raid conducted by specialized authority such as Narcotics Control Bureau, Customs, Central Excise, etc. they are not precluded from retaining contraband in safe custody at their own headquarters.

20.3. In K.C. Jaya Kumar’s case (supra) similar question arose before a Single Judge of the Andhra Pradesh High Court. In the said case the boxes containing psychotropic substances seized were not deposited in any police station. The learned Single Judge held that there was no question of affixing of seal of officer in-charge of police station as provisions of Section 53 of the NDPS Act and not Section 55 of the NDPS Act are attracted.

20.4. In Utpal Mishra’s case (supra), similar question arose before a Division Bench of the Delhi High Court. In the said case Customs Officer at Airport recovered Hashish. The learned Special Judge convicted the accused. The said conviction was challenged before a Division Bench of the Delhi high Court on the ground that the sample had not been kept in custody of local area of police station. The said plea was negatived by the Division Bench of the Delhi High Court holding that Custom Officer being invested with powers of an officer, incharge of police station, sample could be legally kept in the malkhana of Customs and there was no requirement in law that same should be sent to local police station.

20.5. In Satyanarayan Das’s case (supra), similar question arose before learned Single Judge of the Orissa High Court. In the said case safe custody of seized articles and samples were kept in Excise Malkhana in custody of Inspector Incharge of Malkhana with personal brass seal till same were sent to chemical examination. The report of chemical examiner showed that seals were intact and identical. In the said case the learned Single Judge held that there was no infraction of Sections 52, 55 and 56 of the NDPS Act.

20.6. In Karnail Singh’s case (supra) the Supreme Court held that Officer in charge of police station required to affix seal etc., under Section 55 of the NDPS Act is distinct agency than “officers” contemplated under Section 53 of the NDPS Act. The arrested person and seized articles were forwarded under Section 52(3)(b) of the NDPS Act to officer empowers under Section 53 of the NDPS Act and hence mandate of Section 55 need not be complied with.

20.7. Applying the principles laid down by the Supreme Court and various High Courts in the judgments referred to hereinabove to the facts of the present case and in view of the various Standing Orders which we have referred to in para 20 (1) of this judgment, there is no manner of doubt that the Officers of the Customs and Central Excise and D.R.I. etc., are empowered to carry out search, seizure, to file complaint and exercise same powers of the officer incharge of a police station as available under the Code. Therefore there is no need to comply with the provisions contained in section 55 of the NDPS Act and hence the third contention advanced by Mr. G. Ramakrishnan, learned advocate for the accused is also devoid of any merit and is accordingly rejected.

21. The fourth contention put forward by the learned advocate for the accused is that there is a delay of about four months in filing complaint which is fatal to the prosecution case. It is submitted that when the complaint for violation of provisions of the Foreigners Act and the Indian Passport Regulations Act is filed immediately there was no reason for not filing complaint under the NDPS Act on that day by the police.

21.1. In our view, this contention is also without substance. In this regard it is required to be noted that no complaint could be filed under the NDPS Act unless there is prima facie material or evidence against the accused connecting them with the alleged offence under the NDPS Act. In the instant case, inquiry regarding recovery of Charas was handed over to the Customs Department on the same day and unless the inquiry is completed by the Customs Department, it was not possible to file FIR or complaint. In completing inquiry and gathering material against the accused some time was taken and, therefore, it cannot be said that there was a delay in filing complaint. It is also relevant to note that once inquiry was undertaken by the Customs Department, there was no need to file F.I.R. for the same cause before the police. For recording statements of the accused who were in judicial custody in connection with the offences for violation of provisions of the Foreigners Act and the Indian Passport Regulations Act, some procedural formalities were to be undertaken by the Customs Department which took sometime. The application for obtaining custody of the accused was made on 6.8.1994 and the same was granted on the same day. In pursuance of the said order, the custody of the accused was in fact given on 7.8.1994. The complaint was, therefore, filed only after gathering evidence against the accused and after conclusion of the inquiry under the Customs Act. Thus, there is no substance in the contention that there was delay in filing the complaint and hence same is rejected.

22. The fifth contention which is advanced by the learned advocate for the accused is that there was total noncompliance of provisions of Section 57 of the NDPS Act as BSF Officers have neither reported the arrest nor the seizure in compliance of provisions of Section 57 of the NDPS Act.

22.1. According to us, this contention is also without any substance as the BSF officers have neither arrested the accused nor seized the contraband article – Charas. The BSF officers have simply caught the accused and thereafter immediately on the same day handed them over to the State Police to register complaint against them for violation of the provisions of the Foreigners Act and the Indian Passport Regulations Act. The BSF officers also on the same day handed over the Muddamal Charas to the Customs Department who seized the said goods under the Customs Act read with the NDPS Act. The formal arrest of the accused in connection with the NDPS Act was made by the Customs Department on 8.8.1994. The Customs Department had fully complied with the provisions of Section 57 of the NDPS Act by reporting seizure as well as the arrest. In this connection, it is appropriate to refer to Ex. 32 page 194 of the paper book which is a letter dated 22.7.1994 written by the Superintendent of Customs, Gadhuli to the Assistant Collector of Customs, Bhuj wherein the Superintendent of Customs has informed seizure of 256 Kgs. of Charas on 21.7.1994 valued at Rs.1.28 crores at Koteshwar and thus intimation to superior officer, that is, Assistant Collector of Customs, Bhuj was given. It is equally important to refer to Ex. 46 at page 228 which is a letter dated 8.8.1994 written by the Superintendent of Customs, Gadhuli to the Assistant Collector of Customs, Bhuj wherein the arrest report of five accused was made to the immediate superior officer. In view of the aforesaid two documents, it cannot be said that the Customs Department has not fully complied with the provisions of Section 57 of the NDPS Act. In view of the aforesaid state of affairs, the fifth contention advanced by Mr. G. Ramakrishnan, learned advocate for the accused, is without any merit and substance and it deserves to be rejected and accordingly it is rejected.

23. The sixth contention which is canvassed by the learned advocate for the accused is that the samples which were sent to the FSL were not properly sealed as the signatures of the officers as well as Panch witnesses were not affixed at the place where covers can be opened or closed.

23.1. In this connection it is required to be noted that covers have been properly sealed and there is clear cut evidence that one seal was affixed by the Customs Department at the place from where covers can be opened. Thus there were no chances to tamper with the samples drawn by the Customs Department. Not putting the signatures at the place of opening of cover does not ipso facto lead to the conclusion that there was tampering as the seal was applied at that very place. The report of the FSL also mentions that the seals on the covers were found to be in tact and, therefore, no inference of tampering can be drawn when prima facie the prosecution has established that the samples were sealed properly. Thus when the prosecution has discharged its burden of proof by showing that covers were properly sealed, it is for the accused to prove otherwise if they allege tampering with the samples. In this case there is no such allegation of tampering with the samples and no evidence was led by the accused to show that there was in fact tampering with the samples. Thus this contention is also without any merit and substance and hence deserves to be rejected and accordingly it is rejected.

24. The seventh contention raised by Mr.G. Ramakrishnan, learned advocate for the accused, is that this is a case where the accused have only knowledge of the muddamal Charas secreted at a particular place and they were not found to be in possession of the said article and it is settled principle of law that mere knowledge of the contraband article does not establish the guilt of conscious possession.

24.1. In this connection, it would be appropriate to refer to the statements of the accused recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act. It is very clear from the statements of all the accused that they had knowledge of the Charas concealed in the creek area and they entered into the Water of Indian territory with a specific intention to illegally transport the Charas back to Pakistan. Their statements also reveal the fact that on an earlier occasion prior to about 3/4 months of the present incident, the accused had in fact transported about 225 Kgs. of Charas back to Pakistan in their boat and thereby violated the provisions of the NDPS Act. Thus this is not merely a case of knowledge but it is a case where in fact the accused have committed an offence earlier and in the second attempt they were caught before the illegal transportation took place.

24.2. The reported decision of a Division Bench of the Bombay High Court in Revatram’s case (supra) relied upon by Mr. G. Ramakrishnan, learned advocate for the accused, is of no avail or assistance to the accused as it is not applicable to the facts of the present case. In the said case, the Division Bench of the Bombay High Court held that the manner in which the recovery was recorded, the exclusion of the owner of the building from the guilt, non-examination of photographer by the prosecution, doubt cast by the witness in identifying the accused, etc., all will go to show that recoveries in the Flower Scene Restaurant have not been proved, but cast doubt in the guilt of the accused. On the aforesaid factual situation of that case it was further held that in order to fasten liability under Section 20(b)(ii) of the NDPS Act possession of the contraband article Charas has to be proved positively and mere knowledge of the person or the place where the Charas could be found cannot be equated with the possession in order to come under the ambit of Section 20(b)(ii) of the NDPS Act.

24.3. The above referred to decision of the Division Bench of the Bombay High Court rested on the facts of that case. In the instant case, there is ample evidence to establish that the accused have illegally entered into the water of Indian territory with a specific purpose and intention to take back the Charas concealed in the creek area of Vaniya Vadi and in past also they had successfully illegally imported about 225 Kgs. of Charas from the said lot to Pakistan and they again came to take back the remaining stock of Charas and, therefore, according to us conscious possession of the accused is established. In this case, it is not that merely the accused had the knowledge but knowledge together with the conscious possession is established and, therefore, this contention also, according to us, does not have any force and deserves to be rejected and accordingly it is rejected.

25. The eighth and the last contention which vociferously canvassed by Mr. G. Ramakrishnan, learned advocate for the accused, is that the statements of the accused recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act cannot be relied upon to hold them guilty and cannot be made basis for their conviction for the alleged offences.

25.1. In this regard, it is required to be borne in mind the nature and tenor of the statements of all the accused. The statements of all the accused, for the first time, were recorded on 7.8.1994. In their statements all of them have given minute details of their family background. All the accused have also narrated the previous incident of illegal transportation of charas to Pakistan by them and the amount paid to A-1 and other persons. In their statements the accused have given details as to how the consignment of charas was unloaded into the water of Indian territory by Jat Gang of Pakistan and how they came to know about unloading of charas. In their statements they disclosed name of Major Mohmedkhan Pathan of Pakistan Army and how Major Mohmedkhan Pathan and his four colleagues and Omar Malik with the army jeep took the delivery of Charas from A-1. Their statements also disclosed the fact that A-1 was arrested by Chuhad Jamali Police Station for bringing the charas to Pakistan illegally. Their statements also disclosed the fact that Major Mohmedkhan Pathan got A-1 released from police by exercising his influence. Their statements also gave details as to how A-1 came in contact with Major Mohmedkhan Pathan. Their statements also corroborated the fact that the present consignment of charas was brought to BSF, Koteshwar Camp and there the Charas was weighed in presence of BSF Officers and Officers of the Customs Department. A-3, A-4 and A-5 have also stated that seizure had taken place in their presence. The panchnama was also prepared in their presence and the officers of the BSF and Customs Department put their signatures in their presence on the Panchnama and samples. Further statements of A-1 and A-2 were recorded by the Customs Department. The second statement of A-1 was recorded on 8.8.1994 and his third statement was recorded on 9.8.1994 whereas second statement of A-2 was recorded on 9.8.1994 only and there is no third statement of A-2. In second statement dated 8.8.1994, A-1 gave detailed description of Major Mohmedkhan Pathan and how be came in contact with him. He gave more details about the first illegal transportation of Charas to Pakistan from India and selling it in Pakistan. He also gave names of the police officers who arrested him in Pakistan. In his third statement dated 9.8.1994, A-1 gave description of Gulam Husen Brohi to whom he intended to sell Charas. He also specifically stated that he and A-2 had entered into the water of Indian territory with an intention to illegally transport the charas back to Pakistan from Vaniya Vadi creek.

25.2. In the second statement of A-2 dated 9.8.1994, he gave more details about the first illegal transportation of charas to Pakistan. He stated that in the water of Indian territory where they were doing fishing, many other fishing boats were also there and he knew other persons doing fishing in this area by their face.

25.3. In the statement of Aechar Umar Malad, A-3, in addition to family background and other common details, he also stated that he came in the boat “Abdul Gani” but before that he used to work with A-2 on his boat “Dillagi”. He confirmed that on 20.7.1994 he was with Husen Malad A-1 and other persons and they were caught by BSF officers. He also stated that he was to get his share from the sale proceedings of charas and the responsibility of selling charas was taken by A-1.

25.4. In the statement of Hanif Ishaque Malad – A-4, in addition to his family background he stated that he had been doing fishing for the last four months and he did not have his own boat. He stated that he did fishing with A-1. He confirmed that he accompanied Husen Malad A-1 while illegally transporting 225 Kgs. of charas to Pakistan from India on the first occasion. He also confirmed the fact that Husen Malad A-1 handed over Charas to Mohmedkhan Pathan and A-1 was rewarded with Rs.1100/- and he was paid Rs.200 and a new pair of clothes.

25.5. In the statement of Khemu Alaya, A-5, he also gave common details like family background and in addition he stated that he was unable to maintain his family by farming and that he had joined A-2 and had been doing fishing with him for the last two years. He stated that he had been to Chauhan Creek 4 to 5 times in these two years. He also confirmed his presence while charas was unloaded in the Indian territory. He gave names of other persons also who were with him on the first occasion. He confirmed that on 20.7.1994 he was there with A-2 and others in creek area and they were caught by BSF Patrolling party.

25.6. All the above statements clearly involved all the accused with commission of the offences under the NDPS Act. As their statements have not been retracted by any of them, they appear to be voluntarily made by them. The accused have also not complained before the Magistrate or Special Judge that their statements have been recorded by coercion, threat, duress, etc. Thus, in view of these facts and detailed facts given by all the accused, it is very clear that their statements are voluntarily made and they are genuine in nature. The details which have been given by the accused in their statements cannot be in any case mere imagination or concoction by the officers of the Customs Department. These statements are wholly reliable and conviction can be sustained on the basis of these statements.

25.7. In Bipinbhai’s case (supra), a Division Bench of this Court upheld the order of conviction based on confessional statement made before Customs authorities. It is also held that since maker of the statement was not “person accused of offence” Article 20 (3) of the Constitution of India would not be attracted. In that case pursuant to summons issued under section 108 of the Customs Act and Section 67 of the NDPS Act inculpatory statement was made by the accused before the Customs Authorities who made formal arrest of the accused thereafter. The ratio laid down by the Division Bench of this Court in the above referred to decision is squarely applicable to the facts of the present case as in the instant case the accused were initially arrested for violation of provisions of the Foreigners Act and the Indian Passport Regulations Act and their custody was obtained under the order of the Court and thereafter statements were recorded. Therefore they were not accused of the offences under the NDPS Act at the time when their statements were recorded and, therefore, provisions of Article 20(3) of the Constitution of India would not be attracted.

25.8. In Sumarkhan’s case (supra), a Division Bench of this Court held that confessional statement made before Superintendent, Central Excise is admissible in evidence as Officers appointed under the provisions of Section 53 of the NDPS Act are not police officers within the meaning of Section 25 of the Evidence Act. The ratio laid down in the above referred to decision is squarely applicable to the facts of the present case as in this case also when the confessional statements were recorded by the Customs Department the accused were not arrested for the offences under the NDPS Act and their custody was obtained under the orders of the learned Magistrate as the accused were arrested for violation of the provisions of the Foreigners Act and the Indian Passport Regulations Act.

25.9. In Bhana Khalpabhai’s case (supra), Supreme Court held that statements recorded under Section 108 of the Customs Act by the Customs Officers are admissible in evidence.

25.10. In Gulam Hussain Shaikh’s case (supra), Supreme Court held that confessional statement recorded under Section 108 of the Customs Act is not inadmissible in evidence on the ground that safeguards prescribed under Section 164 of the Code were not complied with while recording statement.

25.11. In K.I. Pavunny’s case (supra), Supreme Court held that person suspected by a Customs Officer of having committed an offence under the Customs Act is not an accused at that stage. He becomes an accused only when summons are issued by a competent Court/Magistrate pursuant to a complaint lodged by the competent Customs Officer. Hence his statement recorded during an inquiry under Section 108 of the Customs Act or during confiscation proceedings is not that of an accused within the meaning of Section 24 of the Evidence Act. The ratio laid down in the above referred to judgment is also squarely applicable to the facts of the present case as in this case also accused were suspected by BSF personnel of having committed offence under the NDPS Act and, therefore, they were brought to BSF Camp at Koteshwar and during interrogation they voluntarily gave information about the Charas which they secreted in Vaniya Vadi creek and thereafter their statements were recorded before filing complaint under the provisions of the NDPS Act. Thus, it is clear that their statements recorded during the inquiry under Section 67 of the NDPS Act are not that of an accused within the meaning of Section 24 of the Evidence Act.

25.12. It cannot be laid down as an absolute rule of law that the statement of an accused recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. To put it differently, there is neither rule of law nor of prudence that the statement cannot be acted upon without corroboration. If the Court is satisfied that the statement is true and voluntary in nature, it can base conviction on it without corroboration. The Court has to scrutinise the statement carefully and must ensure that the statement is not the result of coercion, duress or undue influence.

25.13. In aforesaid view of the matter, the statements made by the accused persons under the provisions of Section 67 of the NDPS Act and Section 108 of the Customs Act before the Customs Officer were voluntary, without coercion, duress or undue influence as their statements were recorded when they were not in police custody and in view of the fact that their statements were never retracted by them, they can be made basis for the conviction as they are trustworthy and also found general corroboration from the other documentary evidence as well as oral testimony of the witnesses.

26. From the foregoing evidence of the prosecution witnesses, we are of the opinion that the prosecution case against the accused has been fully established. P.W.1 who caught the accused while fishing illegally in the water of Indian territory has clearly deposed before the Court regarding the incident and recovery of the contraband article – Charas at the instance of A-1. In his cross-examination nothing inconsistent was brought out by the advocate for the accused. His oral testimony is corroborated by oral testimony of P.W.4 as well as that of P.W.3. Panch witnesses have supported all the formalities regarding preparation of panchnama, seizure and drawing of sample, handing over of the goods by BSF officers to Customs authorities and the statements of the accused recorded under Section 67 of the NDPS Act and Section 108 of he Customs Act which were voluntary and genuine in nature, recorded without any threat, coercion, duress or undue influence which were never retracted by them and also got corroboration from other evidence.

27. From the aforesaid facts there is no escape from the conclusion about the guilt of the accused. We are, therefore, of the considered opinion that the learned trial Judge has considered all these aspects properly and correctly held the accused guilty and rightly convicted and sentenced them.

28. Mr. G. Ramakrishnan, learned advocate for the accused, has referred to reported decisions of the Supreme court as well as various High Courts during the course of his submission which we have noted in earlier paragraphs of this judgment. But, in our view, since the ratio laid down by the Supreme Court as well as other High Courts in those reported decisions rested on the facts of those cases and interpreted the statutory provisions contained under various provisions of the NDPS Act and thus they are not applicable to the facts of the present case and, therefore, we do not deem it expedient to refer to those reported decisions in this judgment to burden the same.

29. On over all view of the matter, we do not find any infirmity in the impugned judgment and order. We are in complete agreement with the finding, ultimate conclusion and resultant order of conviction and sentence recorded by the learned trial judge as, according to us, on the facts and in the circumstances of the present case, no other conclusion is possible except the one reached by the learned trial Judge. We, therefore, confirm the order of conviction and sentence recorded by the learned trial judge.

30. Seen in the above context, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. Hence the appeal lacks merit and deserves to be dismissed.

31. For the foregoing reasons, the appeal fails and accordingly it is dismissed. The judgment and order which is under challenge in this appeal is hereby confirmed.

 

 

 

Section 57 of NDPS Act. Report of arrest and seizure.

 

Whenever any person makes any arrest or seizures under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

 

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Gurbax Singh vs State Of Haryana on 6 February, 2001

Author: Shah

Bench: M Shah, K Balakrishnan.

CASE NO.:

Appeal (crl.) 35 of 2000

PETITIONER:

GURBAX SINGH

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 06/02/2001

BENCH:

M.B. Shah & K.G. Balakrishnan.

JUDGMENT:

Shah, J.

L…I…T…….T…….T…….T…….T…….T…….T..J Aggrieved by the judgment and order dated 8th December, 1995 passed by the High Court of Punjab and Haryana in Criminal Appeal No. 449-SB of 1986 confirming the judgment and order passed by the Additional Sessions Judge, Karnal dated 6.5.1986 convicting the appellant for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act) and sentencing him to suffer rigorous imprisonment for 10 years and a fine of Rs.One lac, in default of payment of fine further rigorous imprisonment for 5 years, the appellant has preferred this appeal.

The accused was charged under Section 15 of the N.D.P.S. Act. For proving the same, prosecution has examined P.W.2. Ishwar Singh, SI who on 12th January 1986 at about 5.25 p.m. was present on platform No. 1 of Railway Station, Karnal for checking smuggling and other anti-social elements. At about 5.25 p.m. Kalka passenger train arrived at Karnal from the side of Panipat and halted at platform No. 1. It is his say that when he was checking a second class compartment, the appellant who was sitting in the compartment became panicky and left the train from the door towards the side of engine carrying a katta (gunny bag) on his left shoulder. On suspicion, he was nabbed in presence of witness and it was found that he was carrying poppy straw weighing 7 k.g. in a polythene bag of white colour. After separating 100 gms by way of sample, sample and the residue were separately sealed in two separate parcels in presence of witness. The seal which was affixed on parcels was handed over to the witness (PW1) Harbans Lal. He has stated that the case property was deposited with MHC on the same day. He has also stated that on the personal search of the accused, second class railway ticket was recovered. In cross-examination, it is his say that he intercepted the accused outside the compartment of platform No. 1. At that time, Harbans Lal was present at the railway station to see off his relatives. He offered himself to become witness to the recovery. He has also deposed that seal used for sealing the case property remained with Harbans Lal for ten days. It is his say that he had fixed only one seal made of brass bearing I.S. on the gunny bag and also on the sample. He admitted that seal of the police station is different from the seal of the Investigating Officer and he has not affixed the seal of police station on the case property as also on the sample at the time of delivery to M.H.C. He has also admitted that he was not maintaining any record of information sent to Circle Inspector of the Police Headquarter, G.R.P. It is his say that he had telephonically informed his superior officer about the seizure and its quantity. He has denied the suggestion that accused who was a rikshaw puller was falsely implicated in the case. He has also denied the suggestion that accused asked to be searched in presence of Magistrate or other superior officer.

Prosecution has also examined P.W. 1 Harbans Lal, a panch witness. It is his say that on the date of incident he was at the railway station to see off his sister and brother in law. At that time, he noticed the accused alighting from the train on seeing the police. Therefore, accused was nabbed by the police in his presence. The police found that the accused was carrying poppy straw placed in polythene bag which on weighment was found to be 7 k.g. The police took sample of 100 grams. The recovery memo was prepared in his presence which he had attested. In cross- examination, he has stated that before searching the contents of gunny bag, the police had not offered itself for search to the accused. It is his say that seal affixed on the case property was made of wood (as against the say of the Investigating Officer that it was a brass seal). The seal was kept with him for 10 days. He has also admitted that he had appeared as a prosecution witness in one excise case and that he was having business of sale of tea near Tonga Stand outside the railway station for the last 15 years. It is his say that he had not earlier seen the ground poppy husk and the police had informed him that the substance recovered from the accused was ground poppy husk.

Learned counsel for the appellant submitted that the Investigating Officer has not followed the procedure prescribed under Section 50 of the Act of informing the accused whether search should be carried out in presence of Gazetted Officer or Magistrate. As against this, learned counsel for the respondent submitted that in the present case, there is no question of following procedure under Section 50 because from the person of the accused, nothing was recovered, but from the gunny bag which he was holding, poppy straw was recovered. For this purpose reliance is placed on the decisions of this Court in Kalema Tumba v. State of Mahrashtra [(1999) 8 SCC 463] and State of Punjab v. Baldev Singh [(1999) 6 SCC 172].

In Kalema Tumba (supra) this Court considered the mandatory requirement of Section 50 of NDPS Act and held that only when the person of an accused is to be searched then he is required to be informed about his right to be examined in presence of a gazetted officer or a magistrate. The Court further held that in view of the decision in the case of Baldev Singh (supra) the decision rendered by this Court in State of Punjab v. Jasbir Singh [(1996) 1 SCC 288] wherein it was held that though poppy husk was recovered from the bags of the accused, he was required to be informed about his right to be searched in presence of a gazetted officer or a magistrate stood overruled. In facts of that case the Court held that Heroine was found from the bags belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a gazetted officer or a magistrate.

In the case of Baldev Singh (supra) the Constitutional Bench (in para 12) observed thus: – On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc.

Further after considering various decisions the Court held (in para 57) that when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest magistrate for making the search. However, such information may not necessarily be in writing.

In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right is extension of right conferred under Section 100 (3) of the Criminal Procedure Code. Sub-Section (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. Sub-Section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is searched under sub-section (3) a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the N.D.P.S. Act would be applicable only in those cases where the search of the person is carried out.

The learned counsel for the appellant next contended that from the evidence it is apparent that the I. O. has not followed the procedure prescribed under Sections 52, 55 and 57 of the N.D.P.S. Act. May be that the I.O. had no knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR under Section 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk.

In the result, the appeal is allowed and the impugned judgment and order passed by the High Court confirming the conviction of the appellant is set aside. The appellant be released forthwith, if he is not required in any other case.

 

 

 

Whether Buprenorphine Hydrochloride is a “psychotropic substance

 

. The common questions in these bail applications are:

1) Whether Buprenorphine Hydrochloride is a “psychotropic substance” within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) ?

2) If yes, whether Buprenorphine Hydrochloride is a “psychotropic substance” to which Chapter VII of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as the NDPS Rules) apply ? To what effect ?

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Rajinder Gupta vs The State [Along With Bail … on 22 August, 2005

Equivalent citations: 2006 CriLJ 674, 123 (2005) DLT 55, 2005 (84) DRJ 477

Author: B D Ahmed

Bench: B D Ahmed

JUDGMENT

Badar Durrez Ahmed, J.

A1. The common questions in these bail applications are:

1) Whether Buprenorphine Hydrochloride is a “psychotropic substance” within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) ?

2) If yes, whether Buprenorphine Hydrochloride is a “psychotropic substance” to which Chapter VII of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as the NDPS Rules) apply ? To what effect ?

It was contended by the petitioners that Buprenorphine Hydrochloride I.P. Injections which are the subject matter of the present applications are drugs specified under the Drugs and Cosmetics Act, 1940 and conform to standards indicated in the Indian Pharmacopoeia. According to the learned counsel for the petitioners, since the Buprenorphine Hydrochloride injections involved in the present applications conformed to the specifications mentioned in the Indian Pharmacopoeia and were Schedule “H” Drus under the Drugs and Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945, the same could not be regarded as “psychotropic substances” at all under the NDPS Act. On the other hand, learned counsel who appeared for the Respondents, urged that Buprenorphine Hydrochloride was a psychotropic substance within the meaning of the NDPS Act and that it made little difference if it also happened to be a Schedule ‘H’ Drug.

A2. In the first instance, it is to be determined as to whether Buprenorphine Hydrochloride I.P. injections are covered under the definition of psychotropic substances under the NDPS Act. If they are not to be regarded as psychotropic substances then, clearly, no offence under the NDPS Act would be made out and the petitioners would straight away be entitled to be enlarged on bail. On the other hand, if it were to be held that the same were psychotropic substances then Question No. 2 would require an answer. It would have to be seen as to whether merely because Buprenorphine Hydrochloride was a psychotropic substance this in itself would entail that its manufacture, sale, possession, transport, etc., would trigger the punishments under the NDPS Act, particularly the punishment under Section 22 thereof.

Re: Question No.1:

A3. Let me examine the provisions with regard to Buprenorphine Hydrochloride in the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the “DandC Act”), the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as the “DandC Rules”), the NDPS Act and the NDPS Rules. Rule 65 of the DandC Rules prescribes the general conditions for licenses in Forms 20, 20A, 20B, 20F, 20G, 21 and 21B. For example sub-rule (3)(1) of Rule 65 stipulates that the supply of any drug, other than those specified in Schedule X, on the prescription of a Registered Medical Practitioner shall be recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of entry in the register shall be entered on the prescription. Several particulars are required to be entered in the Register such as, serial number of the entry, the date of supply, the name and address of the prescriber etc. In the case of a drug specified in Schedule `H’, it is also necessary to record theame of the manufacturer of the drug, its batch number and the date of expiry of potency, if any.

Rule 97 of the DandC Rules contains stipulations with regard to the labelling of medicines. It specifically provides that the container of a medicine for internal use shall, if it contains a substance specified in Schedule `H’, be labeled with the symbol Rx conspicuously displayed on the top left corner of the label and shall also be labelled with the following words:-

“Schedule `H’ drug Warning: to be sold by retail on the prescription of a Registered Medical Practitioner only.”

This is so provided in Rule 97(1)(b) of the DandC Rules. However, if the substance contained in the container is one specified in Schedule `H’ and also comes within the purview of the NDPS Act, it is required to be labelled with the symbol NRx , which shall be in red and conspicuously displayed on the left top corner of the label, and be also labelled with the following words:-

“Schedule H drug G” Warning: To be sold by retail on the prescription of a Registered Medical Practitioner only”.

This is so provided in Rule 97(1)(c) of the DandC Rules. I may also mention Rule 104 of the said Rules which provides that the letters “IP” and recognised abbreviations of the pharmacopoeias and official compendia of drug standards prescribed under these rules shall be entered on the label of the drug only for the purpose of indicating that the drug is in accordance with standards set out in the Indian Pharmacopoeia or in any such pharmacopoeia or official compendium of drug standards recognised under the Rules. An examination of Schedule `H’ of the DandC Rules makes it clear that Buprenorphine Hydrochloride is listed therein as a `Prescription Drug.’

A4. From an analysis of the above provisions, it is clear that Buprenorphine Hydrochloride, if it conforms to the standards prescribed under the Indian Pharmacopoeia, is to be known as Buprenorphine Hydrochloride I.P. It is further clear that Buprenorphine Hydrochloride is a prescription drug specified in Schedule `H’ and is to be sold by retail only on the prescription of a Registered Medical Practitioner. The stipulation with regard to the entries made in the Register as prescribed under Rule 65 have also to be complied with by the retailer making the sales. It is also to be noted that a reading of Rule 97(1)(c) clearly indicates that it is quite possible that a drug falling within the meaning of the Drugs and Cosmetics Act, 1940 and the DandC Rues and particularly one falling under Schedule `H’ can also fall within the purview of the NDPS Act. If it is so, the manufacturer is duty bound to place the symbol NRx in red on the top left corner of the label.

A5. I now come to the provisions under the NDPS Act. Section 2(ixia) defines “psychotropic substances” as under:-

“(ixia) “psychotropic substance” means any substance, natural or synthetic or any natural material or any salt or preparation of such substance or materials included in the list of psychotropic substances specified in the Schedule.”

A plain reading of the above definition makes it clear that a psychotropic substance could be any substance, natural or synthetic, or any natural material or “any salt or preparation” of such substance or materials included in the list of psychotropic substances specified in the Schedule. For this purpose, a reference to the Schedule becomes necessary. The Schedule to the NDPS Act gives a list of psychotropic substances. Entry Nos. 92 and 110 are relevant and they read as under:-

SL.No INTERNATIONAL NON-PROPRIETARY

NAMESOTHER NON-PROPRIETARY

NAMESChemical NAME

92 BUPRENORPHINE

21-cyclopropyl-7- [(S)-1 hydroxy-1,

2,2-trimethyl propyl]-6, 14-endo, ethano-6, 7, 8

14-tetrahydooripavine.

110 Salts and Preparations of above

Entry No. 110 was originally entry No 77. It was re-numbered as Entry No. 106 in 1992 and as Entry No. 110 with effect from 11th June, 2003. From a conjoint reading of Section 2(ixia) and the aforesaid Entry Nose 92 and 110 of the Schedule to the NDPS Act, it becomes clear that Buprenorphine Hydrochloride is not mentioned by name in the schedule and that it is only Buprenorphine which has been listed as a psychotropic substance. The next question to be answered is whether Buprenorphine Hydrochlorides a “salt or preparation” of Buprenorphine which is a psychotropic substance specified in the Schedule to the NDPS Act. The word “preparation” is defined under the NDPS Act in Section 2(ax) thereof as under:-

“2(ax) “Preparation” in relation to a narcotic drug or psychotropic substance, means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances:

If Buprenorphine Hydrochloride were to be a preparation of Buprenorphine, in terms of the aforesaid definition, it would have to be in dosage form or any solution or mixture, in whatever physical state, containing Buprenorphine. Buprenorphine Hydrochloride, as admitted by all the counsel appearing in the matter, is neither a solution nor a mixture of Buprenorphine. In fact, it is an entirely different compound. Furthermore, it could also not be regarded as Buprenorphine is dosage form. Therefore, it is clear that Buprenorphine Hydrochloride cannot be regarded as a “preparation” of Buprenorphine. Consequently, I am left with the only alternative consideration and that is–whether Buprenorphine Hydrochloride is a “salt” of Buprenophine? If it is, then it would be a psychotropic substance within the meaning of Section 2(xxiii) as well as Entry 110 read with Entry 92 of the Schedule to the NDPS Act. For this purpose I had, during the course of hearing, sought clarifications from the Chemical Examiner with regard to the nature of Buprenorphine Hydrochloride. The letter dated 8th January, 2005 written by the Chemical Examiner Grade-II, Customs Laboratories, Customs House, Kandla, addressed to Mr Satish Aggarwal, Senior Special Pblic Prosecutor was placed before me. In that letter, it has been stated that Buprenorphine Hydrochloride is a salt of Buprenorphine. It was further indicated that Buprenorphine and its salts including Buprenorphine Hydrochloride give a positive test for Buprenorphine on testing. A similar letter by the same Chemical Examiner was written on 3rd of February, 2005 where he has again indicated as under:-

“In my opinion Buprenorphine Hydrochloride may be said to be a salt of Buprenorphine”.

A6. Thereafter, the Joint Director (Dr. Y.K.S. Rathore), Central Revenue Control Laboratory, Hill Side Road, Pusa, New Delhi by his letter dated 4th February, 2005 also confirmed that Buprenorphine Hydrochloride is a salt of Buprenorphine. Furthermore, four specific queries were raised by me during the course of arguments and they were as under:-

“1. Why is Buprenorphine dissolved in Hydrochloric Acid?

2. Why does Buprenorphine dissolve in Hydrochloric Acid and why not in water?

3. Whether the combination of Buprenorphine and Hydrochloric acid is a compound or a mixture? And

4. Can Buprenorphine hydrochloride be called a solution of Buprenorpohine salt?

In response to this, a letter dated 22nd February, 2005 by the Chemical Examiner, Central Revenue Control Laboratory, was placed before me. The answers were as under:-

“The point wise reply to above referred letter is as under:-

i) Why Buprenorphine is dissolved in Hydrochloride acid? (ii) Why Buprenorphine dissolves in Hydrochloride acid and why not in water?

Buprenorphine is nitrogen containing organic compound which is basic in nature. It dissolves in Hydrochloric acid being basic in nature and forms a salt with it. Usually organic basic compounds are insoluble in water or very slightly soluble in water.

iii) Whether the combination of Buprenorphine and Hydrochloric acid is a compound or a mixture.

The combination of Buprenorphine and Hydrochloric acid is a Chemical reaction (in animalcular proportion) forming Buprenorphine Hydrochloride which is a compound having molecular formula C29 H41 NO4, HCl1 and not a mixture.

iv) Can Buprenorphine Hydrochloride be called a solution of Buprenorphine salt?

Buprenorphine Hydrochloride cannot be called a solution of Buprenorphine, it is a salt of Buprenorphine which is white or almost white crystalline powder. From the aforesaid experts’ opinions, it can be safely concluded that Buprenorphine Hydrochloride is a salt of Buprenorphine. This being the case Buprenorphine Hydrochloride would be a “psychotropic substance” under the NDPS Act.

A7. The learned counsel appearing for the petitioners referred to some decisions to stress the point that Buprenorphine Hydrochloride was neither a “narcotic drug” nor a “psychotropic substance”. He firstly relied upon Deep Kumar v. State of Punjab (PandH): 1997 (2) Recent Criminal Reports 502 to submit that Buprenorphine Hydrochloride was not a psychotropic substance. Paragraph 13 of this decision of the Punjab and Haryana High Court reads as under:-

“13. Now we are left with parcels Nos. 1 and 6 which were found to contain Binorfin and Norphen injections. On an analysis each injection in parcel No.1 was found to contain 0.32 mg of Buprenorphine. The contents of parcel No.6, on analysis were found to contain 0.3 mg of Buprenorphine. This psychotropic substance does not fall within the ambit of Schedule I annexed to the Narcotic Drugs and Psychotropic Substances Rules, 1985, but is found to contain in Schedule III thereof. This substance, be ingot covered by Schedule I of the Rules, shall be governed by the Drugs Act and Rules framed hereunder. The quantity of Buprenorphine has been found within the permissible limit and the petitioners were possessed with a valid Drug License to keep and dispense such injections. Therefore, it cannot be said that the possession of Binorfin and Norphen injections was in contravention of section 22 of the Narcotic Act.”

This decision itself proceeds on the basis that it is a psychotropic substance. It is a different matter that, as no reference to buprenorphine was found in Schedule I to the NDPS Rules, the court held that it would be governed by the D and C Act and Rules. That is an aspect which I shall discuss in answer to question No.2. For the present, this much is clear that Buprenorphine Hydrochloride is a psychotropic substance within the meaning of the NDPS Act.

A8. The next case referred to by the counsel for the petitioners was the decision of a learned single judge of the Madras High Court in K.R. Nagappan v. State: 1996 (1) Crimes 502. In that case there was a recovery of 55 ampoules of 2 ml Tidigesic injections. Each ml whereof contained 0.3 mg Buprenorphine Hydrochloride. The appellant therein had been convicted for the offence under Section 8 read with section 21 of the NDPS Act. After examining the definitions of “opium” and “opium derivatie” in section 2 and section 2(xvi) of the NDPS Act as well as the Explanation appended to section 2 pertaining to the above definitions, the court held:-“A casual reading of the definitions given above in Section 2 of the NDPS Act, clinches the fact that such of the opium and opium derivatives containing not more than 0.2 per cent of morphine have been excluded from the narcotic and psychotropic substances. 0.2 per cent of morphine cannot be equated with the 0.3 mg of Buprenorphine found in each of the 55 ampoules which is conspicuously and manifestly far lesser than 0.2 per cent of morphine.” This decision also would be of no help to the petitioners. The allegation there was of the commission of an offence under section 21 of the NDPS Act which deals with “narcotic drugs”. In the present case the petitioners have all been prosecuted for allegedly committing offences under section 22 of the NDPS Act which relates to ‘psychotropic substances’. The definitions for narcotic drugs and psychotropic substances are entirely different. Therefore, the decision in K. R. Nagappan (supra) also cannot be pressed in aid of the petitioners’ submissions.

A9. Lastly, the learned counsel for the petitioners referred to the decision of a learned single judge of the Punjab and Haryana High Court in the case of Amtrak Singh v. The State of Punjab: 1996 (2) All India Criminal Law Reporter 714. This was a case where the petitioner having been found to be in possession of 35 bottles of PHENSEDYL (a cough medicine) of 125 ml each was being prosecuted for an offence under section 21 of the NDPS Act. The samples taken disclosed that every 5 ml of the medicine containe 9.5 mg of Codeine Phosphate. In this context the Court observed:-

“9. The learned State Counsel has argued that the preparation in question is being widely used for intoxicating purposes by students, teenagers and other addicts; that the petitioner was indulging in the sale of such drugs without prescription of the doctor to the addicts and he could not produce the purchase bill/cash memo and the license required for the sale of such item, and as such the petitioner is liable under section 21 of the Act.

10. The aforesaid argument of the learned State Counsel is misconceived. If the petitioner sells any drug to a person in contravention of license granted to him or that he fails to produce the bill/cash memo or the license for the sale of such item, he can be proceeded against under the provisions of the Drugs and Cosmetics Act, 1940 by the Drug Inspector in accordance with the provisions of the said Act. Section 21 of the Act in hand is not attracted for such violation or contravention.”

This case is clearly distinguishable on facts. In any event, like the decision in K. R. Nagappan (supra) this case also related to section 21 of the NDPS Act.

While on the subject of precedents, it must be noted that Buprenorphine Tidigesic injections have been held to be psychotropic substances by the Supreme Court in Hussein v. State of Kerala: 2000 (4) Crimes 144 (SC) [at 146].

Re: Question No.2:

A10. So, it is clear that buprenorphine hydrochloride is a psychotropic substance within the meaning of the NDPS Act. But, would that in itself make the possession, sale or tranportation of buprenorphine hydrochloride injections an offence under the NDPS Act, punishable under section 22 thereof? The answer is in the negative. In the context of section 21 of the NDPS Act which is an analogous provision in respect of “narcotic drugs”, the Supreme Court, in the case of Sajan Abraham v. State of Keral: . It is thus apparent that what is made punishable under Section 21 is possession, sale, purchase, etc. of the drugs and preparations mentioned therein in contravention of any provision of the Act or any rule or order made or condition of license grated there under. Obviously, therefore, if any rule permits a person to possess any psychotropic substance within the limits specified under the rule and subject to such conditions as the rule may prescribe, such a person cannot be held guilty of the offence under Section 21 of the Act if it is shown that his possession is not in contravention of such rule.”

This would apply equally to the offence punishable under section 22 of the NDPS Act in relation to psychotropic substances. This is clear as, in the case of Ouseph v. State of Kerala: , the

Supreme Court had observed that [at page 447]:-

“If it is a psychotropic substance, possession of it would become an offence only if it was in contravention of the Rules prescribed.” And, in Hussain v. State of Kerala: , the Supreme Court had already held that:-“If it was “psychotropic substance” possession of the same would amount to an offence only if it was in contravention of Section 8 of the Act. That section shows that no person shall possess any psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made there under.”

Therefore, an examination of section 8 of the NDPS Act and the provisions of Chapter VII of the NDPS Rules is called for. Firstly, Section 8 of the NDPS Act reads as under:-

“8. Prohibition of certain operations.– No person shall–

(a) cultivate any coca plant or gather any portion of coca plant; or

(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import Interstate, export Interstate, import into India, export from India or transship any narcotic drug or psychotropic substance,

except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made there under and in a case where any such provision, imposes any requirement by way of license, permit or authoisation also in accordance with the terms and conditions of such license, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the rules made there under, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import Interstate and export Interstate of ganja for any purpose other than medicinal and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specified in this behalf.

Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes”

Section 8, which is relevant for our purpose as it deals with psychotropic substances, prohibits the manufacture, possession, sale, use etc., of any psychotropic substance “except for medical or scientific purposes and in the manner and to the extent” provided by the provisions of the NDPS Act or NDPS Rules or orders made there under. This means that while there is a general prohibition against the manufacture, possession, sale, use etc., of a psychotropic substance, if the same is a medicine and is to be used for a medical purpose then the manner and extent of its manufacture, possession, sale, use shall be as provided in the NDPS Act or NDPS Rules or orders made there under. We must remember that buprenorphine hydrochloride I.P. is a Schedule Drug within the meaning of the D and C Act and Rules. Its manufacture, sale etc., is regulated by the DandC Act and DandC Rules. Coming back to the NDPS Act, I find that in the case of a medication, which also happens to be a psychotropic substance within threading of the NDPS Act, its “extent and manner” of use etc., would be governed by the other provisions of the NDPS Act or NDPS Rules.

A11. Section 9 of the NDPS Act empowers the Central Government to permit, control and regulate, inter alia, the manufacture, possession, sale, transportation of psychotropic substances. The NDPS Rules have been formulated by the Central Government in exercise of that power. Chapter VII of the NDPS Rules deals with “Psychotropic Substances”. Rules 64 to 67 fall under this Chapter VII. Rule 64 prescribes the general prohibition. It provides that —

“No person shall manufacture, possess, transport, import inter-state, export inter-state, sell, purchase, consume or use any of the psychotropic substances specified in Schedule I.” It is to be noted that this “Schedule I” is different to the Schedule to the NDPS Act. This Schedule I is appended to the NDPS Rules and is in two parts – (I) Narcotic Drugs and (II) Psychotropic Substances. We are concerned with psychotropic substances. There is a list of 33 specific psychotropic substances with entry no. 34 being “Salts and preparations of above”. It is significant to note that neither buprenorphine hydrochloride nor buprenorphine find mention in this list. This clearly means that Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules and therefore the general prohibition contained in Rule 64 of the NDPS Rules does not apply to it2. Consequently, rules 65 to 67, which also have reference to psychotropic substances specified in the said Schedule I, would also not be applicable in respect of Buprenorphine Hydrochoride3. In this connection, it is pertinent to point out that there are several psychotropic substances which find place both in the schedule to the NDPS Act and in Schedule I to the NDPS Rules. For example: Methaqualone4, Delorazepam5, Ketazolam6, Loprzolam7, Pipradrol8, Tetrazepam9. At the same time, there are others like Buprenorphine10, Amphetamine11, Bromazepam12, Lorazepam13, Phenobarbital14 and Pemoline15 which, though specified in the Schedule to the NDPS Act, do not find mention in Schedule to the NDPS Rules. Clearly, by conscious design, all psychotropic substances mentioned in the schedule to the NDPS Act have not been listed in Schedule I to the Rules. The prohibition contained in Rule 64 of the NDPS Rules applies only to those psychotropic substances which are specified in Schedule I to the NDPS Rules. In other words, the prohibition of Rule 64 of the NDPS Rules is not applicable to those psychotropic substances, which, although they are listed in the Schedule to the NDPS Act, are not part of the listed psychotropic substances in Schedule I to the NDPS Rules. It may be mentioned here that the Supreme Court, in the afore-mentioned decisions16, was not called upon to examine this aspect of the matter, namely, whether Rule 66 of the NPS Rules applied to all psychotropic substances or only those specified in Schedule I to the NDPS Rules. It is, therefore, open to this Court to consider and decide this aspect of the matter.

Rule 65(1), inter alia, provides that the manufacture of any psychotropic substance other than those specified in Schedule I shall be in accordance with the conditions of license granted under the DandC Rules and DandC Act. In other words, insofar as the psychotropic substances not mentioned in Schedule I to the NDPS Rules but mentioned in the Schedule to the NDPS Act are concerned, their manufacture shall be governed by the DandC Act and Rules and not by the NDPS Act or NDPS Rules. Rule 66 relates to possession etc., of psychotropic substances. Sub-Rule (1) thereof provides that no person shall possess “any psychotropic substance” for any of the purposes covered by the DandC Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under the NDPS Rules. The expression “any psychotropic substance” obviously has reference to those listed in Schedule I to the NDPS Rules. Rule 64 is the governing rule in Chapter VII of the NDPS Rules. When a psychotropic substance des not find mention in Schedule I to the NDPS Rules, the prohibition qua possession contained in Rule 64 does not apply. That being the case, in respect of such a psychotropic substance, Rule 66 would also not apply as it has reference to only those psychotropic substances which are included in Schedule I to the NDPS Rules. Rule 67 of the NDPS Rules relates to transport of psychotropic substances. It is expressly subject to the provisions of Rule 64 and clearly has reference to the transport, import inter-state or export inter-state of those psychotropic substances which are included in Schedule I to the NDPS Rules. The rule would have no applicability in respect of those psychotropic substances which are not to be found in Schedule I to the NDPS Rule. Clearly, then, inasmuch as Buprenorphine Hydrochloride is not included in Schedule I to the NDPS Rules, its manufacture, possession, sale, transport would neither be prohibited nor regulated by the NDPS Rules and consequently by the NDPS Act. It being Schedule H drug would fall within the rigours of the DandC Act and Rules.

Re: “Small quantity”, “Commercial quantity”

A12. For the sake of completeness, another aspect of the matter which, although academic in the context of the answer to question 2 above, requires some clarification (before I discuss the individual merits of each of the applicants) is with regard to the status of “small quantity” and “commercial quantity”. These expressions are defined under Sections 2 and 2(vii-a) of the NDPS Act, which read as under:-(xxiii-a) “small quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.”

(vii-a) “commercial quantity” in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.”

By a Notification dated 19th October, 2001 the Central Government specified the “small quantity” and “commercial quantity” of each of the Narcotics Drugs/Psychotropic substances listed therein. In the table appended to the said Notification, at Entry No. 169, Buprenorphine has been specified and the small quantity has been mentioned as 1 gram whereas the commercial quantity has been specified as 20 grams. However, there is no specific mention of Buprenorphine Hydrochloride. The said Entryo.169 and Entry 239, which, apparently, is a residual entry, read as:-

Sl.No Name of Narcotic Drug and Psychotropic Substance [International

non-proprietary name (INN)]Other non-

proprietary name Chemical Name Small

quantity(in gm.)

Commercial Quantity(In gm./kg.)

1 169 Buprenorphine

21-cyclopropyl-7- alpha-[(S)-1 hydroxy-1,2

2-trimethyl”propyl]-6, 14-endo, ethano-6, 7,

8,14-tetrahydooripavine

3. 20gm

Any mixture or preparation that of with or without a neutral material, of any of the above drugs.

Lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture.

Lesser of the commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture.”Note 1 to the said table reads as under:-“Note.-(1)The small quantity and the commercial quantity given against the respective drugs listed above apply to isomers, within specific Chemical designation, the esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, whenever existence of such substance is possible.” Upon a collective reading of the said Note 1, entry 239 and entry 169 of the said table it becomes clear that the small quantity for Buprenorphine Hydrochloride is also 1 gram and the commercial quantity is 20 grams as in the case of Buprenorphine, of which it is a salt.

A13. Finally, it must be noted that Buprenorphine Hydrochloride I.P. is also a medication and is used as a pain reliever. Recently it is also being used to treat opiate addiction (such as addiction to heroin). It has legitimate uses as an analgesic and for de-addiction. However, it is also capable of misuse being a psychotropic substance. Perhaps because of this reason, it was left out of Schedule I to the NDPS Act but is very much regulated under the DandC Act and Rules.

This concludes the discussion on the common issues. I shall now take up each application for grant of bail.

Bail Application No. 73/2005Rajinder Gupta (Petitioner)

B1. The petitioner is a partner in the firm known as M/s. A.D.S. Associates. The allegation against the petitioner is that he, as a partner of the said firm sold 2,61,000 ampoules of Buprenorphine Hydrochloride Injections under the brand name Bunogesic which he had allegedly received from M/s Pharma Deal Agencies, 487/35, National Market, New Delhi. It is further alleged that the petitioner had not maintained any record by way of consignment Form-6, as required under Rules 66 and 67 of the NDPS Rulesn respect of sales of the aforesaid quantity of ampoules of injections. Accordingly, it is alleged that the petitioner has contravened the provisions of Section 8(c) of the NDPS Act which is an offence punishable under Section 22(c) of the NDPS Act. Te petitioner was arrested on 13.10.2004 and is in judicial custody since then. No recovery of the said Buprenorphine Hydrochloride Injections was, however, made from the petitioner. According to the petitioner these injections are covered under Schedul “H” of the Drugs and Cosmetics Rules, 1945. The petitioner also contends that these Buprenorphine Hydrochloride Injections conform to the standard laid down by the Indian Pharmacopoeia. The petitioner also contends that the said ampoules were labeled in accordance with Rule 97 of the Drugs and Cosmetics Rules, 1945 and bore the symbol “Rx”17 on the top left corner of the label. They also contained the usual Schedule ‘H’ drug warning as under:-

“Schedule H drug” Warning: To be sold by retail on the prescription on a Registered Medical Practitioner only.”

B2. The petitioner further submitted that all purchase and supplies have been made through proper documents, as required in the normal course of business. It is further contended that the petitioner has a drug license under the Drugs and Cosmetics Act and Rules. The license bears No. DL-2(2380) 20B and 21B. The license in Form 20B is issued under Rule 61(1) of the Drugs and Cosmetics Rules, 1945 whereas the license in Form 21B is issued under Rule 61(2) of the Drugs and Cosmetics Rules, 1945. Copies these licenses have been filed at pages 17 and 18 of the paper book and they clearly indicate that the Firm ADS Associates is licensed to sell, stock or exhibit or offer sale or distribute by wholesale the drugs specified therein. Schedule “H” drus have not been excluded and, therefore, according to the petitioner the said Firm had a license to deal in and sell the said Buprenorphine Hydrochloride Injections. The said injections bearing the branded name “Bunogesic” were of 2 ml each. And, ech ml thereof contained Buprenorphine Hydrochloride IP equivalent to Buprenorphine Hydrochloride 0.3 mg and water for injection. These injections were manufactured by Rusan Health Care Private Limited which is a licensed manufacturer. It is further dated that the said Rusan Health Care Private Limited had informed the petitioner firm on 21.10.2004 that they had deleted their product under the name “Bunogesic” and requested the petitioner firm to return the unsold stock lying with them. It is sated that the petitioner thereafter never dealt with the said product of the said manufacturer. It is further stated that the petitioner is a bona fide licensed trader and has an absolutely clean and un-blemished record. He is authorised to sell and dal in Schedule “H” medicines which includes Buprenorphine Hydrochloride IP injections.

B3. The allegation against the petitioner is that he contravened Rules 66 and 67 of the NDPS Rules and thereby contravened section 8(c) of the NDPS Act and, as a result thereof, became liable for punishment under section 22(c) of the NDPS Act. As indicated above, Buprenorphine Hydrochloride is a Schedule H drug under the DandC Act and Rules and, though it is a psychotropic substance under the NDPS Act, it is not included in Schedule I to the NDPS Rules. That being the case, its manufacture, possession osale is not prohibited. As such, there is no contravention of the provisions of the NDPS Rules. Consequently, the offence under section 8 of the NDPS Act is not made out. Obviously, punishment under section 22 of the NDPS Act is also not attracted.

B4. Clearly, in these circumstances as no offence under the NDPS Act is made out, the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of Rs. 25,000/- with one surety of thelike amount to the satisfaction of the concerned trial court.

Bail Application 53/2005 Mohd. Shehber Khan (petitioner)

C1.In this case the petitioner is in custody since 13.10.2003 in respect of having allegedly committed offences punishable under section 22 and 29 of the NDPS Act. The allegations against him are that he was in conspiracy with one Raj Kumar Arora in the sale of Buprenorphine Hydrochloride IP injections and that from the premises of Raj Kumar Arora, 40,001 Buprenorphine Hydrochloride injections were recovered. No recovery was affected from the petitioner of any kind. The recovered drug, according the petitioner, is covered by the Indian Pharmacopoeia and is a Schedule-H Drug under the Drugs and Cosmetics Rules, 1945. It is stated by the petitioner that the co-accused Devang Bipin Parikh has already been granted bail by an order dated 11.1.2005.

In the complaint, it is stated that the premises of one Raj Kumar, proprietor of Kanishka Cargo Service was searched and a recovery of 25 corrugated card board cartons was made there from. These cartons were said to contain glass ampoules containing transparent water coloured liquid. Apart from the above, it is alleged that the officers also recovered a single ampoule apparently of the same size and shape as the unlabelled ampoules recovered from 25 cartons and also having similar single red coloured rang marking round the neck of the ampoule containing apparently similar transparent water coloured liquid and having a label with the following description:-Rx 2 ml.

BUPRENORPHINE HYDROCHLORIDE INJECTION I.P.

BUPRIGESICNEON LABORAtorIES LIMITED Mfg. Lic No. 752B. No. 19559

995 printed paper sheets were also found lying on the side of the table and each sheet contained the following description:-Rx 2 ml.

BUPRENORPHINE HYDROCHLORIDE INJECTION IPBUPRIGESICNEON LABORAtorIES LIMITED Mfg. Lic. No. 752B.No.

It is alleged that the said Raj Kumar Arora could not produce any authorisation for possession of the unlabelled glass ampoules.

C2. Nothing was recovered from the petitioner. Furthermore, the entire allegation is with regard to the alleged recovery of Buprenorphine Hydrochloride made from one Raj Kumar Arora. It has already been indicated above that Buprenorphine Hydrochloride is a Schedule H drug under the DandC Act and Rules and, though a psychotropic substance under the NDPS Act, it is not included in Schedule I to the NDPS Rules. That being the case, its manufacture, possession or sale is not prohibited. As such, there is contravention of the provisions of the NDPS Rules. Consequently, the offence under section 8 of the NDPS Act is not made out. Obviously, punishments under sections 22 or 29 of the NDPS Act are also not attracted.

C3. In these circumstances, as no offence under the NDPS Act is made out, the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court.

Bail Application 64/2005 Vijay Kumar Mittal (Petitioner)

FIR No. 79/2004 dated 13/10/2004under sections 22, 29 NDPS Act, 1985P.S. Narcotics Branch

D1. The case for the prosecution is that a secret information was received in which it was alleged that one Mahesh and one Surinder were going to purchase a huge quantity of Buprenorphine from the petitioner without bill and were further going to sell the same to the retailers and small chemists etc. A raid was allegedly conducted and 2325 ampoules of Buprenorphine Hydrochloride “Bunogesic” and 3950 ampoules of Buprenorphine Hydrochloride were allegedly recovered from Mahesh and Surinder respectively. It is alleged that 3950 ampoules which were recovered were purchased from the petitioner and each of these ampoules contained 2 ml. of psychotropic substance. The other 2325 ampoules were alleged to have been purchased from one Mr Jain. On the bass of the disclosure statements of Mahesh and Surinder, the present petitioner (Vijay Kumar Mittal) was arrested on 14.10.2004 for allegedly selling the injections without bill to these two persons. It is stated that the petitioner is an income tax payer and carries on business of sale and purchase of medicines under the trade name of “Mittal Medical Agency”. The petitioner holds a valid license No. 26 (1102) 20B and 21B which was issued on 29.12.1999 and the said license has been renewed up to 31.12.2007. The said firm is authorised under the license to sell, stock or exhibit or offer for sale or distribute by wholesale Buprenorphine Hydrochloride Drug in addition to other drugs permitted there from. It is stated that the charge-sheet has been field in this case and the petitioner has been arrested solely on the basis of disclosure statements made by Mahesh and Surinder. It is the petitioner’s contention that no drug of any kind has been sold by the petitioner to the said Mahesh or Surinder and the case is entirely false and fabricated. It is further contended that 3950 ampules are alleged to be related to the petitioner. Each ampoule contains 2 ml. And, therefore, the total quantity comes to 7900 ml. The Buprenorphine Hydrochloride contained in each ml. is 0.3 mg (or 0.0003 gm). Therefore, the total content in respect of these 3950 ampules would come to 7900 x 0.0003 = 2.37 gms which is far below the commercial quantity of 20 gms.

D2. I have already held that Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the DandC Act and Rules, the offence under section 8 is not made out. Consequently, punishments under section 22 or 29 of the NDPS Act would not be attracted. Additionally, the petitioner is being roped in only on the basis of disclosure statements of the said Mahesh and Surinder. As indicated in Manoj Kumar Gupta v. State N.C.T. Of Delhi: 2003 [1] JC 205, the disclosure statement of a co-accused is not substantive evidence. Furthermore, assuming that an offence under the NDPS Act was, prima facie, made out, the quantity linked to the present petitioner is only 2.37 gm, much lower than the commercil quantity of 20 gm. Accordingly, even in this assumed scenario, the rigours of section 37 of the NDPS Act would not apply.

D3. In view of all these circumstances the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court.

Bail Application 2062/2005 Sawinder Singh Kohli (Petitioner)

E1.The petitioner is alleged to have committed offences punishable under sections 22, 23, 28 and 29 of the NDPS Act. It is alleged that on 9.5.2004, the petitioner was going to Tehran via Dubai on Flight No. EK-513. It is further alleged that he was stopped at the departure hall of IGI Airport, New Delhi and 1091 ampoules of 2 ml. each of Buprenorphine Hydrochloride Injection IP under the printed name of Buprenorphine Hydrochloride are alleged to have been recovered from him. It is further alleged that the customs officer recovered a further 6144 ampoules of Buprigesic from flat No. WP-207A Pitampura, Delhi, which belongs to the brother-in-law of the petitioner.

E2. The petitioner is aged about 70 years and is said to be suffering from heart problems. It is further contended that he was taking treatment in Iran and is undergoing such treatment now in Tihar Jail. Only 1091 ampoules of Buprenorphine Hydrochlorideare alleged to have been recovered from the petitioner. Therefore, taking the content of each 2ml ampoule (as per the complaint itself) to be 0.6 mg of Buprenorphine Hydrochloride, the recovery from the petitioner is only of 1091 x 0.6 = 658.2 mg or 0.6.82 gm of Buprenorphine Hydrochloride which amount is even smaller than the specified small quantity of 1 gm. Moreover, even if all the ampoules are taken to be recovery from the petitioner they would total to 7235 ampoules of 2 ml. each. That would tranlate to a content of only 4.341 gms of Buprenorphine Hydrochloride and not 14.5 kg as erroneously calculated by the learned Additional Sessions Judge in his order dated 7.8.2004 whereby the petitioner’s bail application was rejected. Even this quantity is far below the commercial quantity of 20 gm.

E3. I have already held that Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the DandC Act and Rules, the offence under section 8 is not made out. Consequently, punishments under section 22, 23, 28 or 29 of the NDPS Act would not be attracted. Furthermore, assuming that an offence under the NDPS Act was, prima facie, made out, the quantity linked to the present petitioner is only 4.341 gm, much lower than the commercial quantity of 20 gm. Accordingly, even in this assumed scenario, the rigours of section 37 of the NDPS Act would not apply.

E4. In view of all these circumstances the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court.

Bail Application 115/2005 Amit Dawar (Petitioner)FIR No. 86/2003 dated 3/10/2003under sections 22, 29 NDPS Act P.S. Narcotics Bureau

F1. The case of the prosecution is that on 21.7.2003 the premises of M/s Gill Sandhu, Haryana Transport Com. At 3902 Mori Gate, Delhi was searched and 40 Cartons of “Norphin” (Buprenorphine Hydrochloride) injections purported to have been manufactured by M/s Unichem Laboratories Ltd. are said to have been recovered. It is alleged that the Manager of the said Transport Company informed the Drug Inspector that the said “Norphin” injections were booked for Delhi in their Chandigarh Branch and no caimant came forward to receive the consignment of the above said injections. Samples of the said “Norphin” injections were sent by the Drug Inspector to the manufacturer Co. i.e. Unichem Laboratories Ltd. which confirmed that it was their product was of standard quality. On 1.8.2003, it is alleged, the proprietor of Surya Pharmaceutical, Jalandhar claimed the consignment of the said “Norphin” injections and submitted the purchase bill issued from M/s Laxmi Medical Hall, Chandigarh. On 1.10.2003 one Pravin Kumar alias Sonu proprietor of Surya Pharmaceuticals was arrested and he allegedly made a disclosure statement alleging therein that the present petitioner (Amit Dawar) was the financer of the said consignment of Buprenorphine Hydrohloride injections. On the basis of this disclosure statement, the petitioner was arrested on 12.10.2003. No recovery was made from the present petitioner Amit Dawar and it is the petitioner’s case that at the maximum even if the entire prosecution caswere to be believed, only the commission of an offence punishable under Section 27 of the Drug and Cosmetics Act, 1940 is made out and that the maximum imprisonment therefore is three years imprisonment and the same is friable by the Court of the Metroplitan Magistrate.

F2. I have already held that Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the DandC Act and Rules, the offence under section 8 is not made out. Consequently, punishments under section 22 or 29 of the NDPS Act would not be attracted. Nothing was recovered from the petitioner. And, the petitioner is being roped in only on the basis of an alleged disclosure statement of the said Pravin Kumar alias Sonu proprietor of Surya Phamaceuticals. As indicated in Manoj Kumar Gupta v. State N.C.T. Of Delhi: 2003 [1] JCC 205, the disclosure statement of a co-accused is not substantive evidence.

F3. In view of all these circumstances the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court.

Bail Application 205/2005 Raj Kumar Arora (petitioner)

G1. The petitioner is alleged to have contravened Rule 66 of the NDPS Rules and thereby committed offences punishable under sections 22 and 29 of the NDPS Act. The petitioner states that he is a licensed Customs Clearing House Agent and is a proprietor of M/s Kanishka Cargo Services having its office at 198, Office Complex, Jhandewalan Cycle Market, New Delhi. The case of the prosecution is that a raid was conducted on the office premises of the petitioner on 27/28.9.2003 and alleged recovery of 40,001glass ampoules containing water coloured liquid preparation suspected to be injectable preparation of Buprenorphine Hydrochloride is said to have been recovered. The petitioner was arrested on 27/28.9.2003 and has been in judicial custody since then. The petitioner states that he is not a beneficiary, manufacturer or seller of the medicinal drugs and is only a licensed Customs House Agent. The petitioner was handling consignments of its clients including M/s Sarvodaya Enterprises which is owned by c-accused Devang Bipin Parikh who has been granted bail by this Court on 11.1.2005. Various medical consignments have been cleared from Customs by the petitioner on behalf of the said client for export as well as import.

G2. As indicated above, Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and therefore, it being a Schedule H drug under the DandC Act and Rules, the offence under section 8 is not made out. Consequently, punishments under section 22 or 29 of the NDPS Act would not be attracted. Moreover, the petitioner was only a Customs House Agent who cleared medical consignments on behalf of his clients.

G3. In view of all these circumstances the petitioner would be entitled to bail. Accordingly, he is directed to be released on bail on furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the concerned trial court.

H1. It is made clear that all observations made in this order, whether common to all the applications or specific to each of the applicants, are only prima facie in nature. They are only for the purposes of consideration of the aforementioned bail applications and are not to be regarded at the time of trial of the respective cases.

All the applications stand disposed of.