Karnail Singh vs State Of Rajasthan on 13 September, 2000

Supreme Court of India
Karnail Singh vs State Of Rajasthan on 13 September, 2000
Author: Sethi
Bench: K.T. Thomas, R.P. Sethi.
           CASE NO.:
Special Leave Petition (crl.) 982  of  1999



PETITIONER:
KARNAIL SINGH

	Vs.

RESPONDENT:
STATE OF RAJASTHAN

DATE OF JUDGMENT:	13/09/2000

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




JUDGMENT:

SETHI, J.

L…I…T…….T…….T…….T…….T…….T…….T..J
Leave granted.

The appellant, a truck driver was apprehended and
arrested on 21st August, 1992 by a Preventive Party, on the
Kota-Bundi Road in Rajasthan as he was shown to be carrying
96.600 kgs. of opium in his Truck No.PCT 9997. The opium
was found concealed in three gunny bags containing 21 raxine
bags. After compliance of the requisite legal formalities,
a case under Section 8/18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter called “the
Act”) was registered. The seized goods and samples were
kept in double lock malkhana. On conducting tests, the
articles seized were found to be opium. On trial, the
appellant was found guilty of the offences with which he was
charged under the Act. He was convicted and sentenced to
rigorous imprisonment for 15 years and to pay a fine of
Rs.1.5 lakhs or in default of the fine to undergo rigorous
imprisonment for one year. In appeal, the High Court upheld
the conviction but reduced the sentence of imprisonment to
10 years and fine of Rs.1 lakh, vide the order impugned in
this appeal.

Mr.Jayant Bhushan, Advocate who appeared as amicus
curaie has raised some legal questions which, according to
him, had not been taken note of either by the Trial Court or
by the High Court. He contended that as the procedure
prescribed under the Act was not followed, the appellant was
entitled to acquittal. It was further submitted that no
presumption under Section 35 of the Act could be drawn
against the appellant. Relying upon the judgment of this
Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat
[2000 (2) SCC 513] he contended that the appellant had
discharged the onus of proof regarding his plea of absence
of culpable mental state which should have been accepted and
the appellant acquitted.

Regarding violation of the procedural safeguard under
the Act, it has been contended on behalf of the appellant@@
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that the mandate of Section 55 of the Act has not been@@
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followed and as the Trial Court as well as the Appellate
Court arrived at the guilt of the appellant on wrong
assumptions, the appeal be accepted by setting aside the
impugned judgment.

In order to appreciate this submission some facts of the
case are required to be noticed. There is no dispute that
the truck, when intercepted, was not stationary but was in
transit being driven by the appellant. The raiding party
comprised of Nand Lal Rai, Inspector (PW8), Mohan Lal (PW1),
Bajrang Lal (PW2) and Zaheen Ahmad (PW7). Suspecting that
in the truck some narcotic drugs might be transported,
Inspector Nand Lal Rai (PW8) called independent witnesses
Onkar and Ram Lal and in their presence told the appellant
that he had a suspicion of opium being transported in the
truck. As he wanted to take search of the truck, he
inquired from the appellant whether he would get the truck
searched in the presence of a Gazetted Officer or a
Magistrate. He was told by the accused that the truck may
be searched by any officer or employee. As by that time
rain had started and there was no arrangement of light at
the place of checking, the preventive party took the truck
along with its driver to the Control Room of Central
Narcotics Bureau, Kota. PW8, Nand Lal Rai along with other
employees searched the truck in the presence of Anand Singh
Negi and other witnesses and found three gunny bags
containing opium, as noticed earlier. From each of the
gunny bags 2-2 samples of 24-24 grams opium was taken for
chemical examination and the samples seized in the presence
of the witnesses. The raxine bags containing opium were
placed in the gunny bags in the condition as it were and
each of the gunny bags was wrapped in white cloth and
sealed. Nand Lal Rai, Inspector(PW8), Anand Singh Negi
(PW4) and other employee-witnesses of the Department put
their signatures on the samples and the three bundles. They
also signed the Panchanama. The appellant was arrested
under the Act. Inspector Nand Lal Rai then went to the
office of the Superintendent, Central Narcotic Bureau, Kota
and lodged the First Information Report. The
Superintendent, Central Narcotic Bureau, Kota handed over
the investigation to Inspector Shiv Narain. The information
of the incident was sent to the higher authorities on 23rd
August, 1992. Samples taken from the seized opium were sent
to the General Manager, Government Opium and Alkaloid Works,
Neemach. On examination, the samples were found to be of
opium.

In the trial Court, the defence counsel argued that the
provisions of Section 42, 50, 52A, 52(1)&(2), 55 and 57 had
not been complied with. The Court, however, held that the
provisions of Section 42 of the Act were not applicable and
under Section 49, which was the relevant Section for the
case, it was not necessary for Inspector Nand Lal Rai (PW8)
to reduce in writing, the reason for suspicion before taking
the actual search. The alleged violation of Section 52A of
the Act did not affect the merits of the case. No prejudice
was held to have been caused on account of alleged
non-compliance of the provisions of Section 52(1)&(2) of the
Act. Section 52(3) of the Act was held to have been
complied with. So far as compliance of Section 55 of the
Act was concerned, the Trial Court held:

“On the basis of above discussion of evidence, I am of
the view that mandatory provisions of Section 55 of the Act
have been duly complied with. Bundles containing remaining
opium and samples were sealed at the site by officer
Incharge of the police station i.e. Nand Lal Rai Inspector
under his own seal. And it is proved beyond reasonable
doubt that these bundles of Opium were produced in the court
in the same sealed condition and that samples were sent to
laboratory for examination in the same sealed condition.
Not only this that after examination samples were produced
in the court in open condition and bundles of Opium were
also produced in the court in sealed condition, but also PW4
Anand Singh Negi and PW5 Rama Shanker Prasad have deposed,
while giving statement and after seeing above samples and
packets, that these packets and samples bear the same wax
seal of Nand Lal Rai which was affixed by him at the time of
sealing these packets and samples at the site. The chits
affixed on above packets and samples bear today also the
same signatures of Anand Singh which were put by him at the
time of sealing these packets and samples. Therefore, in my
opinion mandatory provisions section 55 of the Act have been
duly complied with.”

The High Court also found that the provisions of Section
42 of the Act were not applicable in the case and as resort@@
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was not had to the procedure prescribed under Clause (a) of@@
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sub-section (3) of Section 52, the compliance of Section 55
was not necessitated.

The Act was enacted to consolidate and amend the law
relating to narcotic drugs, to make stringent provisions for@@
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the control and regulation of operations relating to@@
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narcotic drugs and psychotropic substances to provide for
the forfeiture of property derived from, or used in, illicit
traffic in narcotic drugs and psychotropic substances, to
implement the provisions of the International Conventions on
Narcotic Drugs and Psychotropic Substances and for the
matters connected therewith. Chapter V comprising of
Sections 41 to 68 deals with the procedure relating to
issuance of warrants and authorisation, power of entry,
search, seizure and arrest without warrant or authorisation,
procedure where seizure of goods liable to confiscation not
practicable, conditions under which searches shall be
conducted, disposal of persons arrested and articles seized,
presumptions regarding possession of illicit articles,
punishment for vexatious entry, search, seizure and arrest,
confiscation of goods used for concealing illicit drugs and
substances, procedure for making confiscation and power to
tender immunity from prosecution, etc. Section 42 provides
that any Authorised Officer of the Departments of Central
Excise, Narcotics, Customs, Revenue Intelligence or any
other Department of the Central Government or the Border
Security Force, specially empowered by general or special
order by the Central Government, or any such officer of the
Revenue, Drugs Control, Excise, Police or any other
Department of a State Government empowered in that behalf by
general or special order, if he has reason to believe from
personal knowledge or information given by any person that
any narcotic drug or psychotropic substance, in respect of
which an offence punishable under Chapter IV has been
committed or any document or other article which may furnish
evidence or the commission of such offence is kept or
concealed in any building, conveyance or enclosed place,
may, between sunrise and sunset, enter into any such
building, conveyance or place and in case of resistance,
break open any door and remove any obstacle to such entry.
Such officer has the power to seize the drug or substance
and all material used in manufacture thereof and any other
article or conveyance which he has reason to believe to be
liable to confiscation under the Act and detain and search,
and if he thinks proper, arrest any person whom he has
reason to believe to have committed any offence punishable
under Chapter IV. If such officer has reason to believe
that such warrant and authorisation cannot be obtained
without affording opportunity for the concealment of
evidence or facility for escape of an offender, he has the
authority to enter such building, conveyance or enclosed
place any time between sunset and sunrise but after
recording the grounds of his belief. For attracting the
applicability of Section 42, it is necessary that the
officer empowered thereunder, before exercise of his right,
has reason to believe from personal knowledge or information
regarding the movement of narcotic drug or psychotropic
substance. However, if the action is taken not upon his
personal knowledge or information, the requirements of
Section 42 would not be applicable. Section 43 of the Act
provides:

“Power of Seizure and arrest in public places.– Any
officer of any of the departments mentioned in section 42
may–

(a) seize, in any public place or in transit, any
narcotic drug or psychotropic substance in respect of which
he has reason to believe an offence punishable under Chapter
IV has been committed, and, along with such drug or
substance, any animal or conveyance or article liable to
confiscation under this Act, and any document or other
article which he has reason to believe may furnish evidence
of the commission of an offence punishable under Chapter IV
relating to such drug or substance.

(b) detain and search any person whom he has reason to
believe to have committed an offence punishable under
Chapter IV, and, if such person has any narcotic drug or
psychotropic substance in his possession and such possession
appears to him to be unlawful, arrest him and any other
person in his company.

Explanation–For the purposes of this section, the
expression “public place” includes any public conveyance,
hotel, shop or other place intended for use by, or
accessible to, the public.”

Section 49 of the Act provides:

“Power to stop and search conveyance –Any officer
authorised under Section 42, may, if he has reason to
suspect that any animal or conveyance is, or is about to be,
used for the transport of any narcotic drug or psychotropic
substance, in respect of which he suspects that any
provisions of this Act has been, or is being, or is about to
be, contravened at any time, stop such animal or conveyance,
or, in the case of an aircraft, compel it to land and–

(a) rummage and search the conveyance or part thereof;

(b) examine and search any goods on the animal or in the
conveyance;

(c) if it becomes necessary to stop the animal or the
conveyance, he may use all lawful means for stopping it, and
where such means fail, the animal or the conveyance may be
fired upon.”

Section 53 of the Act empowers the Central Government,
after consultation with the State Government to invest any
officer of the Department of Central Excise, Narcotics,
Customs, Revenue Intelligence or Border Security Force or
any other class of such officers with the powers of an
officer-incharge of a police station for the investigation
of the offences under the Act. The provisions of the Code
of Criminal Procedure, 1973 have been made applicable in so
far as they are not inconsistent with the provisions of the
Act to all warrants issued and arrests, searches and seizure
under the Act. Section 52 of the Act requires an officer
arresting a person under Sections 41, 42, 43 or 44, as soon
as may be, to inform him of the grounds for such arrest.
Every person arrested and articles seized under warrant
issued under sub- section (1) of Section 41 is required to
be forwarded without necessary delay to Magistrate by whom
the warrant was issued. Sub-section (3) of Section 52
provides:

“(3) Every person arrested and article seized under sub-
section (2) of section 41, section 42, section 43 or section
44 shall be forwarded without unnecessary delay to–

(a) the officer-in-charge of the nearest police station,
or

(b) the officer empowered under section 53.”

Section 55 mandates an officer in-charge of a police
station to take charge and keep in safe custody of articles
seized under the Act within the local area of that police
station which may be delivered to him (Emphasis supplied)
and shall allow any officer who may accompany such article
to the police station or who may be deputed for the purpose
to affix his seal to such articles or to take samples of and
from them and all samples so taken shall also be sealed with
a seal of the officer-incharge of the police station.
Relying upon this Section Mr.Jayant Bhushan, learned amicus
curaie, submitted that as after the seizure the goods were
sent to the Superintendent, Central Narcotic Bureau, Kota,
who, as per law, being incharge of a police station, had not
affixed his seal on the articles and the samples, the whole
of the procedure followed being illegal, entitled the
appellant to be acquitted. The argument, though attractive
on the face of it, when analysed in depth, is found to be
without any substance. With the application of Section 51
read with Sections 52 and 53 of the Act, the officer
required to affix the seal etc., under Section 55 of the
Act, would be “the officer incharge of the nearest police
station” as distinguishable from and officer incharge of a
police station empowered under Section 53 of the Act. If
resort is had to the procedure prescribed under sub-section
3(a) of Section 52, the applicability of Section 55 of the
Act would be attracted but if the arrested person and the
seized articles are forwarded under Clause (b) of
sub-section (3) of Section 52 of the Act to the officer
empowered under Section 53 of the Act, the compliance of
Section 55 cannot be insisted upon. The distinction between
the officer incharge of the nearest police station and the
officer empowered under Section 53 of the Act is distinct
and clear. The distinction is apparently based upon a
reasonable object, because as in case the person and the
seized articles are referred to the ‘officer incharge of the
nearest police station’, a distinct agency, than the
‘officers contemplated under Section 53’ of the Act, comes
into the picture which requires the taking of sufficient
safeguards to protect the seized property in the interests
of the arrested persons. The distinction is also evident
from Section 52A(2) of the Act. Keeping in view the
multifarious activities and the duties cast upon the officer
incharge of the police station under the Code of Criminal
Procedure and he being apparently busy with the duties under
the Code, the officers mentioned in Section 53 of the Act
have been mandated to take action for disposal of seized
narcotic drugs and psychotropic substances by filing
application which, when filed, has to be allowed by the
Magistrate as soon as may be. We are of the opinion that in
the present case the procedure prescribed under Section 49
read with Section 43 was attracted, which, on facts, has
been found to be followed. Keeping in mind the facts and
circumstances of the case and the mandate of law, as
explained by this Court in Abdul Rashid Ibrahim Mansuri’s
case (supra), we are of the opinion that the appellant had
not discharged the burden of proof in any manner to rebut
the presumption envisaged under Section 35 of the Act. He
has been proved to be transporting the opium with a
conscious mind and full knowledge. All ingredients of the
offences with which he has been convicted and sentenced had
been proved by the prosecution.

We find no merit in this appeal which is accordingly
dismissed.

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