{"id":75437,"date":"2000-09-13T00:00:00","date_gmt":"2000-09-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/karnail-singh-vs-state-of-rajasthan-on-13-september-2000"},"modified":"2016-04-04T22:51:07","modified_gmt":"2016-04-04T17:21:07","slug":"karnail-singh-vs-state-of-rajasthan-on-13-september-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/karnail-singh-vs-state-of-rajasthan-on-13-september-2000","title":{"rendered":"Karnail Singh vs State Of Rajasthan on 13 September, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Karnail Singh vs State Of Rajasthan on 13 September, 2000<\/div>\n
Author: Sethi<\/div>\n
Bench: K.T. Thomas, R.P. Sethi.<\/div>\n
           CASE NO.:\nSpecial Leave Petition (crl.) 982  of  1999\n\n\n\nPETITIONER:\nKARNAIL SINGH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF RAJASTHAN\n\nDATE OF JUDGMENT:\t13\/09\/2000\n\nBENCH:\nK.T. Thomas & R.P. Sethi.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
SETHI, J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J
\n    Leave granted.\n<\/p>\n
    The\t appellant,  a\ttruck  driver  was  apprehended\t and
\narrested  on 21st August, 1992 by a Preventive Party, on the
\nKota-Bundi  Road in Rajasthan as he was shown to be carrying
\n96.600\tkgs.  of opium in his Truck No.PCT 9997.  The  opium
\nwas found concealed in three gunny bags containing 21 raxine
\nbags.\tAfter compliance of the requisite legal formalities,
\na  case\t under\tSection\t 8\/18  of  the\tNarcotic  Drugs\t and
\nPsychotropic  Substances Act, 1985 (hereinafter called\t“the
\nAct”)  was  registered.\t The seized goods and  samples\twere
\nkept  in  double  lock malkhana.  On conducting\t tests,\t the
\narticles  seized  were\tfound to be opium.   On\t trial,\t the
\nappellant was found guilty of the offences with which he was
\ncharged\t under\tthe Act.  He was convicted and sentenced  to
\nrigorous  imprisonment\tfor  15 years and to pay a  fine  of
\nRs.1.5\tlakhs or in default of the fine to undergo  rigorous
\nimprisonment for one year.  In appeal, the High Court upheld
\nthe  conviction but reduced the sentence of imprisonment  to
\n10  years and fine of Rs.1 lakh, vide the order impugned  in
\nthis appeal.\n<\/p>\n
    Mr.Jayant  Bhushan,\t Advocate  who\tappeared  as  amicus
\ncuraie\thas raised some legal questions which, according  to
\nhim, had not been taken note of either by the Trial Court or
\nby  the\t High  Court.  He contended that  as  the  procedure
\nprescribed under the Act was not followed, the appellant was
\nentitled  to  acquittal.  It was further submitted  that  no
\npresumption  under  Section  35 of the Act  could  be  drawn
\nagainst\t the  appellant.  Relying upon the judgment of\tthis
\nCourt  in Abdul Rashid Ibrahim Mansuri v.  State of  Gujarat
\n[2000  (2)  SCC\t 513] he contended that\t the  appellant\t had
\ndischarged  the onus of proof regarding his plea of  absence
\nof culpable mental state which should have been accepted and
\nthe appellant acquitted.\n<\/p>\n
    Regarding  violation  of the procedural safeguard  under
\nthe  Act,  it has been contended on behalf of the  appellant@@
\n\t      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nthat  the  mandate  of Section 55 of the Act  has  not\tbeen@@
\nJJJJJJJJJJJJJJJJJJJJJJ
\nfollowed  and  as the Trial Court as well as  the  Appellate
\nCourt  arrived\tat  the\t guilt of  the\tappellant  on  wrong
\nassumptions,  the  appeal be accepted by setting  aside\t the
\nimpugned judgment.\n<\/p>\n
    In order to appreciate this submission some facts of the
\ncase  are required to be noticed.  There is no dispute\tthat
\nthe  truck, when intercepted, was not stationary but was  in
\ntransit\t being\tdriven by the appellant.  The raiding  party
\ncomprised of Nand Lal Rai, Inspector (PW8), Mohan Lal (PW1),
\nBajrang\t Lal (PW2) and Zaheen Ahmad (PW7).  Suspecting\tthat
\nin  the\t truck\tsome narcotic drugs  might  be\ttransported,
\nInspector  Nand\t Lal Rai (PW8) called independent  witnesses
\nOnkar  and Ram Lal and in their presence told the  appellant
\nthat  he  had a suspicion of opium being transported in\t the
\ntruck.\t As  he\t wanted\t to take search\t of  the  truck,  he
\ninquired  from the appellant whether he would get the  truck
\nsearched  in  the  presence  of\t a  Gazetted  Officer  or  a
\nMagistrate.   He was told by the accused that the truck\t may
\nbe  searched  by any officer or employee.  As by  that\ttime
\nrain  had  started and there was no arrangement of light  at
\nthe  place of checking, the preventive party took the  truck
\nalong  with  its  driver  to the  Control  Room\t of  Central
\nNarcotics  Bureau, Kota.  PW8, Nand Lal Rai along with other
\nemployees  searched the truck in the presence of Anand Singh
\nNegi  and  other  witnesses  and   found  three\t gunny\tbags
\ncontaining  opium,  as\tnoticed earlier.  From each  of\t the
\ngunny  bags  2-2 samples of 24-24 grams opium was taken\t for
\nchemical  examination and the samples seized in the presence
\nof  the\t witnesses.  The raxine bags containing\t opium\twere
\nplaced\tin  the gunny bags in the condition as it  were\t and
\neach  of  the  gunny  bags was wrapped in  white  cloth\t and
\nsealed.\t  Nand\tLal  Rai, Inspector(PW8), Anand\t Singh\tNegi
\n(PW4)  and  other employee-witnesses of the  Department\t put
\ntheir signatures on the samples and the three bundles.\tThey
\nalso  signed  the  Panchanama.\tThe appellant  was  arrested
\nunder  the  Act.   Inspector Nand Lal Rai then went  to\t the
\noffice\tof the Superintendent, Central Narcotic Bureau, Kota
\nand    lodged\tthe    First\tInformation   Report.\t The
\nSuperintendent,\t Central  Narcotic Bureau, Kota handed\tover
\nthe investigation to Inspector Shiv Narain.  The information
\nof  the incident was sent to the higher authorities on\t23rd
\nAugust, 1992.  Samples taken from the seized opium were sent
\nto the General Manager, Government Opium and Alkaloid Works,
\nNeemach.   On  examination, the samples were found to be  of
\nopium.\n<\/p>\n
    In\tthe trial Court, the defence counsel argued that the
\nprovisions  of Section 42, 50, 52A, 52(1)&(2), 55 and 57 had
\nnot  been complied with.  The Court, however, held that\t the
\nprovisions  of Section 42 of the Act were not applicable and
\nunder  Section\t49, which was the relevant Section  for\t the
\ncase,  it was not necessary for Inspector Nand Lal Rai (PW8)
\nto reduce in writing, the reason for suspicion before taking
\nthe  actual search.  The alleged violation of Section 52A of
\nthe Act did not affect the merits of the case.\tNo prejudice
\nwas  held  to  have  been   caused  on\taccount\t of  alleged
\nnon-compliance of the provisions of Section 52(1)&(2) of the
\nAct.   Section\t52(3)  of  the Act was\theld  to  have\tbeen
\ncomplied  with.\t  So far as compliance of Section 55 of\t the
\nAct was concerned, the Trial Court held:\n<\/p>\n
    “On\t the basis of above discussion of evidence, I am  of
\nthe  view that mandatory provisions of Section 55 of the Act
\nhave  been duly complied with.\tBundles containing remaining
\nopium  and  samples  were  sealed at  the  site\t by  officer
\nIncharge  of the police station i.e.  Nand Lal Rai Inspector
\nunder  his  own\t seal.\tAnd it is proved  beyond  reasonable
\ndoubt that these bundles of Opium were produced in the court
\nin  the same sealed condition and that samples were sent  to
\nlaboratory  for\t examination in the same  sealed  condition.
\nNot  only this that after examination samples were  produced
\nin  the\t court in open condition and bundles of\t Opium\twere
\nalso produced in the court in sealed condition, but also PW4
\nAnand  Singh Negi and PW5 Rama Shanker Prasad have  deposed,
\nwhile  giving  statement and after seeing above samples\t and
\npackets,  that\tthese packets and samples bear the same\t wax
\nseal of Nand Lal Rai which was affixed by him at the time of
\nsealing\t these\tpackets and samples at the site.  The  chits
\naffixed\t on  above packets and samples bear today  also\t the
\nsame  signatures of Anand Singh which were put by him at the
\ntime of sealing these packets and samples.  Therefore, in my
\nopinion mandatory provisions section 55 of the Act have been
\nduly complied with.”\n<\/p>\n
    The High Court also found that the provisions of Section
\n42  of the Act were not applicable in the case and as resort@@
\n\t   JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nwas  not had to the procedure prescribed under Clause (a) of@@
\nJJJJJJJJJJJJJJJJJJJ
\nsub-section  (3) of Section 52, the compliance of Section 55
\nwas not necessitated.\n<\/p>\n
    The\t Act  was enacted to consolidate and amend  the\t law
\nrelating to narcotic drugs, to make stringent provisions for@@
\n\t    JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nthe  control  and  regulation  of  operations  relating\t  to@@
\nJJJJJJJJJJJJJJJJJ
\nnarcotic  drugs\t and psychotropic substances to provide\t for
\nthe forfeiture of property derived from, or used in, illicit
\ntraffic\t in  narcotic drugs and psychotropic substances,  to
\nimplement the provisions of the International Conventions on
\nNarcotic  Drugs\t and  Psychotropic Substances  and  for\t the
\nmatters\t connected  therewith.\t Chapter   V  comprising  of
\nSections  41  to  68 deals with the  procedure\trelating  to
\nissuance  of  warrants\tand authorisation, power  of  entry,
\nsearch, seizure and arrest without warrant or authorisation,
\nprocedure  where seizure of goods liable to confiscation not
\npracticable,  conditions  under\t which\t searches  shall  be
\nconducted, disposal of persons arrested and articles seized,
\npresumptions  regarding\t possession  of\t illicit   articles,
\npunishment  for vexatious entry, search, seizure and arrest,
\nconfiscation  of goods used for concealing illicit drugs and
\nsubstances,  procedure for making confiscation and power  to
\ntender\timmunity from prosecution, etc.\t Section 42 provides
\nthat  any  Authorised Officer of the Departments of  Central
\nExcise,\t Narcotics,  Customs,  Revenue Intelligence  or\t any
\nother  Department  of the Central Government or\t the  Border
\nSecurity  Force,  specially empowered by general or  special
\norder  by the Central Government, or any such officer of the
\nRevenue,   Drugs  Control,  Excise,   Police  or  any  other
\nDepartment of a State Government empowered in that behalf by
\ngeneral\t or special order, if he has reason to believe\tfrom
\npersonal  knowledge or information given by any person\tthat
\nany  narcotic drug or psychotropic substance, in respect  of
\nwhich  an  offence  punishable\tunder Chapter  IV  has\tbeen
\ncommitted or any document or other article which may furnish
\nevidence  or  the  commission  of such offence\tis  kept  or
\nconcealed  in  any building, conveyance or  enclosed  place,
\nmay,  between  sunrise\tand  sunset,  enter  into  any\tsuch
\nbuilding,  conveyance  or place and in case  of\t resistance,
\nbreak  open any door and remove any obstacle to such  entry.
\nSuch  officer  has the power to seize the drug or  substance
\nand  all material used in manufacture thereof and any  other
\narticle\t or conveyance which he has reason to believe to  be
\nliable\tto confiscation under the Act and detain and search,
\nand  if\t he  thinks proper, arrest any person  whom  he\t has
\nreason\tto believe to have committed any offence  punishable
\nunder  Chapter\tIV.  If such officer has reason\t to  believe
\nthat  such  warrant  and authorisation\tcannot\tbe  obtained
\nwithout\t affording  opportunity\t for   the  concealment\t  of
\nevidence  or facility for escape of an offender, he has\t the
\nauthority  to  enter such building, conveyance\tor  enclosed
\nplace  any  time  between  sunset   and\t sunrise  but  after
\nrecording  the\tgrounds of his belief.\tFor  attracting\t the
\napplicability  of  Section  42,\t it is\tnecessary  that\t the
\nofficer\t empowered thereunder, before exercise of his right,
\nhas reason to believe from personal knowledge or information
\nregarding  the\tmovement  of narcotic drug  or\tpsychotropic
\nsubstance.   However,  if the action is taken not  upon\t his
\npersonal  knowledge  or\t information,  the  requirements  of
\nSection\t 42 would not be applicable.  Section 43 of the\t Act
\nprovides:\n<\/p>\n
    “Power  of\tSeizure and arrest in public  places.–\t Any
\nofficer\t of  any of the departments mentioned in section  42
\nmay–\n<\/p>\n
    (a)\t seize,\t in  any  public place or  in  transit,\t any
\nnarcotic  drug or psychotropic substance in respect of which
\nhe has reason to believe an offence punishable under Chapter
\nIV  has\t been  committed,  and,\t along\twith  such  drug  or
\nsubstance,  any\t animal or conveyance or article  liable  to
\nconfiscation  under  this  Act, and any\t document  or  other
\narticle\t which he has reason to believe may furnish evidence
\nof  the commission of an offence punishable under Chapter IV
\nrelating to such drug or substance.\n<\/p>\n
    (b)\t detain and search any person whom he has reason  to
\nbelieve\t to  have  committed  an  offence  punishable  under
\nChapter\t IV,  and, if such person has any narcotic  drug  or
\npsychotropic substance in his possession and such possession
\nappears\t to  him  to be unlawful, arrest him and  any  other
\nperson in his company.\n<\/p>\n
    Explanation–For  the  purposes  of\t this  section,\t the
\nexpression  “public  place” includes any public\t conveyance,
\nhotel,\tshop  or  other\t place\t intended  for\tuse  by,  or
\naccessible to, the public.”\n<\/p>\n
Section 49 of the Act provides:\n<\/p>\n
    “Power  to\tstop  and search  conveyance  –Any  officer
\nauthorised  under  Section  42,\t may, if he  has  reason  to
\nsuspect that any animal or conveyance is, or is about to be,
\nused  for the transport of any narcotic drug or psychotropic
\nsubstance,  in\trespect\t of  which   he\t suspects  that\t any
\nprovisions of this Act has been, or is being, or is about to
\nbe, contravened at any time, stop such animal or conveyance,
\nor, in the case of an aircraft, compel it to land and–\n<\/p>\n
    (a) rummage and search the conveyance or part thereof;\n<\/p>\n
    (b) examine and search any goods on the animal or in the
\nconveyance;\n<\/p>\n
    (c)\t if  it becomes necessary to stop the animal or\t the
\nconveyance, he may use all lawful means for stopping it, and
\nwhere  such means fail, the animal or the conveyance may  be
\nfired upon.”\n<\/p>\n
    Section  53 of the Act empowers the Central\t Government,
\nafter  consultation with the State Government to invest\t any
\nofficer\t of  the  Department of Central\t Excise,  Narcotics,
\nCustoms,  Revenue  Intelligence or Border Security Force  or
\nany  other  class  of such officers with the  powers  of  an
\nofficer-incharge  of a police station for the  investigation
\nof  the offences under the Act.\t The provisions of the\tCode
\nof  Criminal Procedure, 1973 have been made applicable in so
\nfar  as they are not inconsistent with the provisions of the
\nAct to all warrants issued and arrests, searches and seizure
\nunder  the  Act.  Section 52 of the Act requires an  officer
\narresting  a person under Sections 41, 42, 43 or 44, as soon
\nas  may\t be, to inform him of the grounds for  such  arrest.
\nEvery  person  arrested\t and articles seized  under  warrant
\nissued\tunder sub- section (1) of Section 41 is required  to
\nbe  forwarded without necessary delay to Magistrate by\twhom
\nthe  warrant  was  issued.  Sub-section (3)  of\t Section  52
\nprovides:\n<\/p>\n
    “(3) Every person arrested and article seized under sub-
\nsection (2) of section 41, section 42, section 43 or section
\n44 shall be forwarded without unnecessary delay to–\n<\/p>\n
    (a) the officer-in-charge of the nearest police station,
\n\tor<\/p>\n
    (b) the officer empowered under section 53.”\n<\/p>\n
    Section  55\t mandates an officer in-charge of  a  police
\nstation\t to take charge and keep in safe custody of articles
\nseized\tunder  the Act within the local area of that  police
\nstation\t which\tmay be delivered to him (Emphasis  supplied)
\nand  shall allow any officer who may accompany such  article
\nto  the police station or who may be deputed for the purpose
\nto affix his seal to such articles or to take samples of and
\nfrom them and all samples so taken shall also be sealed with
\na  seal\t of  the  officer-incharge of  the  police  station.
\nRelying\t upon this Section Mr.Jayant Bhushan, learned amicus
\ncuraie,\t submitted that as after the seizure the goods\twere
\nsent  to the Superintendent, Central Narcotic Bureau,  Kota,
\nwho, as per law, being incharge of a police station, had not
\naffixed\t his seal on the articles and the samples, the whole
\nof  the\t procedure  followed  being  illegal,  entitled\t the
\nappellant  to be acquitted.  The argument, though attractive
\non  the\t face of it, when analysed in depth, is found to  be
\nwithout\t any substance.\t With the application of Section  51
\nread  with  Sections  52  and 53 of  the  Act,\tthe  officer
\nrequired  to  affix the seal etc., under Section 55  of\t the
\nAct,  would  be “the officer incharge of the nearest  police
\nstation”  as distinguishable from and officer incharge of  a
\npolice\tstation\t empowered under Section 53 of the Act.\t  If
\nresort\tis had to the procedure prescribed under sub-section
\n3(a)  of Section 52, the applicability of Section 55 of\t the
\nAct  would  be attracted but if the arrested person and\t the
\nseized\t articles   are\t forwarded   under  Clause  (b)\t  of
\nsub-section  (3)  of  Section 52 of the Act to\tthe  officer
\nempowered  under  Section 53 of the Act, the  compliance  of
\nSection 55 cannot be insisted upon.  The distinction between
\nthe  officer incharge of the nearest police station and\t the
\nofficer\t empowered  under Section 53 of the Act is  distinct
\nand  clear.   The  distinction is apparently  based  upon  a
\nreasonable  object,  because as in case the person  and\t the
\nseized articles are referred to the ‘officer incharge of the
\nnearest\t police\t station’,  a\tdistinct  agency,  than\t the
\n‘officers  contemplated under Section 53’ of the Act,  comes
\ninto  the  picture which requires the taking  of  sufficient
\nsafeguards  to protect the seized property in the  interests
\nof  the\t arrested persons.  The distinction is also  evident
\nfrom  Section  52A(2)  of  the Act.   Keeping  in  view\t the
\nmultifarious activities and the duties cast upon the officer
\nincharge  of  the police station under the Code of  Criminal
\nProcedure and he being apparently busy with the duties under
\nthe  Code,  the officers mentioned in Section 53 of the\t Act
\nhave  been  mandated to take action for disposal  of  seized
\nnarcotic  drugs\t and  psychotropic   substances\t by   filing
\napplication  which,  when  filed, has to be allowed  by\t the
\nMagistrate as soon as may be.  We are of the opinion that in
\nthe  present case the procedure prescribed under Section  49
\nread  with  Section 43 was attracted, which, on\t facts,\t has
\nbeen  found  to be followed.  Keeping in mind the facts\t and
\ncircumstances  of  the\tcase  and the  mandate\tof  law,  as
\nexplained  by  this Court in Abdul Rashid Ibrahim  Mansuri’s
\ncase  (supra), we are of the opinion that the appellant\t had
\nnot  discharged\t the burden of proof in any manner to  rebut
\nthe  presumption envisaged under Section 35 of the Act.\t  He
\nhas  been  proved  to  be  transporting\t the  opium  with  a
\nconscious  mind and full knowledge.  All ingredients of\t the
\noffences  with which he has been convicted and sentenced had
\nbeen proved by the prosecution.\n<\/p>\n
    We\tfind  no merit in this appeal which  is\t accordingly
\ndismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-75437","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKarnail Singh vs State Of Rajasthan on 13 September, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/karnail-singh-vs-state-of-rajasthan-on-13-september-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Karnail Singh vs State Of Rajasthan on 13 September, 2000 - 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