2000 (2) TMI 807 - SC - Customs

Whether there was non-compliance with the conditions stipulated in Section 50 enough to vitiate the search as a whole? Held that - In this case non-recording of the vital information collected by the police at the first instance can be counted as a circumstance in favour of the appellant. Next is that even the information which PW 2 recollected from memory is capable of helping the accused because it indicates that the real culprits would have utilized the services of an auto-rickshaw driver to transport the gunny bags and it is not necessary that the auto-rickshaw driver should have been told in advance that the gunny bags contained such offensive substance. The possibility is just the other way around that the said culprits would not have disclosed that information to the auto-rickshaw driver unless it is shown that he had entered into a criminal conspiracy with the other main culprits to transport the contraband. Prosecution did not adduce any evidence to show any such connivance between the appellants and the real culprits. There is nothing even to suggest that those culprits and the appellant were close to each other or even known to each other earlier. Yet another circumstance discernible from the evidence in this case is that the police had actually arrayed two other persons as the real culprits and made all endeavour to arrest them but they absconded themselves and escaped from the reach of the police. From the above circumstances we hold that the accused had discharged the burden of proof in such a manner as to rebut the presumption envisaged in Section 35 of the Act. He is therefore not liable to be convicted for the offences pitted against him. Appeal allowed.

Summary

Issues Involved:
1. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Compliance with Section 42 of the NDPS Act.
3. Presumption of culpable mental state under Section 35 of the NDPS Act.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The appellant contended that there was non-compliance with Section 50, which mandates informing the person to be searched of their right to be taken before a Gazetted Officer or Magistrate. The court referenced the State of Punjab v. Baldev Singh, which clarified that non-compliance with Section 50 would vitiate the conviction if the search was conducted on the person. However, it was determined that the search in this case was of the vehicle, not the person. Therefore, Section 50 was not applicable.

2. Compliance with Section 42 of the NDPS Act:
Section 42 mandates that officers must take down in writing any information received about narcotic drugs and send a copy to their immediate superior. PW-2, the police officer, admitted he did not record the information in writing nor inform his superior, thus violating Section 42. The court cited State of Punjab v. Balbir Singh, which held that non-compliance with Section 42 affects the prosecution case and prejudices the accused. The court concluded that the non-compliance with Section 42 in this case rendered the search suspect and prejudiced the appellant.

3. Presumption of Culpable Mental State under Section 35 of the NDPS Act:
Section 35 presumes a culpable mental state, but the accused can rebut this presumption by proving lack of knowledge about the contraband. The appellant argued he was unaware of the contents of the gunny bags. The court noted that the prosecution failed to show any connivance between the appellant and the real culprits. The non-recording of vital information by the police and the recollected information suggesting the appellant was merely transporting the bags without knowledge of their contents helped rebut the presumption under Section 35. The court held that the appellant discharged his burden of proof, rebutting the presumption of culpable mental state.

Judgment:
The appeal was allowed, and the conviction and sentence passed by the High Court were set aside. The trial court's order of acquittal was restored, and the appellant was directed to be set at liberty forthwith, if not required in any other case.