2000 (9) TMI 1031 - SC - Customs

Whether the mandate of Section 55 of the Act has not been followed and as the Trial Court as well as the Appellate Court arrived at the guilt of the appellant on wrong assumptions? Held that - 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 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. Appeal dismissed.

Summary

Issues Involved:
1. Compliance with procedural safeguards under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Applicability of Section 42 of the NDPS Act.
3. Compliance with Section 55 of the NDPS Act.
4. Presumption under Section 35 of the NDPS Act and the appellant's culpable mental state.
5. Legality of the search and seizure operation.

Issue-wise Detailed Analysis:

1. Compliance with Procedural Safeguards under the NDPS Act:
The appellant contended that the procedural safeguards under the NDPS Act were not followed, entitling him to acquittal. The trial court and the appellate court were accused of arriving at the appellant's guilt based on wrong assumptions.

2. Applicability of Section 42 of the NDPS Act:
The trial court held that the provisions of Section 42 were not applicable in this case. The court reasoned that under Section 49, it was unnecessary for Inspector Nand Lal Rai to reduce in writing the reason for suspicion before taking the actual search. This was because the truck was intercepted in transit, not in a stationary position. The High Court upheld this view, stating that Section 42 did not apply and that the compliance of Section 55 was not necessitated.

3. Compliance with Section 55 of the NDPS Act:
The appellant argued that the mandate of Section 55, which requires the officer in charge of the police station to take charge and keep in safe custody articles seized under the Act, was not followed. The trial court found that the mandatory provisions of Section 55 were duly complied with. The High Court also found that the compliance with Section 55 was not necessitated as the procedure prescribed under Clause (a) of sub-section (3) of Section 52 was not resorted to.

4. Presumption under Section 35 of the NDPS Act and the Appellant's Culpable Mental State:
The appellant's counsel argued that no presumption under Section 35 could be drawn against the appellant. The counsel relied on the judgment in Abdul Rashid Ibrahim Mansuri v. State of Gujarat to contend that the appellant had discharged the onus of proof regarding his plea of absence of culpable mental state. However, the court found that the appellant had not discharged the burden of proof to rebut the presumption under Section 35. The court held that the appellant was transporting the opium with a conscious mind and full knowledge.

5. Legality of the Search and Seizure Operation:
The appellant was apprehended and arrested while driving a truck carrying 96.600 kgs of opium. The search and seizure operation was conducted by a Preventive Party, including Inspector Nand Lal Rai and other officers. The truck was taken to the Control Room of the Central Narcotics Bureau, Kota, due to rain and lack of light at the initial search location. The search revealed three gunny bags containing opium, and samples were taken for chemical examination. The court held that the procedure prescribed under Section 49 read with Section 43 was followed. The compliance with Section 55 was found to be duly met, as the seized articles were produced in court in the same sealed condition as when they were seized.

Conclusion:
The Supreme Court dismissed the appeal, finding no merit in the appellant's contentions. The court upheld the conviction and sentence, confirming that the procedural safeguards under the NDPS Act were followed, and the appellant had not rebutted the presumption of culpable mental state under Section 35. The search and seizure operation was conducted legally, and all ingredients of the offenses were proved by the prosecution.