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TMI Blog2000 (2) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... not seriously disputed by the appellant. More details about the facts are the following: PW-2 Premsingh M. Vishen, Inspector of Police at Dariapur Police Station, got information on 12-1-1988 that one Iqbal Syed Husen was trying to transport Charas up to Shahpur in an auto-rickshaw bearing No. GTH 3003, PW-2 collected some more policemen and proceeded to the main road in quest for the contraband movement. At about 4.00 p.m. they sighted the auto-rickshaw which was then driven by the appellant. They stopped it and checked it and found four gunny bags placed inside the vehicle. Police took the vehicle to the Police Station and when the gunny bags were opened ten packets of Charas were found concealed therein . The value of the said contraband was estimated to be Rs. 5.29 lakhs. When investigation was conducted it was revealed that the said consignment was loaded in the auto-rickshaw by two persons - Iqbal Syed Husen and Mahaboob Rasal Khan. The police made a search to trace them out but failed. And unceremoniously dropping them, a charge-sheet was laid against the appellant only before the Chief Metropolitan Magistrate fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilure to inform the person concerned 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. Sri Yashank P. Adhyaru, learned Counsel for the State of Gujarat contended that there was no question of complying with the conditions stipulated in Section 50 of the Act as no search of the person was conducted in this case. According to the learned Counsel, the search conducted was of the conveyance and the mere fact that appellant was then driving the vehicle would not make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed of 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) seize 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 authorization cannot be obtained without affording opportunity for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo-Judge Bench of this Court has considered the said question along with other questions in State of Punjab v. Balbir Singh . In paragraph 25 of that judgment the conclusions were laid down, of which what is relevant for this case regarding Section 42(1) is the following: "(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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollect from memory, when he was examined in Court after the lapse of a long time, as to what information he got before he proceeded to the scene. Even otherwise, the information which PW-2. in this case, recollected itself tends to exculpate the appellant rather than inculpate him. In the above context, learned Counsel for the State sought to rely on the legal presumption envisaged in Section 35 of the Act. In fact the Division Bench of the High Court also mainly rested on that legal premise. Section 35 reads thus: "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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. In the result, we allow this appeal and set aside the conviction and sentence passed on the appellant by the High Court in the impugned judgment. We restore the order of acquittal passed in his favour by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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