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TMI Blog2000 (9) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i n 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 that 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, the appeal be accepted by setting aside the impugned judgment. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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