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TMI Blog1988 (9) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the Sudershan Kumar's house. He gave his personal search before searching the house. During the search he found a plastic bag hidden underneath a gunny bag. The plastic bag contained opium weighing 352 gins. The case was registered under Section 9 of the Opium Act and accordingly a challan was put up, but the learned trial Court committed the case to the Sessions Judge under Section 18 of the Narcotic Act as the provisions of the Opium Act stood repealed by the Narcotic Act. The prosecution, however, failed to produce any notification issued by the State Government under the provisions of Section 41 or 42 empowering the police officer concerned to enter, search, seizure and arrest without warrants. In its absence, search effected and the recovery made by the police was held to be without any legal authority to be ignored in the eye of law. The learned Sessions Judge further held the provisions of Sections 50 and 55 of the Narcotic Act as mandatory and non-compliance therewith fatal to the prosecution case. The order of discharge of the accused followed. 4. In Cr. Rev. No. 121 of 1987, the learned Sessions Judge, Solan and Sirmur Districts at Nahan, relying on a judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be observed to bestow rightful place to such provisions which the legislature has enacted, in its wisdom, to ensure that in no case, an innocent is convicted, for the minimum sentence laid down for most of the offences are rigorous imprisonment for ten years extending up to twenty years besides very heavy fine. We have set for ourselves these principles to guide us while examining various provisions of the Narcotic Act. 9. The first point which requires consideration is the extent of applicability of the procedure outlined in Chapter V of the Act. The relevant sections in the matter are Sections 37 and 51 of the Act and Sections 4(2) and 5 of the Criminal Procedure Code (hereinafter referred to as 'the Code'). Section 37 provides that every offence punishable under the Act shall be cognizable, anything contained in the Criminal Procedure Code notwithstanding. According to Section 51, the provisions of the Code shall apply in so-far as they are not inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizures made under the Act. Sections 4 and 5 of the Code read as follows: 4. Trial of offences under the Indian Penal Code a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in which he has reason to believe 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 of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge of information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. 43. Power of seizure and arrest in public places.- Any officer of any of the departments mentioned in Section 42 may - (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article 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 an offence punishable under Chapter IV rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of seizure and arrest in public places, whereas Section 42 covers search of building, conveyance or enclosed place. Further, Section 42 incorporates additional steps to be taken in case the designated officer finds it necessary to enter and search any building conveyance or enclosed place at any time between sun set and sun rise; (e) A common thread which runs through Sections 41 to 44 (and even Section 49) is that the designated officer thereunder should have reason to believe about the commission of an offence under the Narcotic Act before he conducts search and arrests. If such officer has valid reason to suspect as distinguished from reason to believe, the requirement of law would be met. This is because Section 43 (b) visualises a situation where a person is detained and searched but no illicit article is actually recovered from him. Section 49 expressly uses the words reason to suspect instead. Otherwise too, it stands to reason that the designated officer must search on the basis of bona fide suspicion. It may also be noticed here that using powers under Sections 42,43 and 44 without reasonable ground of suspicion or detaining, searching or arresting any person vex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds of his personal knowledge or information given by any person that some one has committed an offence under the Narcotic Act, as postulated under Section 41(2) and Section 42(1) and further record the grounds of his belief under proviso to Section 42(1) and, once again, it is only such an officer who is required to send a copy of information under Section 42(1) and ground of belief forthwith to his immediate official superior (see Sub-section (2) of Section 42), In case of situation not specifically covered as outlined above, there could be no question of complying with the aforesaid provisions. Such cases will be, obviously enough, governed by the provisions of the Criminal Procedure Code and the accused, if found guilty, liable to be convicted under the Narcotic Act; and (g) Where advance information is available, it must be passed on to the designated officer who has to reduce to writing the said information. (See Sub-section (2) of Section 41 and Section 42). It has also been enjoined upon him to send forthwith a copy of his report to his immediate superior officer, as provided under Section 42(2). These provisions are mandatory in nature inasmuch as sufficient material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Station or the Officer invested with powers of Officer-in-Charge of a Police Station for the investigation of offence under the Act (sub-section (3) of Section 52). Section 55 casts a duty on the Officer-in-Charge to keep articles in safe custody and allow any officer, who may accompanying such articles, to put his seal or take sample. Then comes Section 57 which postulates that any person making arrest or seizure shall make full report to his immediate superior officer within 48 hours. 13. While determining whether the above provisions to be followed after the search and arrest are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are, generally speaking, directory. The purpose is to incorporate certain procedural instructions for a strict compliance by public functioneries. 'Nevertheless, non-compliance of these instructions per se cannot render the acts done as null and void. In other words, it will have to be shown that such non-compliance has caused prejudice and failure of justice, in which case alone the provisions would partake the nature of being mandatory. Judging the provisions in the light of the tou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstable was not entitled to arrest the appellant therein nor could he conduct the search as he lacked powers under Section 41, 42 or 43 of the Act. Furthermore, the provisions of Sections 50, 52 and 57 were also held to be mandatory. 16-17. The ratio of Karam Singh's case (supra) was followed by the Punjab and Haryana High Court in Bhajan Singh v. State of Haryana (1988) 1 Crimes, 444 and Hakam Singh v. Union Territory of Chandigarh 1988 Cri LJ 528. In Hakam Singh's case, the accused was apprehended on the road side pursuant to a secret information that he was in possession of crushed poppy heads. On search he was found to be carrying one bag containing 15 Kgs. of crushed poppy heads, As stated above, the learned single Judge followed the ratio of Karam Singh's case (supra) but in addition also considered the question as to whether the secret information received by the police was required to be taken down in writing and held that provision to that effect was mandatory and its non-compliance had prejudiced the accused. While scrutinising the provisions of Section 50 of the Act and, in particular the words if such person so requires used therein, the learned Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts giving rise to the filing of Criminal Revision No. 106 of 1987 have been narrated above. The learned Sessions Judge, Una discharged the accused on the ground that S.H.O., Babu Ram, who led the raiding party, had not been empowered under the provisions of Sections 41 or 42 of the Narcotic Act. The perusal of the impugned judgment shows that the learned Sessions Judge did not consider the transitional provisions of Section 74, pursuant to which S.H.O., Babu Ram could exercise powers with respect to any matter provided for in the Narcotic Act even after the commencement of the Act. The learned Sessions Judge further held the provisions of Sections 50 and 55 of the Narcotic Act as mandatory and non-compliance therewith fatal to the prosecution case. He has obviously fallen into an error in the matter. Section 50 comes into play when a person is to be searched and has no application at all to a search of any house. It speaks of taking a person to the nearest Gazetted Officer or Magistrate for conducting his search. In this case, a plastic bag containing 352 grams of opium was found hidden underneath a gunny bag. As regards Section 55, violation thereof has been held to be directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for a period of 10 years and to pay a fine of ₹ 1,00,000/-. In default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for 2 1/2 years. Aggrieved from the aforesaid order, this appeal has been preferred by accused Schneider Helmut. 25. The accused, when examined under the provisions of Section 313 of the Code, has denied that the Charas in question belonged to him. In reply to question 13, he has stated that the door of the room which was in his possession could easily be opened without the help of the key. He had some Charas weighing hardly one or two Tolas in his room, but that is still lying there. He had no other Charas in his possession. 26. As stated above, PW-1 Kishan Singh and PW-2 Bir Singh are the two independent and respectable witnesses of the locality which were associated by the raiding party at the time of conducting the search. The perusal of their cross-examination, however, reveals that they were kept standing outside the room and the recovery of Charas weighing 900 grams was not made in their presence at all. They were called inside and shown the Charas and told that it had been recovered from the room, this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the prosecution itself, was prepared at the spot. In no circumstances, therefore, this memo could contain the number of the FIR as it does, because FIR Ext. PE was recorded in the Police Station on receipt of Ruqa Ext.PB. It shows that the investigation has not been above board. Another reason which makes the prosecution case unworthy of ordence is that the seizure memo shows that the accused was not carrying anything on his person except Charas. Then, all witnesses belong to the Police Department and no effort was made to associate two independent and respectable persons of the locality. The time gap between detention of the accused and his search, in any case, could have been utilized in finding out such witnesses. The mandatory provisions of Sections 50, 52(1) and 57 of the Narcotic Act have also been infringed. The provisions of Section 100(6) of the Criminal Procedure Code were also given a complete go-by. On these facts, it would be highly unsafe to maintain the order of conviction. Accordingly, we accept this appeal, set aside the impugned judgment and order that accused Gabriel be released forthwith, Charas, which is the case property, will be disposed of according to l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed cumulatively, thereore, is entitled to benefit of doubt. The mandatory provisions of Sections 52(1) and 57 have also not been complied with. His conviction and sentence under Section 20 of the Narcotic Act is, therefore, set aside. 32. As regards the conviction under the Foreigners Act, the main argument of the learned Counsel for the accused has been that the accused has been in jail since Mar. 3, 1986. He also must have earned remissions by this time. It has, therefore, been prayed that the sentence may be reduced to the imprisonment already undergone. We are prone to agree with this submission and, maintaining the order of conviction under the Foreigners Act, reduce the sentence to the imprisonment already undergone. As a result, it is ordered that the accused be released forthwith. The incriminating articles under the Narcotic Act, which are the case property, be disposed of according to law. 33. Appellant Om Parkash in Criminal Appeal 189 of 1988 has been convicted under Section 20 of the Narcotic Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of ₹ 1,00,000/- by the learned Additional Sessions Judge, Mandi, Kullu and Lahual Sp ..... 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