Gujarat High Court
Narcotic Control Bureau Thro' ... vs Haiderbeg Rahimbeg Mirza on 16 March, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, B.N. Karia
R/CR.A/1233/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1233 of 2014
With
R/CRIMINAL APPEAL NO. 775 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE Sd/-
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
NARCOTIC CONTROL BUREAU THRO' INTELLIGENCE OFFICER
Versus
HAIDERBEG RAHIMBEG MIRZA
================================================================
Appearance:
MR KARTIK V PANDYA(2435) for the PETITIONER(s) No. 1
MR KT DAVE(257) for the PETITIONER(s) No. 1
MR RAJESH M AGRAWAL(1253) for the RESPONDENT(s) No. 1
MR VO JOSHI(5883) for the RESPONDENT(s) No. 1
MS MOXA THAKKAR, APP (2) for the RESPONDENT(s) No. 2
RULE NOT RECD BACK(63) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 16/03/2018
Page 1 of 58
R/CR.A/1233/2014 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Both these appeals have genesis in the judgment and order dated 20.8.2014 passed by learned Special Judge, Court No.3, City Sessions Court, Ahmedabad, in Special NDPS Case No.12 of 2012, whereby the accused is convicted for the offences under Sections 8(c) and 20 (b) (ii) (B) of the NDPS Act and sentenced him to suffer rigorous imprisonment for seven years and to pay fine of Rs.50,000/- and in default thereof further to suffer rigorous imprisonment for one year. At the same time, the accused came to be acquitted for the offence punishable under Section 29 of the NDPS Act.
2. Criminal Appeal No.1233 of 2014 is preferred by Narcotic Control Bureau, the appellant and original complainant, under Section 377 of the Code of Criminal Procedure, 1973 (for short, "the Code") seeking enhancement of sentence on the ground that imposition of sentence is less than minimum sentence as per the provisions of Section 20 (b) (ii) (C) the Act and considering the commercial quantity of the contraband viz. Charas weighing 3.010 kgs. the accused deserved maximum sentence at the end of the trial.
3. Criminal Appeal No.775 of 2015 is preferred under Section 374 (2) of the Code by the appellant-convict-original accused challenging the conviction, as above, on various grounds and prayed to quash and set aside the judgment and order impugned in the appeal.
4. As per the case of the prosecution, secret information was received by Mr.K.R.Parate, Intelligence Officer, Narcotics Page 2 of 58 R/CR.A/1233/2014 CAV JUDGMENT Control Bureau, Ahmedabad Zonal Unit, on 19.4.2012 that one person viz. Haiderbeg Rahimbeg Mirza, resident of Juhapura, Ahmedabad, will come by bus of Rajasthan State Road Transport Corporation, bearing registration No.RJ-23-PA-4398, with a bag containing charas and will reach near Kalupur Bridge, Ahmedabad, at around 11 a.m. on 20.4.2012. On the basis of this information, the Intelligence Officer, NCB, intercepted the accused and upon search about 3 kilogram Charas was found from the possession of the accused as per the information. Statement of the accused under Section 67 of the NDPS Act was recorded and the accused was arrested and tried for committing the crime. After appreciating the evidence on record, learned trial Judge convicted the accused for the offences punishable under Sections 8 (c) and 20 (b) of the NDPS Act and setneced to suffer 7 years' rigorous imprisonment and fine of Rs.50,000/- and in default of payment of fine to undergo further rigorous imprisonment for one year. Being aggrieved by the judgment, present appeals are preferred, as aforesaid.
5. Initially, Shri Rajesh Agrawal, learned counsel appearing for the convict argued the case based on a decision reported in the case of State of Gujarat v. Jabbirsing Ratansing Indrarajput, [1954 (3) GLR 1952] and submitted that the case was squarely covered as per the law laid down therein and as a preliminary issue it was heard accordingly.
5.1 After considering rival submissions on 21.7.2016, following order was passed:-
"On 6th June 2016, this Court took up the case and upon Page 3 of 58 R/CR.A/1233/2014 CAV JUDGMENT hearing learned advocates for the respective sides, passed the following order :
"Heard learned advocates for the parties. Mr. R.M. Agarwal, learned advocate, for the respondent has brought to our notice a decision in the case of State of Gujarat v. Jabbirsing Ratansing Indra Rajput [54 (3) GLR 1952] about interpretation of Section 52A read with Section 55 of NDPS Act, 1985, whereby in paras 18, 19, 20 and 21 it is held that in the matter of seizure, the prosecution is required to follow the procedure prescribed under Section 52A of the Act (amended by Amendment Act No.2 of 1989).
That, Chapter V is about procedure pertaining power to issue warrant and authorisation, power of entry, search, seizure and arrest without warrant of authorisiation etc. under Sections 41 and 42 of the Act and Section 52 is about Disposal of persons arrested and articles seized. Section 53 invest officers of certain departments with powers of an in-charge of a police station. However, Section 52A reads as under:
52A. Disposal of seized narcotic drugs and psychotropic substances: (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.] (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, Page 4 of 58 R/CR.A/1233/2014 CAV JUDGMENT numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances of conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true;
or c. allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
3. Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
4. Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence].
Section 53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station.-(1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence [or any other department of the Central Government including para-military forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.
(2) The State Government may, by notification published in the Official Gazette, invest any officer of Page 5 of 58 R/CR.A/1233/2014 CAV JUDGMENT the department of drugs control, revenue or excise [or any other department] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.
Section 55. Police to take charge of articles seized and delivered.- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
There is no doubt, Section 52A was inserted by Act 2 of 1989 w.e.f. 29.5.1989. While, sub section (1) of Section 52A substituted earlier provision vide S.O.1183(E) dated 30.4.2014. Thus, question arise whether law laid down by the Division Bench in the above case State of Gujarat v. Jabbirsing Ratansing Indra Rajput reflect correct interpretation about applicability of Section 52A under Chapter V of the Act 1985 at the time of seizure of the contraband is correct interpretation or not is to be considered since the heading of Section 52 is about disposal of persons arrested and articles seized and of Section 52A is about disposal of seized narcotic drugs and psychotropic substances. Having seized articles /contrabands a question arise about disposal of such contrabands, for which, procedure is envisaged of preparing inventory and such list of articles, for which, an application is to be made to the Magistrate for the purpose mentioned in
(a), (b) and [c] of sub-section (2) of Section 52A. Thus, seizure having affected, first, next stage would be procedure to be followed for disposal of seized articles. For further argument and production of S.O.1183(E) dated 30.4.2014, the matter is stand over to 9.6.2016."
Thereafter, on 21st July 2016, this Court passed the following order, after having heard learned Asstt. Solicitor General of India.
"Heard Mr. Devang Vyas, learned Assistant Solicitor General of India, for Union of India. Stand over to 22.07.2016, on the point of Page 6 of 58 R/CR.A/1233/2014 CAV JUDGMENT applicability of Section 52A of the NDPS Act, 1985, in the matter of seizure in the context of law laid down by this Court in the case of State of Gujarat v. Jabbirsing Ratansing Indra Rajput, reported in [54 (3) GLR 1952].
Apropos Oral Order dated 6th June 2016, Shri Devang Vyas, learned Asstt. Solicitor General of India for Union of India & Narcotic Control Bureau appellant in one of the Criminal Appeals, being Criminal Appeal [For Enhancement] No. 1233 of 2014 has addressed the Court at length and relied on decision of Apex Court rendered in case of State of Punjab v. Makhan Chand, 2004 [3] SCC 453 and submitted that the Apex Court in no uncertain terms held that Section 52A [1] of the Narcotic Drugs & Psychotropic Substances Act, 1985 does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. According to him, even the Standing orders and standing instructions issued by the Central Government under Section 52A of the Act are merely intended to guide the officers to see that a fair procedure is adopted by the Officer- in-charge of the investigation. They are not inexorable rules, as there could be circumstances in which it may not be possible for the seizing officer to prepare the panchnama at the spot, if it is a chance recovery, where the officer may not have the facility prepare the seizure panchnama at the spot itself.
According to the learned Asstt. Solicitor General of India, the above decision never fell for consideration of earlier Bench ie., Division Bench of this Court, who deliberated and decided the case on the very issue viz. State of Gujarat v. Jabbirsing Ratansing Indra Rajput, 2013 [3] GLR 1952. In addition to the above, according to learned Asstt. Solicitor General, the above case namely State of Gujarat v. Jabbirsing Ratansing Indra Rajput [Supra] was decided in context of contentions raised about non compliance of provisions not only of Section 52A but also Section 55 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Therefore, what is held in para 18 of the above decision that, ..In the matter of seizure, the prosecution is required to follow the procedure prescribed under Section 52A of the Act... is not a ratio decendi and to be treated as a not binding since the same is per incur ream, having not considered authority on the very issue and declaration of law by the Apex Court in case of Makhan Chand [Supra].Page 7 of 58 R/CR.A/1233/2014 CAV JUDGMENT
Reliance is placed by learned Asstt. Solicitor General on other decisions of our High Court and Division Bench of Calcutta High Court where Section 52A of NDPS Act came into consideration in one or the other context. In case of Abdul Kader Jusab Sandhi v. State of Gujarat, 2002 [2] GLR 1212, in the context of contention raised by learned counsel for the defence based on Section 102 CrPC which mandates a Police Officer not only to report about the seizure but to produce the contraband material before the Magistrate, the Division Bench of this Court answered in negation the contention about the procedure to be followed under Section 52A which refers to disposal of seized narcotic drugs and psychotropic substances, having regard to the hazardous nature of such substance; including that of its vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, after their seizure. It was further held that, ..disposal of narcotic drugs or psychotropic substances in accordance with Section 52A, for want of seized material before the trial Court, the prosecution will not suffer.
In case of Govinda Prosad Verma v. State, reported in 2004 (4) Cal. H.N 544, the Division Bench of High Court of Calcutta in para 43 of its decision, by referring to the legislative impact of Section 52A of the Act in the statute book and recitals in the said section, which the Parliament included in the Act w.e.f 29th May 1989, its object and reasons proposed behind bringing such section into the Statute book, it was held that, ... it is simply accentuation of a process in an enquiry or an investigation. Breach of the same, in our view, cannot affect the credibility of the prosecution case and affect its merit once we have found that the appellant have been found in possession of contraband articles which have been tested positive as heroin and he could not account for the same and along with the entire procedure of search and seizure which was quite believable and acceptable to the Court.
Likewise, reference to two other important decisions in case of Mundruddin Wajiruddin Kazi v. State of Gujarat, 2003 [4] GLR 3549; and Tej Bahadur Singh & Anr. v. Narcotic Control Bureau & Anr., 2000 [1] Cal HN 803 interpreting Section 52A of the Act in a different context of actual scenario and held that the provision of Section 52A of the NDPS Act is a mandatory provision, since it was inserted with a definite purpose.
One more decision of our High Court in case of Mahamad Page 8 of 58 R/CR.A/1233/2014 CAV JUDGMENT Parvezkhan Mahamad Faruqkhan Shaikh v. State of Gujarat, reported in 2006 (2) GLR 925 was relied upon wherein our attention was invited to para 20 of the judgment where it is held that merely because some mistake has been committed by the officer while maintaining Anamati Register, whether would affect the case of prosecution and on the fact, it was held that, .. section 52A of the Act provides as to how seized narcotic drugs and psychotropic substances should be disposed of. Sub-section (2) of the said Section, which would be applicable to the facts of the case, makes it clear that several steps have to be taken and several records have to be maintained before disposal of seized narcotic drugs and psychotropic substances.
Thus, according to the learned Asstt. Solicitor General, at the time of seizure, at the first instance, no such procedure as envisaged under Section 52A of the Act, since the binding decision of the Apex Court and the earlier Division Bench of this Court was neither cited nor fell into consideration in case of Jabbirsing Ratansing Indra Rajput [Supra], this Court can very well consider the same and take a view accordingly. Learned advocate Shri RM Agrawal appearing for the defence would contend that this Division Bench of equal strength, however, would be precluded from taking a different view then the one taken in case of Jabbirsingh Ratansing Indra Rajput [Supra], and therefore, the case is required to be considered by the larger Bench.
Before we deal with the contentions of learned advocate Mr. R.M Agrawal appearing for the defence, it is necessary to consider and examine the issue of per incuriam raised by the learned advocates for the parties.
In Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., reported in AIR 2011 SC 312, the issue of per incuriam was considered and discussed at length in para 139 to 150, which are aptly reproduced thus-
"139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that Incuria literally means carelessness. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.71 & In Page 9 of 58 R/CR.A/1233/2014 CAV JUDGMENT Halsburys Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297- 98, para 578) per incuriam has been elucidated as under:
A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.
In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.); or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force.
140. Lord Godard, C.J. in Huddersfield Police Authority v.
Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the courts attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.
141. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262 observed as under:
The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.
142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice Pathak observed as under:
The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.
143. In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst.
Page 10 of 58 R/CR.A/1233/2014 CAV JUDGMENTKarmi v. Amru (1972) 4 SCC 86 was per incuriam and observed as under:
&It is a short judgment without adverting to any provisions of Section 14 (1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act.
144. In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under:
With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point.
145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.
146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
147. A three-Judge Bench of this court in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Others v. Umadevi (3) and Others (2006) 4 SCC 1 is binding Page 11 of 58 R/CR.A/1233/2014 CAV JUDGMENT on all courts including this court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the court observed as under:-
We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
148. In Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others (2009) 15 SCC 458, this court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court in para 110 observed as under:-
Should we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v.
Seth G.S. Medical College (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three- Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or Page 12 of 58 R/CR.A/1233/2014 CAV JUDGMENT otherwise and more so when the constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio.
149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbias case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.
150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Honble the Chief Justice to refer the matter to a larger Bench of appropriate strength."
After considering and discussing various case laws, the Apex Court found that in case a Bench considering the question of law has either ignored a Constitution Bench judgment or a judgment of the Larger Bench either of the Apex Court or the High Court, the decision rendered by a Bench as to be held per incuriam.
The decisions; as above, particularly in case of State of Punjab v. Makhan Chand [Supra] by the Apex Court in no uncertain terms declares that Section 52A of the NDPS Act does not empower the Central Government to lay down the procedure for search of an accused, but it only deals with disposal of the seized narcotic drugs and psychotropic substances. Even the Standing Orders and Standing Instructions issued by the Central Government under Section 52A of the NDPS Act are guidelines to the officers to see that a fair and transparent procedure is adopted by the Officers-in-charge of the investigation. The above decision was neither brought to the notice nor fell for consideration of the Division Bench of this Page 13 of 58 R/CR.A/1233/2014 CAV JUDGMENT Court in case of State of Gujarat v. Jabbirsingh Ratansing Indra Rajput [Supra] and to that extent, we have no hesitation in declaring that the observations made therein must be construed to be per incuriam, and therefore, these Criminal Appeals are required to be heard on merits, and accordingly fixed for final hearing on 2nd August 2016."
6. Accordingly, that contentions based on a decision in the case of State of Gujarat v. Jabbirsing (supra) came to be rejected. Shri Rajesh Agrawal, learned counsel made further submissions and about 79 contentions were raised in addition to various grounds mentioned in appeal filed against conviction.
7. It is submitted that the appellate Court, like the trial Court has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubts since presumption of innocence is in favour of the accused unless proved guilty. Reliance was placed on the decision in Kamlesh Prabhudas Tanna v. State of Gujarat, 2014 Criminal Law Journal 443 (SC). It is submitted that though the Court has not accepted submissions based on a decision of State of Gujarat v. Jabbirsing (supra), intelligence officer of NCB of raiding party is not a gazetted officer and further provision of Section 50 of the NDPS Act is also violated by not following decisions in the case of Vijaysinh Jadeja v. State of Gujarat, (2011) 1 SCC 609, Karnail Singh v. State of Haryana, (2009) 8 SCC 539.
8. Further, reliance is placed in the case of Noor Aaga v. State of Punjab, 2008 (16) SCC 417 in respect of the contention that High Court has to take into consideration Page 14 of 58 R/CR.A/1233/2014 CAV JUDGMENT evidence like the trial Court while appreciating or re-evaluating prosecution case. It is further submitted that Standing Instruction No.1/88 dated 15.3.1988 and Standing Order No.2/88 dated 11.4.1988 issued by NCB, New Delhi, were also not followed. That next contention was about reliance placed on the statement of the accused recorded under Section 67 of the NDPS Act vis-a-vis Section 3 of the Evidence Act and, it is submitted that learned Designated Court ought to have discarded such statement being inculpatary. The investigating officer failed to undertake scientific investigation as envisaged and no videography was made of the incidence and adverse inference is to be drawn under Section 114, Illustration (G) of the Evidence Act. That officers of NCB have no power to record confessional statement under Section 67 of the NDPS Act and, they are police officers as held in the case of Noor Aaga (supra). Besides, complaint Exh.38 was filed by officer who was not authorized under the NDPS Act and contraband seized from the possession of the original accused is not proved to be Charas as defined under Section 2 (iii) (b) of the NDPS Act because report of CRCL, New Delhi, does not mention that the Charas was resin obtained from cannabis plant.
9. The manner in which seizure was made of contraband, recovery of contraband cannot be said to have been proved beyond all reasonable doubts and law laid down by the Apex Court in the case of Ritesh Chaturvedi v. State of Madhya Pradesh, JT 2006 (12) SC 416 was violated.
10. It is next contended that there was flagrant violation of not only Section 42 (2) and Section 50 but also of Sections 51, 52, 55 and 60-A of the NDPSC Act. According to learned Page 15 of 58 R/CR.A/1233/2014 CAV JUDGMENT counsel for the appellant-convict, panchnama of seizure at Exh.11 and testimonies of PW-1 were prepared as per the procedure undertaken and that signatures were obtained with the signature of Haider Ali, the convict, but at the same time, if the evidence is appreciated then it is clear that panchnama of seizure was prepared in the office of NCB and, therefore, on this ground alone recovery of contraband is vitiated, for which benefit of doubt is to be given to the accused. That manner in which panchas were called, particularly PW-1, who was sent from Bavla as he was residing there and another panch was also the resident of Isanpur, Ahmedabad, far away from the office of NCB, creates doubt about transparency of investigation and seizure of contraband. Even PW-2 has not identified the muddamal before the Court. It is stated by this witness that if the muddamal seized from the accused Haider Ali is shown to him then he can identify the same. Thus, there was no correct identification of muddamal. That accused had no knowledge of English language and most of the documents were prepared in English language depriving the accused of his right to defend. It is surprising how charge for Section 29 of the NDPS Act could be framed when only one accused was facing the trial.
11. There is no specific evidence of the godown in-charge to show the safe and proper custody of muddamal and their movement from the time of deposit till the same were sent to Analyst, CRCL, New Delhi for examination. Inspite of availability of independent persons at the place which was thickly populated, Kalupur-Ahmedabad, no independent person was examined and it is reiterated that the law laid down in Ritesh Chaturvedi (supra) was violated.
Page 16 of 58 R/CR.A/1233/2014 CAV JUDGMENT12. Learned counsel has drawn our attention to purity percentage and quantum of sentence. That contraband charas alleged to be seized was 3 kg and 10 grams and if it is so, the actual weight of pure Charas comes to 91 grams and 62 miligrams, i.e. approximately 92 grams only, by keeping in mind purity percentage which is 0.05112. The correct method of calculation is quantity multiplied by percentage 100 i.e. 3 kg 10 grams X 3.05112 X %100 = 92 grams.
13. Therefore, the quantum of Charas was 92 grams and the same being small quantity under Section 20 (b) (ii) (A) of NDPS Act, it was punishable with rigorous imprisonment for a term which may extend to six months or fine which may extend to Rs.10,000/- or with both. That reliance is also placed on a decision in the case of E. Michael Raj v. Intelligence Officer and submitted that there was clear breach of law laid down in the above case and prosecution is duty bound to show actual contents or the percentage of psychotropic substance.
14. It is accordingly submitted that all the above grounds deserve to be considered and the convict-appellant is to be acquitted by quashing and setting aside the order impugned in this appeal.
Submissions of NCB counsel.
15. It is submitted by learned counsel appearing for Narcotics Control Bureau that specific information was received on 19.4.2012 that the convict was to come by bus with Charas and accordingly after following necessary procedure, upon search of bag of the accused, 3 kg. 10 gm. Charas was recovered and seized and the accused came to be arrested on Page 17 of 58 R/CR.A/1233/2014 CAV JUDGMENT 20.4.2012. He submitted that from the evidence of PW-1, Harin Kantilal Chauhan and PW-2, Anup Kaushik, it is clear that the accused was carrying a bag which contained contraband Charas. He further submitted that to carry out the procedure of sampling and weighing at the place of recovery was not possible as it was a public place and only because this procedure was carried out at NCB office do not adversely affect the case of the prosecution. He also submitted that since the contraband has been seized from the bag which was carried by the accused, mandatory provisions of Section 50 of the NDPS Act are not required to be complied with.
16. He also submitted that as per the report of CRCL purity of charas is shown to be 3.05112% and accordingly, purity contents of the charas in the contraband comes to 92 grams and not 360 gram. In this regard it is submitted that even if it is taken as it is considering the definition of Charas in Section 2
(iii) of the NDPS, it cannot be considered to be of small quantity. He further submitted that as per Notification dated 19.10.2001 issued under Clause (viia) and (xxiiia) of Section 2 of the NDPS Act, more than 1 kilogram is commercial quantity and since more than 3 kilogram charas has been recovered and seized from the appellant, it falls under commercial quantity, therefore, learned trial Judge has committed an error in sentencing the accused for the offence punishable under Section 8 (c) and 20 (b) of the NDPS Act. In view of this, he prayed to enhance the sentence imposed by the trial Court and allow Criminal Appeal No.1233 of 2014.
17. Learned counsel for the NCB would contend that the offence committed by the accused, who was found in Page 18 of 58 R/CR.A/1233/2014 CAV JUDGMENT possession of 3 kgs. of charas and the above quantity is commercial and learned Judge has taken very lenient view by wrongly considering the aspect of pure charas on the basis of 3.05% THC in muddamal and considered as if it is a case of 1.294 kg. of charas. That question of purity does not come in case of Charas unlike that of heroine and, more particularly, when it is not the case that muddamal contraband was charas mixed with another neutral substance. That case of E.Michael Raj (supra) was a case of heroine and the notification dated 18.11.2009 has come into operation, which provides that entire quantity has to be considered and not just its purity content. Therefore, entire quantity of the contraband seized and proved by the prosecution has to be considered for sentence for the offence under Section 20 (b) (i) (c) of the NDPS Act. In support of above submission, reliance is placed on the decision of the Apex Court in the case of State through Narcotic Control Bureau v. Mushtaq Ahmed and Others reported in 2016 (1) SCC 315.
18. Accordingly, the appeal under Section 377 of the Code deserves to be allowed by enhancing the sentence of the respondent.
19. Having regard to the facts and circumstances of the case and the submissions made by learned counsel for the appellant-convict in Criminal Appeal against conviction under Section 374 (2) of the Code and by learned counsel for NCB in Criminal Appeal for enhancement under Section 377 of the Code, we have perused overall oral evidence as well as documentary evidence as under:-
Page 19 of 58 R/CR.A/1233/2014 CAV JUDGMENTORAL EVIDENCE Sr. Name Exh.
No. 1 Harin Kantilal Chauhan-Panch. 10 2 Anup Kumar Kaushik. 19 3 Kamlesh Ramdas Parate-Complainant. 25 4 Hariom Gandhi. 44 5 Usmangani Kadarbhai Rathod-Defence 49 Witness.
DOCUMENTARY EVIDENCE Sr. Description Exh.
No. 1 Information u/s 42 (2) of the Act. 26 2 Seizure panchnama dated 20.4.2012. 11 3 Summons u/s. 67 of the Act. 27 4 Statement recorded u/s 67 of the Act. 28 5 Arrest memo. 29 6 Godown receipt. 45 7 Telegram Receipts. 22 8 Forwarding letter to CRCL, New Delhi. 21 9 Report u/s 57 of the Act. 23 10 Report u/s 57 of the Act. 30 11 Letter to Vodafone. 31 12 Reply of Vodafone. 32 13 Report received from CRCL, New Delhi. 33 14 Letter sent to Jammu Zonal Unit. 34 15 Reply of Jammu Zonal Unit. 37 16 Summons u/s 67 of the Act. 35 17 Summons u/s 67 of the Act. 36 18 Attested copy of godown register. 20 19 Original complaint. 38 Page 20 of 58 R/CR.A/1233/2014 CAV JUDGMENT
20. As per the judgment and order under challenge, the accused and now convict, Haiderbeg Mirza is acquitted for the offence punishable under Section 29 of the NDPS Act while held guilty for the offence punishable under Section 8 (c) and Section 20 (b) of the NDPS Act and ordered to suffer rigorous imprisonment for seven years and fine of Rs.50,000/- and, in default thereof, further to undergo rigorous imprisonment for one year. By detailed order dated 21.7.2016, reliance placed by learned counsel for the convict in the case of State of Gujarat v. Jabbirsing (supra) with regard to interpretation of Section 52-A came to be rejected. On other submissions, which are recorded in paragraphs 7, 8, 9, 10, 11, 12 and 13 of this judgment, we have considered definition clause contained in Section 2 (iii) of the NDPS Act, about charas which reads as under:-
"2. (iii) "cannabis (hemp)" means-
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowing or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;
(iv) "cannabis plant" means any plant of the genus cannabis."
239. Any mixture or preparation that of with or without a natural material, of any of the above drugs. * Lesser of the small quantity between the quantities Page 21 of 58 R/CR.A/1233/2014 CAV JUDGMENT given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture.
** Lesser of the Commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substance mentioned above forming part of the mixture.
Note:-1. The small quantity and the commercial quantity given against the respective drugs listed above apply to isomers, within specific chemical designation, the esters, ehters and salts of these drugs, including salts of esters, ethers and isomers; whenever existence of such substance is possible.
2. The quantities shown against the respective drugs listed above also apply to the preparations of the drug and the preparations of substance of note 1 above.
3. "Small Quantity" and "Commercial Quantity" with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
4. The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts or esters, ethers and isomers, wherever existence of Page 22 of 58 R/CR.A/1233/2014 CAV JUDGMENT such substance is possible and not just its pure drug content.
[Inserted by S.O.2941 (E) dated 18th November, 2009.] "
21. In the context of above definition, notification dated 19.10.2001 issued under Clause (vii-a) (xxiii-a) of Section 2 of the NDPS Act more than 1 kilogram of charas is commercial quantity and 100 grams is a small quantity.
22. PW-3, complainant vide Exh.25 has stated that in presence of panchas, charas was seized from the bag of the accused which weighed 3.010 kilograms. Two samples each of 25 grams were taken and sealed, even signatures of panchas and the accused were obtained. Certain documents were also seized from personal search of the accused. PW-2, investigating officer, Anup Kaushik, vide Exh.19 stated that weight of muddamal was under 3.010 kg. and in his cross- examination he has stated that they had information about the place where search was to be carried out. It is denied by him that the accused was forcibly taken to NCB office where panchas were called. He has further denied that seizing and sealing procedure was not carried out at the place of information and that no muddamal was seized from the accused. That two samples each of 25 grams were sent to CRCL, New Delhi, for analysis and samples were found that of charas. That report received from Central Revenue Control Bureau i.e. CRCL, New Delhi, is referred to in paragraph 11.55 of the judgment by learned trial Judge. Section 35 read with Section 54 of the NDPS Act pertaining to presumption of culpable mental state and presumption from possession of Page 23 of 58 R/CR.A/1233/2014 CAV JUDGMENT illicit articles were considered in light of judgment of the Apex Court in the case of Madanlal and Another v. State of H.P. reported in 2003 Criminal Law Reporter (SC) 751 and that Court shall have to presume the conscious possession of the accused of the narcotic substance and the above aspect is also considered along with Section 106 of the Evidence Act, where the burden lies on the accused to prove his innocence and even failure to explain such incriminating circumstances under Section 313 of the Code. By referring to provisions of Section 66 pertaining to presumption as to documents in certain cases in light of panchnama, Exh.11, and their testimonies and further fact which was emerging on record along with statement of accused under Section 67 of the NDPS Act, which require careful consideration viz-a-viz other attending circumstances, it was found that the accused was not in custody of PW-3 when such statement of the accused was recorded under Section 67 of the Act. It was voluntarily stated that while accused was in jail in connection with another Sessions Case No.153 of 2005 at Ahmedabad, he came into contact with two persons from Kashmir and, thereafter, it was decided and told by truck driver to take delivery of charas on 19.4.2012. That evidentiary value of a statement of the accused under Section 67 of the Act was also considered in light of a decision in the case of Rajkumar Karwal v. Union of India and Others, [1990 SCC (cri.) 330] and Union of India v. Satrohan [(2008) 8 SCC 313] and M.Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, [2003 SCC (Cri.) 2024], and Ramsingh v. Central Bureau of Narcotics [(2011) 3 SCC (Cri.) 181], and it is found that the statement under Section 67 was given by the accused voluntarily before PW-3. That all the above evidence remained Page 24 of 58 R/CR.A/1233/2014 CAV JUDGMENT unshaken upon considering the same in the context of the arguments canvassed by learned counsel for the appellant- convict. No breach of any statutory provision is noticed either under Section 42 or under Section 50 or both of NDPS Act by the officers of the NCB.
23. The Apex Court on various occasions considered requirement of procedure to be followed by NCB officials under Sections 41, 42, 50, 52 and 57 of the NDPS Act, and for better appreciating such decisions and law laid down therein the same are reproduced hereafter.
23.1 In the case of State of Punjab v. Balbir Singh (1994)3 SCC 299 in para 15 reference was made to Section 42(1) of NDPS Act in the context of stringent provisions for control and regulation of operation relating to drugs and psychotropic substance vis-a-vis to avoid harm to the innocent persons and to avoid abuse of the provision by the officers, certain safeguards are provided in the NDPS Act and failure to exercise mandatory requirement while entry, search, seizure or arrest in breach thereof held to be affecting case of the prosecution and vitiating the trial.
23.2 In para 25 of the above decision, the Apex Court set out conclusions about frequently arising questions to be considered by the trial courts in the context of Sections 41, 42, 50, 52 and 57 of the NDPS Act, which reads as under:-
"25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:
(1) If a police officer without any prior information as Page 25 of 58 R/CR.A/1233/2014 CAV JUDGMENT contemplated under the provisions of the NDPS Act, makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act.
(2-A) Under section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act, etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41 (2) and 42 (1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2-B) Under section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2-C) Under section 42(1) the empowered officer if he has 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 offneces 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 Page 26 of 58 R/CR.A/1233/2014 CAV JUDGMENT 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 takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an empowered officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of sections 100 and 165, Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under section 41(2) of the Act, carries out a search, he would be doing so under the provisions of Cr. P.C., namely, sections 100 and 165, Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information, the empowered officer or authorised officer while acting under section 41(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should Page 27 of 58 R/CR.A/1233/2014 CAV JUDGMENT be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay, etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
23.3 A three Judges Bench in the case Saiyad Mohd. Saiyad Umar Saiyed & ors. v. State of Gujarat (1995)3) SCC 610 endorsed the judgment of Balbir Singh [supra].
23.4 A Constitution Bench of the Apex Court in the case of State of Punjab v. Baldev Singh (1999)6 SCC 172 again considered the provisions of NDPS Act and earlier judgment and noticed that judgment in the case of Balbir Singh [supra] which found approval by three judges bench in Saiyad Mohd. Saiyad Umar Saiyed [supra] and a contrary view to some extent was taken by two judges bench in the case of State of Himachal Pradesh v. Pirthi Chand & Anr. (1996)2 SCC 37, the Constitution Bench approved the view taken by the Apex Court in the case of Balbir Singh [supra] that it is an obligation of mandatory nature upon authorized Page 28 of 58 R/CR.A/1233/2014 CAV JUDGMENT officer under Section 50 of the NDPS Act to inform the suspect that he has right to be informed in the presence of the Gazetted Officer and if the search is conducted in violation of Section 50 it may not vitiate the trial but that would render the recovery of illicit articles doubtful and vitiates the conviction and sentence of the accused. A Constitution Bench of the Apex Court had an occasion to again consider Section 50 of the NDPS Act in the case of Baldev Singh (supra) in which safeguards provided in Section 50 about basic right of an accused were considered and in para 57 has concluded as under:-
"57. On the basis of the reasoning and discussion above, the following conclusions arise :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person 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;
(4) That there is indeed need to protect society from Page 29 of 58 R/CR.A/1233/2014 CAV JUDGMENT criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material Page 30 of 58 R/CR.A/1233/2014 CAV JUDGMENT recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.
(9) That the judgment in Pooran Mals case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffas case correctly interprets and distinguishes the judgment in Pooran Mals case and the broad observations made in Pirthi Chands case and Jasbir Singhs case are not in tune with the correct exposition of law as laid down in Pooran Mals case."
23.5 In the case of Basheer v. State of Kerala, [2004] 3 SCC 609 proviso to section 41(1) of the amending Act 9 of 2001 was held to be constitutional and not hit by Article 14 the Constitution of India.
23.6 The case of Vijaysinh Chandubhai Jadeja v. State of Gujarat, (2011) 1 SCC 609] was referred to a Constitution Bench of the Apex Court to decide the question as to whether Section 50 of NDPS Act casts a duty on the empowered officer to inform the suspect of his desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the Section 50?
Page 31 of 58 R/CR.A/1233/2014 CAV JUDGMENT23.7 In the above case, a Constitution Bench of the Apex Court after considering the controversy involved in the matter has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provisions of Section 50 must be very strictly construed. The nature of discharge of obligation upon the authority under Section 50 is statutory and is not to be deviated. Before deciding above issue, in paragraph 22 the Apex Court considered provisions of Section 41 and in paragraph 23 conclusions drawn by earlier Constitution Bench in the case of Baldev Singh (supra) were considered. The Apex Court, in the above judgment, while answering the reference, in paras 28 to 32 held as under:
"28. We shall now deal with the two decisions, referred to in the referral order, wherein "substantial compliance" with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey (supra), a two Judge bench of this Court culled out the ratio of Baldev Singh's case (supra), on the issue before us, as follows:
"11. ...What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word "right" at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the "suspect" at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it."
However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Page 32 of 58 R/CR.A/1233/2014 CAV JUDGMENT Fernandez (supra), the Court chose to follow the views echoed in the latter case, wherein it was held that searching officer's information to the suspect to the effect that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression "substantial compliance" in the following words:
"12. The use of the expression "substantial compliance" was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word 2 in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations."
It is manifest from the afore-extracted paragraph that Joseph Fernandez (supra) does not notice the ratio of Baldev Singh (supra) and in Prabha Shankar Dubey (supra), Joseph Fernandez (supra) is followed ignoring the dictum laid down in Baldev Singh's case (supra).
29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the Page 33 of 58 R/CR.A/1233/2014 CAV JUDGMENT basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
30. As observed in Re Presidential Poll, in re:
"13. ...It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponent is, the intention of the law maker expressed in the law itself, taken as a whole."
31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.
32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of 14 (1974) 2 SCC 33 2 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.
(Emphasis supplied) Page 34 of 58 R/CR.A/1233/2014 CAV JUDGMENT 23.8 Vijaysinh Chandubhai Jadeja [supra] considered in length, provisions of Section 50 of the NDPS Act by referring to decision of constitution Bench in the case of Baldev Singh [supra] and also Karnail Singh [supra] and paras 20, 21, and 22 conclusions are given by reiterating law laid down in the case of Baldev Singh [supra] and even concept of 'substantial compliance' with the requirement of Section 50 of the NDPS Act is held to be neither born out form the language of sub-section (1) of section nor it is in consonance with the dictum laid down in the case of Baldev Singh [supra].
23.9 In the case of Myla Venkateswarlu v. State of Andhra Pradesh (2015)5 SCC 226, the Apex Court held that a clear communication with clarity is must while complying with Section 50(1) of The NDPS Act and such communication will qualify as a valid communication of the right under Section 50(1) of the NDPS Act, which must contain three elements;
[1] That the person sought to be searched has a right of being taken to the nearest Magistrate or gazetted officer in whose presence the search of his person would be conducted; and [2] Of being taken to the nearest Magistrate or gazetted officer [it seems that a government communication that the accused has the right of the presence of a Magistrate or gazetted officer at the location where the person has been accosted for th search would not be enough; it has to be communicated that the said accosted person has the right to be taken to the location where the Magistrate or gazetted officer is; such an interpretation seems consistent with the safeguard that Section 50(1) seeks Page 35 of 58 R/CR.A/1233/2014 CAV JUDGMENT to provide i.e. that people do not have narcotics planted on them by the police or others; and [3] That the right under Section 50(1) pertains to being taken to either the nearest Magistrate or gazetted officer other than the searching officer, and that there must a clear communication of this choice i.e. there must be a mention of the nearest [I] Magistrate, and [ii] gazetted officer, and [iii] that the accosted person has a choice to be taken to either of them.
23.10 The above judgment also referred to decision in the case of Baldev Singh [supra].
23.11 In the case of Union of India v. Satrohan reported in (2008) 8 SCC 313, a Bench of two Judges of the Apex Court relied on M.Prabhulal v. Directorate of Revenue Intelligence (supra) and quoted paragraphs 8, 9 and 14 in the context of nature of compliance of Section 42 of the NDPS Act, which reads as under:-
"13. So far as the applicability of Section 42 is concerned few decisions need to be noted. In M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence (JT 2003 (2) Supp SC 459) it was noted as follows:
"8. Now, we come to the last and rather more serious objections raised on behalf of the appellants regarding the non-compliance with Section 42 of the NDPS Act vitiating the conviction which looks quite formidable but only on the first impression and not on its deeper examination. The contention of Mr R.K.Jain is that the view of the High Court that when a Gazetted Officer himself conducts a search it is not necessary to comply with Section 42(2) of the Act, is clearly erroneous.Section 42(2) provides that where an officer takes down any information in Page 36 of 58 R/CR.A/1233/2014 CAV JUDGMENT 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. This was the statutory provision at the relevant time. By the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 which came into force on 2-10-2001, Section 42(2) was amended whereunder the information taken down in writing under sub-section (1) or grounds of belief recorded under the proviso thereto are required to be sent within seventy-two hours to officers immediate official superior. The contention is that the officer who searched and seized the contraband did so on information received by him as per Ext. PW 1 but the said information was not forwarded to his superior officer as contemplated in Section 42(2) of the NDPS Act, thus vitiating the entire prosecution. Further argues the counsel that the respondent after grant of bail to the appellants by the High Court taking into consideration the non- compliance with Section 42(2) has tried to fill in the lacuna with a view to show the compliance of this mandatory provision.
9. The officer who conducted the arrest, search and seizure was an empowered Gazetted Officer of the Department. This fact is not in dispute. According to Mr Vasdev, learned Senior Counsel for the respondent, Section 42(2) is not applicable when an empowered Gazetted Officer conducts the arrest, search and seizure. The counsel submits that there was no obligation on the officer to comply with the requirement of Section 42(2) of the NDPS Act. It was also contended, in the alternative, that Section 42 (2) of the NDPS Act was complied with.
14. Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41(2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorize an officer Page 37 of 58 R/CR.A/1233/2014 CAV JUDGMENT subordinate to him to do so but that subordinate officer has to be superior in rank to a peon, a sepoy or a constable. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorized the arrest or search under sub- section (2) of Section 41, and (iii) the officer who is so authorized under sub-section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including the power of seizure. Section 42 provides for procedure and power of entry, search, seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open any door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. In case of an emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorization, in terms provided in the proviso to sub-section (1) of Section 42. Sub-section (2) of Section 42 is a mandatory provision. In terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for the belief under the proviso thereto, is required to be sent by the officer to his immediate superior official. It is clear from Section 41(2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorize his subordinate on the terms stated in the section. Under sub-section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub- section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of Section 42. It is clear from the language of sub-section (2) of Section 42 that it applies to an officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by subsection (2) of Section 41, when such a Gazetted Officer himself makes an Page 38 of 58 R/CR.A/1233/2014 CAV JUDGMENT arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in a public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decisions in State of Punjab v. Balbir Singh, Abdul Rashid Ibrahim Mansuri v. State of Gujarat and Beckodan Abdul Rahiman v. State of Kerala on the aspects under consideration are neither relevant nor applicable."
23.12 In the case of Karnail Singh v. State of Haryana (2009) 8 SCC 539 again a Constitution Bench of the Apex Court considered Sections 42 of the NDPS Act. In view of divergent opinions in earlier two cases which has resulted in placing of the matter before the Larger Bench. In paras 1 and 2 of the above judgment, the apex court referred the issues for which the matter was referred to Constitution Bench and conclusions were drawn in para 35 of the said judgment. Paragraphs 1, 2 and 35 of the above judgment read as under:
"1. In the case of Abdul Rahsid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513, a three- Judge Bench of this Court held that compliance Page 39 of 58 R/CR.A/1233/2014 CAV JUDGMENT of Section 42 of the Narcotic Drugs and Psychotropic Substances At, 1985 (hereinafter referred to as "NDPS Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient.
2 In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue.
35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
[a] The Officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
[b] But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a Page 40 of 58 R/CR.A/1233/2014 CAV JUDGMENT situation, he could take action as per clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
[c] In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.
[d] While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.Page 41 of 58 R/CR.A/1233/2014 CAV JUDGMENT
23.13 In the case of State of Rajasthan v. Jag Raj Singh @ Hansa in Criminal Appeal No.1233 of 2006 in which again the Apex Court considered the provisions of Sections 42 and 50 of the NDPS Act.
23.14 In the case of Ritesh Chakravarti v. State of Madhya Pradesh (2006)12 SCC 321 in the context of Sections 42 and 50 of NDPS Act, upon receipt of information by Inspector about person carrying contraband articles of about 1.5 kgs. was boarding on a bus at a particular place was apprehended by Sub-Inspector and contention was raised that suspect accused was given an option of search by a Magistrate or Gazetted Officer in terms of Section 50 of the Act and opium weighing 1.3 kgs. was recovered, the prosecution failed to examine competent witnesses viz. Inspector and the officer, who had received information and also independent witnesses, though search was conducted of a busy place like bus stand, the Apex Court held that absence of independent witnesses non-
examination of key members of the raid party and absence of explanation as to how apprehended person was identified, raised serious doubt about veracity of the prosecution case and it was held that prosecution failed to prove its case beyond reasonable doubt.
23.15 In the case of Union of India v. Shah Alam & Anr. (2009)16 SCC 644, where recovery of heroin was made from bags being carried out by accused and not from their person. Relying on the decision in the case of State of Himachal Pradesh v. Pawan Kumar (2005)4 SCC 350, the word `person' would mean a human being with appropriate coverings and clothings and also footwear and a bag, briefcase Page 42 of 58 R/CR.A/1233/2014 CAV JUDGMENT or any such article or container, etc. can, under no circumstances, be treated as body of a human being including items like a thaila, a jhola, a gathri, a holdall, a carton, etc. Thus, Section 50 of NDPS Act laid down the conditions for search of the person and not any bag, briefcase, etc. and provisions of Section 50 had no application in the facts of this case or even non-examination of two witnesses of search and recovery was another grave omission by prosecution and accused were given benefit and upheld the conviction of the accused.
23.16 Similar such view was taken in the case of Dilip & Anr. v. State of M.P. (2007)1 SCC 450 and it was further held that benefit of doubt should be given to the accused if two views are possible in a criminal trial.
23.17 In the case of Kishan Chand v. State of Haryana (2013)2 SCC 502 in the context of Sections 42 and 57 of the NDPS Act, the Apex Court noticing provisions of both the above sections, it was held that Sections 42 and 57 are neither interlinked nor interdependent so as to dispense compliance of one with compliance of another. Sections 42 and 57 operate in different fields and at different stages and each has to be strictly complied with as per its own norms and the above aspect is to be kept in mind.
23.18 Even if seized articles are not kept in a safe custody and sending of such articles to chemical examiner if found doubtful, the conviction was held to be unsustainable.
23.19 In the case of Rajesh Jagdamba Avasthi v. State of Page 43 of 58 R/CR.A/1233/2014 CAV JUDGMENT Goa (2006)1 CCC [Cri.] 150 credibility of recovery proceedings is considerably eroded if the quantity found by the analyst is less than the quantity sealed and sent to him. The question is not how much contraband was seized but whether there is actual seizure and whether what was seized was really sent for chemical analysis or not.
23.20 In the case of State of Gujarat v. Ismail U Haji Patel & Anr. (2003)12 SCC 291, the issue of safe custody of seized articles as required under Section 55, was not established and in that case it was held that the prosecution has to establish that the seized articles were in proper custody, in proper form and samples sent to the chemical analyst related to the seized articles.
23.21 In the cases of State of Rajasthan v.
Chhaganlal, (2009)8 SCC 539 and Sukhdev Singh v. State of Haryana, AIR 2013 SC 953, the Apex court followed decision in the cases of [i] Karnail Singh [supra]; [ii] Darshan Singh v. State of Haryana in Criminal Appeal Nos.216 with 217 of 2009 decided on 02.09.2015 by the Apex Court; and [iii] Rajendra Singh v. State of Haryana in Criminal Appeal No.1051 of 2009 decided on 08.08.2011 and held that total non-compliance of the requirements of Section 42 was impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42 of NDPS Act.
23.22 In the case of State Through Intelligence Officer Narcotics Control Bureau v. Mustaq Ahmed Etc., 2015 JX(SC) 802 in relation to cannabis plant and cannabis, the aspect Page 44 of 58 R/CR.A/1233/2014 CAV JUDGMENT about quantity was considered in the context of definitions contained in Section 2[iii] of the Act and punishment prescribed therein.
23.23 In case of Yasihey Yobin & Anr. vs. Department of Customs, Shillong, 2014 (13) SCC 344, in which the Apex Court was considering Section 42 of the Act in the backdrop of search made by the Gazetted Officer from the residence of accused no.1 and by considering law laid down in the case of Prabhulal (supra), Satrohan (supra), Abdul Rashid (supra), Balbir Singh (supra), Baldev Singh (supra), it was held that such mandatory compliance of Section 42 is not necessary in a case where Gazetted Officer is a member of searching party. However, In Yasihey Yobin (supra), the Apex Court had not referred to the decision of the Constitution Bench on the interpretation of Section 42 of the NDPS Act in the case of Karnail Singh (supra).
23.24 That in the context of law laid down by the Apex Court, as above, especially with regard to Sections 42, 50 and 57 of the NDPS Act, we find that the NCB has examined Mr.K.R.Parate, at Exh.25, who was serving as Intelligence Officer, NCB, Ahmedabad, on deputation and his immediate superior was Zonal Officer, Mr.Hariom Gandhi, who was examined at Exh.49. As per the testimonies of Mr.K.R.Parate, around 6.30 a.m. on 19.4.2012, a secret information was received about accused Haiderbeg Mirza would arrive with contraband charas in dark brown bag in S.T.bus and typed information in this regard was handed over to superior officer and it is produced on record at Exh.26. Pursuant to the information so received, the contraband was seized and due to Page 45 of 58 R/CR.A/1233/2014 CAV JUDGMENT movement of vehicles and public at the place of seizure, decision was taken to carry out the procedure at the office of NCB and consent of panchas as well as accused was obtained. Even further testimonies of these witness reveal that the accused was informed about procedure to be followed of Section 50 of the Act and his right to be searched in presence of a Gazetted Officer or Magistrate and with consent of the accused, this witness being a Gazetted Officer carried out search and seized the documents. Even a report under Section 57 was submitted to superior officer on 21.4.2012, the same bears signature of superior officer, Exh.30. The details of call record, Exh.31 and 32, and also complaint filed against the accused and muddamal deposited before the Court and godown register vide Exh.38 an 20 respectively and at the end the accused was identified in the Court.
23.25 Therefore, it transpires that information received by Mr.K.R.Parate was duly typed and was reduced in writing as provided under Section 41 (2) (i) of the Act. At the same time, questions were put to the accused in Hindi and later on translated into Gujarati. The above requirement of Section 42 (2) (i) of the Act is in consonance with the law laid down by the Apex Court in the case of Karnail Singh (supra). Likewise, keeping in mind the provisions of Section 50, Mr.Parate himself was a Gazetted Officer and has inquired about the right of the accused to be searched in presence of the Gazetted Officer or before a Magistrate is also borne out from the record, which satisfied the criteria laid down in the case of Vijaysinh Chandubhai Jadeja (supra).
Page 46 of 58 R/CR.A/1233/2014 CAV JUDGMENT24. Therefore, a careful perusal of the whole record right from the seizure of muddamal charas, weight of such muddamal at the time of seizure, drawing two samples of 25 grams each to be sent to CRCL for analysis and test and procedure of sealing and obtaining signature and preservation before such muddamal was sent to CRCL, receipt thereof and report forwarded by CRCL do not create any doubt about any tampering or breach of the procedure prescribed under the Act. Therefore, the question remain about quantity of the contraband charas seized and the contention raised about purity test to be carried out. We may safely refer to paragraphs 13.2, 13.3, 13.4, 13.5 and 13.6 of the judgment under challenge which reads as under:-
"(13.2) Heard the arguments of learned advocate Mr.Pathan for the accused. He has argued that as per the report of CRCL, New Delhi, Ext.33, qualitative test of muddamal sample charas has been carried out and in the sample of 25 grams charas, 3.05112 has been found in the sample. It means that only 92 grams pure charas has been found from the possession of accused, which is in small quantity and under no circumstances, it was a commercial quantity. Therefore, accused cannot be sentenced up to ten years or more than ten years, but six month imprisonment may be imposed on the accused and set-off may be given to the accused. He has further argued that as per the judgments of the Hon'ble Supreme Court, Hon'ble Gujarat High Court, Hon'ble HP High Court and Hon'ble Bombay High Court, the real charas found from the possession of accused should be considered. Rest of the quantity cannot be considered by the Court.
(13.3) As against this, learned SPP Mr.Desai has argued that as per the Notification issued by the Ministry of Finance, New Delhi, dated 18/11/2009 published in Government Gazette, entire substance of drug should be looked into. Therefore, the Court has to consider that 3 kgs. Charas has been found from the possession of the accused, which is a commercial quantity and therefore, Page 47 of 58 R/CR.A/1233/2014 CAV JUDGMENT maximum punishment may be imposed on the accused.
(13.4) On perusal of CRCL report, the chemical examiner has in section 2 has observed as under:-
Section-2 For use in the laboratory
1 Date of receipt in the laboratory. 25.04.2012 2 Weight (Net Weight) as found in 24.6 gm.
the laboratory 3 Date of conducting the test 3.05.12 results of:-
(a) Qualitative tests
(b) Result of qualitative tests 3.05.12
(c) General observation of Sample answers chemist. positive test for the presence of charas.
(13.5) From the sample of 25 grams charas, during qualitative test 3.05112 charas has been detected. It is a proved fact that sample at random has been taken in NCB office by NCB Officers. While calculating 3.05112 charas detected out of 25 grams, it comes to 360 grams and not 92 grams as argued by learned advocate for the accused. (13.6) The question posed for consideration before the Hon'ble Supreme Court, Hon'ble Gujarat High Court and Hon'ble HP High Court, is as to when in a purity test the exact quantity of contraband is found lesser than commercial quantity, but more than small quantity, then what should be the sentence imposed on the accused.
(1) 2011 (4) Crimes 478 (Guj.) Shri Chandra Singh & Ors. v/s. State of Gujarat "(i) Narcotic Drugs and Psychotropic Substances Act, 1985- Sections 21 and 22 r/w 29 - Recovery of 3 kilogram of contraband - Conviction and sentence of 15 years imprisonment with fine for each offence by trial Court - Appeal - FSL report only certified contraband to be heroin - Non-examination of sample for purity test to suggest exact quantity of contraband found in seized Page 48 of 58 R/CR.A/1233/2014 CAV JUDGMENT contraband - Quantity will have to be adjudged from total quantum of material seized - Benefit of each of percentage of contraband in the seized material would go to accused - Analysis of sample report by FSL showed that it was mixture of one or more narcotics or other substances - Case would fall in category of less than commercial quantity but more than small quantity - Sentence reduced to 7 years with fine of rupees one lakh. (Paras 7 to 11 & 14).
(11) ,,,,,, The total quantity of contraband seized is 3 Kgs and if the pure contraband is smaller quantity, the material seized would be so diluted, then it would be virtually ineffective. We are, therefore, of the view that the benefit of lack of percentage of the contraband in the seized material would go to the accused. The total quantity of contraband seized was 3 Kgs. It was a mixture of one or more narcotics or other substances and, therefore, the quantity cannot be said to be a commercial quantity. The benefit, therefore, has to go to the accused. In our view, therefore, the case would fall in the category, named as, less than commercial quantity but more than small quantity."
(2) 2011 Law Suit (Guj.) 924 Pratapbhai Surjibhai Dodiyar v/s State of Gujarat "[7] The report, however, does not state the exact quantity or percentage of substance noticed in the samples. Now, in this context, if the decision of the Supreme Court, in the case of E.Micheal Raj is seen, Their Lordships observed that "heroin is an opium derivative as per Section 2 (xvi) (e), which says that all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine is an opium derivative."
Thus, the Court concluded that the offending substance was an opium derivative and, hence, manufactured drug, the possession of which is in contravention of the provisions of Section 8 of the NDPS Act, which prohibits certain operations to the effect that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, etc. In that case, the opium derivative was found in possession of the Appellant. The punishment prescribed under Sections 21 and 22 of the NDPS Act provide different categories of offences, depending upon the quantity of contraband found, namely, small Page 49 of 58 R/CR.A/1233/2014 CAV JUDGMENT quantity, commercial quantity or lesser than commercial quantity but more than small quantity. The offence defined under the provisions is in respect of the narcotic drugs or psychotropic substances and when the material seized is found to be carrying only part of the prohibited item, such percentage would be essential for deciding whether it was a small quantity or a commercial quantity or a quantity lesser than the commercial quantity but more than small quantity. When such percentage is not there, the Court is unable to decide firmly and confidently that the quantity of material seized was pure quantity of the prohibited item or the contraband or what was the percentage of contraband mixed with some other substances.
[10] So far as accused No.2 is concerned, he is found in possession of 205 grams of brown sugar, which is more than small quantity but less than commercial quantity."
(3) 2009 Law Suit (SC) 344 State of NCT of Delhi v/s Ashif Khan @ Kalu "Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21 (a) & 21 (b) - Criminal Law - NDPS offences - Recovery of 310 gms. Heroin - Conviction and sentence - Determination of quantity qua imposition of punishment
- Small quantity or commercial quantity - In cited decision, it is held that percentage of heroin content translated into weight is irrelevant - High Court observed that, in a mixture of a narcotic drug or psychotropic substance, with one or more neutral substance the quantity of neutral substance or substances, not to be considered, whether small quantity or a commercial quantity of contraband is recovered but only actual contents by weight thereof may be relevant for determining whether it would constitute small quantity or commercial quantity - In this case, samples of five gms. Revealed to contain 0.95% of diacetylmorphine - In view of percentage contained the weigh of heroin came to 2.945 gms. of heroin - Holding the quantity to be small quantity, it held, conviction would be under Section 21
(a) - Appeal dismissed." [Paras 2, 5 & 6] (4) 2004 Law Suit (Guj.) 540 Ramakant Gopalsaran Shahu v/s State of Gujarat Page 50 of 58 R/CR.A/1233/2014 CAV JUDGMENT "Narcotic Drugs and Psychotropic Substances Act, 1985 - S.20 - Conviction u/s 8 (c) - Appeal - Amended Act came into force with effect from 2/10/2001 while the incident in question has taken place on 26/7/2002 - Amended Act would be applicable in present case - Word 'may' used in these Sections give discretion to Court by legislature as regards awarding sentence - Once discretion has been vested with Court it has to be used legally, properly and reasonably - The legislature has found it imperative that the sentence to be awarded should be on the basis of quantity of muddamal recovered."
(5) 2010 (2) Crimes 661 (HP)
Shri Dhan Bahadur v/s State of HP
(6) 2011 Law Suit (HP) 725
Mapha Bhai v/s State of HP
(7) 2004 Law Suit (HP) 78
Nagender v/s State of HP
(8) 2014 Law Suit (Bom.) 474
State (Anc PS, Panaji) v/s. David Abraham, s/o Mohammad."
24.1 The above findings and reasonings of the trial Court will have to be examined in light of definition of "Cannabis (hemp)"
contained in Section 2 (iii) of the NDPS Act read with Notification S.O. 2941 (E) dated 18.11.2009 issued by the Department of Revenue, Ministry of Finance, Government of India, by which after Note-3 in the Table contained in Notification S.O. 1055 (E) dated 19.10.2001, Note-4 came to be inserted in item no.239 of the table.
25. The case on hand indisputably establish seizure of charas from the bag of the accused weighing 3.010 kg. and decision about purity test in the case of E.Michael Raj (supra) was considered by the Apex Court in the later decision viz. State Page 51 of 58 R/CR.A/1233/2014 CAV JUDGMENT through Intelligence Officer, Narcotics Control Bureau v. Mushtaq Ahmad and Others, reported in (2016) 1 SCC 315 wherein also quantity of contraband charas (derivative of cannabis) as defined under Section 2 (iii) of the Act and punishment prescribed under Section 20 (b) (ii) (C) of the Act came to be considered. In the above decision, accused were held guilty of offence punishable under Section 20 (b) (ii) (C) of the NDPS Act, in appeal the High Court of State of Jammu and Kashmir converted such conviction under Section 20 (b) (iii) (B) of the NDPS Act and restricted the period of custody to the period already undergone by the accused. Finally the Apex Court quashed and set aside such conversion of conviction by the High Court and restored the conviction under Section 20
(b) (ii) (C) of the Act and sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs.1 Lakh, in default to undergo further rigorous imprisonment for a period of one year.
25.1 In the above decision, the Apex Court also considered the question of quantity vis-a-vis purity of contraband and distinguished the law laid down in the case of E. Michael Raj (supra) and also in the case of Amarsingh Ramjibhai Barot v. State of Gujarat (2005) 7 SCC 550, which was prior in time and that the substance viz. contraband was a manufactured drug as defined in Section 2 (xi) of the NDPS Act. The Apex Court in the case of Mushtaq Ahmad (supra) considered the case of Harjit Singh v. State of Punjab, [(2011) 4 SCC 441] and in paragraph 26 set out facts of seizure of contraband THC viz. Tetra Hydro Cannabinol and for the sake of convenience, paragraphs 26, 27 and 28 are reproduced herein below:-
Page 52 of 58 R/CR.A/1233/2014 CAV JUDGMENT"26. In the present case, the contraband article that has been seized is "charas" and the dictionary clause clearly states that it can be crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. The definition also indicates that any mixture with or without any neutral material of any of the cannabis or any drink prepared therefrom. The reference in Section 2(iii)(c) refers to any mixture which has a further reference to charas, which states crude or purified. The chemical name for charas and hashish is "extracts and tinctures of cannabis". It finds mention at Entry No.23 of the Notification. Serial No.150 of the Notification deals with "tetrahydrocannababinol" having a long list.
27. Regard being had to the aforesaid factual score, reference to a two-Judge Bench decision in Harjit Singh v. State of Punjab6, would be apt. In the said case 7.10 kgs. of opium was ceased from the accused. A contention was raised before this Court that the opium recovered from the appellant weighing 7.10 kgs. contained 0.8% morphine, that is, 56.96 gms. and hence, the quantity was below the commercial quantity. The two-Judge Bench referred to the pronouncement in E. Micheal Raj (supra) and referred to various Entries in the notification, namely, Entry 77 that deals with morphine, Entry 92 that deals with opium and Entry 93 that deals with opium derivatives. The Court posed the question whether the case would fall under Entry 92 or Entry 93 or any other Entry. The Court referred to the definition of opium under the NDPS Act, the chemical analysis made by the Forensic Science Laboratory, took note of the percentage of morphine, the amendment brought in 2001 and came to hold thus:-
"21. In the instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of Section 8 of the NDPS Act and was rightly convicted under Section 18(b) of the NDPS Act. The instant case squarely falls under clause (a) of Section 2(xv) of the NDPS Act and clause (b) thereof is not attracted Page 53 of 58 R/CR.A/1233/2014 CAV JUDGMENT for the simple reason that the substance recovered was opium in the form of the coagulated juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice. For the purpose of imposition of punishment if the quantity of morphine in opium is taken as a decisive factor, Entry 92 becomes totally redundant.
22. Thus, as the case falls under clause (a) of Section 2(xv), no further consideration is required on the issue. More so, opium derivatives have to be dealt with under Entry 93, so in case of pure opium falling under clause (a) of Section 2(xv), determination of the quantity of morphine is not required. Entry 92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity."
27. In the said case, the judgment referred in E. Micheal Raj (supra) was distinguished by stating thus:-
"The judgment in E. Micheal Raj has dealt with heroin i.e. diacetylmorphine which is an "opium derivative" within the meaning of the term as defined in Section 2(xvi) of the NDPS Act and therefore, a "manufactured drug" within the meaning of Section 2(xi)(a) of the NDPS Act. As such the ratio of the said judgment is not relevant to the adjudication of the present case."
Eventually, in paragraph 25 the Court held thus:-
"25. The notification applicable herein specifies small and commercial quantities of various narcotic drugs and psychotropic substances for each contraband material. Entry 56 deals with heroin, Entry 77 deals with morphine, Entry 92 deals with opium, Entry 93 deals with opium derivatives and so on and so forth. Therefore, the notification also makes a distinction not only between opium and morphine but also between opium and opium derivatives. Undoubtedly, morphine is one of the derivatives of the opium. Thus, the requirement Page 54 of 58 R/CR.A/1233/2014 CAV JUDGMENT under the law is first to identify and classify the recovered substance and then to find out under what entry it is required to be dealt with. If it is opium as defined in clause (a) of Section 2(xv) then the percentage of morphine contents would be totally irrelevant. It is only if the offending substance is found in the form of a mixture as specified in clause (b) of Section 2(xv) of the NDPS Act, that the quantity of morphine contents becomes relevant."
25.2 As aforesaid, the Apex Court noticed that decision in case of E.Michael Raj (supra) was distinguished which dealt with heroine viz. diacetylmorphin, which is an opium derivative and would fall within the meaning of Section 2 (xvi) of the Act and, therefore, it was a manufactured drug under Section 2 (xi) (a) of the NDPS Act. Ratio in the case of E.Michael Raj was not found relevant by the Bench of the Apex Court in the case of Harjit Singh's case, in which the material recovered from the appellant-accused was opium and it was not a mixture of opium with any other neutral substance. That the substance recovered was not for preparation to produce any new substance from the said coagulated juice and, therefore, it was found that the issue in Harijitsingh's case was under Clause (a) of Section 2 (xv) of the NDPS Act.
26. No doubt, in the case of Mushtaq Ahmad (supra) the Apex Court even noticed that percentage of THC found in the contraband article, if considered in the context of entry 190, the commercial quantity was 50 gram and, therefore also, it was held that the view expressed by the High Court was not correct. Thus, judged from any score, view expressed by the High Court was not correct and the quantity of charas seized was rightly held by the trial Court as commercial quantity and Page 55 of 58 R/CR.A/1233/2014 CAV JUDGMENT conviction recorded by the trial Court under Section 20 (b) (ii) (C) of the Act was found just and proper.
27. In the facts of this case, if the definition of "Cannabis (hemp)" is seen and considered, Section 2 (iii) (c) provide for any mixture with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom, and item no.239 of the table of notification dated 19.10.2011 contained "any mixture or preparation with or without a neutral material of any of the above drugs" and Note 4 introduced by amendment carried out vide notification dated 18.11.2009 S.O. 2941 (E) specifically provide that quantity shown in column 5 and 6 of the Table of notification dated 29.10.2001 relating to respective drugs shown in column 2 shall apply to entire mixture or any solution or anyone or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs including salts of esters, ethers and isomers, wherever existence for such substance is possible and not just its pure drug content.
28. That very notification and amendment introduced on 18.11.2009 was again a subject matter of challenge in the case of Hira Singh and Another v. Union of India reported in (2017) 8 SCC 162 and again the Apex Court referred to the decision of State v. Mushtaq Ahmed (supra), Amarsingh Ramjibhai (supra), E.Michael Raj (supra) and other such decisions and referred the issue for an authoritative pronouncement on the matter to a Three Judge Bench. Para 12 of the referral order reads as under:-
"12. The three Judges Bench may have to consider, amongst others, the following questions:
12.1 Whether the decision of this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note Page 56 of 58 R/CR.A/1233/2014 CAV JUDGMENT of entry no.239 and Note 2 (two) of the notification dated
19.10.2001 as also the interplay of the other provisions of the Act with Section 21?
12.2 Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment?
12.3 Does the Act permit the Central Government to resort to such dispensation?
12.4 Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
12.5 Whether Section 21 of the Act is a stand alone provision or intrinsically linked to the other provisions dealing with "manufactured drug" and "preparation" containing any manufactured drug?"
29. Therefore, submissions based on the purity test that the charas that was seized by the NCB official, and after analysis it was containing pure charas of only 92 grams based on the analysis of CRCL has no application. Even conclusion drawn by learned trial Judge that sample of 25 grams upon analysis contained 3.05 per cent of charas and the quantity would be more than 360 grams is also not in accordance with law laid down by the Apex Court in the case of Mushtaq Ahmad (supra) since definition of cannabis contained in Section 2 (iii) (a) (C) together with entry no.23 pertaining to Cannabis and cannabis resin, charas, hashish, provide commercial quantity as one kilogram and entry no.239 refer to any mixture or preparation that of with or without a natural material, of any of the drugs contained in Schedule notes inserted by S.O.2941 (E) with effect from 18.11.2009, makes it clear that conviction of the accused ought to have been recorded under Section 20 (b) (ii) (C) of the NDPS Act for recovery of 3.010 kilogram of charas, the commercial quantity, which provide for rigorous imprisonment for a term which shall not be less than ten years.Page 57 of 58 R/CR.A/1233/2014 CAV JUDGMENT
Under the circumstances, we are inclined to alter the conviction of the accused under Section 20 (b) (ii) (C) and sentencing him with rigorous imprisonment for a term of not less than ten years with fine of Rs.1 Lac.
30. For the foregoing discussion, the impugned judgment and order 20.8.2014 passed by learned Special Judge, Court No.3, City Sessions Court, Ahmedabad, in Special NDPS Case No.12 of 2012 is modified and the accused is convicted under Section 20 (b) (ii) (C) of the NDPS Act and sentence of seven years imposed upon the accused for the offence under Section 20 (B) is enhanced and he is ordered to undergo rigorous imprisonment for a term not less than ten years with fine of Rs.1 Lac and, in default thereof, further rigorous imprisonment for one year. Remaining part of the impugned judgment shall remain unaltered. The period of sentence already undergone by the accused be given set off to him. Accordingly, Criminal Appeal No.1233 of 2014 filed by Narcotics Control Bureau for enhancement is allowed and Criminal Appeal No.775 of 2015 filed by the accused against his conviction is dismissed. Bail bond, if any, of the accused stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.
31. At this stage, learned counsel appearing for the accused requests to grant some time to the accused-convict to surrender. Request is accepted and the accused-convict is granted ten weeks time to surrender.
(ANANT S. DAVE, J) (B.N. KARIA, J) R.S. MALEK Page 58 of 58