Gujarat High Court
Ambalal Ranchhodji Thakor vs State Of Gujarat on 15 July, 1996
Equivalent citations: (1997)1GLR795
JUDGMENT S.M. Soni, J.
1. Leave to amend and add grounds.
2. Rule. Mr. K.P. Raval, learned A.P.P., waives service of Rule. In view of the amendment permitted by this Court and carried out by the petitioner, learned Sr. Counsel Mr. H.M. Mehta with Mr. S.C. Patel were heard, as by amendment, the petitioner has challenged the vires of Sections 27, 37 and 52 of Narcotic Drugs and Psychotropic Substances Act, 1985 ("N.D.P.S. Act" for short).
3. With the consent of the parties' learned Advocates, as they have waived service of Rule, the matter was heard for final hearing.
4. Petitioner, by this application, has prayed for bail under Section 439 of the Code of Criminal Procedure, 1973 (Code for short) read with Section 37 of N.D.P.S. Act.
5. Few facts necessary to appreciate the contentions are as under:
One Motibhai Jinabhai, unarmed Head Constable of Dabhoda Police Station, had arrested one Mukhatyar Ali for possessing ganja (marijuana). Said Mukhatyar Ali had disclosed that he has bought the same from one Ambalal Ranchhodji Thakor of Isanpur Thakorevas, petitioner herein. In response to the same, the complainant proceeded towards the residential address of Ambalal to carry out the raid. When they reached near the house, one person was sitting on a cot in front of the house. On enquiry, he disclosed his name to be Ambalal Ranchhodji Thakor and after informing him, the house was searched and ganja was found in a plastic bag placed in a metal box below that iron cot. On enquiry whether he had any pass or permit to possess the same, he replied he has not. Said ganja was weighed and it was 250 grams. The same was seized and a complaint was lodged under Section 20(b) of the N.D.P.S. Act. Said Ambalal, who is the petitioner before this Court, was arrested and he has moved this Court for enlarging him on bail.
6. It will not be out of context to state here that his application for bail is dismissed by the learned Addl. Sessions Judge, Ahmedabad on 16-5-1996. It will not be out of context to state that this application is filed before submission of charge-sheet.
7. Petitioner has prayed for bail mainly on the following grounds:
(1) There is no prima facie case, i.e., there are reasonable grounds to believe that the petitioner-accused is not guilty inasmuch as there is a striking noncompliance of mandatory provisions of N.D.P.S. Act. When a trial would stand vitiated for non-compliance of manatory provisions of N.D.P.S. Act in view of the case of State of Punjab v. Balbir Singh , it should be held by this Court that there are reasonable grounds to believe that the accused is not guilty and the petitioner is entitled to be enlarged on bail.
(2) Assuming that narcotic substance is found from the possession of the petitioner, then also it is a small quantity as specified by the Central Government vide its notification No. SO/827 (E) dated 14-11-1985. Being a small quantity, the case of the petitioner does not fall within the purview of Section 37 of N.D.P.S. Act, as it is covered by Section 27 of the N.D.P.S. Act, as held by his Lordship N. N. Mathur J. in Misc. Criminal Application No. 2300 of 1996 decided on 13-6-1996. The case of the petitioner is then governed by the ordinary provisions of Section 437 read with Section 439 of the Code and the petitioner is entitled to be released on bail.
(3) Sub-clause (2) of Explanation to Section 27 of N.D.P.S. Act casts a burden on the accused to prove that he had possessed the said narcotic substance for personal consumption and casting any burden on the accused, contends the learned Advocates for the petitioner, is in contravention of Articles 13, 20 and 21 of the Constitution of India. Learned Advocate, therefore, contended that Sub-clause (2) of Explanation to Section 27 is ultra vires Articles 13, 20 and 21 of the Constitution of India and, therefore, the case of the petitioner would be governed by ordinary law of bail under the Code and the petitioner is entitled to be enlarged on bail.
(4) That majority of the High Courts have taken the view that if narcotic substance found is a small quantity as specified by the Central Government, then the case squarely falls within the purview of Section 27 of N.D.P.S. Act and Section 37 is not applicable, as punishment for an offence under Section 27 is maximum one year and minimum six months, i.e., not five years or more in any case, which is a bare requirement to apply Section 37 of N.D.P.S. Act Act.
(5) That in view of the diverse opinion of J.M. Panchal J. in Misc. Criminal Application No. 2309 of 1995 and of N.N. Mathur, J. in Misc. Cri. Application No. 2300 of 1996, this Court should refer the issue to the larger Bench, instead of relying on one of the two judgments.
(6) That the case of the petitioner would squarely fall within the purview of Section 27 of N.D.P.S. Act inasmuch as it was the duty of the investigating agency to enquire and verify from the accused as to whether the said substance possessed was intended for personal consumption. In absence of this enquiry by Investigating Officer, it should be presumed in view of the small quantity that it was intended for personal consumption.
8. Supreme Court in the case of Balbir Singh (supra) has held in paragraph 25 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 contemplated under the provisions of the N.D.P.S. Act makes a search or arrest a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr. P.C. and when such search is completed at that stage, Section 50 of N.D.P.S. Act would not be attracted and the question of complying with the requirement thereunder would not arise. If during such search or arrest there is a chance 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 N.D.P.S. Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the N.D.P.S. 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 authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the N.D.P.S. Act. If such arrest or search is made under the provisions of the N.D.P.S. Act by anyone other than such officers, the same would be illegal.
(2-B) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent, these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso of 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 Cri. 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 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 required, failure to take him to the Gazetted Officer or the Magistrate, would amount to noncompliance 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.
In view of the above conclusion by the Supreme Court, it is held that Sections 41, 42 and 50 of N.D.P.S. Act are mandatory ones, which vitiates the trial and conviction as a consequence thereof. Relying on this judgment in the case of Balbir Singh (supra), it is contended by learned Advocate Mr. Gupta for the petitioner that in the present case First Information Report does not reveal compliance of any of these mandatory provisions. As the First Information Report does not reveal compliance of the mandatory provisions even if the trial takes place and is concluded, the same is liable to be vitiated and any conviction that may be recorded will be illegal one. In that situation, after the completion of the trial if the trial is to be held vitiated on the grounds which did exist, the Court should have held that there are reasonable grounds for believing that the accused is not guilty of the offence and the Court should have exercised the discretion to release the petitioner on bail. Mr. Gupta, further contended that why the Court should wait till the trial is over, when the conclusion is foregone. This will amount to detention of the petitioner by way of punishment, which is contrary to the principle of bail.
To substantiate his argument, Mr. Gupta has stated before the Court that the raid was carried out by the Head Constable, which is in contravention of the provisions of Section 42(1) of the N.D.P.S. Act. The said officer has carried out the raid after sunset and before sunrise and has not recorded the grounds for his belief that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. Mr. Gupta has further contended that the officer has not called upon the accused as to whether he would like to be searched in presence of Gazetted Officer or Magistrate. He also contended that the information was required to be taken down in writing and sent to the Superior officer. Compliance of this requirement is not stated in First Information Report. Based on these facts, it is contended that there is non-compliance of mandatory requirements of N.D.P.S. Act. Mr. Gupta has relied on this noncompliance on the First Information Report, as it is stated that no charge-sheet is filed by the investigating agency. It is surprising and shocking too that an Advocate dares to state before the Court non-compliance of Sections 41, 42 and 50 of N.D.P.S. Act when he had no papers of investigation, except the First Information Report. We proceeded on the assumption that he had or he may have some information about this non-compliance from record and he is making the submission. However, he contends that reasons to be assigned for searching the premises after sunset and before sunrise are required to be stated in the Panchnama itself, which, according to him, are absent. Secondly, non-compliance of Section 50 is revealed, according to learned Advocate Mr. Gupta, from F.I.R. Mr. Gupta contended that in F.I.R., it was the duty of the complainant to state whether he asked the suspect that he would like his person to be searched in presence of a Magistrate or a Gazetted officer. As this statement is absent in the complaint, there is a non-compliance of Section 50 of N.D.P.S. Act.
9. A pointed question was addressed to Mr. Gupta as to which provision requires a complainant to disclose such compliance or even procedure followed on detection of offence. It was also enquired from Mr. Gupta as to what is required to be stated in a complaint. Mr. Gupta contended that before lodging a complaint, if anything has transpired between the suspect and the complainant in the course of search and seizure the same be revealed in the complaint. Mr. Raval, learned A.P.P. contended that complaint is defined in Clause (d) of Section 2 of the Code. In view of the provisions of Section 4 of the Code, the provisions of the Code are extended to investigation and trial under N.D.P.S. Act. Under Section 36(C) of N.D.P.S. Act, provisions of the Code, except saved under N.D.P.S. Act, are applicable to the proceedings before the Special Court/Sessions Court. Clause (d) of Section 2 of the Code reads as under:
(d) 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
In view of these provisions, what is required to be stated in the complaint is the facts which constitute offence with the name of the person, if known, or without name, if not known, with a view to take action in the matter in accordance with law. What transpired at the time of seizure or search or interrogation before F.I.R. is registered is not required to be stated in the complaint. May be such an interrogation or dialogue, which takes place between the suspect and the investigating agency if affects the investigation, the same may be explained or disclosed by the Investigating Officer in the course of trial, but he is not required to state these facts as to whether suspect was asked whether he is required to be searched before a Gazetted officer or a Magistrate and whether he has declined or not in the F.I.R. In my opinion, the presumption is that if suspect had asked to search his person before a Gazetted officer or Magistrate then he ought to have been searched in the presence of a Magistrate or a Gazetted officer. Even Panchnama of search would reveal this. Absence of such facts in either complaint or Panchnama does not lead to infer non-compliance of said provision. It may be that suspect had declined for such search. In any case, this is a matter of evidence at the time of trial. No doubt, the burden lies on the prosecution to show that Section 50 was complied with, however, same is to be discharged at its proper stage. The stage is not the complaint but is trial. Therefore, the question whether Section 50 is complied with or not, cannot be decided without trial.
10. So also, the question about the authorisation of the complainant. The same is required to be stated for rejection for the reason that State of Gujarat has by notification empowered the officer superior in rank to Constables. So far as reasons to be recorded for search without warrant after sunset and before sunrise is concerned, that is also a matter of procedure for that Investigating Officer and that the same may be explained by the officer at the trial. Question of non-compliance of such provisions can only be determined after trial. So far as reasons for arrest are concerned, F.I.R., in my opinion, itself discloses the reasons for arrest.
11. Thus, non-compliance of the mandatory provisions cannot be presumed from the absence of such facts in F.I.R. or in the charge-sheet papers, till the prosecution gets opportunity to lead evidence and fails to prove it. Word 'guilt' connotes condition of having done wrong or responsibility for wrong doing. For noncompliance of mandatory provisions accused may get benefit of doubt but it cannot be said that act constituting offence is not committed. Therefore, it cannot be said at this stage that there are reasonable grounds to believe that the accused is not guilty of the offence.
12. Mr. Gupta further contended that in absence of non-compliance of the mandatory provisions being revealed from F.I.R. and be it from the charge-sheet papers, then the whole trial stands vitiated and, therefore, petitioner will be entitled to be enlarged on bail in any case. To support that, he has relied on the following judgments:
(1) Kartar Singh v. State of Punjab 1993(2) Crimes 542 (Punjab & Har.);
(2) Shankar Krishnasa Habib v. State of Karnataka 1992 Cri. LJ. 205 (Karnataka);
(3) Lawrance D'Souza v. State of Maharashtra 1992 Cri. LJ. 399 (Bom.);
(4) Sewa Ram v. State 1992 Cri. LJ. 2929 (All.);
(5) Sunil Chaturvedi v. Naresh Goyal 1992(2) Crimes 35 (Rajasthan);
(6) Sewa Ram v. State of U.P. 1992(2) Crimes 1022 (All.);
(7) Dadan Singh v. State of U.P. 1993 Crimes 1785 (All.);
(8) Mari Appa v. State of M.P. 1990 Cri. LJ. 1990 (M.P.); and (9) Balbir Singh v. Union of India and Anr. 1992(2) Crimes 101 (All.) In all these cases, the High Courts have considered non-compliance of mandatory provisions of N.D.P.S. Act a good defence, the accused are either enlarged on bail or are acquitted. In my opinion, Supreme Court in the case of State of U.P. v. Pirthi Chand and Anr. , has negatived this approach of the Courts. In that case, learned Sessions Judge had discharged the accused for the offence under Section 20 of N.D.P.S. Act at the stage of taking cognizance of the offence before the trial was conducted on merits on the ground that provisions of Section 50 of N.D.P.S. Act have not been complied with. The said order of discharge passed by learned Sessions Judge was confirmed by the High Court and the State had approached the Supreme Court by Special Leave. Supreme Court, after considering number of judgments, has observed in Paras 5, 7 and 14 as under:
5. It would be seen that the organised traffic in contraband generates a deleterious effect on the national economy affecting the vitals of the economic life of the community. It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of illegal search property seized, on the basis of said search, it still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may effect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.
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7. It would thus be settled law that every deviation from the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the Articles pursuant to the illegal search irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.
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14. The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in Panchnama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected, i.e., Panchnama, etc. nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial, an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. Under these circumstances, the learned Sessions Judge was not justified in discharging the accused after filing of the charge-sheet holding that mandatory requirements of Section 50 had not been complied with.
Thus, it is clear from this latest judgment of the Supreme Court that the evidence collected in search in alleged breach of mandatory provision of law, by itself does not become inadmissible in evidence. The evidence discovered would be to prove unlawful possession of the contraband under the Act. It is found from Panchnama of seizure that the contraband is found from the possession of the suspect/accused. Though the search may be illegal, the evidence collected, i.e., Panchnama, etc. nonetheless would be admissible at the trial. Supreme Court has specifically held that at the stage of filing charge-sheet, it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial, an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. Ultimately, Supreme Court has held after the above observation that the learned Sessions Judge was not justified in discharging the accused after filing of the charge-sheet, holding that the mandatory requirements of Section 50 had not been complied with. Thus, all those judgments referred to and relied on by the learned Advocate Mr. Gupta for the petitioner are either distinguished or overruled by this Pirthi Chand's case (supra). It has been made clear in the said judgment that any evidence obtained as a result of search and seizure in violation of the mandatory requirement does not become inadmissible by itself. It is a matter of appreciation of evidence as to what weight should be attached to such evidence.
Supreme Court in the case of State of Punjab v. Jasbir Singh and Ors. has also held as under:
However, the evidence collected in breach of mandatory requirement does not become inadmissible. It is settled law that evidence collected during investigation in violation of the statutory provisions does not become inadmissible and the trial on the basis thereof does not get vitiated. Each case is to be considered on its own backdrop.
Thus, it is clear that the evidence obtained as a result of search or seizure even if in violation of mandatory requirement of section does not become inadmissible. Question would be: What weight should be attached to such evidence collected, keeping in mind the impact of violation of mandatory requirement while carrying out such search and seizure and despite the violation of mandatory requirements, if the Court is satisfied about the factum of seizure of a contraband goods, it may be open for the Court to accept that evidence? Simple non-compliance of a mandatory provision by itself does not make the evidence inadmissible and to ignore before the trial.
13. So far as compliance of Section 42 (sic. 52) about supplying the reasons to the accused for his arrest is concerned, the complainant may at the relevant time in the course of evidence disclose and come with necessary evidence to support his say that reasons of arrest were supplied with. So far as reasons to be recorded for search between sunset and sunrise is concerned, the same may also be provided to the Court at the time of trial. So far as question of search of the person of the accused before the Gazetted officer or a Magistrate is concerned, there may be an explanation for the same with the complainant. These requirements, which are required to be strictly followed under N.D.P.S. Act, are not required to be made part of investigation record and make part of the papers of the charge-sheet. So far as the question of information received to be taken down and sent to the superior officer is concerned, it may happen in a given case that information may be received in the presence of superior officer, as it appears in the instant case. Complaint itself suggest that one accused Mukhtyarali has revealed the fact that he has bought narcotic substance from one Ambalal residing at Thakorevas, Isanpur. This fact is revealed in presence of P.S.I., who is a superior officer to Head Constable. Revelation of the information by the said accused to the complainant, who is Head Constable, in presence of superior officer of the complainant, i.e., P.S.I., whether amounts to compliance of said provision of N.D.P.S. Act will be a matter of appreciation of evidence. Till then, it cannot be accepted and concluded at this stage that the information is not revealed or communicated to the superior officer in writing. There may be explanations to show the compliance of mandatory provisions. It will be for the trial Court to accept this explanation for the compliance of the mandatory provisions but simple say that there is non-compliance of the mandatory provision on the basis of the complaint, which does not require under law to state the compliance of such provisions, will be putting the cart before the horse. Thus, I do not find any substance in this contention of learned Advocate at this pre-trial stage that there is non-compliances of Sections 41, 42 and 50 of N.D.P.S. Act and the Court ought to have held that there are reasonable grounds for believing that the accused is not guilty of the offence.
I am supported in my above view by the judgment of this Court in the case of State of Gujarat v. Shaikh Lala Shaikh Balu 1995(2)] XXXVI(2) GLR 1709. There, this Court has held as under:
6. Now, with due respect to the learned Sessions Judge, it appears that she has committed patent and obvious error while deciding the bail application releasing the accused on bail on the aforesaid two grounds. It also further appears that the learned Judge has clearly over-looked the basic principle, viz., that while deciding the bail application at pre-trail stage, the Court is not required to thread-bear analyse the case or appreciate the evidence which is ordinarily done at the end of the full-dressed trial to find out whether there is sufficient evidence for conviction rather, what is to be seen and found out at this stage of bail application is whether there was a prima facie case against the accused or not. In search of what is prima facie case the Court ought to guard itself against possible confusion-as the prima facie case should never be confused with the case proved to the hilt or beyond doubt. Bearing in mind this guiding principle let us appreciate two grounds in question on the basis of which the accused came to be released on bail and find out whether it stands the above test of the prima facie case. Accordingly, First of all, so far as the requirement of Section 42(2) of the Act is concerned, it is indeed quite true that when the Court (sic. officer) takes down any information in writing under Sub-section (1) or record grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Now, whether this has been done or not, is indeed a matter of some detail and, therefore, of evidence to be recorded at the time of trial to be tested and proved-whether the concerned officer while giving evidence before the Court would depose in the said regard. There is no law which requires that while recording the complaint, in the complaint itself, the officer is bound to state that he has forthwith sent a copy of the same to his immediate superior. Not only that, but ultimate idea and the object of filing the complaint is to put the criminal law in motion and in that view of the matter the complaint may not be that encyclopedic containing all and sundry details of the case. It hardly needs to be stressed the elementary principle that the complaint, Panchnama, etc. standing by themselves are not substantive pieces of evidence. They are only the corroborative pieces of evidence and accordingly, in case if there is no mention regarding compliance of Section 42(2) and/or Section 50 of the N.D.P.S. Act, in the complaint that will at the most, be a question to be recorded and decided at the time of the trial when the substantive evidence of the concerned officer is recorded. In this view of the matter, the learned Judge has on face of it has misapplied Section 42(2) of the N.D.P.S. Act at pre-trial stage and, therefore, the said ground shall have to be rejected.
6.1 That takes us to another ground on which the learned Judge released the accused on bail holding that Section 50(1) of the N.D.P.S. Act which is mandatory, was not complied with. Now, this Section 50 of the Act pertains to the conditions under which search of persons shall be conducted, wherein it is stipulated that when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, 42 or 43, he shall, if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of the Departments mentioned in Section 42 or to the nearest Magistrate. Now, if we peruse the Panchnama, it is very clearly stated therein that the Police Officer while taking search, has informed the accused that he was to take search of his house and, therefore, if he wanted to take search of him or the panch-witnesses accompanying him, he was free to do so. Not only that, but the accused was also informed that if he was interested in keeping any respectable person of the area or Gazetted Officer or Magistrate present, he can do so. Of course, it is quite true that the requirement of Section 50(1) of the Act is not to keep the Gazetted Officer or the learned Magistrate present at the place of the incident. But that appears to be a pardonable bona fide mistake. In substance, the concerned officer has shown bona fide by giving an opportunity to the accused to be searched in presence of the Gazetted Officer. In this view of the matter, it is indeed unfortunate that the learned Judge has not cared to peruse the police papers and straightway has released the accused on the ground of not complying with the provisions as contained in Section 50(1) of the Act. Apart from the fact that in the present case the Panchnama discloses that the raiding officer has complied with the concerned mandatory provisions of the Act, merely because the raiding officer has not stated so in the contemporaneous record, viz., F.I.R. or Panchnama, that by itself would not be sufficient at the pre-trial/bail stage to conclusively hold that he has not complied with the provisions contained in Section 50(1) of the Act. As a matter of fact, it has been held by this Court (Coram: K.J. Vaidya & B.J. Shethna, JJ.) in Criminal Appeal No. 526 of 1988, decided on 23-6-1994, wherein Shethna, J. speaking for the Bench has observed that so far as the procedural aspect of informing the accused is concerned, the same is an official duty and in view of Section 114(c) of the Evidence Act, it should be presumed that he has performed that duty in ordinary course unless of course the said fact is challenged in the cross-examination of the concerned officer or proved to the contrary. In this view of the matter, the learned Judge was once again patently wrong in releasing the accused on bail on the ground that the requirement of Section 50(1) of the Act was not complied with.
14. This brings me to consider the second question raised by the learned Advocate about vires of Sections 27 and 37 of N.D.P.S. Act. So far as the question of vires of Sections 37(1) & (2) of the N.D.P.S. Act is concerned, the same stands directly answered by the Supreme Court in the case of Kartar Singh v. State of Punjab . In the case of Kartar Singh (supra), the Supreme Court was concerned with Sub-sections (8) and (9) of Section 20 of Terrorist and Disruptive Activities (Prevention) Act, 1983 ('T.A.D.A. Act' for short). Sub-sections (8) and (9) of Section 20 of T.A.D.A. Act are strikingly identical with Sub-sections (1) and (2) of Section 37 of N.D.P.S. Act. Therefore, the reasons for upholding the constitutionality of Sub-sections (8) and (9) of Section 20 of T.A.D.A. Act, in my opinion, would apply to uphold the constitutionality of Sub-sections (1) and (2) of Section 37 of the T.A.D.A. Act in all fours. In the case of Kartar Singh (supra), Supreme Court has held, while considering the constitutionality of Sub-section (8) of Section 20 of T.A.D.A. Act as under:
342. Sub-section (8) which imposes a complete ban on release on bail against the accused of an offence punishable under this Act minimises or dilutes that ban under two conditions, those being (1) the Public Prosecutor must be given an opportunity to oppose the bail application for such release; and (2) where the Public Prosecutor opposes the bail application the Court must be satisfied that the two conditions, namely, (a) there are reasonable grounds for believing that the person accused is not guilty of such offence and (b) he is not likely to commit any offence while on bail. Sub-section (9) qualifies Sub-section (8) to the effect that the above two limitations imposed on grant of bail specified in Sub-section (8) are in addition to the limitation under the Code or any other law for the time being in force on granting of bail. Section 436 of the Code provides for grant of bail to a person accused of a bailable offence, while Section 437 provides for grant of bail to any accused of, or suspected of, the commission of any non-bailable offence. Nonetheless, Sub-section (1) of Section 437 imposes certain fetters on the exercise of the powers of granting bail on fulfilment of two conditions, namely, (1) if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life and (2) if the offence complained of is a cognizable offence and that the accused had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or he was previously convicted on two or more occasions of a non-bailable and cognizable offence. Of course, these two conditions are subject to three provisions attached to Sub-section (1) of Section 437. But we are not very much concerned about the provisions. However, Sub-section (3) of Section 437 gives discretion to the Court to grant bail attached with some conditions, if it considers necessary or in the interest of justice. For proper understanding of those conditions or limitations to which two other conditions under Clauses (a) and (b) of Sub-section (8) of Section 20 of T.A.D.A. Act are attached, we reproduce those conditions in Section 437(3) as hereunder:
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343. Section 438 of the Code speaks of bail and Section 439 deals with the special powers of High Court or Court of Sessions regarding bail. It will be relevant to cite Section 439(1)(a) also, in this connection, which reads as follows:
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344. In this connection, we would like to quote the following observation of this Court in Usmanbhai Dawoodbhai v. State of Gujarat with which we are in agreement (SCC pp. 286-287, para 9):
Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are 'in addition to the limitation under the Code or any other law for the time being in force'. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is a Court other than the High Court or the Court of Session within the meaning of Section 437 of the Code. The exercise of power to grant bail by the Designated Court is not only subject to the limitation contained therein, but is also subject to the limitation placed by Section 20(8) of the Act".
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349. The conditions imposed under Section 20(b), as rightly pointed out by the Additional Solicitor General, are in consonance with the conditions prescribed under Clauses (i) and (ii) of Sub-section (1) of Section 437 and Clause (b) of Sub-section (3) of that section Similar to the conditions of Clause (b) of Sub-section (8), there are provisions in various other enactments-such as Section 35(1) of Foreign Exchange Regulation Act and Section 104(1) of the Customs Act to the effect that any authorised or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the condition that "there are grounds for believing that he is not guilty of an offence", which condition in different form is incorporated in other Acts such as Clause (i) of Section 437(1) of the Code and Section 35(1) of F.E.R.A. and Section 104(1) of the Customs Act, cannot be said, to be an unreasonable condition infringing the principle of Article 21 of the Constitution.
15. In the case of Union of India v. Thamisharasi and Ors. , Supreme Court has held that provisions of Sub-sections (1) & (2) of Section 37 of N.D.P.S. Act and Sub-sections (8) and (9) of Section 20 of T.A.D.A. Act are strikingly similar. Paras 12 and 13 of the judgment read as under:
12. The limitation on the power to release on bail in Section 437 Cri. P.C. is in the nature of a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the N.D.P.S. Act is in the nature of a condition precedent for the exercise of that power, so that, the accused shall not be released on bail unless the Court is satisfied that there are reasonable grounds to believe that he is not guilty. Under Section 437 Cri. P.C. it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail; but under Section 37 N.D.P.S. Act it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This appears to be the distinction between the two provisions which makes Section 37 of the N.D.P.S. Act more stringent.
13. Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the corresponding provision in the Code and imposes limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in Sub-section (2) of Section 37. These limitation of granting of bail specified in Sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to Sub-section (2) of Section 167 Cri. P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation.
In view of this legal position, Section 37 of the N.D.P.S. Act cannot be said to be ultra vires Article 21 of the Constitution of India.
16. So far as Explanation to Section 27 of N.D.P.S. Act is concerned, question raised is that the said provisions are ultra vires inasmuch as they are in contravention of provisions of Article 13 read with Articles 20 and 21 of the Constitution of India. Mr. Gupta, learned Advocate, contended that the said Explanation (2) to Section 27 of N.D.P.S. Act is in contravention of Article 13 read with Article 20, Clause (3) of the Constitution of India, inasmuch as it compels the accused to prove that the small quantity possessed was intended for personal consumption and not for sale or distribution. Clause (2) of Article 13 contemplates that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this Clause shall, to the extent of the contravention, be void. Clause (3) of Article 20 of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. Explanation (2) of Section 27 casts burden on the accused to prove that small quantity possessed was intended for personal consumption and not for sale or distribution. To prove this fact, accused has to examine himself as witness and the same is in contravention of Clause (3) of Article 20 of the Constitution of India. Thus, the said Explanation (2) of Section 27 of N.D.P.S. Act is ultra vires Article 20(3) read with Article 13(2) of the Constitution of India, contends learned Advocate Mr. Gupta. It will be relevant to refer to Explanation (2) to 27 of N.D.P.S. Act, which reads as under:
Section 27, Explanation (2).-Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person.
Explanation (2) to Section 27 of N.D.P.S. Act will be attracted after prosecution proves (i) that the suspect/accused is found to be in possession of narcotic substance; and (ii) that it is a small quantity as specified by the Government in its notification. Then, if the accused wants to have benefit of lesser sentence, he has to establish that it was intended for personal consumption and not for sale or distribution. On such proof, rigour of punishment may be reduced. It is upto accused to take defence and what defence. The suspect or accused need not take this defence specifically that it was for personal consumption and let alone the prosecution to prove that it was for sale or distribution. If prosecution fails to prove the same, then the prosecution will suffer the consequence arising therefrom, but if the suspect or accused wants to avoid risk of probable punishment and take benefit of lesser punishment as prescribed in Explanation (2) of Section 27, it is he who has to prove that the substance was possessed if proved by the prosecution, but the same was intended for the personal consumption and not for sale or distribution. Section 27 of N.D.P.S. Act provides that if the substance was intended for personal consumption of suspect or accused, then the gravity of the offence is reduced as law sympathises with the addict-a helpless person and the punishment in case of certain narcotic substances is maximum one year or fine or with both and in others, six months or fine or with both. I may state that the substance found from the petitioner in the instant case is Ganja, which would fall in Clause (b) or Section 27 of N.D.P.S. Act and the maximum punishment prescribed is six months or fine or both. The case of the petitioner falls in Sub-clause (i) of Clause (b) of Section 20 of N.D.P.S. Act, where maximum punishment provided for is five years and a fine, which may extend to Rs. 50,000/-. If accused wants to take out his case from this rigour, then he has to prove that it was possessed with an intention of personal use and not for sale or distribution to bring his case within the purview of Section 27 of N.D.P.S. Act. Legislature has left it to the suspect or accused to disclose and prove as to for what purpose he did possess the said narcotic substance. It is left upto him to disclose this fact or not. There is no compulsion under the Act that he shall have to disclose the fact and prove that it was intended for personal consumption. For such proof the accused or suspect need not lead evidence in defence but can equally prove it by bringing certain facts through the prosecution evidence. Then it is left to the Court to consider whether from the evidence led by the prosecution can it be inferred that the same was intended for the personal consumption by the suspect or accused. Thus, there is neither any mandate nor a direction nor a compulsion on the accused to lead any evidence to prove a fact, i.e., substance found from his possession was intended for personal consumption, yet the same can be proved and made out from prosecution evidence. No one calls upon accused to prove exception. If accused wants some benefit under exception, it is he who has to bring his case within exception as the circumstances which may bring the case within exception are in special knowledge of the accused. Even Penal Code provides for exception to certain offences. It also provides for certain defences. Such facts bringing the case of the accused in exception or makes out defence are known by the accused alone. So, if the law provides that such facts be brought on record or be proved by accused, it is the most fair proposal or provision. For example, defences of minority, mental incapacity, insanity, compulsion.
17. Similar question arose before the Supreme Court in the case of R.P. Kapur v. Pratap Singh Karon and Ors. 1964(1) Cri. LJ 224. The petitioner there was an I.C.S. Officer. Criminal case was registered against him. Simultaneously departmental proceedings were also initiated under Inquiries Act. Section 15 of Inquiries Act provided that a person accused of shall be required to make a defence. As Section 15 required deliquent to make defence the provision is alleged to infringe Article 20(3) of the Constitution which provides that no person accused of any offence shall be compelled to be a witness against himself. The Supreme Court had rejected the said argument holding as under:
The appellant also suggested that the provision in Section 15 of the Inquiries Act that a person accused shall be required to make his defence, infringes Article 20(3) of the Constitution. Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. It is difficult to understand how a provision that an accused shall be required to make his defence amounts to compelling the accused to be a witness against himself. Under this section the accused is not even compelled to make his defence. The section merely compels the Inquiring Authority to require the accused to make a defence. If the accused chooses not to make any defence Section 15 could not compel him to do so. The argument that the Inquiries Act contravenes Article 16 or Article 20(3) of the Constitution is wholly misconceived and is rejected.
Section 27 in my opinion, is in the nature of an exception to Section 20 of the N.D.P.S. Act. If according to an accused his case falls within a particular exception, it is he who has to prove it. If burden of such proof of exception is on the accused, it does not amount to compel the accused to be witness against himself to contravene Article 20(3) of the Constitution.
This apart, it is within the legislative competence to provide for presumption, be it against the accused. Like one under Section 4 of Prevention of Corruption Act, Clause (3) of Article 20 of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against himself. Question is whether Explanation (2) to Section 27 compels the accused to be a witness against himself. Explanation (2) to Section 27 of N.D.P.S. Act reads as under:
(2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person.
In my opinion, the legislature has left open to the accused to be a witness if he wants to get out of rigour of punishment by proving that narcotic substance found from his possession was intended for personal consumption. If he does not want to prove that fact by his own evidence, there is nothing in the provisions of N.D.P.S. Act which tells him that he must prove the same. Clause (3) of Article 20 refers to such compulsion, which is absent in the provisions of N.D.P.S. Act. Thus, Explanation (2) of Section 27 cannot be said to be ultra vires Clause (3) of Article 20 of the Constitution of India.
Learned Sr. Standing Counsel Mr. H.M. Mehta had drawn my attention to number of legislations wherein the presumption are drawn against the accused as to certain facts. Mr. Mehta has drawn my attention to the Statement of Objects and Reasons sought to be achieved by introducing N.D.P.S. Act. The same reads as under:
The statutory control over Narcotic Drugs is exercised in India through a number of Central and State enactments. The principal Central Acts, namely, the Opium Act, 1857, the Opium Act, 1878, and the Dangerous Drugs Act, 1930 were enacted a long time ago. With the passage of time and the developments in the field of illicit drug traffic and drug abuse at national and international level, many deficiencies in the existing laws have come to notice, some of which are indicated below:
(i) The scheme of penalties under the present Acts is not sufficiently deterrent to meet the challenge of well organised gangs of smugglers. The Dangerous Drugs Act, 1930 provides for a maximum term of imprisonment of three years with or without fine and 4 years imprisonment with or without fine for repeat offence. Further, no minimum punishment is prescribed in the present laws, as a result of which drug traffickers have been sometimes let off by the Courts with nominal punishment. The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from some of our neighboring countries and destined mainly to Western countries.
(ii) The existing Central laws do not provide for investing the officers of a number of important Central enforcement agencies like narcotics, customs, central exise, etc. with the power of investigation of offences under the said laws.
(iii) Since the enactment of the aforesaid three Central Acts, a vast body of international law in the field of narcotic control has evolved through various international treaties and protocols. The Government of India has been a party to these treaties and conventions which entail several obligations which are not covered or are only partly covered by the present Acts.
(iv) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national Governments. There is no comprehensive law to enable exercise of control over psychotropic substances in India in the manner as envisaged in the Convention of Psychotropic Substances, 1971 to which India has also acceded.
Keeping in mind the object and reasons, contended Mr. Mehta, the constitutionality of the Act is required to be considered. An identical question arose before the Supreme Court in the case of Babulal Amthalal Mehta v. Collector of Customs . It was a case under Sea Customs Act and the question before the Court was whether Section 178-A offends Article 14 of the Constitution of India. Section 178-A of the Sea Customs Act provided that the burden of proving that the goods to which Section 178-A apply, and are seized, are not smuggled goods, shall be on the person from whose possession the goods were seized. Thus, Section 178-A of Sea Customs Act provided for the goods covered under the said section, and if seized from the possession of the accused, the burden was on him to prove that they are not smuggled goods. This provision came to be challenged as contravening Article 14 of the Constitution of India. There, Supreme Court in para 15, has held as under:
What is urged is that whereas under the ordinary law the burden of proof in matters like this is on the party who sets up a particular case, under the section that process is inverted and the burden is cast on the possessor of the Article to show that it was imported into India with a proper bill of entry and after paying proper custom duty due.
As stated already, it is a heavy burden to be laid upon the shoulders of an innocent purchaser who might have come into possession after the Article has changed many hands and this, it is alleged, invokes discrimination between him and other litigants and deprives him of the equal protection of the law guaranteed by Article 14 of the Constitution.
After referring to large number of cases, Supreme Court has then held:
But it will not be necessary for us to enter upon a lengthy discussion of the matter or to refer to passages in those judgments, for the principles underlying the provisions of the Article have been summarised by a Full Bench of this Court in Budhan Choudhary v. State of Bihar AIR 1956 SC 191, in the following terms: "It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a law of procedure.
Then it is further observed:
It appears to us that these decisions really turn upon the due process Clause of the American Federal Constitution and cannot help in the construction of the equal protection Clause of our Constitution. The conditions urged by Mr. Chaterjee as to unconstitutionality of Section 178-A of the Sea Customs Act, 1878, will, therefore, have to be tested in the light of the principle laid down by this Court in Budhan Chowdhuty's case (supra).
Then it is held:
17. A cursory perusal of Section 178-A will at once disclose the well-defined classification of goods, based on intelligible differentia. It applies only to certain goods described in Sub-section (2) which are or can be easily smuggled. This section applies only to those goods of the specified kind which have been seized under the Act and in the reasonable belief that they are smuggled goods. It is only those goods which answer the three-fold description that come under the operation of the section.
The object of the Act is to prevent smuggling. The differentia on the basis of which the goods have been classified and the presumption raised by the section obviously have a rational relation to the object sought to be achieved by the Act. The presumption only attaches to goods of the description mentioned in the section and it directly furthers the object of the Act, namely, the prevention of smuggling, and that being the position the impugned action is clearly within the principle enunciated above, not hit by Article 14.
The impugned action cannot be struck down on the infirmity either of discrimination or illegal classification. Confining as it does to certain class of goods seized by the customs authorities on the reasonable belief that they are smuggling goods, there is only a presumption which can be rebutted.
Thereafter, Supreme Court has held that the burden of proof cast on the person from whose possession the goods are found to which Section 178-A applies, is not ultra vires Article 14 of the Constitution.
Then Mr. Mehta has relied on another Supreme Court judgment in the case of State of Madras v. A. Vaidyanath Iyer , wherein para 14, Supreme Court has observed as under:
The relevant words of this section are:
Where in any trial of an offence punishable under Section 161...it is proved that an accused person has accepted...any gratification (other than legal remuneration)...from any person, it shall be presumed unless the contrary is proved that he accepted... that gratification... as a motive or reward such as is mentioned in the said Section 161..." Therefore, where it is proved that the gratification has been accepted, then the presumption shall at once arise under the section. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. It may here be mentioned that the legislature has chosen to use the words "shall presumed" and not "may presume", the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but Section 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence, e.g., presumptions, and, therefore, should have the same meaning. "Shall presume" has been defined in the Evidence Act as follows:
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.
It is a presumption of law and, therefore, it is obligatory on the Court to raise this presumption in every case brought under Section 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumptions of law constitute a branch of jurisprudence. While giving the finding quoted above, the learned Judge seems to have disregarded the special rule of burden of proof under Section 4 and, therefore, his approach in this case has been on erroneous lines.
Supreme Court was dealing with a case of presumption under Section 4 of the Prevention of Corruption Act.
Learned Counsel Mr. Mehta relied upon the judgment in the case of K.M. Nanavati v. State of Maharashtra , which refers to exceptions under Penal Code. There, in para 18, the Court has observed, referring to provisions of burden of proof of the Evidence Act, as under:
The legal impact of the said provisions on the question of burden of proof may be stated thus:
In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exception in the Indian Penal Code or on any special exception or proviso contained in any part of the Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section, the Court shall presume the absence of circumstances bringing the case within any of the exception, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. The prosecution alleges that the accused intentionally shot the deceased; but the accused pleads that, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in the course of a struggle in the circumstances mentioned in Section 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the absence of circumstances bringing the case within the provisions of Section 80 of the Indian Penal Code, that is, it shall presume that the shooting was not by accident, and that the other circumstances bringing the case within the exception did not exist; but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admission made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged; that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused (See Sections 4 and 5 of the Prevention of Corruption Act), (2) the special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients (See Sections 77, 78, 79, 81 and 88 of the Indian Penal Code), (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence (See Section 80 of the Indian Penal Code). In the first case, the burden of the proving the ingredients or some of the ingredients of the offence, as the case may be, lies on the accused. In the second case, the burden of bringing the case under the exception lies on the accused. In the third case, though the burden lies on the accused to bring his case within the exception, the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence. An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of Section 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident with a lawful act in a lawful manner by lawful means with proper care and caution; the accused against whom a presumption is drawn under Section 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in Section 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of Section 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of Section 300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to establish to bring his case within the terms of Section 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view, it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence.
Mr. Mehta has then relied on a judgment in the case of Collector of Customs v. D. Bhoormull . There, the Supreme Court has explained the principle underlying the casting of burden on the accused in certain cases. Paras 30, 31 and 32 of the said judgment read as under:
30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167, to which Section 178-A does not apply the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously put it-"all exactness is a fake". E1 Doradoof absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the same.
31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered-to use the words of Lord Mansfield in Blatch v. Archar 1774 (1) Cowp 63 at p. 65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are specially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.
32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106 Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in "Law of Evidence" (12th Edn. Article 320, Page 291), the "presumption of innocence is, no doubt presumptio juris; but everyday's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact. Thus, the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of fact that in issue. It will only alleviate that burden to discharge which very slight evidence may suffice.
18. Chapter VII of the Indian Evidence Act refers to burden of proof. Under Section 103, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Section 106 provides that when any fact is established within the knowledge of any person, the burden of proving that fact is upon him. Illustration (a) to Section 106 is very eloquent. It reads as under:
When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
19. Coming to the present case, Section 27 of N.D.P.S. Act contemplates for a lessor punishment if narcotic substance found from the person is intended for personal consumption. Section 8 of N.D.P.S. Act prohibits certain operations of narcotic substances. It reads as under:
8. Prohibition of certain operations:
No person shall
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the Rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of Ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of Ganja for any purpose other than medical and scientific purposes shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.
20. Chapter IV provides for offences and penalties for contravention of Section 8 of Chapter III of N.D.P.S. Act. Section 27 is in the nature of an exception otherwise if there is a contravention of Section 8 of N.D.P.S. Act it is irrespective of quantity. Quantity has to do nothing with the breach thereof. Be it the smallest quantity of narcotic substance possessed it is a breach of Section 8 and punishment provided for is under any of the provisions as provided in Chapter IV. So far as the substance found in possession of the accused in the present case is concerned, possession thereof is prohibited under Clause (c) of Section 8 of N.D.P.S. Act irrespective of the quantity. If there is a contravention of Section 8 of N.D.P.S. Act, be it any quantity, the case is covered under Section 20 of the Act. However, Section 27 provides for an exception so far as punishment is concerned if possession was intended for personal consumption and not for sale or distribution. The Court may look upon it with a soft view if possession was intended for personal consumption. It appears that Section 27 is introduced by the Legislature keeping in mind the Indian customs of consuming certain narcotic substance. Thus, when the law has provided for an exception to a substantive evidence and if the burden is cast on the accused to prove that exception, such provision for burden cannot be said to be unconstitutional and contravening in particular Clause (3) of Article 20 of the Constitution of India.
Mr. Mehta, Senior Counsel, relying on the above judgments of the Supreme Court, has contended, and in my opinion rightly, that to achieve the object of N.D.P.S. Act, this provision of Explanation (2) of Section 27 is legislated. Mr. Mehta further contended that the said provision is in consonance with the provisions of the Indian Evidence Act also.
21. Learned Advocate Mr. Gupta has then contended that provision of Section 54 of N.D.P.S. Act is also ultra vires Article 13 of the Constitution. To test the argument of Mr. Gupta, it will be relevant to refer to Section 54 of the N.D.P.S. Act. Section 54 of the N.D.P.S. Act reads as under:
54. Presumption from possession of illicit Articles: In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of.
(a) Any narcotic drug or psychotropic substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specifically adopted for the manufacture of any narcotic drug or psychotropic substance, or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily.
This provision is comparable with Section 114, Illustration (a) of Indian Evidence Act which reads as under:
114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration (a) that a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
Illustration (a) reads that the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. If it is the intention of the legislature to introduce burden on accused by Section 114 of the Evidence Act, then on the argument advanced by Mr. Gupta, the same also stood ultra vires Constitution of India. However, in my opinion, the same is in consonance with other provisions of the Evidence Act. If one reads the Illustration (a) of Section 114 with illustration (a) of Section 106 of the Evidence Act, it is only further explained and clarified by the legislature. It is stated that if certain activities which amount to commission of an offence are carried out clandestinely or secretly, the purpose or intention for which the same is carried out is not known and could not be known by victim much less by the investigating agency. It can only be known by the person who carries it out. Therefore, if there is a complaint of theft of certain Articles and the said Articles are found from a person other than the complainant and if it is proved that the said Articles found from other person belongs to the complainant and are the same complained of, then it is the person from whom they are found has to explain as to how he came to possess it. It is he who knows or can satisfactorily say, how the same came in his possession. Any Article, much less, narcotic substance never falls from Heaven and even if so, one who possess has to say so. It is then for the Court to accept it or not. Thus, when the legislature has provided for such provisions of presumption as to some facts which are within the special knowledge of the person concerned alone, then if the presumption is drawn against him under Section 54 of N.D.P.S. Act, I do not think that it contravenes any of the provisions of the Constitution, in particular Clause (3) of Article 20 of the Constitution. Article 20(3) of the Constitution speaks of compulsion to the accused to speak or to be a witness against himself. None of these presumptive provisions, be it in N.D.P.S. Act or in any other penal provisions, compel the accused or a suspect to speak against himself. It is left to him, if he wants to get the presumption rebutted. In the instant case, the prosecution appears to have come with a case that the accused possessed narcotic substance for the purpose of sale and the fact of possession remains. There is no presumption that the same is for personal consumption, even if it is a small quantity. Possession itself is an offence in view of Section 8 of N.D.P.S. Act. Section 8 of N.D.P.S. Act contemplates that no person shall possess any narcotic drug or psychotropic substance. Therefore when, to possess, is an offence and possession is proved, presumption under Section 54 of the N.D.P.S. Act comes in play that it was for sale or transport etc. On possession being proved by the prosecution, to get out from the rigours of the punishment, accused may explain possession in cases of small quantity that it was intended for personal consumption. Thus, in my opinion, presumptive provisions are rebuttable ones. It is upto accused to attempt to rebut it. There is no compulsion to rebut it. Accused need not open his mouth if he feels contravention of Section 20(3) of the Constitution of India thereby.
It is the legislature who can legislate for such presumptive provisions for the purpose of effective enforcement of the penal laws. Therefore, I do not find any substance in the contention of Mr. Gupta that Section 27 or Section 37 or Section 54 are ultra vires Articles 13 and 20(3) of the Constitution of India.
22. Learned Advocate Mr. Gupta further contended that in view of the diverse view taken by this Court, one in Misc. Criminal Application No. 2300 of 1996 by N. N. Mathur J. and the other in Misc. Criminal Application No. 2309 of 1995 by J. M. Panchal J., this Court should refer the matter to a Division Bench, in view of the judgment in the case of Shridhar v. Nagar Palika Jaunpur . In both the above judgments, question involved was whether Section 37 of N.D.P.S. Act is attracted when the case falls within the purview of Section 27 of N.D.P.S. Act. If the case falls within the purview of Section 27 of N.D.P.S. Act, Section 37 may not be attracted inasmuch as the punishment provided in Section 27 is maximum one year for one class of narcotic substance and six months for another class. However, the requirement to attract Section 27 is that there should be convincing material showing that said narcotic substance was possessed with an intention of personal consumption. The question was raised before J. M. Panchal, J. that the quantity being small quantity of 425 grams of Ganja, Section 37 of N.D.P.S. Act is not attracted and Section 27 comes in play and the accused should be enlarged on bail in view of the provisions of ordinary provisions of Section 437 read with Section 439 of the Code. In reply to the said contention, the learned Judge has observed as under:
The submission that quatity of 425 gms. is a small quantity and, therefore, in view of the Purshis Exh. 6 the petitioner should be enlarged on bail cannot be accepted. While dealing with the question, the learned Special Judge, Amreli, has recorded a finding of fact that the total weight of "Ganja" found from the possession of the accused is 1,125 gms. Even the Panchnama prepared in presence of independent witnesses indicates that total weight of the prohibited substance is 1,125 gms. Therefore, in my opinion, the provisions of Section 27 would not be attracted to the facts of the present case. Even if one were to accept the plea that only 425 gms. of "Ganja" was found from the possession of the petitioner, that fact by itself would not attract the application of the provisions of Section 27 of the Act. Section 27(2) of the Act clearly provides that where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person. With reference to a prohibition case, the Supreme Court in the case of Ramkishan Bedu Rane v. State of Maharashtra , has held that where the concentration of alcohol in the blood of the accused is in excess of the permissible limit, the burden of proving that it is due to overdose of some medicinal preparation consumption of which is not prohibited is on the accused. According to Supreme Court, the burden resting on the accused in such a case is not as light as it is where a presumption is raised under Section 114 of the Evidence Act and is not discharged merely by reason of the fact that the explanation offered by the accused is reasonable and palpable. The Supreme Court has emphasized that it must further be shown that the explanation is true one. Exh. 6 which is a Purshis filed by the petitioner can hardly be treated as piece of evidence to indicate that the "Ganja" was meant for personal consumption of the petitioner. The information which was received by the complainant was that the petitioner and another were keeping "Bhang" and other narcotic drug. In order to prima facie discharge the burden under Section 27 of the Act, the petitioner could have produced medical certificate of any doctor indicating that the petitioner is used to consuming "Ganja" for a long. The consumption of narcotic drug or psychotropic substance can be proved by examination of a person by a medical officer coupled with taking of his blood and urine and testing of the same in laboratory. Even petitioner could have indicated source from which he was getting prohibited substance for his personal consumption. No such evidence has been produced by the petitioner which would prima facie satisfy the Court that the so-called small quantity was kept by him for the purpose of his personal consumption. Having regard to the totality of the facts and circumstances of the case, the petitioner cannot be enlarged on bail on the ground that the small quantity was kept by him for his personal consumption.
There, the Court has held that no such evidence has been produced by the petitioner, which would prima facie satisfy the Court that the so-called small quantity was kept by him for the purpose of his personal consumption and the application for bail came to be rejected.
In the case before N.N. Mathur J., whole text of the judgment reads as under:
Rule.
The petitioner is facing trial for offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act (for short "the N.D.P.S. Act"). It is alleged that the petitioner was found in possession of 60 gms. of Ganja. It is contended by the learned Advocate for the petitioner that even if the prosecution case is accepted on its face value, the offence cannot travel beyond offence under Section 27 of the N.D.P.S. Act as it is only small quantity of 60 grams which is alleged to have been found in possession of the petitioner. The learned Advocate referred to the Notification issued under Section 27(1) of the N.D.P.S. Act which provides that a small quantity in case of Ganja is upto 500 grams. The application has been opposed by the learned A.P.P.
2. In view of the aforesaid, in my view, the bar contained under Section 37 cannot be attracted in the present case. Hence, I direct that the applicant shall be enlarged on bail on furnishing a personal bond in the sum of Rs. 10,000/- (Rupees ten thousand only) and two sureties in the sum of Rs. 5,000/- (Five thousand only) each to the satisfaction of Special Judge, Amreli, on usual terms and condition and appearance before the said Court.
Rule made absolute accordingly.
In view of this judgment, it can be said that when the learned Judge has not referred to fact whether the accused has established that narcotic substance which he possessed was intended for personal consumption and yet when the benefit of Section 27 is given, it is required to be assumed that on the record of the said case there may be reliable evidence to show that the same was possessed for personal consumption or was intended for personal consumption and the learned Judge has held that Section 37 is not attracted. Therefore, in my opinion, judgment rendered by N.N. Mathur, J. in Misc. Criminal Application No. 2300 of 1996 is not contrary to one rendered by J.M. Panchal, J. in Misc. Criminal Application No. 2309 of 1995. In view of this fact, I am of the opinion that there is no reason to refer the matter to a Larger Bench.
23. Learned Advocate Mr. Gupta has contended that the facts of the prosecution does not establish conscious possession. It is contended that the prosecution has failed to show conscious possession of the narcotic substance by the accused. According to the prosecution case, said substance is found lying below the cot of the accused where he was sitting at the time of the raid. Whether a tin from which narcotic substance is found was possessed by the petitioner or not and was it in conscious possession of the petitioner or not, are questions of fact. Such facts can be proved by necessary evidence by the prosecution and rebutted or disproved by the accused either from prosecution evidence or by leading defence at the time of trial. However, it is the case of the prosecution that the same is found from the possession of the accused and there is no reason not to believe the same. Thus, accused is found prima facie to be in possession of the substance, be it a small quantity. There is nothing on record from which one can infer that the same was for personal consumption. There is nothing on the record to show that there were materials or equipments or instruments which may suggest personal consumption. There is neither any evidence nor history of earlier consumption by the accused; nor evidence of any nature from which one can infer that the accused used to consume narcotic substance. Thus, when the narcotic substance is found from the possession of the accused, it cannot be said that the prosecution has failed to prove the conscious possession till trial is over.
24. Mr. Gupta futher contended that petitioner is a Pujari of temple and he is 68 years old. He would not indulge into the activity of paddling or sale. Age and occupation has no nexus with each other and no inference can be drawn adverse to the prosecution. Hence, these factors also cannot be taken into consideration in view of alarming increase in trade in narcotics.
25. A question arose whether this Court should go on with the hearing of the petition when the learned Advocate has, by way of amendment, raised the question of vires of some of the provisions of the N.D.P.S. Act. Under the Rules, when a petition is filed challenging the vires of a particular enactment, if it is under Article 226 of the Constitution of India, the same is required to be heard by a Division Bench. In the instant case, in the course of arguments, learned Advocate has raised the contention of vires, not challenging directly the vires of the provisions, but asking the Court to release the petitioner-accused on bail on the ground that certain provisions of the N.D.P.S. Act are ultra vires Constitution of India. While deciding this question, this Court is required to consider the question of vires incidentally, which, in my opinion, this Court can do. In view of this fact, this Court has not acceded to the request of the learned Advocate for the petitioner to refer the matter to a Division Bench.
In view of the above discussion, the application is liable to be dismissed and is hereby dismissed. Rule discharged.