Jainnulabdin Maraicair vs State

Swamidurai, J.—The Accused was charged u/s 8 read with S. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61

of 1985) for having found in possession of a Narcotic Drug commonly known as Heroin in weighing 210 grams., in controvention of the rules and

provisions of the said Act.

The prosecution has examined six witnesses and marked Exs.P.1 to P.12 and M.Os 1 to 6. On the side of the accused Exs.D.1 to D.3 were

marked. No witness was examined on the side of the accused. The accused pleaded not guilty. But the lower court found that the accused was

guilty under the abovesaid provisions of the Act and convicted and sentenced him to undergo rigorous imprisonment for a period of 10 years and

also to pay a fine of Rs.1,00,000/- and in default of payment of fine, the accused was also sentenced to undergo rigorous imprisonment for three

years.

P.W. 1 Karunakaran is an Intelligence Officer in Narcotic Control Bureau, Madras. He had an experience of two years in the said Bureau. On

25.2.1988 at about 1 P.M. he had an information that two Srilankan women and a man were transporting opium within their chappals and P.W.1

deposed that he informed this matter to his higher authorities. After that, he took two officials from his department and proceeded to the bus stand

opposite to the premises bearing Door No. 6., Gandhi Irwin Road, Egmore. In the said premises, the Office of the New National Travels is

functioning. As per the information received by P.W.1, he searched for the women and the man in the bus stand and found them in the said place.

P.W.1 sent one of his officials Mohan P.W.2 for bringing two persons from the New National Travels for witnessing and accordingly, P.W.2

Mohan brought Ibrahim and Khader from the said travels. Azeema, one of the two women came forward and showed to P.W.1 the ticket she was

having for going to Trivandrum and P.W.1 seized it which is marked as M.O.1. P.W.1 ascertained the name of the three persons and also their

addresses on seeing M.O.1. The male member is the accused in this case and he told his name as Dhakilar and he also added that he was residing

in Srilanka. P.W.1 asked him to identify his belonging. P.W.1 introduced himself as an Intelligence Officer in the Narcotics Control Bureau to the

accused and also to the two women who accompanied the accused. P.W.1 told them that he would like to search their person. He then took them

to the National Travels Office along with the witnesses. P.W.1 asked the accused to remove his chappals and show the same. Accordingly, the

accused did and P.W.1 seized the chappals which are marked as M.O.2 series over which the word ""Clerks"" had been written. P.W.1 when

opened the bottom portion of the Chappal found polythene paper pasted. P.W.1 removed the polythene paper and found a polythene paper cover

in which he found brown colour powder. M.O.3 series were the polythene papers which were pasted on M.O.2 series chappals. M.O.4 series are

the polythene paper covers which were found inside M.O.3 series. M.O.5 series are the brown colour powder found in M.O.4 series. Learned

counsel for the accused in the lower court objected to the marking of M.Os.4 and 5 series on the ground that there was no endorsement that the

seals over the covers M.Os.4 and 5 series were put in the presence of the Presiding Officer of the lower court. According to P.W.1 when he

questioned the accused as to the contents of M.O.5 series, the accused appeared to have told him that M.O.5 series are heroin, an intoxicating

material and that the accused was taking it to Srilanka. P.W.1 weighed M.O.5 series and found each to contain 105 grams. On being satisfied that

M.O.5 series are heroin only, P.W.1 seized the same under a mahazar Ex.P.1 attested by the said Ibrahim and Khader. P.W.1 also noted the

names and addresses of the attesting witnesses in Ex.P.1. P.W.1 read out the contents of Ex.P.1 to the witnesses and the witnesses had signed

Ex.P.1. P.W.1 had also given a copy of Ex.P.1 to the accused who received it after signing Ex.P.1. Ex.P.2 is the acknowledgment of the accused.

P.W.1 packed M.Os. 4 and 5 series separately and kept them in M.O.6, a polythene cover. Then he put the official seal and obtained the

signatures of the attestors and also the accused. But when M.O.6 was shown at the time of examination of P.W.1 in the lower court, there was no

signature of the attesting witnesses or of the accused or any seal over M.O.6. After seizing M.Os.5 and 6, P.W.1 took the accused and the other

two women along with M.Os to his office and there, according to P.W.1 the accused gave a confession statement which was recorded by Mohan,

P.W.2 one of the officers of the Intelligence Department. On 26.2.1988 at 12 noon P.W.1 had arrested the accused and P.W.1 informed the

accused as to why he was arrested. According to him, he produced the accused for remand before the Presiding Officer of the lower court, and as

per the orders of the Presiding Officer of the lower Court, P.W.1 produced M.Os before the Presiding Officer on 29.2.1988 and P.W.1 also gave

a requisition to the Presiding Officer for sending M.Os for chemical examination in Form No. 91 which is Ex.P.3. P.W.2 Mohan also gave a

requisition to the Presiding Officer of the Lower Court for taking samples from the material objects under Ex.P.4. The samples that were taken,

were sent for chemical examination. Then after getting the report from the Chemical Examiner, charge sheet was filed against the accused with the

signature of the Deputy Director of the Norcotics Control Bureau. Ex.P.5 is the F.I.R.

P.W.2 R.Mohan is also an Intelligence Officer. On 25.2.88, P.W.2 accompanied P.W.1 for assisting the latter at about 2 P.M. to the New

National Travels at Egmore. He found the accused and two other women at the platform of the office of the said Travels. P.W.2 brought two

mahazar witnesses from within the office of the said Travels who were Ibrahim and Khader. The belongings of the accused and the two women

were searched inside the premises of the said Travels and the names and addresses of the accused and the two women were ascertained. The

chappals worn by the accused and the two women were ordered to be removed and they were examined by P.Ws.1 and 2. When questioned

about the contents M.O.5 series, the accused told them that it was heroin. About 105 grams of heroin were seized from each of the Chappals.

Ex.P.6 is the confession statement given by the accused and Ex.P.7 is the acknowledgment of the accused for having received a copy of Ex.P.6.

According to P.W.2, the accused himself voluntarily wrote and gave a confession statement Ex.P.6. According to P.W.2 the material objects were

produced before the lower court on 29.2.1988. On requisition 5 grams of sample of heroin was taken from the packets and accordingly, fourteen

packets were taken as samples, each packet containing 5 grams of heroin and seals were affixed in his presence on the 14 packets and seven out

of fourteen each containing 5 grams were sent to the Chemical Examiner at Madras for report. Ex.P.8 is the requisition given by P.W.2 to the

Presiding Officer of the lower court and the Presiding Officer of the lower court has endorsed on Ex.P.8 Ex.P.9 is the acknowledgment for

handing over the packets to the office of the Chemical Examiner. P.W.2 handed over the acknowledgment Ex.P.9 along with a petition to the

Presiding Officer of the lower court.

P.W.3 C.V. Lakshmanaswami, is the Scientific Officer in the Forensic Science Laboratory. He has put in 20 years of service in the said

department. On 1.3.1988 he received Ex.P.10 along with 7 covers with the seal of the lower court along with Ex.P.2 for chemical examination.

The seal found on the paper covers and also on Ex.P. 10 requisition tallied and Ex.P.9 is the acknowledgment given by him. Out of the seven

paper covers, in three covers, the name of the accused was found written as Azeema Anifa, on the fifth, cover, the name of the accused was

written as Maricair Mohammed Dhakilar, on the 6th and 7th covers, the name of the accused was found written as Kareema. It is the evidence of

P.W.3 that on weighing the net weight of the heroin found in the polythene packets, they weighed 0.7, 4.0, 2.0, 2.2, 1.2, 2.4, and 1.1 grams and

all the packets were sent separately for chemical examination. It was found from the chemical examination that each of the packets contained Di-

acetyl morphine which is also called as heroin. P.W.3 filed a report on 14.3.1988. The remaining quantity of the paper covers were sent to the

Scientific Officer on 30.3.1988. Ex P.11 is the Chemical report submitted by P.W.3. P.W.3 sent Ex.P.12 letter to the Presiding Officer of the

lower court along with his report Ex.P.11. In Ex.P.11, P.W.3 and the Assistant Director have signed. It is admitted by P.W.3 that he had not

noted the percentage of Di-acetyl Morphine in Ex.P.11 report, as according to him, it was not necessary. The other reason given by P.W.3 for not

noting the percentage of Morphine is that the report had to be sent urgently and so the percentage was not usually noted. In cross-examination

P.W.3 admitted that all the seven packets contained 35 grams of heroin totally. It is also admitted by him the signature of the Presiding Officer of

the lower court was not found in all the seven packets. But there was a seal on each of the seven packets. To a question put by the learned counsel

for the accused in the lower court P.W.3 has stated that they have got powers to examine the packets suspected to contain heroin.

P.W.4 Khader is a mahazar witness and he has stated that he is the Manager of National Travels. According to him, he was present at the time

of seizure of M.Os.2, 3, 4 and 5. He was informed by the Intelligence Officers that the packets contained heroin and in his presence the packets

were weighed. P.W.4 attested the mahazar for the seizure of M.Os. 2 to 5 under Ex.P.1. It was suggested to this witness that he is the informant

of the Intelligence Department and so he was asked to give false evidence. But this witness denied this suggestion.

P.W.5 Ramakrishnan is the Junior Assistant in the Court of the Additional Chief Metropolitan Magistrate, Egmore, Madras. According to him

he received M.O.6 Polythene covers with seals on 29.2.1988. It is mentioned in Ex.P3 that M.O.6 was produced before the court on 26.2.1988,

that as there was some work in his office M.O.6 was produced before the residential quarters of the Presiding Officer and that the Presiding

Officer directed the Officials to produce M.O.6 on 29.2.1988. Accordingly, M.O.6 was produced before the lower court on 29.2.1988. P.W.5

noticed seal on M.O.6 at the time of production of the same before the lower court. In his presence 5 gram was taken for sample from each of the

fourteen packets and the samples were sealed in the presence of the Presiding Officer. Samples were taken on the petition Ex.P.8 given by the

Intelligence Officer. As soon as the charge sheet was filed, the sample packets were sent to the court of the Economic Offences No. II and in the

presence of the Presiding Officer, the seal put on M.O.6 was also removed.

P.W.6 Subramaniam is the Assistant in the Court of the Additional Chief Metropolitan Magistrate, Economic Offences No. II, Egmore,

Madras. The charge sheet was filed in the court of the Additional Chief Metropolitan Magistrate, Economic Offences No. II, Egmore. At the time

when the charge sheet was filed, P.W.6 noticed the seal of the court of the Economic Offences No.I.

The accused when questioned u/s 313 Cr.P.C. denied the charge and pleaded not guilty. Learned 9th Additional Sessions Judge, after

considering the evidence oral and documentary, accepted the case of the prosecution, found the accused guilty of the offence u/s 8 read with 21 of

the Narcotic Drugs and psychotropic Substances Act, 1985 (Act 61 of 1985), convicted and sentenced him to undergo rigorous imprisonment for

a period of ten years and also to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for a further period of three years. The

appellant has challenged the legality of the judgment of the lower court in this appeal.

Learned counsel for the appellant contended that the prosecution has not proved its case beyond reasonable doubt and so, the accused is

entitled to an acquittal. Learned counsel for the appellant Mr. P.M. Sundaram contended that the provisions of the above said Act, namely,

Sections 42, 48, 50, 52, 55, and 57 of the Act have not been followed by the prosecution even though they are mandatory and so, the case of the

prosecution cannot be accepted. Learned counsel for the appellant relied upon the judgment reported in Hakam Singh v. Union Territory,

Chandigarh 1988 Crl.L.J. 528 and 1181 wherein it has been observed that before making a search, the provisions of Section 50 of the Act have

to be followed. Section 50 of the Act reads as follows:

Condition under which search of persons shall be conducted:

(1) When any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if

such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the department mentioned in

Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in

sub-section(1)

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall if he sees no reasonable ground for search, forthwith

discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

In this case, even though the accused was taken into custody by P.W.1 even on 25.2.88 at about 1.00 P.M., P.W.1 arrested him practically only

on 26.2.88 at 12 noon. The reason given by P.W.1 for not arresting the accused immediately is that he had to take follow up action and so, he

could not and did not arrest the accused at 3.00 P.M. on 25.2.1988. Only on 29.2.88 he produced the material objects before the lower court.

The reason given for not producing the material objects on 26.2.1988 is that the Presiding Officer of the lower court directed him to produce on

29.2.1988. This reason is not acceptable since no order has been produced for such a direction said to have been given by the lower court. There

is no satisfactory explanation for not taking the accused without unnecessary delay to the nearest Gazetted Officer of any of the departments

mentioned in Section 42 or to the nearest Magistrate. The provisions of Section 50 have not been complied with at all in this case. The words ""if

such person so requires"" are mandatory and the officer has to ask the person whether he wanted to be taken to a nearest Gazetted Officer or to

the nearest Magistrate. There is no evidence also that P.W.1 had asked the accused whether he required to be taken to the nearest Gazetted

Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

Learned counsel for the appellant also submitted that the provisions of Section 52 of the Act are also mandatory and that the same were also

not followed in this case. Section 52 of the Act reads as follows:

52 Disposal of persons arrested and articles seized--(1) Any Officer arresting a person u/s 41, Section 42, Section 43, or section 44, shall, as may

be, inform him of the grounds for such arrest.

2) Every person arrested and article seized under warrant issued under sub Section (1) of Section 41 shall be forwarded without unnecessary

delay to the Magistrate by whom the warrant was issued.

3) Every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Sect ion 44 shall be forwarded without

unnecessary delay to:

a) the officer-in-charge of the nearest police station, or

b) the officer empowered u/s 53.

4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch,

take such measures as may be necessary for the

disposal according to law of such person or article.

It is also further urged by the learned counsel for the appellant that the provisions of section 57 of the Act are mandatory in nature and that the

same were not followed in this case. Section 57 of the Act reads as follows:

57 Report of arrest and seizure:

Whenever any person makes any arrest or seizure under this Act, he shall within forty-eight hours next after such arrest or seizure make a full

report of the particulars of such arrest or seizure to his immediate Official superior.

It is not the case of the prosecution that P.W.1 had complied with the provisions of Section 57 of the Act. But it is attempted to be explained on

the side of the prosecution stating that M.Os 1 to 5 were in the custody of Deputy Director, Narcotics Control Bureau between 26.2.1988 and

28.2.1988 and the material objects 1 to 5 were handed over before the presiding Officer of the lower court as per his direction 29.2.1988.

According to the learned Public Prosecutor, this is just compliance of the provisions of Section 57 of the Act. Section 57 of the Act gives a

mandate to the authority who seized the contraband or arrested the accused, to make a full report of the particulars of such arrest or seizure to his

immediate official superior. The submission of the learned Public Prosecutor that the material objects 1 to 5 were in the custody of the Deputy

Director between 26.2.88 and 28.2.88 cannot be accepted as sufficient compliance of the provisions of Section 57 of the Act. The explanation

offered by P.W.1 for not showing the arrest of the accused at 12 noon on 25.2.1988 is not acceptable and cannot be accepted. The provisions of

the Act are very stringent and mandatory and that P.W.1 should inform the arrest of the accused and seizure of M.Os to his immediate official

superior as per Section 57 of the Act. P.W.1 has admitted in his evidence that he does not know the provisions of the Act that as soon as he

seized the contraband, he should immediately hand over the same to the nearest police station as per Section 52(3)(a) of the Act.

Learned counsel for the appellant also pointed out that the discrepancy in the weight of the heroin contained in 14 packets is also not properly

explained by the prosecution. P.W.1 also admitted in his evidence that no seal was affixed on M.O.4 containing M.O.5 series on 26.2.88 and that

the Presiding Officer of the lower court had also not affixed his signature on the same. Therefore, learned counsel for the appellant submitted that

from the evidence available in this case it is clear that the prosecution has not complied with the provisions of sections 42, 48, 50, 52, 55, and 57

of the Act and therefore, the prosecution has not proved its case beyond reasonable doubt.

In support of his contentions, learned counsel for the appellant relied upon the decisions reported in Mari Appa and Vs. State of M.P. and

etc., . Learned single Judge of Madhya Pradesh High Court held in that case that if the procedures Laid down under the Narcotic and

Psychotropic Substances Act (61 of 1985) as amended by Act 2/89 are not followed, it would not be proper for the court to refuse bail,

particularly when the procedural safeguards violated have a material bearing on trial of the case. Therefore, the learned Judge in that case held that

the non-compliance with the provisions of Sections 42 and 50 entitled the accused to be released on bail. The learned Judge in para 21 and 22

observed as follows:

When bail is refused it necessarily result in deprivation of a person''s liberty

as observed by the Supreme Court in Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh, . A person''s

liberty is too precious a value of our Constitutional system recognised by Art. 21 of the Constitution which lays down no person shall be deprived

of his life or personal liberty except according to procedure established by law. If the procedure Laid down under the Act is not followed, it would

not be proper for the court to refuse bail: particularly when the procedural safeguards violated have a material bearing on trial of the case. The

Supreme Court turned a new leaf by laying down the concept of reasonableness justness and fairness in Mrs. Maneka Gandhi Vs. Union of India

(UOI) and Another, . The Supreme Court reiterated similar principle in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, ,

in the following words (Paras 39 and 40):

It is for too well-settled to admit of any argument that the procedure prescribed by law for the deprivation of right conferred by Article 21 must be

fair, just and reasonable. Just as a mala fide act has no existence in the eye of law, even so unreasonableness vitiates law and procedure alike. It is,

therefore, essential that the procedure prescribed by law for depriving a person of his fundamental right must conform to the norms of justice and

fair play. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which

prescribes that procedures and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory

powers has, therefore, to be tested by the application of two standards. The action must be within the scope of the authority conferred by law and

secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the

procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the

procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it. As Justice Frankfurter of

the U.S. Supreme Court said in Vitralli v. Seton (1959) 3 Law Ed.2nd 1012. ""He that takes the procedural sword shall perish with the sword"".

Due compliance of the procedural safeguards provided under the Act and intended to protect a person against the false accusation and frivolous

charges should be considered by the Court while dealing with an application for bail in such cases. Section 50 of the Act provides for condition

under which search of a person is to be conducted. Failure to do so, would constitute violation of the imperative requirement of law, ultimately

resulting in acquittal of the accused (See 1988) I crimes 446 (Punj & Har).

Learned Counsel for the appellant also relied upon the judgment of the Punjab and Haryana High Court reported in Bajan Singh v. State of

Haryana 1988 (1) Crimes Page 444. Learned single Judge of the said High Court held that the provisions of Section 41 to 43, 50, 51 and 55

regarding arrest, search and seizure under the Narcotic Drugs and Psychotropic Substances Act 1985 are mandatory and that the provisions under

the Act being mandatory, have to be strictly construed especially in view of the minimum sentences of imprisonment and fine prescribed under the

Act leaving no discretion to the trial court to impose a lesser sentence of imprisonment or fine in any case whatsoever, irrespective of the quantum

of recovery. In another decision reported in Usman Haidarkhan Shaikh v. State of Maharashtra 1991 Crl.L.J. 332 a Division Bench of the

Bombay High Court held that the provisions of Sections 42, 50 and 57 of the said Act being not complied with, the evidence of police officials

who failed to comply with the provisions cannot be implicitly relied on to base conviction. There is no evidence in this case that the accused was

informed about his right provided u/s 50 of the Act. There is no acceptable evidence that the provisions of Sections 42, 50 and 57 of the Act have

been complied with by the prosecution. The provisions of Sections 41, 42 or 43 make it obligatory on the police officer who is in charge of the

raid to inform the accused of the said raid and thereafter only if the accused declines to resort to such search in the presence of the Gazetted

Officer or the Magistrate, then only he should be searched. Section 50 of the Act also provides that if a search of any person under the provisions

of Sections 41, 42 or 43 of the Act has to be taken, the person whose search is to be taken if requires that the search should be taken in the

presence of the Gazetted Officer or the Magistrate, he should be taken to such officer or the Magistrate and then only the search should be taken.

Learned Public Prosecutor relied upon the judgment reported in Dr Partap Singh and Another Vs. Director of Enforcement, Foreign Exchange

Regulation Act and Others, for the proposition that illegality of search would not render the seizure effected pursuant to the search also illegal so as

to enable the accused to claim return of the seized material. However, courts must be cautious while dealing with evidence collected during the

illegal search. This case was decided under Foreign Exchange Regulation Act, 1973 and in that case there was a search and the search was

conducted, the provisions of Sections 165 and 100 C.P.C. having been followed while search was effected pursuant to the provisions of Sections

37,38 and 41 of the Foreign Exchange Regulation Act, 1973. Learned Public Prosecutor could not strengthen his argument by submitting that any

such provisions of law like Sections 42, 50, 55 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are available even under

Foreign Exchange Regulation Act 1973. Therefore, the decision cited by the learned Public Prosecutor in the above said case is not applicable to

the facts of the present case. Learned Public Prosecutor relied upon another judgment reported in State of Maharashtra Vs. Natwarlal

Damodardas Soni, wherein it has been observed that the search and seizure of gold alleged to be smuggled could not be vitiated even if the search

was ultimately found illegal on trial. This case was decided u/s 135(1)(a) and (b) of the Customs Act. Learned Public Prosecutor contended that

even if this court finds, the search and seizure of the contraband is assumed to be illegal for the purpose of argument, even then the conviction and

sentence would not be vitiated on that ground. In this case also, learned public Prosecutor could not point out any such provision in the Customs

Act as found in the Narcotic Drugs and Psychotropic Substances Act. Therefore, the provisions of Narcotic Drugs and Psychotropic Substances

Act, 1985 are very stringent and mandatory and any small violation of the same will not help the case of the prosecution. I am unable to accept the

evidence of prosecution witnesses in the light of the observations made above and also for non-compliance of the provisions of the Act.

In the result, the prosecution has not proved its case beyond reasonable doubt. The prosecution therefore, fails and the conviction and

sentence imposed on the accused are set aside and the accused is acquitted. The fine amount if paid already is directed to be refunded to the

accused. The appeal is allowed.