Mahaboob Bee vs State

Swamidurai, J.—The accused in S.C.No.88 of 1989 on the file of the Learned Fourth Additional City Sessions Judge, Madras, is the

appellant. The appellant has been convicted u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced 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 period of

two and a half years.

The case of the prosecution is that on 19.2.1987 at about 2.45 p.m., the accused was illegally found in possession of 230 grams of Opium value

at Rs.1,200/- in front of house No. 11, Mastan Garden Road, Broadway, Madras, an offence punishable under the abovesaid Section of law.

The prosecution has examined P.Ws.1 to 4 and marked Exs.P.1 to P.5 and M.Os.1 to 5. No witness was examined on the side of the accused.

P.W.1 K. Natarajan was the Cashier in the Court of the learned Third Metropolitan Magistrate, George Town, Madras on 23.2.1987. He was

entrusted with 230 grams of Opium on 23.2.1987 in eight packets measuring 12 grams each and another packet measuring 134 grams. The

Inspector of Police gave Ex.P.1 requisition for sending those nine packets to the Chemical Analyst. Ex.P.2 is the letter of requisition from the court

sent to the Analyst. Ex.P.3 is the report received from the Analyst by the Court. Along with the nine packets of opium three 20 rupee currency

notes M.Os.1 to 3 were also entrusted with P.W.1 by the Police. P.W.2 Balasubramaniam was the Grade II Assistant in the Tamil Nadu Forensic

Science Laboratory on 23.2.1987. He would depose that on 23.2.1987 the office had received Ex.P.2 along with a sealed packing from the 16th

Metropolitan Magistrate''s Court, Madras for examination. The packing had contained nine polythene packets covered by a cloth. On 15.4.1987

he took the packets for examination. In each packet he found black fluid with smell of Opium and the net weight of each packet was 10.8, 11.5,

10.5, 10.3, 10, 10.7, 10.4, 12.1 and 120 grams. On examination, he found a morphin in each of the packets at the rate of 4%, 4.2%, 3.7%,

3.7%, 4.2%, 4%, 3.7%, 4.2%, 4% and each of the packet contained Opium of 40%, 42%, 37%, 37%, 42%, 42%, 40%, 37%, 42%, and 40%.

On examination, Opium was found in all the nine packets and the Morphin in Opium is an intoxicating substance. In 100% Opium, there could be

10% Morphin Only. On examination of the packets 1 to 8 received from the Court, nothing was left out. After the examination of the ninth packet,

the remaining substance was sent to the Court with the seal. Ex.P.3 is his report.

P.W.3 Premraj is a resident of Mylapore. He was cited as a witness to prove the seizure of nine packets and also the three 20 rupee currency

notes from the accused on 9.2.89 at 2.35 p.m. But this witness was treated hostile as he did not support the case of the prosecution. Therefore, his

evidence is not helpful.

P.W.4 Lakshminathan was the Inspector of Police, Narcotics Intelligence Bureau, Madras. On 19.2.1987 on the orders of the Deputy

Superintendent of Police, he along with his party were inspecting Mannady Police Line, Broadway at 2.00 P.M. He got information that a Muslim

Woman was selling Opium at Door No. 11, Mastan Garden Street and so, he immediately went to Flower Bazaar Police Station and took two

woman constables along with him. The person who gave information to P.W.4 pointed out the house of the accused and also the accused had left

that place. Then P.W.4 along with witnesses Parthasarathy and Premraj (P.W.3) approached the accused. At that time, the accused was selling

Opium to one person. On seeing the police party, the person who purchased Opium ran away towards south. Then the person of the accused was

searched by the woman constables and the accused took out a packet from her waist and the packet was covered with a handkerchief and the

packet was seized. The handkerchief is M.O.4. Then, on opening the packet, they found Opium in it. There were eight small packets and one big

packet covered in the handkerchief M.O.4. P.W.4 gave numbers to the packets as 1 to 8 and he weighed each one of the packets. The small

packets weighed 12 grams each and the big packet weighed about 134 grams and each packet was covered with cellophane papers. The accused

was not in possession of any valid permit for possessing Opium. The accused was arrested on 2.45 p.m. and P.W.4 seized M.O.5 series, nine

packets of Opium and three 20 rupee currency notes M.Os. 1 to 3 from the accused in the presence of Parthasarathy and P.W.3 and he prepared

Ex.P.4 mahazar in which those two witnesses has attested, then he packed all the nine packets into one and put a seal on the same. Then he

reached the office at 3.45 p.m. and registered a case in Cr.No.23/87 against the accused u/s 18 of the above said Act and he prepared Ex.P.5

first information report. Then he kept the accused in Egmore Women Police Station. He then examined Parthasarathy and Premraj and recorded

their statements. He then sent the accused to court of the Metropolitan Magistrate for remand on 20.2.87 and on the same date, he sent the

material objects 1 to 3 (currency notes) and M.O.5 series, packets of Opium to the court. Then he was transferred and his success or Joseph

Immanual filed the charge sheet. In the cross-examination P.W.4 has stated that the Deputy Superintendent of Police was in his office at the time

when the accused after arrest was taken to the police station. He admitted that he did not prepare any separate report for producing the accused

before the Deputy Superintendent of Police. P.W.4 was transferred on 24.4.1988.

The accused when questioned u/s 313 Cr.P.C. denied the charge and pleaded not guilty. She further added that at about 6 p.m. her house was

searched and nothing was found in her house and the police wanted the name of her husband and they also recorded the same. Then she was

taken to the police station.

Learned Sessions Judge, after considering the oral and documentary evidence, found the accused guilty u/s 18 of the said Act, convicted and

sentenced her as aforementioned. The accused has challenged the validity of the judgment of the lower Court in this appeal.

Mr. P.M. Sundaram, learned counsel for the appellant, contended that the provisions of Sections 50 and 57 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 were not followed in this case and that the non-compliance of the same would affect the case of the

prosecution. Section 50 of the Act reads as follows:

Conditions 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 the Section 41, or Section 42 or Section 43, he

shall, if such person so enquires, 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.

By referring to the above Section, learned Counsel for the petitioner submitted that when the officer duly authorised u/s 42 is about to search any

person under the provisions of Section 41, 42 or 43 he shall take such person without unnecessary delay to the nearest Gazetted Officer of any of

the departments mentioned in Section 42, or to the nearest Magistrate. This argument of the learned Counsel is untenable since the said Section is

not mandatory, in as much as it states that if the Officer, so requires, then only he shall take such person who is to be searched without unnecessary

delay to the nearest Gazetted Officer or to the nearest Magistrate. Therefore, this section gives an option to the officer to take the person to be

searched to the nearest Gazetted Officer or to the nearest Magistrate. Therefore, the failure of compliance of this Section, would not affect the

prosecution case.

The next contention raised by the learned counsel for the petitioner is that the Officer who made arrest or seizure under this Act, shall report

within forty-eight hours next after such arrest or seizure to his immediate official superior as set out in Section 57 of the Act. Admittedly, P.W.4

Lakshminathan, Inspector of Police, had not made a full report of all the particulars of such arrest or seizure to his immediate official superior.

Learned Public Prosecutor pointed out in reply to this argument that the immediate official superior, i.e. the Deputy Superintendent of Police, was

present in the Office at the time when P.W.4 took the accused after arrest to the office and therefore, no separate report was prepared by P.W.4.

Therefore, learned Public Prosecutor submitted that the presence of the Deputy Superintendent of Police in his office at the time when this accused

after arrest and seizure was taken to the office, would be sufficient compliance of the provisions of Section 57 of the Act and that a separate full

report containing all the particulars of such arrest or seizure to his immediate official superior, would not be necessary. A perusal of Section 57 of

the Act would make it appear that the compliance of the provisions of Section 57 of the Act is mandatory and that it does not give any other

alternative for non-compliance of the same.

Sec. 57 of the Act runs 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 all the particulars of such arrest or seizure to his immediate official superior.

The object of submitting a full report might be not to give room later to the officer making arrest of the accused to alter the facts and

circumstances of the case leading to the seizure and arrest of the accused by addition, alteration or substitutions and the officer immediately

superior to him would have a check-up over the situation of the case or misuse of power by the officer arresting the accused. Further, the full

report, if given by the concerned officer, would be helpful to the court also, to assess the evidence available on the spot at the time of arrest, for

arriving at a proper decision in the case, instead of assessing the evidence taken in court through witnesses after lapse of some period by which

time there is likelihood of or possibility of changed version or disappearance of evidence. This provision of counter-check u/s 57 of the Act is

made to safeguard the interest of the prosecution and also of the accused without the evidence being tampered with (or) suppressed later on in

view of the stringent punishment provided u/s 18 of the Act. this has been now deprived by the prosecution stating that the immediate superior

officer was then present and therefore, a full report was not submitted to the officer immediately superior to the officer concerned.

Section 18 of the Act reads as follows:

18 Punishment for contravention in relation to opium, poppy and opium;--Whoever, in contravention of any provision of this Act, or any rule or

order made or condition of licence granted thereunder cultivates the opium poppy or produces, manufactures, possesses, sells, purchases,

transports, imports inter-State, exports inter-State or uses opium shall be punishable with rigorous imprisonment for a term which shall not be less

than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees;

Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

The punishment awarded under this Section is very deterrent and the minimum sentence prescribed is not less than 10 years and the maximum

sentence is 20 years rigorous imprisonment and the minimum fine is Rs.1,00,000/- and the maximum is Rs.2,00,000/-. This section is very stringent

and the Act contemplates that such deterrent punishment should be awarded to the person who contravenes the provisions of this Act. When this

is so, the Parliament has made the provisions u/s 57 of the Act as mandatory and has not given any alternative suggestion for escaping from the

provisions of the Section. P.W.4 has failed to give a full report of all the particulars of such arrest or seizure to his immediate official superior and

the explanation given by the prosecution that his immediate official superior, namely, the Deputy Superintendent of Police was present in the office

at the time when the accused was taken to the office after arrest, would not be the proper and sufficient compliance of the provisions of Section 57

of the Act.

Lastly Mr. P.M. Sundaram, learned counsel for the appellant submitted that there are variations in the weighment of the contents in the nine

packets seized. With regard to the eight small packets, the weight has been correctly given as 12 gms. in each packet; whereas in the big ninth

packet, the weight has been approximately stated as 134 gms. After analysis, the ninth big packet was weighed as 120 gms. Whereas the other

eight small weighed 10.8, 11.5, 10.5, 10.3, 10.00, 10.7, 10.4 and 12.1 grams. This cannot be said to seriously affect the case of the prosecution

since the transmitted also, in the course of examination there would be likelihood of variance in the measurement and therefore, this submission

cannot be upheld.

However, upholding the contention of the learned Counsel for the petitioner with regard to the non-compliance or provisions of Section 57 of

the Act, I find that the prosecution has failed to establish its case beyond all reasonable doubt. I am unable to uphold the findings of the lower

Court and therefore, I set aside the conviction and sentence imposed on the accused. The appeal is therefore, allowed and the accused is

acquitted.