Muthayya Muthu Thevar vs The State of Maharashtra

Vishnu Sahai, J.—Three persons viz., Muthayya Muthu Thevar, Prem Khatke Rasal and Amarjitsingh Nasibsingh Jaisar were tried by the Special Judge for Greater Bombay in N. D. P. S. Special Case No. 722 of 1991 for an offence punishable u/s 8(c) read with 20(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the N. D. P.S. Act). The learned Judge found them guilty for the said offence and vide his Order dated 21st March, 1995 sentenced each one of them to undergo 10 years R.I. and to pay a fine of Rs. 1 lakh, in default to suffer six months R. 1.

Aggrieved by the aforesaid convictions and sentences, Muthayya Muthu Thevar has preferred Criminal Appeal No. 179 of 1995; Prem Khatke Rasai has preferred Criminal Appeal No. 255 of 1995; and Amarjitsingh Nasibsingh Jaisar has preferred Criminal Appeal No. 417 of 1995.

Since the said appeals arise out of the same set of facts and a common impugned Judgment, we are disposing them of by one judgment.

The prosecution case, in brief, is as under :-

On 20th September. 1991, P. S. I. Bhimrao Chandu Patil P.W. 5 and Constable Gurunath Kashinath Mithbawkar P.W. 1 were attached as Sub-Inspector and Constable respectively, to R. C. F. Police Station. At about 5.15 p. in they along with P. I. Jadhav, P. 1. Jedia and other Police Constables left the Police Station for patrol duty. At about 6-20 p. m. while they were in front of Sejal Medical Stores situated at Panjrapol Naka, they saw three persons coming. They were behaving in a suspicious manner. At about 6.45 p. m. they detained them. The said persons were the appellants. Appellant Amarjitsingh Nasibsingh Jaisar was holding a yellow coloured bag; appellant Muthayya Muthu Thevar had concealed a bag by the side of his abdomen: and appellant Prem Khatke Rasai had concealed a bag in the right hand pocket of his pant. P. S. I. Patil called two panchas. one out of whom Ramesh Shinde has been examined by the prosecution as P.W. 2. In the presence of panchas the appellant were searched. 520 grams of charas was recovered from the yellow bag which appellant Amarjitsingh Nasibsingh Jaisar was carrying: 200 grams of charas was recovered from the bag which was in possession of appellant Muthayya Muthu Thevar; and 270 grams of charas was recovered from the bag which was in the possession of appellant Prem Khatke Rasai. The said appellants were arrested. The recovered charas was packed, sealed and labelled in six packets. Seizure panchanama was completed at about 8-00 p. m. Thereafter the police personnel along with the appellants and the recovered charas came to R. C. F. Police Station.

The F.I.R. of the Incident was lodged by Constable Gurunath Kashinath Mithbawkar P. W. 1 the same day at about 8.30 p. m. at R. C. F. Police Station. On its basis P. S. I. Bhimrao Chandu Patil P.W. 5 registered an offence u/s 8 read with 20(b) of the N. D. P. S. Act.

Investigation was conducted in the usual manner by P. S. I. Bhimrao Chandu Patil P.W. 5. After registering the F.I.R. he entered the recovered property in Muddemal Register and kept it in safe custody. On 7th October. 1991, the entire muddemal property was sent to the Chemical Analyser through Tukaram Babu Gamre P. W. 4, who in the year 1991, was working as a store-keeper in R. C. F. Police Station.

The evidence of P. S. I. Patil shows that he sent the report to his superior officer (as mandated by section 57 of the N. D. P. S. Act). His evidence also shows that after completing the investigation he submitted the charge-sheet against the appellants on 31st November, 1991.

In due course, the appellants were put up for trial. They were charged for an offence punishable u/s 8(c) read with 20(b) of the N. D. P. S. Act, to which charge they pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined five witnesses. Three of them, namely P. S. I. Bhimrao Patil P.W. 5, Constable Gurunath Kashinath Mithbawkar P.W. 1, and public Panch Ramesh Pandurang Shinde P.W. 2 were examined as witnesses of fact.

The learned Trial Judge accepted the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated in paragraph 1. As mentioned in the said paragraph, the appellants have assailed their convictions and sentences by preferring three separate appeals in this Court.

We have heard learned Counsel for the parties. Ms. Cardozo, learned Counsel for the appellants in Criminal Appeal Nos. 255 of 1995 and 417 of 1995 strenuously urged before us that the convictions arid sentences of the appellants for the offence punishable u/s 8(c) read with 20(b) of the N. D. P. S. Act, cannot be sustained because the mandatory provisions contained in Sections 50(1) and 57 of the N. D. P. S. Act have not been complied with. Mr. P. Shetty, learned Counsel for the appellant in Criminal Appeal No. 179 of 1995 adopted her submission.

Regarding non-compliance of section 50(1) of the N. D. P. S. Act, Ms. Cardozo invited our attention to the cross-examination of Constable Gurunath Kashinath Mithbawkar P. W. 1. She pointed out that in para 7 he has stated that after appellant Amarjitsingh Nasibsingh Jaisar was found in possession of charas it was expected that the other two appellants may also be in possession of charas. She urged on the basis of ratio contained in para 3 of the decision of the Supreme Court in Mohinder Kumar v. State of Punjab, that the moment it was known that there was likelihood of recovery of charas from the other two appellants prosecution was duty-bound to comply with Section 50(1) of the N. D. P. S. Act and to apprise to the said appellants that If they so wanted they could have their search taken in the presence of the nearest Magistrate or the nearest Gazetted Officer. In her contention since the other two appellants (Muthayya Thevar and Prem Rasai) were not apprised of the aforesaid right their convictions and sentences cannot be sustained in law.

Regarding Section 57 of the N. D.-P. S. Act, Ms. Cardozo pointed out that the burden was on the prosecution to lead evidence to the effect that the seizure of charas had been reported within 48 hours of its recovery by P. S. I. Patil to his immediate official superior as mandated by the said Section.

We have bestowed our anxious consideration to the submissions canvassed by Ms. Cardozo. We regret that the said submissions are devoid of substance in view of the decision of the Constitution Bench of the Supreme Court in State of Punjab v. Baldev Singh.

We have no reservations in observing that the ratio laid down in Mohinder Kumar Vs. The State, Panaji, Goa, is no longer tenable in view of the observations contained in para 57(1) of State of Punjab Vs. Baldev Singh, which read thus :-

"57. On the basis of the reasoning and discussion above, the following conclusions arise :

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to Inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing."

A perusal of the aforesaid paragraph would show that it is only where an empowered officer or a duly authorised officer is acting on prior information would it be imperative for him to apprise the accused of his right to be searched before the nearest Magistrate or the nearest Gazetted Officer u/s 50(1) of the N. D. P. S. Act. Since, the instant case, was a case of chance recovery Section 50(1) of the N. D. P. S. Act would have no application.

We also find that Ms. Cardozo''s submission with regard to Section 57 of the N. D. P. S. Act is untenable. Her submission proceeds on the premise that P. S. I. Patil, who effected recovery of charas from appellants, did not report about the seizure to his immediate official superior within 48 hours as he was enjoined to do under the said Section. In our view, there is no basis for the said premise. Ms. Cardozo has taken us through the entire evidence and nowhere from the same is it reflected that P. S. I. Patil did not report the seizure within 48 hours. P. S. I. Patil has categorically stated that he reported the seizure to his immediate official superior.

Ms. Cardozo urged that the burden of proving that P. S. I. Patil reported the seizure to his immediate official superior within 48 hours was on the prosecution and since there is no evidence that it was reported within the said time, a presumption should be drawn that it was not reported within the aforesaid time. We regret, we cannot accede to her contention. We may mention that although P. S. I. Patil and other prosecution witnesses were subjected to extensive cross-examination, but not a single question was put to them as to when the seizure was reported by P. S. I. Patil to his immediate official superior. In our view, if the defence wanted to show that the provisions contained in Section 57 of the N. D. P. S. Act were flouted, such a question was necessary. It should be borne in mind that u/s 114(e) of the Evidence Act. there is a presumption that Judicial acts and official acts have been regularly performed.

Even assuming for argument sake that the seizure was not reported by P. S. I. Patil to his immediate superior official within 48 hours, the result would be not different. The Constitution Bench of the Supreme Court in the decision in State of Punjab Vs. Baldev Singh, in paragraph 17(6) has observed thus:-

"17(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."

A perusal of the aforesaid paragraph would show that the provisions contained in Section 57 are not ipso facto mandatory and failure to comply with them would only assume importance if prejudice has been caused to the accused and no satisfactory explanation for the delay in sending the report has been furnished in the evidence. Judged from this perspective also, there can be no running away from the fact that the defence was under an obligation to question P. S. I. Patil as to when he sent the report of seizure to his immediate official superior and to give him an opportunity for explaining the delay, (in case there was any) in sending the said report.

For the said reasons Ms. Cardozo''s submission regarding Section 57 of the N. D. P. S. Act also fails.

No other point was canvassed before us and neither do we find any other point worth our consideration.

For the said reasons, we confirm the convictions and sentences of the appellants for the offence u/s 8(c) read with 20(b) of the N. D. P. S. Act and dismiss these appeals. Appellants Prem Khatke Rasal and Amarjitsingh Nasibsingh Jaisar are in jail and shall serve out their sentence.

Appellant Muthayya Muthu Thevar is on bail and shall be taken into custody forthwith to serve out his sentence.