Union of India vs A. Sadikkeen

S. Vimala, J.—"We are reminded of Justice Felix Frankfurter''s immortal words in Antonio Richard Rochin v. People of the State of California [96 L. Ed. 183 (1951)], coincidentally a case pertaining to narcotics, wherein he described some types of conduct by state agents, although not specifically prohibited by explicit language in the Constitution, as those that "shock the conscience" in that they offend "those canons of decency and fairness which express the notions of justice." Due process of law requires the state to observe those principles that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." The general state of affairs pertaining to trials of offences under the NDPS Act deserves a similar description; The laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulations of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity." So said the Hon''ble Supreme Court in Criminal Appeal No. 1640 of 2010, dated 23-1-2013 (Thana Singh v. Central Bureau of Narcotics). Perhaps, this is the only case under the Special Enactment, viz. the NDPS Act, where the word ''notice'' had been decorating the docket for a long number of years.

Even between the first and second entry, there had been a long wait of 9 years. The first entry and the second entry reads as under:

"Heard. Admit. Post the Crl.RC in the usual course for disposal.

29-8-2000"

"Fresh notice to respondents returnable by 2-9-2009.

24-6-2009"

Thereafter, the case has been posted on 2-9-2009, 5-10-2009, 23-10-2009, 10-11-2009, 18-12-2009, 8-3-2010, 23-3-2010, 7-4-2010, 7-4-2010, 7-6-2010, 10-8-2012, 22-8-2012, 13-9-2012, 17-10-2012, 8-10-2014, 10-11-2014, 24-11-2014, 22-12-2014, 21-1-2015, 25-2-2015, 18-3-2015, 20-4-2015, 21-4-2015, 3-6-2015, 10-6-2015, 25-6-2015, 7-7-2015, either ordering fresh notice or awaiting service. So far, the respondent is not served.

2.1 Further, it is represented by the learned Standing Counsel for the appellant that despite the best efforts being taken to serve notice on the respondents, the prosecution is not able to do so, because the respondents are stated to have left for Sri Lanka. In such circumstances, there is no possibility to serve notice on the respondents.

By the judgment dated 29-6-2000, the accused was acquitted of the charges under Section 8(c) r/w Sections 21 , 22 , 23 , 28 and 29 of NDPS Act. Challenging the same, the appellant has filed this appeal.

The main ground of appeal is that when the search of the baggages of the accused and seizure of contraband took place in a public place, the question of complying with provisions of Section 42(2) of the Act, will not arise and the provision applicable is Section 43 of the NDPS Act.

Yet another contention is that there was no breach of Section 57 of the NDPS Act and through the evidence of P.W. 2 and P.W. 5, it is proved that there had been substantial compliance with the provisions of Section 57 of the NDPS Act. Whether these two grounds are justified is the issue.

Even assuming that these two grounds are justified, whether the accused who was convicted in the year 2000 can be called upon to face the sentence after 15 years of the acquittal, is the yet another issue to be considered.

The prosecution had examined 9 witnesses, marked 40 documents and exhibited 10 material objects.

The allegation against the accused is that he was found in possession of 27 Kgs. of heroin and he transported the same by carrying it along with his luggage while travelling by flight IC-856 from Mumbai to Madurai on 30-8-1998. P.W. 1 is stated to have given this information through telephone to P.W. 2, the Inspector of Police. According to the prosecution, the contraband has been recovered on 30-8-1998 at 8.00 p.m. But the information has reached the higher officials only on 31-8-1998. The Trial Court has considered the provisions of Section 42(2) of the NDPS Act under which immediate communication of the information received is mandatory and this provision has been violated in this case. The non-examination of the higher officer who is stated to have received the communication, has been commented upon by the Trial Court. The higher officer did not even put the time of receipt of the information on 31-8-1998.

The judgment of the Trial Court points out the non-observance of conditions stipulated under Section 50 of the NDPS Act. Ex. P2 is stated to be the consent letter given by the accused for the personal search of him. It is the case of the prosecution that the letter was written by the accused himself. Ex. P13 is stated to be the confession statement of the accused. It is also stated to be in the handwriting of the accused. The investigating officer has himself admitted that both the signatures in Ex. P2 and Ex. P13 are not by one and the same person. Therefore, the Court has rightly disbelieved the arrest as well as the confession of the accused.

The Trial Court has noted down the non-recovery of the key using which the baggages had been opened from which the contraband had been recovered. The missing of the important link evidence has created considerable doubt in the mind of the Trial Court regarding the genuineness of the prosecution case.

The Court has relied upon the decision of the Hon''ble Supreme Court reported in Koluttumottil Razak Vs. State of Kerala, , and has held that the dictum laid down in those cases are applicable to the facts of this case, and therefore, the accused were found entitled to be acquitted.

It is relevant to consider the dictum laid down in Koluttumottil Razak Vs. State of Kerala, :

"6. It is a mandate of Section 42 of the Act that when an officer referred to in Sub-section (1) thereof "has reason to believe from personal knowledge or information given by any person and taken down in writing" that any narcotic drug or psychotropic substance is kept or concealed he may detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence under the Act. The other requirement of law is that the officer who takes down the information in writing or records grounds for his belief shall forthwith send a copy thereof to his immediate official superior. A three-Judge Bench of this Court held in Abdul Rashid Ibrahim Mansuri v. State of Gujarat : that noncompliance with the requirements of Section 42(1) and (2) would render the resultant search and seizure suspect, though that by itself may not vitiate the proceedings.

In the present case, unfortunately, apart from the evidence of the police officers there is absolutely no independent evidence to ensure confidence in our mind that the search was in fact conducted by PW 2 as ne has claimed. As his evidence is required to be approached with suspicion due to violation of Section 42 of the Act we may require corroboration from independent sources that is lacking in this case."

In this case there is violation of Section 42(1) and (2) of the Act and hence the search and seizure have become suspicious.

In view of the above stated reasons, the Criminal Appeal is dismissed.