2000 Supreme(SC) 254

2000(1) Supreme 363
SUPREME COURT OF INDIA
Dr. A.S. Anand, CJI., K.T. Thomas & S. Rajendra Babu, JJ.
Abdul Rashid Ibrahim Mansuri -Appellant
versus
State of Gujarat -Respondent
Criminal Appeal No. 78 of 1992
Decided on 1-2-2000
Counsel for the Parties :
For the Appearing Parties : Krishnan Kr. Mehrotra and Sudhir Nandrajog, Advocates (A.C.), Anip Sachthey, Y. Adhyaru, Badri Babu, Ms. H. Wahi, Ms. Sumita Hazarika, Ms. Farah Sultana, Adhyaru Y. Pravin, Ms. Anu Sawhney, Advocates.

IMPORTANT POINTS
1. When police officer conducts search and seizure under the Narcotic Drugs and Psychotropic Substances Act on the basis of any information it is imperative that he should take down the information in writing and send a copy thereof forthwith to his immediate official superior, failure of which would make his actions suspect though trial may not vitiate on that score done.
2. If circumstances appearing in prosecution case or in the prosecution evidence are such as to given reasonable assurance to the court that accused could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Narcotic Drugs and Psychotropic Substances Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50-Right of accused to be informed about his right to be searched before Magistrate or Gazetted Officer-Gunny bags transported in auto rickshaw searched and charas found hidden therein-Place where gunny bags were found stacked in vehicle not inextricably connected with person of accused-Non-compliance with Section 50 did not arise. (Paras 8 to 12)

       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 42-Search and seizure on basis of information-Conditions precedent-Information must be taken down in writing and copy thereof must be sent to immediate officical superior-Above conditions are imperative-Failure to comply with conditions would render action of searching officer suspect though trial may not vitiate on that score alone-Non-recording of information would deprive accused as well as Court of material to ascertain what was precise information.

       If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which and offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Noetheless the resultant position would be one of causing prejudice to the accused.

       Where the police officer on basis of information received from a police constable that two persons were trying to transport charas in an auto-rickshaw intercepted the vehicle and on search charas was recovered from gunny bags stacked in the vehicle, but the police officer neither took down the complaint in writing nor informed about the information either before or after search to his higher official and before the Supreme Court the prosecution argued that as the accused appellant did not dispute the factum of recovery of the charas from the vehicle it did not matter that the information was not recorded at the first instance by the police officer :

       Held : We cannot approve the contention because non-recording of information has in fact deprived the appellant as well as the court of the material to ascertain what was the precise information which PW-2 got before proceeding to stop the vehicle. Value of such an information, which was the earliest in point of time, for ascertaining the extent of the involvement of the appellant in the offence, was of a high degree. A criminal court cannot normally afford to be ignorant of such a valuable information. It is not enough that PW-2 was able to recollect from memory, when he was examined in court after the lapse of a long time, as to what information he got before he proceeded to the scene. Even otherwise, the information which PW-2, in this case, recollected itself tends to exculpate the appellant rather than inculpate him. (Para 19)

       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 35-Presumption as to culpable mental state-Burden of accused to discharge-Burden can be discharged through different modes-Burden would stand discharged even if accused has not adduced any evidence if circumstances appearing in prosecution evidence give reasonable assurance to Court that accused could not have had knowledge of required intention.

       The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that accused could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Narcotic Drugs and Psychotropic Substances Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. (Para 22)

       (iv) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 20(b)(ii) r/w Sections 35 and 42-Accused driver of auto-rickshaw-Search on basis of information that charas was being transported by S -Recovery of charas from gunny bags stacked in auto-rickshaw-Accused not denying factum of recovery of charas-Police officer conducting search and seizure neither recorded information in writing nor sent information to his higher official-Accused was only a transporter-Nothing to suggest accused had any prior knowledge about contraband-Accused and S not close to each other-Circumstances rebutted presumption under Section 35-Conviction rendered by High Court set aside. (Para 23)