IMPORTANT POINTS
1. For attracting applicability of Section 42 of the NDPS Act, it is necessary that the officer empowered thereunder, before exercise of his right, has reason to believe from personal knowledge or information regarding the movement of narcotic drug or psychotropic substance. However, if the action is taken not upon his personal knowledge or information, the requirements of Section 42 would not be applicable.
2. Under the NDPS Act if resort is had to the procedure prescribed under sub-section 3(a) of Section 52, the applicability of Section 55 of the Act would be attracted but if the arrested person and the seized articles are forwarded under Clause (b) of sub-section (3) of Section 52 of the Act to the officer empowered under Section 53 of the Act, the compliance of Section 55 cannot be insisted upon.

JUDGMENT

Sethi, J.-Leave granted.

2. The appellant, a truck driver was apprehended and arrested on 21st August, 1992 by a Preventive Party, on the Kota-Bundi Road in Rajasthan as he was shown to be carrying 96.600 kgs. of opium in his Truck No. PCT 9997. The opium was found concealed in three gunny bags containing 21 raxine bags. After compliance of the requisite legal formalities, a case under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the Act") was registered. The seized goods and samples were kept in double lock malkhana. On conducting tests, the articles seized were found to be opium. On trial, the appellant was found guilty of the offences with which he was charged under the Act. He was convicted and sentenced to rigorous imprisonment for 15 years and to pay a fine of Rs.1.5 lakhs or in default of the fine to undergo rigorous imprisonment for one year. In appeal, the High Court upheld the conviction but reduced the sentence of imprisonment to 10 years and fine of Rs.1 lakh, vide the order impugned in this appeal.

3. Mr. Jayant Bhushan, Advocate who appeared as amicus curiae has raised some legal questions which, according to him, had not been taken note of either by the Trial Court or by the High Court. He contended that as the procedure prescribed under the Act was not followed, the appellant was entitled to acquittal. It was further submitted that no presumption under Section 35 of the Act could be drawn against the appellant. Relying upon the judgment of this Court in Adbul Rashid Ibrahim Mansuri v. State of Gujarat1 he contended that the appellant had discharged the onus of proof regarding his plea of absence of culpable mental state which should have been accepted and the appellant acquitted.

4. Regarding violation of the procedural safeguard under the Act, it has been contended on behalf of the appellant that the mandate of Section 55 of the Act has not been followed and as the Trial Court as well as the Appellate Court arrived at the guilt of the appellant on wrong assumptions, the appeal be accepted by setting aside the impugned judgment.

5. In order to appreciate this submission some facts of the case are required to be noticed. There is no dispute that the truck, when intercepted, was not stationary but was in transit being driven by the appellant. The raiding party comprised of Nand Lal Rai, Inspector (PW8), Mohan Lal (PW1), Bajrang Lal (PW2) and Zaheen Ahmad (PW7). Suspecting that in the truck some narcotic drugs might be transported, Inspector Nand Lal Rai (PW8) called independent witnesses Onkar and Ram Lal and in their presence told the appellant that he had a suspicion of opium being transported in the truck. As he wanted to take search of the truck, he inquired from the appellant whether he would get the truck searched in the presence of a Gazetted Officer or a Magistrate. He was told by the accused that the truck may be searched by any officer or employee. As by that time rain had started and there was no arrangement of light at the place of checking, the preventive party took the truck along with its driver to the Control Room of Central Narcotics Bureau, Kota. PW8, Nand Lal Rai along with other employees searched the truck in the presence of Anand Singh Negi and other witnesses and found three gunny bags containing opium, as noticed earlier. From each of the gunny bags 2-2 samples of 24-24 grams opium was taken for chemical examination and the samples seized in the presence of the witnesses. The raxine bags containing opium were placed in the gunny bags in the condition as it were and each of the gunny bags was wrapped in white cloth and sealed. Nand Lal Rai, Inspector (PW8), Anand Singh Negi (PW4) and other employee-witnesses of the Department put their signatures on the samples and the three bundles. They also signed the Panchanama. The appellant was arrested under the Act. Inspector Nand Lal Rai then went to the office of the Superintendent, Central Na