2008 Supreme(Kar) 263

2008 (3) KLO 240 AC 212
IN THE HIGH COURT OF KARNATAKA
V. Jagannathan, J.
Criminal Appeal No. 2236/2006 C/w Criminal Appeal No. 627/2007
R. Mayilvahanam and Another - Appellants
Vs.
Intelligence officer, Narcotic Control Bureau, Chennai - Respondent
Decided on 15-4-2008

Headnote:NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES ACT, 1985 -Sections 8(c) r/w Sections 21 & 27-A & 29: [V. Jagannathan, J] Offences Under -Conviction of accused Nos. 1 & 3 -Acquittal of accused No.5- Appeal against - Non-Compliance of mandatory requirement of Section 42 and Sections 52 to 55 by the prosecution - Acceptance of voluntary statements of A-1 and A-3 by the trial judge to base conviction - The report submitted under Section 57 of the NDPS Act by the NCB Officer is silent as to the fact of compliance of the provisions of Section 50 - Non-conducting of test to ascertain the percentage of purity or the percentage of drug heroin found in the sample packets, which is a serious lacuna in the prosecution case particularly in the light of amended provisions of Section 41 of the NDPS Act - Held, The prosecuting agency, with anxiety and zeal to secure the conviction of accused persons has thrown to the winds, the specific mandatory provisions of the NDPS Act. Conviction of Accused No.1 and 3 cannot be sustained in the eye of Law.

       NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES ACT, 1985 -Section 41 [As amended by Amendment Act, 2001] :[V.Jagannathan,J] Test to be conducted under - Ascertainment of the percentage of purity or the percentage drug heroin found in the sample packets - Necessity of finding, regarding - Held, This is a serious lacuna in the prosecution case particularly in the light of amended provision of Section 41 of the Act, under which the punishment will be proportionate to the quantity of the contraband seized. After the Amendment Act, 2001, the punishment will vary depending upon the size of the quantity seized namely ’small quantity’ ’commercial quantity’ and ’one in between two’. Therefore, in the absence of there being evidence to show the exact percentage of drug heroin found in the sample packets, it will be difficult to fix the liability for the offence alleged against the accused persons when the amended provisions have also been given effect in respect of the pending proceedings as well. The chemical examiners have admitted in their evidence that they did not conduct the test to ascertain the percentage of purity or the percentage of drug heroin found in the sample packets. The testimony of the examiners will not come to the aid of the prosecution to prove beyond all reasonable doubt that the sample packets sent for examination contained heroin. Hence, Order of conviction is liable to be reversed.

       NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES ACT, 1985 -Sections 42 & 43: [V. Jagannathan, J] Power of entry search, seizure and arrest without warrant - Power of seizure and arrest in public place - Procedure required to be followed - Held, Procedure contemplated in Section 42 can be given effect to only where the officer concerned 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 in respect of which an offence punishable under this Act has been committed that he can do so by effecting the seizure of the property kept or concealed in any building conveyance or enclosed place at any time between sunrise and sunset and to do all the things mentioned in sub-clause(a) to (d) and also to comply with the requirement as laid down in the provisions of Section 42(1) and 42(2). But it becomes clear from the language used in Section 43 of the Act that when the officer concerned believes that offence punishable under this Act has been committed in a public place, he can proceed to take action as contemplated in Section 43 of the Act . To proceed under Section 43 of the Act, there is no necessity for the officer concerned to have personal knowledge for his belief or to have any information given by any and taken down in writing.