1989 Supreme(Bom) 362

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
M.S. Deshpande B.G. Deo, JJ.
Hemant Vyankatesh Agwan... Appellant.
Versus
State of Maharashtra... Respondent.
Criminal Appeal No. 288 of 1989, decided on 4-12-1989.
Advocates appeared :
V.R. Manohar, P.N. Mahajan and Anoop Mohta, for appellant.
H. Ahmad, A.G.P., for respondent-State.

The provisions of sections 42, 50, 52, 52-A, 55, and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are directory and not mandatory.

Headnote:

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTIONS 42, 50, 52, 52-A, 55, 57 - MANDATORY OR DIRECTORY - INTERPRETATION - INVESTIGATION - SEARCH AND SEIZURE - PROCEDURE - COMPLIANCE WITH STATUTORY DIRECTIONS - NECESSITY - DRUG MENACE - ERADICATION - IMPORTANCE OF INFORMED AND EFFICIENT MACHINERY FOR ENFORCEMENT OF LEGISLATION.

Fact of the Case:

The appellant was convicted under section 22 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default to suffer rigorous imprisonment for two years. The incident on the basis of which the appellant came to be tried occurred on June 4, 1989. At about 4.10 p.m. P.S.I. Khodke of Ambazari Police Station of Nagpur, received information that the appellant was in possession of brown sugar and used to sell on plot No. 269, Abhyankar Nagar, Nagpur. After receiving this information, he called two panchas and told them and Shri Thakre. Assistant Commissioner of Police, Sitabuldi Zone and proceeded to the spot where he found the appellant. After offering their search to him, the appellant was searched and was found to be in possession of 65 small packets covered with plastic bag in the left pocket of his full-pant and an amount of Rs. 30/- in his right pocket. Finding that the packets contained white powder, 5 packets were separated as a sample and put in a separate cover while 60 packets were wrapped separately and both these packets were seized and sealed. A seizure memo was prepared and the appellant and the seized articles were brought to the Police Station at Ambazari and the property was deposited in the property room. The appellant was arrested and a complaint against him was lodged in the Police Station by P.S.I. Khodke. The five packets which were separately wrapped were sent for analysis to the Chemical Analyser who certified that it contained heroin. The appellant then came to be tried by the learned Additional Sessions Judge.

Finding of the Court:

The Court held that the provisions of sections 42, 50, 52, 52-A, 55, and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are directory and not mandatory. The Court further held that the evidence of P.S.I. Khodke and panch Yadaorao did not establish beyond reasonable doubt the search and seizure from the appellant of the 65 packets of brown sugar and his possession of the brown sugar.

Issues: 1. Whether the provisions of sections 42, 50, 52, 52-A, 55, and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are mandatory or directory? 2. Whether the evidence of P.S.I. Khodke and panch Yadaorao established beyond reasonable doubt the search and seizure from the appellant of the 65 packets of brown sugar and his possession of the brown sugar?

Ratio Decidendi: 1. The Court held that the provisions of sections 42, 50, 52, 52-A, 55, and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are directory and not mandatory. The Court reasoned that the non-compliance of these provisions does not entail any penalty and that the serious or trivial consequences which shall flow therefrom have not been enumerated. The Court further reasoned that the provisions bear upon the steps to be taken by the investigating machinery with the object of creating safeguards for the alleged offender and that it is apparent that they shall to be obeyed. However, the Court held that it does not appear that it is only upon the observance of the safeguards that the power of investigation could be exercised and therefore, it is difficult to regard the safeguards so created, as laying down conditions for exercise of the powers of investigation, the non-observance of the safe guards entailing nullification of the entire investigation. 2. The Court held that the evidence of P.S.I. Khodke and panch Yadaorao did not establish beyond reasonable doubt the search and seizure from the appellant of the 65 packets of brown sugar and his possession of the brown sugar. The Court reasoned that there were several discrepancies in the evidence of the prosecution witnesses and that the appellant's defence that he was called out of the house and falsely implicated could not be ruled out.

Final Decision: The appeal was allowed. The conviction and sentence imposed on the appellant were set aside and it was directed that the appellant be set at library forthwith, if not required is any other offence.