1993 Supreme(Bom) 358

IN THE HIGH COURT OF BOMBAY
S.P. Kurdukar M.F. Saldanha, JJ.
Ramji Duda Makwana.... Appellant.
Versus
The State of Maharashtra.... Respondent.
Criminal Appeal No. 404 of 1992, decided on 12/13-8-1993.
Advocates appeared :
J.A. Barday, for the appellant.
D.A. Nalawade, A.P.P., for the respondent.

Headnote:Section 8 (c) read with Sections 21 and 22-Offences of grave nature Pleading of mercy be misplaced-Deterrent jail term and heavy lines must be awarded by court.

       Sections 42 and 43 - Provision under-Whether mandatory?

       Held, A perusal of the provisions of Section 12 will indicate that it is a misnomer to contend that is compulsory on the part of the police officer receiving the information to take it down in writing. There is undoubtedly a passing reference in the section to a situation in which a Police Officer who has received information and has taken it down in writing should act. The learned A. P. P. has however pointed out to us that this section applies to a situation relating to earches of buildings and situations where search warrants would normally have to be applied for and therefore that a requisite record has to be maintained for such action. He points out to us, and perhaps rightly, that Section 42 would not apply in cases where the raid is confined to a public place and does not involve a search of a building or dwelling house. Quite apart from this, we need to observe that neither Section 42 nor Section 45 makes if either compulsory or incumbent for the authority who receives the information to make a written record of it. In the majority of cases, the information may be received while the authority concerned is on patrol or out on a raid. In several others cases where the information is in fact conveyed at the Police Station as in the present one there may be limitation of time. The court does concede that it would be desirable if the note of the same is made, but there is no compulsion whatsoever cast by law on such written noting. It is held that therefore, the contention canvassed on behalf of the appellant that the absence of the written record of the information conveyed to P. C. Thakare in the present case would vitiate the present prosecution is unfounded. While apart from the fact that there is no such obligation cast on the prosecuting authorities, before the defence can contend that a prosecution is vitiated it will have to indicate that the breach that is complained of is so gross or so manifest and so fundamental that it virtually shatters the very foundation of the prosecution case. It is impossible in our considered view to except, given the handicaps under which the Department works and several other attend factors including the lack of facilities the time factors etc for computer like precision and 100% accuracy to be forthcoming in each and every case. The court does recommend that an effort be made in this direction but if there are lapses which are of no consequences these would not be sufficient to vitiate an otherwise a satisfactory investigation prosecution.

       Sections 42 to 56-Provisions under- Whether mandatory ?

       Held, The provisions of Sections 42 to 56 of the N. D. P. S. Act are directory and not mandatory. Consequently a technical argument would no longer be available to the defence that if any of these provisions are breached ipso facto the prosecution is vitiated.

       The provisions of Sections 42 to 56 of the Act essentially prescribe a procedure that is required to be followed Several High Courts have in terms held that the provisions have been put on the statute book for good reason and that the authorities are obliged to comply with them. There can be no dispute about this position in law that the provisions in question are required to be observed but they are essentially rules of procedure. While dealing with the procedural aspects-Courts needs to make a broad distinction between a breach that may be inconsequential and a breach that would be fatal. It is this reason. on an analogy we make a reference to Section 460 and 461 of the Cr. P C. wherein again a distinction has been drawn between those of the breaches of the provisions which would render proceedings irregular and those which are serious enough to vitiate the prosecution. In a given case it may be true that if it is demonstrated that there bas been wholesale and want on disregard for the provisions of law that the prosecution may fail But what we need to point out with some emphasis that can either be explained or that are not of a serious consequence in the sense that they do not otherwise nullify the effect of credible cogent evidence which can on its own sustain the prosecution, that such breaches cannot and would not be treated as fatal or good enough to vitiate the proceedings.

       Section 50-Applicability of.

       The controversy on facts is totally inconsequantial because a careful consideration of the provisions of Section 50 of the N. D. P. S. Act will indicate that a broad and definite line will have 10 be drawn between the cases where the contraband is recovered from spots other than on the person of the accused and cases where the contraband is alleged to have been concealed on the person. The present case falls in the former category where admittedly the accused was holding a polythene bag in his hand and it was from that bag that the contraband was recovered. Nothing was recovered from his person on the basis of which he is sought to be implicated. The applicability of Section 50 therefore would not arise in the present case in so far as Section 50 is in law and in spirit confined to that category of cases where the authorities are required to carry out a body search. In the present case the record clearly indicates that even the search referred to by the Police Officers was only a cursory search of the outer graments from which the sum of Rs. 2500/- was taken charge of from the trouser pocket. Under these circumstances, controversy is really academic but since the point has been argued and since the issue is one of some importance, as it is caused in almost every proceeding under the N. O. P. S. Act we feel incumbent that the law on the point be clarified and clearly stated.

       Section 50--Search and seizure-Carrying out of search in presence of gazetted officer a member of raiding party.

       It cannot be contended that gazetted officer must be independent of raiding party- Nothing in the section to warrant such an interpretation.

       Section 56-Provisions under-Whether directory?

       The provisions of Section 56 necessarily imply, and for good reason, that at the earliest point of time all material seized in an action under this Act must be deposited with the Officer incharge of a local Police Station because he is an authority of sufficient rank and he is also invested with the requisite facilities and the records to ensure that all the material is kept in safe custody and that there is no scope of its being lost or tampered with. This provision is a reasonable and prosecution under this Act are serious, it is equally incumbent that safe guards be taken to ensure that there is no scope for any accident or for that matter negligence or even tempering. It does not however mean that where a specilised authority conducts a raid such as the Narcotic Control Bureau or for that matter the Customs, Central Excise etc. that they would be precluded from retaining the contraband in safe custody at their own headquarters. In the present case, the prosecuting authority was not the Byculla Police Station but the Narcotics Control Bureau which was of necessity entrusted with the task of completing the investigation and thereafter assisting at the time of the trial For this purpose, therefore, it was only essential that all material that was concerned in this case be retained within the custody of their officers and they have acted very rightly in :rending the material without any delay to the Headquarters and the court is satisfied from the Muddemal Register produced that it was in fact deposited in safe custody at the Head Quarters.