The provisions of section 50 of the N.D.P.S. Act are directory in nature and what the Court is expected to consider is whether there are any breaches in relation to the said provision and if there is any explanation for the same. If, the breaches remain unexplained certainly the accused can claim benefit therefrom.

Headnote:
NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 18, 29, 50, 52(3), 52(A), 57 - EVIDENCE ACT, 1872 - SECTION 114(G) - CRIMINAL PROCEDURE CODE, 1973 - SECTION 161 - OPIUM - POSSESSION - SEARCH AND SEIZURE - TESTIMONY OF PANCH WITNESS - SECTION 50 OF N.D.P.S. ACT - COMPLIANCE - ANALYSIS OF SUBSTANCE - GUIDELINES OF NARCOTICS CONTROL BUREAU - SECTION 2(XV), 2(XVI) OF N.D.P.S. ACT - DEFINITION OF OPIUM AND OPIUM DERIVATIVE - SECTION 57 OF N.D.P.S. ACT - REPORT TO SUPERIOR OFFICER - DIRECTORY IN NATURE - SECTION 52(3) OF N.D.P.S. ACT - FORWARDING OF ARRESTED PERSON AND SEIZED ARTICLES TO NEAREST POLICE STATION - SECTION 52(A) OF N.D.P.S. ACT - DISPOSAL OF NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES - NOT APPLICABLE.
Fact of the Case:

The appellants were convicted under sections 18 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act) for possessing 3 kgs of Opium. The prosecution alleged that the appellants were found in possession of the Opium during a raid conducted by the police. The appellants challenged the conviction on various grounds, including non-compliance with the provisions of section 50 of the N.D.P.S. Act, failure to establish the nature of the test conducted to analyze the substance, and non-compliance with the guidelines laid down by the Narcotics Control Bureau for testing the seized material.
Finding of the Court:

The court found that the prosecution had failed to establish anything to show that accused No. 2 was in any manner connected with the drugs found in the bag which was on the shoulder of the appellant No. 1. Therefore, the court acquitted the appellant No. 2 from the charges under section 18 of the Act. However, the court found that the prosecution had clearly established that the appellant No. 1 was found carrying with him the Opium in the bag on his shoulder at the relevant time. Therefore, the court confirmed the conviction of the appellant No. 1 under section 18 of the N.D.P.S. Act.
Issues: 1. Whether the provisions of section 50 of the N.D.P.S. Act were complied with during the search and seizure of the Opium? 2. Whether the prosecution had established the nature of the test conducted to analyze the substance? 3. Whether the prosecution had complied with the guidelines laid down by the Narcotics Control Bureau for testing the seized material? 4. Whether the appellant No. 1 was in possession of the Opium at the relevant time?
Ratio Decidendi: 1. The court held that the testimony of the Investigation Officer and the panch witness clearly established the compliance of the provisions of section 50 of the N.D.P.S. Act. The court relied on the judgment of the Supreme Court in Krishna Mohar Singh Dugal etc. v. State of Goa, wherein it was held that the evidence of the Investigation Officer is primarily relevant to find out whether the provisions of section 50 of the N.D.P.S. Act are complied with or not. 2. The court held that the evidence of the analyst clearly disclosed that he had conducted the necessary test to find out whether the substance disclosed the contents of Opium or not. The court also held that the prosecution had not challenged or disputed the testimony of the analyst in any manner. 3. The court held that the guidelines issued by the Narcotics Control Bureau were in relation to the quantity of the sample that was required to be drawn for the purpose of sending the same for analysis and not the quantity to be utilized for the chemical test itself. Therefore, the court held that there was no infraction of any guidelines by the analyst in the case in hand. 4. The court held that the evidence on record clearly disclosed that the appellant No. 1 was found to be carrying a bag on his shoulder which contained a substance which was suspected of being Opium and after the same being tested by the analyser it was confirmed to contain morphine. The court also held that the testimony of the Investigation Officer and the panch witness in that regard had not been shaken.
Final Decision: The appeal was partly allowed. The conviction of the appellant No. 2 under sections 18 and 29 of the N.D.P.S. Act was set aside. The conviction of the appellant No. 1 under section 29 of the N.D.P.S. Act was also set aside. However, the conviction of the appellant No. 1 under section 18 of the N.D.P.S. Act was confirmed.

JUDGMENT - Per R.M.S. KHANDEPARKAR, J.:---This appeal arises from judgment dated 10th December, 1998 passed by the Narcotics Drugs and Psychotropic Substances Court, Mapusa in Special Case No. 18 of 1998. By the impugned judgment, the appellants have been convicted under sections 18 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act') and sentenced to undergo twelve years rigorous imprisonment each and to pay a fine of Rs. 1,00,000/- each and in default to undergo one year rigorous imprisonment. It is the case of the prosecution that on 13th April, 1998 at about 15.30 hours while the police personnel were on look out for a criminal by name Wilson and in the course of a raid at Sautavade, Calangute in that regard came across certain foreigners and the accused sitting in a shack and on having suspected them of being in possession of the Narcotic drugs, in the search carried out, the accused No. 1 was found carrying 3 kgs. of Opium worth Rs. 1,50,000/- in a bag on his shoulder. The prosecution examined six witnesses in support of the charge.

2. The materials brought on record disclose that on 13th April, 1998 the Investigation Officer Shri Umesh Gaonkar received a phone call from Franky Martin that a criminal by name Wilson who was wanted by the police was seen sitting in Ajit Moraskar's shack at Calangute and on receipt of the said information, the said Investigation Officer along with the police staff proceeded towards the said destination and on reaching the spot noticed some foreigners and the accused sitting in the shack. As the Investigation Officer got the smell of Narcotic drugs, the accused was suspected of carrying in their possession the Narcotic Drugs. On offering themselves to be searched along with the raiding panchas, the Investigation Officer informed the accused that their search can be carried out in the presence of Magistrate or Gazetted Officer if they so desired. Both the accused declined the offer. The accused No. 1 at that time was found carrying a bag on his shoulder and on search of the said bag it was found to contain a pant and shirt and underneath was a cloth bag containing another plastic bag which contained yet another plastic bag having therein a substance which was suspected to be Opium. The substance found in the bag along with the bag and other materials found therein were seized under panchanama and the substance thereafter was sent for chemical analysis which was examined by Mahesh Kaissare, P.W. 1 and was found to contain Morphine.

3. Shri S.G. Dessai, Senior Advocate appearing for the appellants while assailing the impugned judgment submitted that as far as the conviction of the appellants under section 29 of N.D.P.S. Act is concerned, the same is totally contrary to the materials on record as the prosecution has not produced any evidence in support of the charge under section 29 of N.D.P.S. Act. Drawing our attention to the provisions contained in section 29, the learned Senior Advocate submitted that the offence under section 29 requires criminal conspiracy or abatement of criminal conspiracy as defined under sub-section (2) of section 29 and not otherwise. Section 29(2) provides that a person can be said to abet or commit criminal conspiracy in terms of provisions contained in section 29 when such a person in India abets or is a party to the criminal conspiracy to the commission of any act in a place beyond India. Indeed, perusal of the records, as rightly submitted by the learned Senior Advocate for the appellants do not disclose any material as regards the commission of offence of criminal conspiracy or its abetment as contemplated under section 29(2) by any of the appellants. Shri A.P. Lawande, learned Public Prosecutor also fairly conceded that the materials on record in no way suggest commission of offence under section 29 of the N.D.P.S. Act by either of the accused. Being so, and as the materials do not in any way suggest

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1999 Supreme(Bom) 893

Cases Referred (1)