Important point
High Court was right in reversing acquittal as the discrepancies in the evidence of prosecution were of minor nature. There was no violation of Sections 42, 50 and 57 of NDPS Act, 1985. The appellant was rightly convicted u/s 21 of the Act by High Court.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 — Sections 21 and 42—Conviction of appellant under for possessing manufactured contraband drug by High Court reversing acquittal recorded by Trial Court —Whether there was violation of mandatory provision of Section 42 as PW 5 has not recorded the information in writing given by PW 3 with respect to the appellant’s involvement before proceeding to arrest him in this case—Writing or communication resulting in delay in trapping, which may lead the accused to escape, then prosecution case should not be thrown out which is in this case.
       Held : Submission is that PW 5 after receiving the said information has not communicated it to his immediate superior which constitutes violation of Section 42. In construing any facts to find, whether prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with pragmatic approach. The court however while construing such provisions strictly should not interpret it so literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out. (Para 6)
       In the present case, PW 3 the Head Constable got information with reference to the appellant only at about 7 p.m. that the person is selling injectable Narcotic drugs near the Blue Tronics Junction, Palluruthy. When he proceeded for Palluruthy Police Station to give this information to his immediate superior S.I. of Police PW 5, he found PW 5 along with his police party, who were on patrol duty coming, hence the said information was communicated there by PW 3 to PW 5. Thereafter, PW 5 along with his police party and PW 3 immediately proceeded towards the place where the appellant was standing. Had they not done so immediately, the opportunity of seizure and arrest of the appellant would have been lost. How PW 5 could have recorded the information given by PW 3 and communicated to his superior while he was on motion, on patrol duty, in the jeep before proceeding to apprehend him is not understandable? Had they not acted immediately, appellant would have escaped. On these facts, we do not find any inference could be drawn that there has been any violation of Section 42 of the Act. (Para 7)
       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 21 and 50—Offence u/s 21—Non-compliance of Section 50 in writing—Whether a violation u/s 50 under (1999) 6 SCC 172? (No).
       Held : The submission, however, is communicating orally to the appellant is not a compliance under Section 50. We cannot agree. The aforesaid Constitution Bench upholds oral communication also to be valid under Section 50 of the Act. Hence, this submission has no merit. Thus in our considered opinion, we do not find, on the facts of this case, as also recorded by the High Court that there has been any violation of Section 50 of the Act. (Paras 10 & 11)
       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 21 and 57—Offence u/s 21—Non-compliance of Section 57 by not communicating search and seizure report within 48 hours to superior—Held : No violation of Section 57 on facts and moreover it is not mandatory—Result—Appeal dismissed. (Paras 12, 13 and 14)

JUDGMENT

Misra, J.—This appeal is directed against the judgment and order of the High Court of Kerala in criminal appeal setting aside an order of acquittal passed by the Trial Court convicting the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’) and sentencing him to undergo rigorous imprisonment for 10 years and a fine of rupees one lakh, in default to undergo simple imprisonment for one year. In order to appreciate the controversy, we are herewith giving the essential matrix of facts.

2. The appellant was put on trial for an offence punishable under Section 21 of the Act. As per prosecution story, on the 10th October, 1993 at 7.45 p.m. the appellant was in possession of manufactured drug by name ‘Tidigesic’ and three syringes for injecting the same, by the road near the Blue Tronics Junction at Palluruthy. The Head Constable PW 3 and two other Constables of the Special Squad got information at about 7 p.m. on the said date that a person was selling injectible narcotic drugs near the Blue Tronics Junction, Palluruthy. They informed this to PW 5, Sub Inspector of police, Palluruthy Cusba Police Station who was coming in a jeep along with his police party. Thereafter PW 5 along with his police party including PW 3 and other members of the Special Squad went to the scene of occurrence and stopped their vehicle little away from the spot. On reaching there they found the accused standing on the road with a packet in his hand. He was identified by PW 3 and apprehended by PW 5. On search, the packet possessed by the appellant revealed it contained 5 strips of ampoules each of Tidigesic and three injection syringes and a purse containing currency note of Rs. 10/-. At the spot one ampoule was taken as sample for chemical analysis and the said contraband articles were seized as per Ex.P1 seizure mahazar prepared at the spot. The appellant was also arrested there. The charge sheet was submitted, the appellant pleaded not guilty.

3. The trial court found discrepancies in the evidence of the prosecution witnesses thus disbelieved the prosecution story, hence acquitted the appellant.

4. In the trial court records, Ex.P 8 is a certificate of analysis issued by the Regional Chemical Examiner’s Laboratory, Kakkanad, which shows that the articles seized was Buprenorphine Hydrochloride solution containing 0.3 milligram of Buprenorphine per milli litre and that Buprenorphine is a the baine derivative. It is accepted that baine is a phenanthrene alkaloid, an opium derivative and as such it is a manufactured drug coming within the ambit of Section 21 of the N.D.P.S. Act. As per the evidence of PW 3, he got the information about the appellant at about 7 p.m. and to ascertain this he actually arrived there at 7.30 p.m. After identifying him he proceeded to Palluruthy Police Station to inform his superior the sub-Inspector of Police. But on the way he met S.I. of Police, Palluruthy who was on patrol duty. Then they all went to the place where the appellant was standing. The prosecution case is that before search the prosecution complied with the condition as laid down under Section 50 of the NDPS Act. Thereafter he was searched wherein it was found that he was in possession of 25 ampoules of Tidigesic in 5 strips and three injection syringes. PW 1 and one Shamsuddin CW 2 are two independent witnesses of the seizure mahazar Ex.P1 since other three witnesses are police constables. Since Shamsuddin was not available for examination in spite of the efforts, PW 1 deposed about the said search and seizure. Finally, the High Court held that PW 1’s evidence is fully corroborated by PW 3 and PW 5 with respect to the prosecution version regarding the seizure of the contraband and the arrest of the appellant by PW 5. The discrepancies in their testimony as pointed out by the trial court were trivial which do not affect the veracity or the credibility of the prosecution story. The

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Important pointHigh Court was right in reversing acquittal as the discrepancies in the evidence of prosecution were of minor nature. There was no violation of Sections 42, 50 and 57 of NDPS Act, 1985. The appellant was rightly convicted u/s 21 of the Act by High Court.

Cases Referred (2)

Important point
High Court was right in reversing acquittal as the discrepancies in the evidence of prosecution were of minor nature. There was no violation of Sections 42, 50 and 57 of NDPS Act, 1985. The appellant was rightly convicted u/s 21 of the Act by High Court.