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Gujarat High Court
Judgename :P.M.CHAUHAN, V.H.BHAIRAVIA
SURAJMAL KANAIYALAL SONI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 72 of 1989
Decided On : 01/22/1990
Narcotic Drugs and Psychotropic Substances Act 1985 – Sec. 13 41 42 43 37 50 51 53 57 58 – Criminal Procedure Code – Sec. 4, 103, 163, 165 – Conviction – Criminal Appeal – The appellant has challenged the conviction by the learned Additional Sessions Judge for the offence punishable under Sec. 13. of the Narcotic Drugs and Psychotropic Substances Act 1985 and sentence to rigorous imprisonment for 100 years and fine of Rs. 1 0 0 in default rigorous imprisonment for three years for being in illegal and unauthorised possession of 9 kilo 775 gms opium – (The appeal is) on various factual and legal grounds that the opium was not recovered from the appellant and was recovered from other persons but they were allowed to go and the appellant is falsely implicated and that the various mandatory procedural provisions specified in Chapter V N. D. P. S. Act are not complied with which has prejudiced the appellant and has resulted into miscarriage of justice requiring the setting aside of the conviction – In view of the submission it is necessary to ascertain (1) Whether Secs. 41 42 or 43 is applicable to the facts of the instant case? (2) Whether the offence is a cognizable offence? (3) Whether the Police Inspector had the power to seize and arrest? (4) Whether the provisions of Sec. 42 regarding taking down the information are mandatory? (5) Whether the provisions of Sec. 57 regarding submitting the full report within 48 hours to the immediate superior are mandatory or directory? (6) Whether procedural provisions of Chapter V N. D. P. S. Act are mandatory or directory and (7) Whether infraction of any provision of Chapter V vitiates investigation proceedings trial or conviction Ipso facto or prejudice to miscarriage of justice is required to be proved by the accused? – Held, in Court’s view therefore the provisions of Sec. 41 and 42 N. D. P. S. Act are not applicable but the provisions of Sec. 43 N. D. P. S. Act are applicable for any search and seizure of the narcotic drug in a conveyance etc. and detaining and searching any person in a public place – Considering the provisions of Sec. 37 and 51 N. D. P. S. Act we are of the view that the offence under the Act is a cognizable offence – From the observations therefore it cannot be called out that except want of authority or power to take action for search seizure and arrest the provisions of Secs. 41 42 and 43 are such mandatory that violation of which would vitiate the proceedings oven without establishing any prejudice to the accused or miscarriage of justice and therefore the conviction to bad – Merely because the appellant is not informed of the provisions of Sec. 50 that he had a right to be taken to the nearest Gazetted Officer or the Magistrate does not therefore prejudice the appellant nor can it be said that it has resulted into miscarriage of justice – As Sec. 57 provides for making full report of all the particulars of such arrest and seizure it is desirable to make a report in writing but in absence of specific provision making it obligatory to submit report in writing it cannot be held that report should be in writing – Even if it is held that the report is required to be submitted in writing non-compliance of submitting such report under Sec. 57 N. D. P. S. Act by itself would not vitiate the investigation and the trial – The provisions of Sec. 57 should not be considered such mandatory non-compliance of which should be fatal to the prosecution as such report is to be submitted subsequent to the arrest and seizure and in most of the cases after filing of the complaint and producing the muddamal before the Police Station Officer – In such circumstances it should be held that even though compliance of that section is necessary noncompliance of it will not be fatal to the prosecution till it is established that it has resulted in miscarriage of justice or prejudice is caused to the accused – The sentence for ten years rigorous imprisonment and fine of Rs. 1 0 0 in default rigorous imprisonment for three years is quite adequate and we do not find any reason to interfere with the order of sentence – Appeal preferred by the State therefore should be dismissed – Appeal Dismissed
( 1 ) THE appellant Surajmal Kanaiyalal Soni has challenged the conviction by the learned Additional Sessions Judge Vadodara for the offence punishable under Sec. 13. of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as N. D. P. S. Act) and sentence to rigorous imprisonment for 100 years and fine of Rs. 1 0 0 in default rigorous imprisonment for three years for being in illegal and unauthorised possession of 9 kilo 775 gms. opium worth Rs. 19 550 at 10. 00 p. m. on 7/03/1988 at Bagikhana Road Vadodara on various factual and legal grounds that the opium was not recovered from the appellant and was recovered from other persons but they were allowed to go and the appellant is falsely implicated and that the various mandatory procedural provisions specified in Chapter V N. D. P. S. Act are not complied with which has prejudiced the appellant and has resulted into miscarriage of justice requiring the setting aside of the conviction.
( 2 ) THE prosecution case against the appellant is that Police Inspector P. S. Patil of Navapura Police Station on information from his informant kept a watch alongwith his staff members nearby Kasam Dulas Dargah at Bagikhana Road Vadodara and at about 10. 00 p. m. they saw the appellant proceeding in suspicious manner towards Polo ground. They apprehended him near Dargah and called two panch witnesses who were passing by and on being asked the name the appellant gave his name as Surajmal Kanaiyalal Soni and that he is resident of Bhesoda District Mansor. The appellant had one rexine bag and on search three bags were recovered from it. All the three bags were stitched with threads and on opening some portion of those bags the black soft substance was found and on taking smell it was found to be opium. One Police constable was sent and one person was brought with scales. On weighing it was found that one bag contained 3 kilo 700 gms second bag contained 3 kilo 50 gms. and third bag contained 3 kilo 025 gms. of opium. The appellant had no pass or permit. Some of the opium from each bag was taken out and 3 pellets weighing about 50 gms. were separately put in one plastic bag and that bag was sealed with slip bearing the signatures of the panch-witnesses and by a personal seal of the Police Inspector. Three bags recovered from the rexine bag were stitched and were sealed with slips bearing the signatures of the panch-witnesses and with the seals of the Police Inspector. Detailed panchnama was prepared there and muddamal opium was attached. The appellant alongwith the muddamal opium was taken to the Police Station and the Police Inspector Patil filed complaint Ex. 10. The Police Station Officer registered the offence and after that Police Inspector Patil carried on further investigation and recorded the statements of the members of the staff who were with him during the seizure operation. The muddamal samples were sent to the Chemical Analyser for chemical analyse through the D. C. Branch alongwith letter Ex. 11. Report Ex. 13 was received from the Forensic Science Laboratory. The appellant in the statement under Sec. 313 Criminal Procedure Code stated that he is falsely involved and on 5/03/1988 he had come to Baroda from Bombay and had put up in Aggrawal Guest House and one Kanchan was with him. In the afternoon they were just taking round in the city and at that time Vikram of Rajasthan who knew Kanchan met them and inquired about the place were they had put up and accompanied them and he also put up with them in the common room. The charges of Aggrawal Guest House being more they shifted to Poona Boarding House Salatwada on the next day. Vikram also accompanied them. On 7/03/1988 the appellant was standing at the trance of the gali and at that time three persons came there and inquired about Vikram and he told that Vikram must be inside the Guest house. They inquired from the boy working in the boarding house about Vikram and they were informed that Vik
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