1998 Supreme(Raj) 1201
RAJASTHAN HIGH COURT
M.A.A.Khan, J.
Mubarak & Anr. - Appellant
Versus
State of Rajasthan - Respondent
Criminal Appeal No. 589 of 1994.
Decided On : 28-08-1998
Advocates:
For the Appellant:Mr. N.A. Nagvi, Advocate.
For the CBI: Mr. G.C. Chatterjee, Standing Counsel.
For the State of Rajasthan: Mr. M.L. Goyal, P.P.
Non-compliance with mandatory provisions of a statute does not vitiate a trial unless the accused shows that he was prejudiced by it.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTIONS 8/18 - SEIZURE OF OPIUM - TRIAL OF ACCUSED - DELAY IN PRODUCTION OF CASE PROPERTY - TESTIMONY OF INFORMANT-CUM-INVESTIGATING OFFICER - NON-COMPLIANCE WITH MANDATORY PROVISIONS OF SECTION 42 - EFFECT.
Fact of the Case:
The appellants were arrested for possession of 90 kgs of opium. The opium was seized from them during a raid conducted by a team of CBI officials led by Mehar Singh, Dy. S.P. The appellants were convicted under sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act). They appealed against their conviction, arguing that the trial was vitiated due to the delay in production of the case property, the testimony of Mehar Singh, who was both the informant and the Investigating Officer, and the non-compliance with the mandatory provisions of Section 42 of the Act.
Finding of the Court:
The Court held that the delay in production of the case property did not vitiate the trial as the appellants failed to show how they were prejudiced by it. The Court also held that the testimony of Mehar Singh was reliable and corroborated by other independent witnesses. The Court further held that the non-compliance with the mandatory provisions of Section 42 of the Act did not vitiate the trial as the appellants failed to show that they were prejudiced by it.
Issues: 1. Whether the delay in production of the case property vitiated the trial? 2. Whether the testimony of Mehar Singh, who was both the informant and the Investigating Officer, was reliable? 3. Whether the non-compliance with the mandatory provisions of Section 42 of the Act vitiated the trial?
Ratio Decidendi: 1. The delay in production of the case property did not vitiate the trial as the appellants failed to show how they were prejudiced by it. 2. The testimony of Mehar Singh was reliable and corroborated by other independent witnesses. 3. The non-compliance with the mandatory provisions of Section 42 of the Act did not vitiate the trial as the appellants failed to show that they were prejudiced by it.
Final Decision: The appeal was dismissed.
JUDGMENT
1. - The office of the Superintendent of Police, CBI, SIU (XI), at New Delhi is stated to have been in possession of an information to the effect that the present appellants were actively engaged in activities of smuggling opium from Jhalawar (Rajasthan) to various parts of the country. A raiding party consisting of V.S. Soman (PW 11) and A.N. Bhattacharya, Inspectors, PC Sharma ASI, Ram Kumar Head Constable, Surjan Singh (PW 1) and some other constables headed by Mehar Singh Dy. S.P? (PW 10) was deputed to verify the information. The raiding party reached Jhalawar on 17-18th of December, 1991 and camped in Poorvaj Hotel, Jhalawar. On 18.12.1991 Mehar Singh contacted the source of the department who informed him that the present appellants, with huge quantity of opium, would reach Jhalawar at about 6.00 a.m. on 19.12.1991. Mehar Singh Dy. S.P. contacted the Income Tax Officer at Jhalawar and requested him to provide two Motabirs to him to witness the search, seizure and arrest proceedings. Accompanied with such Motahirs, namely, Abdul Sattar Yaquini (PW 3) and Ram Narain Income-tax Inspectors and the members of his party Mehar Singh Dy. S.P. reached Jeetmal's Dharamshala, near Bus Stand, Jhalawar, at about 5.00 p.m. on 19.12.1991. At about 7.30 a.m. he was informed by the 'contact' that the appellants were not reaching and that they would be arriving during the night. The raiding party returned.
2. Mehar Singh, Dy. S.P. along with the two Motahirs, Abdul Sattar Yaquini and Ram Narain and the members of his own party, acting on the information of the 'contact', stationed themselves during the night near the Bus Stand, Jhalawar. At about 2.30 a.m. in the night (20.12.1991) the present appellants reached there on a motor cycle. RNR 3213, and stopped their vehicle in front of the gate of Bhagwati Lodge. Mubarak appellant was driving the vehicle and Zakir appellant was sitting on the rear seat with two heavy bags kept in the space between the two. The 'contact' signalled the witness that the two were the desired persons, whereupon Mehar Singh approached them and disclosed his identity.The appellants got nervous and tried to escape but were not allowed to do so by the witnesses.The Dy.S.P.disclosed his identity upon and gave the notice to the appellants of his intention to search their persons and belongings and that they may be taken to a Magistrate or to Gazetted Officer, for the purpose, as per their option. He further told them that he himself was a Gazetted Officer and if they so consented they may be searched for their persons and possessions by him. The appellants expressed their readiness to be searched by the Dy. S.P. On being questioned about the content of the big bags with them they reluctantly and hesitatingly told that there was about ninety kilograms of opium in it. The big bags were opened in the presence of the two Motahirs and the members of the raiding party. One of the bags was found having two smaller bags in it, each containing 25 kgs. of opium. The other bag was also containing two bags, each containing 20.00 kgs. of opium. Mehar Singh Dy. S.P. prepared eight samples- two each from the four packets found in the two bags and duly sealed them with his seal. Two fascimile seal (impression of the seal used for sealing the samples) impressions were also separately prepared. The search of the persons of the appellants was also conducted. Certain currency notes ( Rs. 397/- from Mubarak and Rs. 500/- from Zakir) and other belongings like watch and keys were recovered from their persons and were seized vide Ex. P. 3. Their Yazdi make Motorcycle was also seized and they were arrested. Mehar Singh Dy.S.P. took the seized articles and samples and the appellants to Delhi. He submitted his report Ex. P.1, a long with the documents prepared by him, to the SP/CBI /SIU/(XI). New Delhi. The S.P. registered Crime No. RC 12/91-SIU(XI) on 21.12.1991 at about 10.3(1 a.m. against the two -appellants and entrusted the investi
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