1993 Supreme(MP) 272

High Court Of Madhya Pradesh
Faizan Uddin
MANSARAM - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Criminal Appeal 493 Of 1991
Decided On : 04/16/1993

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 42 and 50 - Fact of possession of narcotic substance, charas with the appellant, came to be known to police officer only after the search and seizure of charas from the appellant - Not taking down in writing the knowledge and information cannot by itself be regarded as causing any prejudice to appellant - Non-compliance of Sec. 42 not fatal Question of compliance of section 50 under the facts and circumstances on the case not possible.

       Held: ASI-Laxman (P.W 1) has not deposed that he had any knowledge or information against the appellant with regard to any narcotic drugs or psychotropic substances, which necessitated him to take down the same in writing as required by section 42. All that he stated is that he had only received information that the appellant was selling illicit liquor. From this statement and the facts on record, it clearly turns out that ASI Laxman Singh, who affected the personal search of the appellant, was completely ignorant of the possession of any narcotic drugs or psychotropic substances by the appellant. If, it was known to Laxman that the appellant is possessed of charas, then certainly he was under an obligation to record and taken down the fact in writing before search and seizure as required by section 42 of the Act. But in the instant case, the fact of possession of narcotic substance that is charas by the appellant, came to be known to police officer Laxman (P.W. 1) only after the search and seizure of charas from the appellant. In these facts and circumstances, it could not be expected from the Police Officer to record or take down the fact in writing which is totally not known to him. The fact of violation of procedure taking down in writing by itself cannot by any stretch of imagination be regarded to be causing any kind of material prejudice to the case of the appellant vitiating the entire prosecution. In such a situation, what is necessary to be examined is whether the search and seizure were true and evidence adduced by the prosecution inspires confidence so as to be accepted by the Court, which shall be examined at a later stage. (Para 7)

       Further Held: In the consideration opinion of this Court, the question of compliance of section 50 under the peculiar facts and circumstances of the present case was also not possible for the reasons already mentioned above Sic. House of the appellant was raided on the information that he is dealing illicit liquor and during the course of such raid when personal search was made, charas was suddenly recovered from which the police officer had neither any prior personal knowledge or any information from any other source. But in fact the police officer was completely oblivious of the factum of possession of any narcotic drug or psychotropic substance by the appellant. Once the search was made and charas was recovered from his person, it was meaningless to take the appellant either to the nearest gazetted officer of the departments mentioned in section 42 or to any nearest Magistrate to affect the search or seizure which was already done and charas was already recovered and seized. (para 8)

       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 52 and 55 - Mandatory provisions - Non-compliance. Accused to get the benefit.

       Held: The entire reading of the evidence of Laxman Singh (P W 1) goes to show that he did not depose that after the arrest of the appellant he had informed him of the ground for such arrest or he had forwarded the charas seized from the appellant to the officer in charge of the nearest police station or the officer empowered under section 53 of the Act. There is no evidence at all on this aspect. Here a reference to provision of section 55 of the Act may also be made which contemplates that an officer in-charge of the police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act and which may be delivered to him. This provision is a mandatory provision and there is no evidence that it was complied with. ASI Laxman Singh (P.W. 1) has made no statement that the seized article was given to the officer incharge of the police station. See Chhoteylal v. State of Rajasthan1, wherein it has been observed that this contravention will certainly prejudice the accused as section 52 provides safeguard to the accused and the said provisions have been purposely made by the Parliament in order to save the accused from unnecessary harassment.

       Further sub-section (4) of section 52 of the Act relates to the disposal of such properties and provides that the authority or officer to whom any person or article is forwarded shall, with all convenient des-patch, take such measures as may be necessary for the disposal according to law of such person or article. These directions in section 52 are mandatory providing safeguards to the accused because the intention of the Parliament by embodying these conditions in section 52 was to ensure just and fair investigation by responsible officers, to avoid and eliminate grievances against the officers of the ranks lower than incharge of a police station to have abused their powers. But these mandatory provisions have been entirely ignored by reason of which a doubt in the investigation process is created, the benefit of which must to the appellant. (Paras 9 & 10)

       (iii) Criminal Procedure Code, 1973 – Section 100 (4) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Seizure of charas Association of independent witness of the locality not possible - Non-compliance of provisions of sub-sec. (4) of Sec. 100 - Evidence of police witnesses requires close and cautious scrutiny When evidence with regard to the search and seizure of charas does not inspire confidence Not advisable to accept their interested evidence without corroboration. (Paras 11 & 12)

       (iv) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 57 - Mandatory provision - Non-compliance with the provision- Conviction vitiated. (Para 13)

       Result: Appeal allowed. Observations made that the investigating agency to be made conversant with the relevant mandatory provisions the compliance of which is necessary under the NDPS Act.