1993 Supreme(MP) 689

V.D. Gyani, J.
State of M.P. v. Prabhulal
Cr. A. No. 82 of 1989 (I); Decided on 2.11.1993.

Headnote:(1) Narcotic Drugs and Psychotropic Substances Act, 1985 -- S. 8/18 -offence under -- possession of contraband opium not proved by independent witnesses -- acquittal is proper.

        (2) Narcotic Drugs and Psychotropic Substances Act, 1985 -- S. 54 -presumption under -- is of illegality or unlawfulness of possession -- no presumption of possession itself can be raised.

        (3) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss. 42, 50 and 52 -- provisions under -- even if assumed to be directory compliance is still necessary. .

        ¼1½ Lokid vkS"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e] 1985 & /kkjk 8@18 ds v/khu vijk/k & fofuf"k) vQhe dk dCtk Lora= lkf{k;ksa ls lkfcr ugha & nks"keqfDr mfpr gSA

        ¼2½ Lokid vkS"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e] 1985 & /kkjk 54 & ds v/khu mi/kkj.kk & dCts dh voS/krk vFkok fof/k#)rk dh gS & Lo;a dCts ds laca/k esa dksbZ mi/kkj.kk ugha dh tk ldrhA

        ¼3½ Lokid vkS"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e] 1985 & /kkjk 42] 50 rFkk 52 & ds v/khu & mica/k & ;fn dsoy funsZ‘kkRed ekus tkrs gSa rc Hkh mudk vuqikyu vk‘o;d gSA

        Briefly stated, prosecution case was, on receiving information on 1.6.1987 that the accused respondent would be taking out about 10 kgs. of opium from a debry near his well to his house in village, Nagari, the same was recorded in presence of panchas, but admittedly the intimation was not forwarded to the Superior Officer as required by S. 42 (2) of the N.D.P.S. Act. On receiving the above information Chowky-in-charge Bahadur Singh alongwith panch witnesses Lokendra and Rampratap proceeded to the spot. They found that the accused picked up a fertilizer bag from a heap of rubbish and started towards the village. He had hardly walked a few steps when he was pounced upon by the police party who seized the fertilizer bag. On opening the same it was found that it contained 9 kgs 860 gms of opium. It was subjected to physical tasting. Samples were taken and forwarded to the Alcoloid Factory at Neemuch for chemical analysis and report. As per Ex. P-I0 the report dated 31. 7.87 the articles seized was quantitatively and qualitatively found to be opium containing 11.58% of morphine. On completion of investigation the accused was prosecuted and charged before the Sessions Judge, Mandsaut for offence punishable under S. 8/18 of the N.D.P.S. Act.

        Held: Heard Shri Phadka, learned Panel Lawyer for the appellant State and Shri Jaisingh, learned counsel for the respondent. Referring to S. 54 of the N.D.P.S. Act learned Panel Lawyer contended that possession, should be presumed against the accused whose duty it was to rebut the prosecution. In view of this interpretation as put by the learned Panel Lawyer it was contended that the trial Court was palpably wrong in acquitting the accused on the ground that possession of incriminating artic1e, namely opium was not established by the prosecution. The other contention advanced by the learned Panel Lawyer is that S. 42 (2), S. 50 and S. 52 of the Act are not mandatory in nature as erroneously interpreted by the trial Court. He has placed reliance on a Full Bench decision of this Court as reported in Ramdayal v. CentralNarcotic Bureau, Gwalior 1993 JU24.

        The case relied upon by the learned counsel relates and deals with bail that too with particular reference to the proviso to S. 167 (2) of the Code of Criminal Procedure. here again it is significant to note that Rajnikants case relied on by the Full Bench has been overd`ruled by the Supreme Court as reported in Aslam Babalal Desai v. State of Maharashtra (AIR 1993 SC 1).

        Really speaking the question, does not arise for decision. It is because of lack of proof of the fact that the accused was in possession of the contraband article that his acquittal has been recorded and the point as raised by the learned Panel Lawyer that it should have been presumed against the accused if conceded or accepted, would set at naught the concept of criminal jurisprudence where possession of a contraband article resulting in punishment is permitted to be presumed instead of being proved. The interpretation has put by the Panel Lawyer, cannot be accepted. On a plain reading of the section 54 what is permitted to be presumed is not the fact of possession, but the unlawfulness or illegality thereof. But that does not dispense with the primary burden of prosecution to prove possession of any contraband.

        Adverting to the facts as already noted •above, except for the evidence of Bahadursingh P.W. 1 there is no other evidence available on record to prove accusedd`respondents possession of the contraband article, namely opium. Learned Panel Lawyer pointed out that as per report Ex. P-10 the contraband has been held to be opium. So is the finding recorded by the trial Court. But it is on the question of possession that the trial Court is not satisfied with the evidence adduced by the prosecution. Learned counsel referred to a decision of this Court as reported in Ramaswamiv. State of M.P. [1990 (I) MPWN Note 229]. It is not because Bahadursingh happens to be a police officer or an officer belonging to the Narcotics Department that his evidence is being disbelieved or discarded. It is on the basis of intrinsic quality of his evidence that the trial Court was not persuaded to place reliance on the sole testimony of such a witness and it was in this context that the procedural safeguards in the matter of search and seizure as • provided for in Ss. 42 (2),50 and 52 of the Act have been taken into account. It may also be noted that it is not on account of their being mandatory or directory in nature and here again it is fallacious reasoning to argue that a directory provision can be allowed to be flouted with impunity. Even it a provision of law is held to be directory it cannot be flouted with impunity. In either case the contravention of these provisions of law is established. The contravention of law is not in dispute and it is these contraventions which diminishes the evidentiary value of the statement of P. W. 2 Bahadur Singh. 1993 JU 24 distinguished. AIR 1993 SC 1 referred to. Appeal dismissed.