Full Judgment Text
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CASE NO.:
Appeal (crl.) 861 of 1997
PETITIONER:
Babubhai Odhavji Patel, etc. etc.
RESPONDENT:
State of Gujarat
DATE OF JUDGMENT: 27/10/2005
BENCH:
K.G. Balakrishnan & B.N. Srikrishna
JUDGMENT:
J U D G M E N T
WITH
CRIMINAL APPEAL NO. 1132 OF 1997
K.G. BALAKRISHNAN, J.
The appellant in Criminal Appeal No. 861 of 1997, along with
two others was tried by the Addl. Sessions Judge, Banaskantha in
Gujarat, for the offence punishable under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS
Act). All the accused were found guilty of the offence under Section
17 of the NDPS Act. They preferred an appeal before the High Court
of Gujarat and by the impugned judgment the High Court dismissed
the appeal. Aggrieved by the same, the present appeals are filed by
the appellants.
The facts of the case are that on 1.7.1989 PSI, L.U. Pandey,
along with other police constables, was on patrol duty in the night of
1.7.1989 and at about 5.30 A.M., they noticed a tanker lorry bearing
registration number GRS 6407 crossing the Palanpur railway crossing
line. They signaled the vehicle to be stopped. The vehicle was
stopped and they made a search of the lorry. The tanker lorry had
three cabins. The police team wanted to conduct further search of the
tanker lorry; therefore, they called two Panch witnesses and in their
presence they opened the lid of the first cabin of the tanker with a
spanner. They found a bundle of jute bag and on further search it
was found that the jute bundle contained a dark brown substance
which smelled like opium. The contents were found to weigh more
than 5.5 kilograms. The entire quantity was seized by the police and
out of the seized material, 15 grams was taken as a sample and sent
for examination by the forensic science laboratory. It was found that
the seized substance was opium.
The appellant completely denied his involvement and at the
trial he alleged that there was violation of Section 42 of the NDPS
Act. The appellant had also contended that there were procedural
irregularities in conducting the search and sending the sample to the
laboratory and in recording the arrest of the appellant. According to
the appellant, all these procedural violations have caused serious
prejudice to the accused and therefore the appellant is entitled to be
released. We have carefully considered the contentions advanced by
the counsel for the appellants and found no merit in the same.
As regards violation of Section 42 of the NDPS Act, it was
contended that PSI, N.U. Pandey had received previous information
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before going for the search, but he had not recorded this information
anywhere and that he had also not informed his superior officers about
the proposed seizure. In the present case, the officer who conducted
the search was examined as PW-2. What he stated in the evidence
was that the D.I.G. had instructed him that intoxicant materials were
being transported illegally from the States of Rajasthan and Uttar
Pradesh and the vehicles had been passing through Banaskantha
district. This was only a general information given by the D.I.G. to
PW-2 and such information is not bound to be recorded as a source of
information as contemplated under Section 42 of the NDPS Act.
Section 42 of the NDPS Act provides that a specific information alone
need be recorded by the officer empowered to conduct a search.
Here, PW-2 and the members of the patrol team were doing the
usual patrol duty and they incidentally came across the tanker lorry in
question and on search recovered the contraband substance from the
vehicle. We do not think that there is any violation of Section 42 of
the NDPS Act.
The counsel for the appellant further contended that the search
was conducted at 5.30 A.M., that is before the sunrise and the PSI
should have obtained a warrant or authorization for conducting the
search of the vehicle. This plea also is without any merit. The
contraband substance, namely the opium, was recovered from the
tanker when the usual search of suspected vehicles carrying such
contraband was being conducted by the police officials. The police
party had no previous information that any contraband substance was
being concealed in any building, conveyance or enclosed space and
they have to conduct a search pursuant to such information. Then
only they would require a warrant or authorization as contemplated
under Section 42 of the NDPS Act. If it is a chance recovery, the
procedure contemplated under Section 42 cannot be complied with
and the evidence of PW-2 would clearly show that it was a chance
recovery.
The counsel for the appellant would further contend that there
was violation of Section 50 of the NDPS Act as the appellant was
searched without being informed of the option of search before a
gazetted officer or judicial magistrate. It is important to note that
no narcotic substance was recovered on the person of the appellant.
Even if it is assumed that a search was made on the person of the
appellant by PW-2, no evidence in that behalf was made use of by
the prosecution to sustain the charge against the appellant. The
counsel for the appellant placed reliance on State of Punjab vs.
Baldev Singh (1999) 6 SCC 172. That decision has no application
to the facts of the present case and even according to the said
decision, if at all there is any violation of Section 50, it will not vitiate
the trial but would render the recovery of the illicit article suspect.
In the present case no article was found on the person of the
appellant but was recovered from the tanker lorry. Therefore, the
recovery itself is not tainted with any procedural irregularity.
The counsel for the appellant also raised a contention that the
seal on the sample sent to the forensic science laboratory was found
tampered with and this creates a serious suspicion about the report
furnished by the laboratory. We find no substance in this argument
either. This aspect of the matter was elaborately dealt with by the
Sessions Court and the appellant had even given up this plea before
the High Court.
The learned counsel further contended that the seized articles
were not kept in proper custody and that there was violation of
Sections 52, 55 and 57 of the NDPS Act. He placed reliance on
Valsala v. State of Kerala (1993) 3 Supp. 665. We do not think
that there is much force in this contention. This Court in Gurbax
Singh v. State of Haryana (2001) 3 SCC 28 held that these
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provisions are not mandatory provisions and they are only directory.
In the present case, we do not find any serious violation of these
provisions. The prosecution adduced evidence to prove that these
provisions have been substantially complied with and the Sessions
Judge discussed these matters in detail and accepted the prosecution
case.
It is proved satisfactorily that the appellant who was the owner
of the tanker lorry in question was found in possession of the narcotic
substance weighing more than 5 kilograms. It is proved that the
appellant was using this vehicle for illegally transporting the narcotic
substance. He has rightly been found guilty by the sessions court
and his conviction was rightly upheld by the High Court. We do not
find any merit in the appeal and the same is liable to be dismissed.
The appellant was released on bail by this court by order dated
15th September, 1997 and there was also an interim stay of
realization of the fine in terms of order dated 25th September, 1997.
The appeal is dismissed and the appellant is directed to surrender
before the authorities within four weeks to undergo the remaining
period of the sentence of imprisonment. He is also liable to pay the
fine imposed on him, if not already paid.
The connected Criminal Appeal No. 1132 of 1997 would also
stand dismissed accordingly.