Full Judgment Text
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CASE NO.:
Appeal (crl.) 1022 of 0000
PETITIONER:
SAJAN ABRAHAM
Vs.
RESPONDENT:
STATE OF KERALA
DATE OF JUDGMENT: 07/08/2001
BENCH:
A.P.Misra, S.V.Patil
JUDGMENT:
J U D G E M E N T
MISRA, J.
This appeal is directed against the judgment and order of the
High Court of Kerala in criminal appeal setting aside an order of
acquittal passed by the Trial Court convicting the appellant under
Section 21 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as the ’Act’) and sentencing him to
undergo rigorous imprisonment for 10 years and a fine of rupees one
lakh, in default to undergo simple imprisonment for one year. In
order to appreciate the controversy, we are herewith giving the
essential matrix of facts.
The appellant was put on trial for an offence punishable under
Section 21 of the Act. As per prosecution story, on the 10th October,
1993 at 7.45 p.m. the appellant was in possession of manufactured
drug by name ’Tidigesic’ and three syringes for injecting the same, by
the road near the Blue Tronics Junction at Palluruthy. The Head
Constable PW 3 and two other Constables of the Special Squad got
information at about 7 p.m. on the said date that a person was selling
injectible narcotic drugs near the Blue Tronics Junction, Palluruthy.
They informed this to PW5, Sub Inspector of police, Palluruthy Cusba
Police Station who was coming in a jeep along with his police party.
Thereafter PW5 along with his police party including PW3 and other
members of the Special Squad went to the scene of occurrence and
stopped their vehicle little away from the spot. On reaching there they
found the accused standing on the road with a packet in his hand. He
was identified by PW3 and apprehended by PW5. On search, the
packet possessed by the appellant revealed it contained 5 strips of 5
ampoules each of Tidigesic and three injection syringes and a purse
containing currency note of Rs.10/-. At the spot one ampoule was
taken as sample for chemical analysis and the said contraband articles
were seized as per Ex.P1 seizure mahazar prepared at the spot. The
appellant was also arrested there. The charge sheet was submitted, the
appellant pleaded not guilty.
The trial court found discrepancies in the evidence of the
prosecution witnesses thus disbelieved the prosecution story, hence
acquitted the appellant.
In the trial court records, Ex.P8 is a certificate of analysis
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issued by the Regional Chemical Examiner’s Laboratory, Kakkanad,
which shows that the articles seized was Buprenorphine
Hydrochloride solution containing 0.3 milligram of Buprenorphine
per milli litre and that Buprenorphine is a thebaine derivative. It is
accepted that baine is a phenanthrene alkaloid, an opium derivative
and as such it is a manufactured drug coming within the ambit of
Section 21 of the N.D.P.S. Act. As per the evidence of PW 3, he got
the information about the appellant at about 7 p.m. and to ascertain
this he actually arrived there at 7.30 p.m. After identifying him he
proceeded to Palluruthy Police Station to inform his superior the sub-
Inspector of Police. But on the way he met S.I. of Police, Palluruthy
who was on patrol duty. Then they all went to the place where the
appellant was standing. The prosecution case is that before search the
prosecution complied with the condition as laid down under Section
50 of the NDPS Act. Thereafter he was searched wherein it was
found that he was in possession of 25 ampoules of Tidigesic in 5
strips and three injection syringes. PW1 and one Shamsuddin CW2
are two independent witnesses of the seizure mahazar Ex.P1 since
other three witnesses are police constables. Since Shamsuddin was
not available for examination in spite of the efforts, PW1 deposed
about the said search and seizure. Finally, the High Court held that
PW1’s evidence is fully corroborated by PW3 and PW5 with respect
to the prosecution version regarding the seizure of the contraband and
the arrest of the appellant by PW5. The discrepancies in their
testimony as pointed out by the trial court were trivial which do not
affect the veracity or the credibility of the prosecution story. The
High Court on reappraisal of evidence came to the conclusion that the
trial court was not justified in acquitting the appellant. It held that the
prosecution has established with positive evidence beyond reasonable
doubt that the appellant has committed an offence punishable under
Section 21 of the Act, hence convicted and sentenced the appellant as
aforesaid.
The leaned counsel for the appellant submits with vehemence
that the prosecution has violated mandatory provisions of the Act,
namely, Section 42, Section 50 and Section 57, hence conviction and
sentence is liable to be set aside.
With regard to Section 42, the submission is that PW5 has not
recorded the information given by PW3 with respect to the appellant’s
involvement before proceeding to arrest him in this case. This
constitutes violation of Section 42 of the Act. It is true under Section
42(1), the officer concerned, when he has reason to believe from his
personal knowledge or information received from any person, he is
obliged to take it down in writing if such information constitutes an
offence punishable under Chapter IV of the Act and send it forthwith
to his immediate superior. Such an officer is empowered to search
any building, conveyance and in case of any resistance, break up any
door or remove any obstacle for such entry, seizure of such drug or
substance and to arrest such person whom he has reason to believe to
have committed any offence punishable under the said Chapter.
Thereafter such officer has to send a copy of this information
forthwith to his immediate superior. Submission is that PW5 after
receiving the said information has not communicated it to his
immediate superior which constitutes violation of Section 42. In
construing any facts to find, whether prosecution has complied with
the mandate of any provision which is mandatory, one has to examine
it with pragmatic approach. The law under the aforesaid Act being
stringent to the persons involved in the field of illicit drug, traffic and
drug abuse, the legislature time and again has made some of its
provisions obligatory for the prosecution to comply, which the courts
have interpreted it to be mandatory. This is in order to balance the
stringency for an accused by casting an obligation on the prosecution
for its strict compliance. The stringency is because of the type of
crime involved under it, so that no such person escapes from the
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clutches of law. The court however while construing such provisions
strictly should not interpret it so literally so as to render its
compliance, impossible. However, before drawing such an inference,
it should be examined with caution and circumspection. In other
words, if in a case, the following of mandate strictly, results in delay
in trapping an accused, which may lead the accused to escape, then
prosecution case should not be thrown out.
In the present case, PW3 the Head Constable got information
with reference to the appellant only at about 7 p.m. that the person is
selling injectable Narcotic drugs near the Blue Tronics Junction,
Palluruthy. When he proceeded for Pilluruthy Police Station to give
this information to his immediate superior S.I. of Police PW5, he
found PW5 along with his police party, who were on patrol duty
coming, hence the said information was communicated there by PW3
to PW5. Thereafter, PW5 along with his police party and PW3
immediately proceeded towards the place where the appellant was
standing. Had they not done so immediately, the opportunity of
seizure and arrest of the appellant would have been lost. How PW5
could have recorded the information given by PW3 and
communicated to his superior while he was on motion, on patrol duty,
in the jeep before proceeding to apprehend him is not understandable?
Had they not acted immediately, appellant would have escaped. On
these facts, we do not find any inference could be drawn that there has
been any violation of Section 42 of the Act.
Next submission is, the prosecution has violated Section 50 of
the Act which is mandatory as held by the Constitution Bench of this
Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172. The
submission is, the appellant was not informed in writing of his right to
be searched in the presence of a Magistrate or a Gazetted Officer.
We find PW1, PW3 and PW5 have deposed that PW5 has
informed the respondent orally about it but the appellant opted out of
this right. It is only thereafter a search was made.
In the present case we find the High Court recorded a finding
that PW5 informed the appellant about his right as provided under
Section 50 of the Act which is established not only by the oral
evidence of PWs. 1, 3 and 5, but also by the recitals made in Ext.P1
the seizure mahazar prepared by PW5 and the F.I. Statement given by
the respondent (the appellant before us). The submission, however, is
communicating orally to the appellant is not a compliance under
Section 50. We cannot agree. The aforesaid Constitution Bench
upholds oral communication also to be valid under Section 50 of the
Act. Hence, this submission has no merit.
Thus in our considered opinion, we do not find, on the facts of
this case, as also recorded by the High Court that there has been any
violation of Section 50 of the Act.
The last submission for the appellant is, there is non-
compliance of Section 57 of the Act. He submits under it, an
obligation is cast on the prosecution while making an arrest or seizure,
the officer should make full report of all particulars of such arrest or
seizure and send it to his immediate superior officer within 48 hours
of such arrest or seizure. The submission is, this has not been done.
Hence the entire case vitiates. It is true that the communication to the
immediate superior has not been made in the form of a report, but we
find, which is also recorded by the High Court that PW5 has sent
copies of FIR and other documents to his superior officer which is not
in dispute. Ex.P9 shows that the copies of the FIR along with other
records regarding the arrest of appellant and seizure of the contraband
articles were sent by PW5 to his superior officer immediately after
registering the said case. So, all the necessary information to be
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submitted in a report was sent. This constitutes substantial
compliance and mere absence of any such report cannot be said it has
prejudiced the accused. This section is not mandatory in nature.
When substantial compliance has been made, as in the present case it
would not vitiate the prosecution case. In the present case, we find
PW5 has sent all the relevant material to his superior officer
immediately. Thus we do not find any violation of Section 57 of the
Act.
In State of Punjab vs. Balbir Singh (1994) 3 SCC 299, this
Court held:
"The provisions of Sections 52 and 57
which deal with the steps to be taken by the
officers after making arrest or seizure under
Sections 41 to 44 are by themselves not
mandatory.."
In view of our aforesaid findings, we do not find any infirmity
in the impugned order of the High Court. Accordingly the present
appeal fails and has no merit and is dismissed.