Full Judgment Text
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CASE NO.:
Appeal (crl.) 78 of 1992
PETITIONER:
ABDUL RASHID IBRAHIM MANSURl
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT: 01/02/2000
BENCH:
DR. A.S. ANAND CJ & K.T. THOMAS & S. RAJENDRA BABU
JUDGMENT:
JUDGMENT
2000 (1) SCR 542
The Judgment of the Court was delivered by
THOMAS, J. Appellant was an auto-rickshaw driver. On the evening of
12.1.1988 an auto-rickshaw was intercepted by a posse of police person-nel
while it was proceeding to Shahpur (Gujarat). Four gunny bags were found
stacked in the vehicle. They contained ’Charas’ (Cannabis hemp). Appellant
was arrested and prosecuted for offences under Section 20(b)(ii) of the
Narcotics Drugs and Psychotropic Substances Act, 1985 (for short ’the Act’)
besides Section 66(l)(b) of the Bombay Prohibition Act.
The trial court acquitted the appellant, but on appeal by the State of
Gujarat a Division Bench of the High Court of Gujarat set aside the order
of acquittal and convicted him of the offences under the above sections. He
was sentenced to rigorous imprisonment for ten years and a fine of Rupees
one lakh for the first count while no separate sentence was im-posed for
the second count.
Facts are not seriously disputed by the appellant. More details about the
facts are the following :
PW-2 Premsingh M. Vishen, Inspector of Police at Dariapur Police Station,
got information on 12.1.1988 that one Iqbal Syed Husen was trying to
transport Charas upto Shahpur in an auto-rickshaw bearing No. GTH 3003.
PW-2 collected some more policemen and proceeded to the main road in quest
for the contraband movement. At about 4.00 PM they sighted the auto-
rickshaw which was then driven by the appellant. They stopped it and
checked it and found four gunny bags placed inside the vehicle. Police took
the vehicle to the Police Station and when the gunny bags were opened ten
packets of Charas were found concealed therein. The value of the said
contraband was estimated to be Rs. 5.29 lakhs. When investigation was
conducted it was revealed that the said consignment was loaded in the auto
rickshaw by two persons - Iqbal Syed Husen and Mahaboob Rasal Khan. The
police made a search to trace them out but failed. And unceremoniously
dropping them, a charge sheet was laid against the appellant only before
the Chief Metropolitan Magistrate for the above mentioned offences and the
case was later committed to the Court of Sessions.
Prosecution examined four witnesses. PW-1 is a panch witness and PW-2
Premsingh M. Vishen, the Inspector of Police, who headed the raiding party
which intercepted the vehicle, PW-3 PSO of Dariapur Police Station was
examined to prove the FIR. PW-4 Baldev Singh Vaghela was the Sub-Inspector
of Police, Dariapur, Forensic Science Laboratory which conducted tests on
the samples of contraband reported that it contained Charas.
When the appellant was questioned by the trial court under Section 313 of
the Code of Criminal Procedure he did not dispute the fact the he rode the
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auto-rickshaw and that the same was intercepted by the police party and
that gunny bags kept in the vehicle were taken out and examined by them at
the Police Station. His defence was that those four gunny bags were brought
in a truck at Chokha Bazar by two persons who unloaded them into his
vehicle and directed him to transport the same to the destination mentioned
by them. He carried out the assignment without knowing what were the
contents of the load in the gunny bags.
The Division Bench of the High Court found that the appellant failed to
prove that he did not know the contents of the load and hence the
presumption in Section 35 of the Act remained un- rebutted. It was mainly
on the said premise that the Division Bench held the appellant guilty of
the offence for which he was convicted and sentenced as aforesaid.
As the appellant did not engage any advocate for himself Mr. Sudhir
Nandrajog, Advocate was appointed as amicus curiae to argue for him.
Learned counsel contended first that there was total non-compliance with
the requirements of Section 50 of the Act which had vitiated the seizure of
the contraband. Section 50 contains the conditions under which search of a
person shall be conducted. In State of Punjab v. Baldev Singh, [1999] 6 SCC
172, a Constitution Bench of this Court, while interpreting Section 50 of
the Act, has held, inter alia, thus :
"(1) That when an empowered officer or a duly authorised officer acting on
prior information is about to search a person, it is imperative for him to
inform the person concerned of his right under sub-section (1) of Section
50 of being taken to the nearest gazetted officer or the nearest Magistrate
for making the search. However, such information may not necessarily be in
writing.
(2) That failure to inform the person concerned about the existence of his
right to be searched before a gazetted officer or a Magistrate would course
prejudice to an accused.
(3) That a search made by an empowered officer, on prior infor-mation,
without informing the person of his right that if he so requires, he shall
be taken before a gazetted officer or a Magistrate for search and in case
he so opts, failure to conduct his search before a gazetted officer or a
Magistrate, may not vitiate the trial but would render the recovery of the
illicit article suspect and vitiate the conviction and sentence on accused,
where the convic-tion has been recorded only on the basis of the possession
of the illicit article, recovered from his person, during a search
conducted in violation of the provisions of Section 50 of the Act."
Sri Vashank P. Adhyaru, learned counsel for the State of Gujarat contended
that there was no question of complying with the conditions stipulated in
Section 50 of the Act as no search of the person was con-ducted in this
case. According to the learned counsel, the search conducted was of the
conveyance and the mere fact that appellant was them driving the vehicle
would not make it a search of his person. Learned counsel cited the
decisions in Kalema Tumba v. State of Maharashtra, [1999] 8 SCC 257 and
Sarjudas v. State of Gujarat, [1999] 8 SCC 508.
In the former case, accused was a person who arrived at Sabar International
Airport (Mumbai) and when the intelligence officer of Nar-cotic Central
Bureau checked one of his baggage he detected 2 Kgs. of Heroin therefrom.
Before the baggage was opened the accused was asked to identify it and when
he did so the officer again checked it up with the Baggage Tag affixed on
the Air Ticket in the possession of the accused. The contention that the
conditions under Section 50 of the Act were not complied with before the
baggage was searched, has been repelled by this Court on the premise that
it was not a search of the "person" of the accused. In the second mentioned
case, the contention based on Section 50 was negative on the factual
premise that "Charas" was found kept in a bag which was hanging on the
scooter ridden by the accused. Learned Judges held that opening and
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checking the said bag did not amount to search of the "person" of the
accused.
In the present case, the appellant has no case that he was searched by the
police party. The place where the gunny bags found stacked in the vehicle
was not inextricably connected with the person of the appellant. Hence it
is an idle exercise in this case, on the fact situation, to consider
whether there was non- compliance with the conditions stipulated in Sec-
tion 50 of the Act.
But the more important contention advanced by Shri Sudhir Nandrajog,
learned amicus curiae was that there was non- compliance with Section 42 of
the Act which was enough to vitiate the search as a whole. Section 42 reads
thus :
42. Power of entry, search, seizure and arrest without warrant or
authorisation, - (1) Any such officer (being an officer superior in rank to
a peon, sepoy or constable) of the departments of central excise,
narcotics, customs, revenue intelligence or any other department of the
Central Government or of the Border Security Force as is empowered in this
behalf by general or special order by the Central Government, or any such
officer (being an officer superior in rank to a peon, sepoy or constable)
of the revenue, drugs control, excise, police or any other department of a
State Government as is empowered in this behalf by general or special order
of the State Government, if he has reason to believe from personal
knowledge or information given by any person and taken down in writing,
that any narcotic drug, or psychotropic substance, in respect of which an
offence punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such offence
is kept or concealed in any building, conveyance or enclosed place, may,
between sunrise and sunset -
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle
to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or conveyance
which he has reason to believe to be liable to confiscation under this Act
and any document or other article which he has reason to believe may
furnish evidence of the commission of any offence punishable under Chapter
IV relating to such drug or substance; and
(d) detain and search, and, if he thinks proper, arrest any person whom
he has reason to believe to have committed any offence punishable under
Chapter IV relating to such drug or sub-stance :
Provided that if such officer has reason to believe that a search warrant
or authorisation cannot be obtained without affording opportunity for the
concealment of evidence or facility for the escape of an offender, he may
enter and search such building, conveyance or enclosed place at any time
between sun set and sun rise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-
section (1) or records grounds for his belief under the proviso thereto he
shall forthwith send a copy thereof to his immediate official superior."
For the purposes of this case, PW-2 being a police officer much above the
rank of a constable, would be "any such officer" as envisaged b the
Section, If he had reason to believe from information given by any person
that narcotic drug was kept or concealed in any building, con-veyance or
enclosed place the requirements to be complied with by him before he
proceeded to search any such building or conveyance or enclosed place were
two-fold. First is that he should have taken down the informa-tion in
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writing. Second is that he should have sent forthwith a copy thereof to his
immediate official superior. In this case PW-2 admitted that he proceeded
to the spot only on getting the information that somebody was trying to
transport narcotic substances. When he was asked in cross-examination
whether he had taken down the information in writing he had answered in
negative. Nor did he even apprise his superior officer of any such
information either then or later, much less sending a copy of the
information to the superior officer. However, learned counsel for the
respondent - State of Gujarat contended that the action was taken by him
not under Section 42 of the Act but it was under Section 43 as per which he
was not obliged to take down the information. We are unable to appreciate
the argument because, in this case, PW-2 admitted that he proceeded on
getting prior information from a constable and the information was
precisely one falling within the purview of Section 42(1) of the Act. Hence
PW-2 cannot wriggle out of the conditions stipulated in the said sub-
section. We therefore, unhesitatingly hold that there was non-compliance
with Section 42 of the Act.
Learned counsel for the State next contended that such non- com-pliance
with Section 42 of the Act cannot be visited with greater conse-quences
than what has been held by the Constitution Bench of this Court regarding
non-compliance of the conditions in Section 50 of the Act.
A two Judge Bench of this Court has considered the said question along with
other questions in State of Punjab v. Balbir Singh, [1994] 3 SCC 299. In
paragraph 25 of that judgment the conclusions were laid down, of which what
is relevant for this case regarding Section 42(1) is the following:
"(2-C) Under Section 42(1) the empowered officer if has a prior information
given by any person, that should necessarily be taken down in writing. But
if he has reason to believe from personal knowledge that offences under
Chapter IV have been committed or materials which may furnish evidence of
commission of such offences are concealed in any building etc. he may carry
out the arrest or search without a warrant between sunrise and sunset and
this provision does not mandate that he should record his reasons of
belief. But under the proviso to Section 42(1) if such officer has to carry
out such search between sunset and sunrise, he must record the grounds of
his belief.
To this extent these provisions are mandatory and contravention of the same
would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down any
information in writing or records the grounds under proviso to Section
42(1) should forthwith send a copy thereof to his immediate official
superior. If there is total non-compliance of this provision the same
affects the prosecution case. To that extent it is mandatory. But if there
is delay whether it was undue or whether the same has been explained or
not, will be a question of fact in each case."
When the same decision considered the impact of non-compliance of Section
50 it was held that !!it would affect the prosecution case and vitiate the
trial". But the Constitution Bench has settled the legal position
concerning that aspect in State of Punjab v. Baldev Singh (supra), the
relevant portion of which has been extracted by us earlier. We do not think
that a different approach is warranted regarding non-compliance of Sec-tion
42 also. If that be so, the position must be the following :
If the officer has reason to believe from personal knowledge or prior
information received from any person that any narcotic drug or psychotropic
substance (in respect of which an offence has been com-mitted) is kept or
concealed in any building, conveyance or enclosed place, it is imperative
that the officer should take it down in writing and he shall forthwith send
a copy thereof to his immediate official superior. The action of the
officer, who claims to have exercised it on the strength of such unrecorded
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information would become suspect, though the trial may not vitiate on that
score alone. Nonetheless the resultant position would be one of causing
prejudice to the accused.
Learned counsel for the State of Gujarat thereupon contended that as the
appellant did not dispute the factom of recovery of the "charas" from the
vehicle it does not matter that the information was not recorded at the
first instance by the police officer. We cannot approve the contention
because non-recording of information has in fact deprived the appellant as
well as the court of the material to ascertain what was the precise infor-
mation, which PW-2 got before proceeding to stop the vehicle. Value of such
an information, which was the earliest in point of time, for ascertain-ing
the extent of the involvement of the appellant in the offence, was of a
high degree. A criminal court cannot normally afford to be ignorant of such
a valuable information. It is not enough that PW-2 was able to recollect
from memory, when he was examined in court after the lapse of a long time,
as to what information he got before he proceeded to the scene. Even
otherwise, the information which PW- 2, in this case, recollected itself
tends to exculpate the appellant rather than inculpate him.
In the above context, learned counsel for State sought to rely on the legal
presumption envisaged in Section 35 of the Act, In fact the Division Bench
of the High Court also mainly rested on that legal premise. Section 35
reads thus:
"35. Presumption of culpable mental state. - (1) In any prosecution for an
offence under this Act, which requires a culpable mental state of the
accused, the court shall presume the existence of such mental state but it
shall be a defence for the accused to prove the fact that he had no such
mental state with respect to the act charged as an offence in that
prosecution.
Explanation - In this section ’culpable mental state’ includes inten-tion,
motive, knowledge, of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when
the court believes it to exist beyond a reasonable doubt and not merely
when its existence is established by a preponderance of probability."
No doubt, when the appellant admitted that narcotic drug was recovered from
the gunny bags stacked in the auto-rickshaw, the burden of proof is on him
to prove that he had ao knowledge about the fact that those gunny bags
contained such a substance. The standard of such proof is delineated in
sub-section (2) as "beyond a reasonable doubt*. If the court, on an
appraisal of the entire evidence does not entertain doubt of a reasonable
degree that he had real knowledge of the nature of substance concealed in
the gunny bags then the appellant is not entitled to acquittal. However, if
the court entertains strong doubt regarding the accused’s awareness about
the nature of the substance in the gunny bags, it would be a miscarriage of
criminal justice to convict him of the offence keeping such strung doubt
un-dispelled. Even so, it is for the accused to dispel any doubt in that
regard. The burden of proof cast on the accused under Section 35 can be
discharged through different modes. One is that, he can rely on the
materials available in the prosecution evidence. Next is, in addition to
that be can elicit answers from prosecution witnesses through cross-
examination to dispel any such doubt. He may also adduce other evidence
when he is called upon to enter on his defence. In other words, if
circumstances appearing in prosecution case or in the prosecution evidence
are such as to give reasonable assurance to the court that appellant could
not have had the knowledge or the required intention, the burden cast on
him under Section 35 of the Act would stand discharged even if he has not
adduced any other evidence of his own when he is called upon to enter on
his defence.
In this case non-recording of the vital information collected by the police
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at the first instance can be counted as a circumstance in favour of the
appellant. Next is that even the information which PW-2 recollected from
memory is capable of helping the accused because it indicates that the real
culprits would have utilized the services of an auto-rickshaw driver to
transport the gunny bags and it is not necessary that the auto-rickshaw
driver should have been told in advance that the gunny bags contained such
offensive substance. The possibility is just the other way around that the
said culprits would not have disclosed that information to the auto-rick-
shaw driver unless it is shown that he had entered into a criminal con-
spiracy with the other main culprits to transport the contraband.
Prosecution did not adduce any evidence to show any such connivance between
the appellant and the real culprits. There is nothing even to suggest that
those culprits and the appellant were close to each other, or even known to
each other earlier. Yet another circumstance discernible from the evidence
in this case is that the police had actually arrayed two other persons as
the real culprits and made all endeavour to arrest them, but they absconded
themselves and escaped from the reach of the police.
From the above circumstances we hold that the accused had dis-charged the
burden of proof in such a manner as to rebut the presumption envisaged in
Section 35 of the Act. He is therefore, not liable to be convicted for the
offences pitted against him.
In the result, we allow this appeal and set aside the conviction and
sentence passed on the appellant by the High Court in the impugned judgment
We restore the order of acquittal passed in his favour by the trial court
We direct him to be set at liberty forthwith, if he is not required in any
other case,