V. S. DAVE, J. - (1.) THIS appeal has been preferred under S. 374 (2) Cr. P. C challenging the conviction and sentence passed by learned Addl. Sessions Judge, Beawer on 30. 6 1989 in Sessions Case No. 18/88, State Vs. Bhanwar Singh and Anr. in a case under Sec. 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "n. D. P. S. Act" ). Each of the accused-appellant was sentenced to 10 years' rigorous imprisonment and a fine of Rs 1,00 000/-, in default of payment of which each of them was ordered to further undergo one year's rigorous imprisonment.
(2.) THIS appeal came to be heard at a very early date because while hearing the bail application it was directed that record be sent for and appeal be heard as soon as record is received. Hence it was heard out of turn on priority basis also because accused are in jail. Briefly stating the facts giving rise to this appeal are that Shri Bheru-Lal Sharma (PW. 8) who was S. H. O. , police station, Masuda received an information from an informer that two persons, riding a scooter bearing registration No. R. R. Z. 320, are coming from Bhilwara side and going towards Masuda and that they are carrying opium. On receipt of this information Shri Bherulal accompanied by Bajranglal A. S. I. (PW. 7), police station, Masuda, Ram Chandra, Hend Constable (PW. 5), Sikandar All (PW. 2), Bhanwar Singh, Sailar Singh and Kesar Singh constables left the police station and arrived on road crossing where three roads meet (Tirana) in Masuda town on Ramgarh Road. The police party put a barrier here. At 12. 30 in the noon this party saw the scooter bearing the same registration No. RRZ 320 arriving from Ramgarh side. One person was driving it and another was occupying pillion seat. The police party signalled the Scooter driver to stop the same but the latter accelerated the speed and went away. The scooter was therefore, chased by the S. H. O. and other members of the police party along with motbirs on motor cycles. The scooter first turned towards Kirao road but near Rampura it took a turn on a Kachcha road towards Kharvaii road. Police party took a short-cut and way-laid them near Boyla Tank. They were asked to disclose their identity, on which the driver gave out his name to be Chander Singh son of Lal Singh, Rajpoot, while the person sitting on the pillion seat disclosed his name as Bhanwar Singh son of Arjun Singh. Since the smell of the opium was coming from their persons the S. H. O. checked both of them and Bhanwar Singh was having a bag in his lap wherein opium was found which was seized. On search of Chander Singh it was found that he had wrapped round his waist a muffler wherein there were 5 bags of opium. Since they had no licence or permit, the opium was seized by the police on the spot. Salar Singh constable was asked to bring a scale and weights. 5 kg. 400 grams of opium is alleged to have been recovered from Bhanwar Singh, while 4 kg. 40 gram from Chander Singh, It was seized and sealed in the presence of motbirs Parsa Singh who had been taken by S. H. O. along with him on motor-cycle and another was Bajranglal, A. S. I of the same police station. A memo of seizure was prepared which is Ex,p. 2 and at the bottam of this document a note was appended that according to S. 50 of the N. D. P. S. Act the accused was asked whether he wants to meet any gazetted officer or Magistrate to which he denied. Accused-appellants were arrested and the S. H. O. after arriving at the police station at 3. 30 pm. recorded the F. I. R. No. 1/88 dated 3. 1. 1988, Ex. P. 13. The sample of the opium which was separately taken out and sealed at the time of seizure, was sent for chemical examination. After competing the investigation a chargesheet was submitted against both the accused-appellants. The accused were read over the charges for offence under Sec. 17/18 of the N. D. P. S. Act by learned Addl. Sessions Judge, Beawar to which they denied and claimed to be tried. The prosecution in support of its case examined 8 witnesses. The accused Bhanwar Singh in his statement under S. 313 Cr. P. C. stated that on 3. 1. 88 he had cams to Davla (Masuda) at 10 30 am. at the residence of Shri Dayal Singh, wine contractor. Near the Bus-stand he came across Chandra Singh and both of them went to the shop of Dayal Singh. Salar Singh came there and asked Chandra Singh as to why he is not doing the work assigned to him, on which there was an altercation. The police people were annoyed because Chandra Singh was not becoming a police informer. According to Chandra Singh he was asked by the S. H. O. Salar Singh and another A. S. I. that he should become an informer in the matter of illegal trade of wood, while he and Bhanwar Singh were at Dayal Singh's shop. Salar Singh came and asked for wine which was not offered to him. There was some altercation between the two and followed by a scuffle. Salar Singh then brought the S. H. O. who made out a false case against him. They also examined two witnesses in their defence. The learned Addl. Sessions Judge accepted the prosecution evidence and convicted and sentenced the accused-appellants as indicated above. Therefore, against this conviction and sentence this appeal has been preferred. The learned counsel for the appellants submits that the appellants could not have been convicted on the basis of the record prepared by the police and produced before the court because the mandatory provisions of N. D. P. S. Act have been violated. It is submitted that N. D. P. S. Act is a special statute which has been enacted with a view to eradicate the immoral and unethical traffic in illicit drugs. It is submitted that this Act has been enacted with a view to combat drug traffic and prevent drug abuse and for that stringent provisions have been made to control and regulate the operation relating to narcotic drugs and psychotropic substances. Heavy punishments have been provided by law in as much as-minimum sentence prescribed is for a term which shall not be less than 10 years and the accused shall also be liable to fine which shall not be less than rupees 100,000/- Thus not only a simple minimum sentencing provision has been kept on statute but heavy minimum punishment has been prescribed. In this view of the matter the provisions have to be given a strict interpretation of law and strict compliance of the provisions of the Act and Rules made thereunder is required to be made. It is submitted that under the Act not only the special procedures have been laid down but safeguards have also been provided by the legislature for preventing any type of abuse by the investigating officer or the trap party Not only that the legislature has also incorporated provisions for punishing by the investigating officer or any other officer on which the duty has been cast under the Act to act in a particular manner. The submission of the learned counsel is that the provisions of Ss. 42, 43 and 44 of the N. D. P. S. Act are mandatory and invoking powers under the aforesaid section without reasonable ground or suspicion of detaining, searching or arresting any person vaxi-tiously or unnecessarily, has been made a cognizable offence under S. 58 of the N. D. P. S. Act. It is submitted that Sec. 42 (1) postulates recording of the grounds of belief and the officer receiving information is obliged under S. 42 (2) to forward the copy of the information and the grounds of belief, forthwith to his immediate officer superior. The violation of these provisions, it is submitted, demolishes the case of the prosecution. Similarly it is submitted that checks have been provided under S: 42 (2) for testing the fairness of the investigation and Jack of them indicates that there is no fair and proper investigation into the case. ' Coming to the provisions of S. 50 of the N. D. P. S. Act the learned counsel submits that it was obligatory for the S. H. O. Police Station, Masuda to have taken accused to the nearest Gazetted Officer or atleast to have told them about their right prior to the search having been made. The words used by the legislature, "is about to search any person", show that the accused has to be told about his right to be taken to a Gazetted Officer prior to the search, 'is about to', means, according to the learned counsel 'before the search'. The learned counsel then has drawn the attention of the court towards S. 52 (2) of the N. D. P. S. Act and S. 54 of the N. D. P. S. Act. It is submitted that seal of the Officer incharge of the police station is required to be affixed and not of the police station itself. It is then submitted that S. 57 of the N. D. P. S. Act has also been violated in the instant case. The learned counsel also submits that by introduction of Ss. 58 and 59 of the N. D. P. S. Act the legislation has clearly shown its intention that rules are mandatory in court and have to be observed in letter and spirit. The learned counsel placed reliance on Biram Vs. State of Rajasthan (1), Chhotelal Vs. State of Rajasthan (2), Hakam Singh Vs. Union Territory (3), Rattan Lal Vs. State (4), Bhajan Singh Vs. State of Haryana (5) and Karam Singh Vs. State of Punjab. (6)
(3.) MR. G. C. Chatterji appearing on behalf of the prosecution submits that the provisions of S. 42, 50 & 52 of the N. D. P. S. Act though are mandatory in character yet the court has to examine the evidence as to whether compliance of those provisions in substance has been made or not. It is submitted that too technical a view of the evidence recorded in respect of seizure and forwarding of the document would give a premium to the accused over the offence he has committed It is submitted that the accused persons have been caught red handed while going with opium and seizure has been made in the presence of independent motbirs. Besides this there is no reason to disbelieve the evidence in the instant case. It is submitted that about 10 kg. of opium has been recovered from the possession of the accused-appellants, out of which 4 kg 40 gram has been found wrapped around the waist of Chandra Singh which conclusively show that he was in conscious possession of the opium. Learned counsel submits that the cases cited by the learned counsel for the appellants require re-consideration. Before I proceed to examine the case on merits, it is essential to look into the legal position first. N. D. P. S. Act is a special law enacted by the Parliament with an object that for controlling and regulating the operations relating to narcotic drugs and psychotropic substances. It is for this that stringent provisions of law have been made. It was felt that social evils are increasing and so also the drugs menace. It was felt that due to fast increase of consumption of the drugs the country is becoming one of the centres of narcotics underworld criminals and in order to curb all these, N. D. P. S. Act was brought into force. While enacting the law, Legislature provided for heavy punishment in as much as minimum sentencing provision was kept and minimum sentence prescribed in most of the sections was 10 years' rigorous imprisonment and a fine of Rs. 1,00,000/ -. Obviously when such a stringent provision regarding fine was made, it was obvious that full proof procedure regarding issuance of warrants and authorisation, power of entry, search, seizure and arrest, power to stop and search conveyance and power to investigate including the obligations of officers to assist each other were specifically provided. Non-observance of procedure provided in Chapter V (5) has been made punishable under Ss. 58 and 59 of this Act is most unusual and has not been provided in the past in any other law to my knowledge. Sections 58 and 59 of the N. D. P. S. Act read as under : "s. 58-Punishment for vexations entry, search, seizure or arrest- (l) Any person empowered under S. 42 or S. 43 or S. 44 who- (a) Without reasonable ground of suspicion enters or searches, or causes to be entered or searched, any building, conveyance or place; (b) Vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug or psychotropic substance or other article liable to be confiscated under this Act or of seizing any document or other article liable to be seized under S 42, sec. 43 or S. 44 or. (c) Vexatiously and unnecessarily detains, searches or arrests any person, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both. (2 ). Any person wilfully and maliciously giving false information and so causing an arrest or a search being made under this Act shall be punishable with imprisonment for a term which may extend to two years or with fine or with both. "s 59- Failure of officer in duty or his connivance at the contravention of the provisions of this Act- (l) Any officer, on whom any duty has been imposed by or under this Act and who ceases or refuses to perform or withdraw himself from the duties of his office shall, unless he has obtained the express written permission of his official superior or has other lawful excuse for a term which may extend to one year or with fine or with both, (2) Any officer on whom any duty has been imposed by or under this Act or any person who has been given the custody of- (a) any addict; or (b) any other person who has been charged with an offence under this Act, and who wilfully aids in, or connives at, the contravention of any provision of this Act or any rule, or order made thereunder, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees". A reading of the aforesaid two sections makes it absolutely clear that the police officers empowered to effect search, make seizure and arrest the accused, must do so after following the mandate of law. It is not only in cases of vexatiously taken proceedings that a person empowered may be prosecuted but even if any officer carries out the functions mentioned in S. 58 without reasonable ground of suspicion even then the legislature has made it cognizable offence. Similarly, under S. 59, if any officer does not carry out the duty imposed on him by law, he can be prosecuted under Sec. 59 of the Act. For infringement of the rights of the accused and for failing to carry out the statutory duties, a criminal action is contemplated against the defaulting officer and the criminal law can be set in motion and it has been made a cognizable offence except in cases where a complaint is filed by a private person. Considering these two provisions along with the provisions mentioned in Chapter IV regarding offences and penalty where minimum sentencing provision has been kept, it is essential to construe the provisions of the law regarding procedure as mandatory. It has been held in several cases that the provisions of Ss. 41, 42, 43, 52 and 57 are all mandatory in nature and failure to comply with the procedure laid down in any of the aforesaid sections would vitiate the trial. In Biram Vs. State of Rajasthan (Supra) the provisions of Ss. 50, 55 add 57 were examined and my learned brother Judges came to the conclusion that provisions of the aforesaid sections are mandatory and the lacuna left by the prosecution is fatal. The court held as under : - "another important aspect is that FSL after some observation returned the packets and they were again sent to FSL on 16. 7. 87. The packets were taken of from the malkhana on 13. 7. 87 and they remained out of malkhana upto 16. 7. 87. Where these samples were kept, Whether during three days the seal remained intact and was not tempered with? There is nothing on the record about this. It was the duty of the prosecution not to keep any suspicion or doubt in their case specially under Narcotic Act which have become so stringent and punishment is so severe. But I find that not only in this case but in so many cases where I had remarked that the investigation of the case under Narcotic Act are not done in proper way, efficiently and correctly. Therefore, thers is nothing on the record to show that the seal remained intact and this lacuna gives suspicion and benefit of suspicion is always given to the accused". "in the present case there is nothing on the record to show that the condition of Sec. 50 of the Act are fulfilled. The SHO has not stated in his statement that he had asked or he had brought to the notice of the accused persons about the conditions of S. 50 of the Act. It means that the mandatory provision has not been followed". "in the present case also there is nothing to indicate that the provisions of S. 57 of the N. D. P. S. Act have been complied with. No report has been sent regarding arrest and seizure and this is fatal which lacks on the part of the prosecution", ;