TMI Blog2000 (2) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 discharged 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. Appeal allowed. - Appeal (crl.) 78 of 1992 - - - Dated:- 1-2-2000 - DR. A.S. ANAND CJ K.T. THOMAS S. RAJENDRA BABU, JJ. JUDGMENT K.T. 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 personnel while it was proceeding to Shahpur (Gujarat). Four gunny bags were found slacked in the vehicle. They contained 'Charas' (Cannabis hemp). Appellant was arrested and prosecuted for offences under Section 20(b)(ii) of the Narcotic Drugs and Psychotrop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hicle 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 unrebutted. 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 a Constitution Bench of this Court, while interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search of the "person" of the accused. In the second mentioned case, the contention based on Section 50 was negatived 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 checking the said bag did not amount to search of the "person" of the accused. 12. In the present case, even the appellant has no case that he was searched by the police party. The place where the gunny bags were 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 Section 50 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with by him before he proceeded to search any such building or conveyance or enclosed place were twofold. First is that he should have taken down the information in 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 substance. When he was asked in cross-examination whether he had taken down the information in writing he had answered in the negative. Nor did he even apprise his superior officer of any such information either then or later, much less sending of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted regarding non-compliance of Section 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 committed) 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 on the strength of such unrecorded 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 factum 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iage of criminal justice to convict him of the offence keeping such strong doubt 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 he 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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