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2004 (9) TMI 606

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....use of the respondent/accused at about 21.45 hours under the supervision of appellant No. 2, K.L. Meena, the then Additional Superintendent of Police, Burdwan, accompanied by appellant No. 3, the Sub-Inspector and other persons and seized 3 gms 25 mgs of Heroin. The accused was arrested for possession in contravention of Section 8(c) of the Act. According to the prosecution, necessary formalities as envisaged under Section 50 of the Act was observed by the raiding Police party. Thereafter, the accused on his own produced 123 packets containing Diacetyl Morphine commonly known as Heroin. The said 13 polythene packets were seized under a seizure list prepared. Witnesses signed the seizure list. Subsequently, seized articles were sealed and labelled. G.D. entry No. 275 at the Police Station was made at 11.30 p.m. by the officer in charge of the said Police Station, who was not the member of the raiding party. G.D. entry No. 276 was made at 11.55 p.m. at the same Police Station where the accused was produced and the seized articles were handed over to the Excise Officer. The Excise Officials took charge of the accused for production before the Court. At about 7.00 a.m. on 06.05.1989, ....

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.... High Court is not justified in directing the State of West Bengal to pay compensation of Rs. l lakh to the respondent reserving liberty to the State Government to realise the same from appellant No. 2, a member of the I.P.S.; 3.     that the High Court has omitted to take note of the fact that the action taken by the officers under the Act is in good faith and protected under Section 69 of the Act. Mr. K.V. Vishwanathan, learned counsel for the respondent, submitted that the judgment of the High Court is a well-considered one and that the High Court has found gross violation of the mandatory procedure prescribed in Section 42(1) and proviso to Section 42(1). Apart from this, several infirmities, inconsistencies and material contradictions as well as non-compliance of other mandatory provisions like Sections 55 and 57 of the Act and Section 102 of Cr.P.C. have also been found. Therefore, the judgment, by no stretch of imagination, can be characterized as a perverse judgment warranting interference in an appeal against acquittal. Mr. Vishwanathan contended that the views expressed by the High Court on Section 42 of the Act finds support from a large number of j....

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....x. dt. 5.11.1985 and notification No. 1574 dt. 5.11.1985 do not show that PW 2 or PW 4 was authorized by the State Government under Section 41(2) of the Act; (vi) There is no evidence to show that the accused was informed of the grounds of his arrest by PW 42 or PW 4 as required under Section 52(1) of the Act; (vii) There is glaring inconsistencies and contradictions in the evidence of PW 2 and PW 4, the seizure list Ex. 7 and the G.D. entry Ex.-l, regarding the search and seizure of the contraband articles from the possession of the accused; (viii) No where from the evidence on record it appears that PW l the O.C. Memari P.S. has complied with the mandatory provisions of Section 55 of the NDPS Act or for that matter PW 2 or PW 4 affixed their seals on the seized articles as per Ex-7 given in custody of PW-1 as recorded in the G.D. entry as per Ex-1; (ix) It appears from the Ex-10 that the sealed cover containing labelled paper packets were received back from the laboratory on 3.8.89 by the Inspector of Excise, Kalan Katwa Range, Burdwan, but this sealed cover has not been produced before the trial Court to establish the identity of the samples seized by the Police; (x) There ....

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....the respondent has undergone 7 years 4 months in Jail and that even this Court finds that acquittal by the High Court is incorrect, in view of the period of 7 years and 4 months undergone, may declare the law or point out the lower Courts error, but still may not interfere since special circumstances are shown to exist. As an alternative plea, Mr. Vishwanathan submitted that even if the acquittal is found to be incorrect, this Court following the principles laid down in Chandra Singh v. State of Rajasthan, [2003] 6 SCC 545 may not direct the respondent to be taken into custody since he has already undergone 7 years 4 months for an alleged possession of 3 gm and 25 mgs of Heroin. We have given our thoughtful consideration to the submissions made by both the learned counsel appearing on either side on facts and also on law. In the instant case, the respondent was charged for the offence under Section 21 of the Act for the illegal possession of 3 gms and 25 mgs of Diacetyl Morphine, which is commonly known as Heroin in contravention of Section 8(c) of the Act. The case of the prosecution was that PW 4, Additional S.P., received secret information and to work out the secret informati....

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....furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d)   detain and search, if he thinks proper, arrest any person whom he has reason to believe to have committed by offence punishable under this Act; 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 sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any Information in writing under sub-section (l)or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate off cial superior." In view of the above, Section 42(2) also stood violated. The proviso to Section 42(1) requires that where an officer has reason to believe that a search warrant or authorization cannot be obtained without affordi....

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....ieve 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." In the case of State of Punjab v. Baldev Singh, [1999] 6 SCC 172, a Constitution Ben....

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....viso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused. In the cases of Abdul Rashid Ibrahim Mansuri v. State of Gujrat, [2002] 2 SCC 513, Koluttumottil Razak v. State of Kerala, [2000] 4 SCC 465, Beckodan Abdul Rahman v. State of Kerala, [2002] 4 SCC 229 and in the case of Chhunna Alias Mehtab v. State of M.P., [2002] 9 SCC 363, this Court has held that the non-compliance of the provisions of the proviso to Section 42 of the Act which is mandatory, the action was held illegal and the conviction of the accused was set aside. This Court also held that the onus to prove compliance lies on the prosecution and in the absence of any prosecution evidence about the compliance with the mandatory procedure, the presumption would be that the procedure was not complied with. In the case of Saiyad Mohd. Saiyad Umar Saiyad & Ors. v. State of Gujarat, [1995] 3 SCC 610, this Court held that the prosecution is obliged to give evidence of the search and all that transpired in its connection. It is very relevant that the prosecution witnesses speak about the compliance about the mandatory procedure and if under the evidence to th....

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....ed that the operating portion of the impugned judgment clearly brings out the perversity in the judgment. According to him, the strictures that has been passed against the appellants by the Division Bench of the High Court are wholly unjustified and are liable to be expunged. He is right in his submission. In our view, the High Court was not justified and correct in passing observations/strictures against appellants 2 & 3 without affording an opportunity of being heard, and it is in violation of catena of pronouncements of this Court that harsh or disparaging remarks are not to be made against the persons and authorities whose conduct comes into consideration before Courts of law unless it is really necessary for the decision of the case. Likewise, the directions issued by the High Court to the trial Court to lodge a complaint to the Magistrate having jurisdiction for prosecuting appellants 2 and 3 for having committed and offence under Section 58 of the Act read with Section 166 and 167 of the Indian Penal Code is not warranted. The observations made by the High Court are liable to be expunged and accordingly, we expunge the same including the direction to lodge a complaint agains....