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2015 (4) TMI 688 - SUPREME COURT

2015 (4) TMI 688 - SUPREME COURT - TMI - Conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985 - Offence punishable under Sections 457 and 380 of the Indian Penal Code - Assessee broke open the lock of the malkhana of the Court and stolen the opium - accused appellant led to discovery - Held that:- the term “possession” for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with .....

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he remained in possession of the prohibited substance and as such offence under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it.

On the contrary, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. - Certainly, on the date of recov .....

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e time of commission of an offence and if he is convicted under Section 18 of the NDPS Act, it would tantamount to retrospective operation of law imposing penalty which is prohibited under Article 20(1) of the Constitution of India. Article 20(1) gets attracted only when any penal law penalises with retrospective effect i.e. when an act was not an offence when it was committed and additionally the persons cannot be subjected to penalty greater than that which might have been inflicted under the .....

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he information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to comply with sub Sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken pl .....

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sed-appellant was in police custody. Section 27 of the Indian Evidence Act, 1872 provides that when any fact is deposed to as discovery in consequence of the information received from a person accused of any offence in custody of a police officer, so much of such information whether it amounts to confession or not as relates distinctly to the fact thereby discovered may be proved. It is well settled in law that the components or portion which was the immediate cause of the discovery could be acc .....

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drical tin and the substance on examination was found to be an opium having 1.44% morphine. The seal being intact, the description of the case number and the impression of seal having been fixed on memo of recovery, there is no reason or justification to discard the prosecution case on the ground of delay on this score. - Decided against the appellant. - CRIMINAL APPEAL NO. 1393 OF 2010 - Dated:- 17-4-2015 - Dipak Misra And S.A. Bobde JJ For the Appellant : Ms. Aishwarya Bhati, Adv.,Mr. T. Gopal .....

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Additional Sessions Judge, Jodhpur in Sessions Case No. 9 of 1986 convicting the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short, the NDPS Act ) and sentencing him to suffer rigorous imprisonment for 10 years and pay a fine of ₹ 1 lakh, in default, to suffer one year simple imprisonment and also for offence punishable under Sections 457 and 380 of the Indian Penal Code (IPC) and imposing separate sentences for the said offences with a stipul .....

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ice station, but as the details of the stolen articles could only be provided by the Criminal Clerk after he came from the Diwali holidays, an FIR was lodged for an offence under Section 457 IPC. After the courts reopened, the Presiding Officer, Ummed Singh, PW-6, on being informed, visited the premises, got malkhana articles verified and got an inventory prepared by Narain Singh, Criminal Clerk, in-charge of Malkhana, PW-4, on 16.11.1985, and it was found that 10 kgs. 420 gms opium and some oth .....

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usedappellant led to discovery in presence of independent witnesses. The bag and cloth were taken out by the accused digging the pit and the bag contained 10 kgs and 200 gms of opium as is reflected from seizure memo, Exhibit P-6. 200 gms of opium was packed separately, sealed and sent for FSL examination. The remaining substance and other items were separately sealed. After receiving the FSL report and completing the investigation, chargesheet under Section 18 of the NDPS act and Sections 457 a .....

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eem Singh, PW- 12 are witnesses to the recovery. The FSL report was exhibited as Exhibit P-14. The defence chose not to examine any witness. 4. The learned trial Judge, on the basis of the evidence brought on record, found the accused guilty of the charges and accordingly convicted him, as has been stated hereinbefore. In appeal, it was contended that incident, as per the prosecution, had occurred between 12th/13th November, 1985 on which date the NDPS Act was not in force, for it came into forc .....

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ction 42 and 57 of the NDPS Act and, therefore, the conviction was vitiated in law. The High Court repelled all the submissions and affirmed the conviction and sentence as recorded by the learned trial Judge. 5. We have heard Ms. Aishwarya Bhati, learned counsel for the appellant and Mr. Shiv Mangal Sharma, learned Additional Advocate General for the State of Rajasthan. 6. First, we shall deal with the issue of possession. The principal submission of Ms. Bhati, learned counsel for the appellant .....

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NDPS Act came into force on 14.11.1985. Learned counsel would submit that the recovery of opium was done on 16.1.1986 pursuant to the disclosure statement made by the accused-appellant who was already under arrest in a different matter and under such circumstances, the appellant could not have been convicted under Section 18 of the NDPS Act, but should have been convicted under Section 9 of the Opium Act. Elaborating the said submission, the learned counsel has contended that the offence of poss .....

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n the date of theft and the possession of contraband articles, as a matter of fact, had taken place prior to coming into force of the NDPS Act. She has commended us to the decision in Harjit Singh v. State of Punjab (2011) 4 SCC 441 Learned counsel would also contend that there can be rationalization of structure of punishment, which is an ameliorative provision, for it reduces the punishment and the same can be made applicable to category of accused persons. In that regard, she has drawn inspir .....

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of the Opium Act. It reads as follows:- 9. Penalty for illegal cultivation poppy, etc. Any person who, in contravention of this Act, or of rules made and notified under section 5 or Section 8,- (a) possesses opium, or (b) transports opium, or (c) imports or exports opium, or (d) sells opium, or (e) omits to warehouse opium, or removes or does any act in respect of warehoused opium, And any person who otherwise contravenes any such rule, shall, on conviction before a Magistrate, be punished for e .....

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fence and the sentence is imprisonment for a term which may extend to one year or with fine which may extend to ₹ 1,000/- or both. Section 18 of the NDPS Act provides for punishment for contravention in relation to opium poppy and opium. The provision as it stood at the relevant time read as follows: 18. Punishment for contravention in relation to opium poppy and opium.- Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereu .....

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eding two lakh rupees. 8. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to actus of physical control and custody . Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession. The classical theory of English law on the term possession is fundament .....

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nection and another meaning in another. 9. The term possession consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of possession given in Black s Law dictionary is as follows: Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel 219 Kan. 616, 549 p.2d 568, 569 . The detention and control or the man .....

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structive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive .....

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d defendant exercises dominion or control over substance. State v. Hornaday 105 Wash. 2d 120, 713 p.2d 71, 74. And again Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, U.S. v. Craig C.A. Tenn, 522 F.2d 29, 31 ; as well as joint or exclusive, Garvey v. State 176 Ga. App, 268, 335 S.E.2d 640, 647 The defendants must have had dominion and control over the contraband with knowledge of its prese .....

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ncealable weapon under statue proscribing possession of a concealable weapon by a felon, it is sufficient that defendant have constructive possession and immediate access to the weapon. State v. Kelley 12 Or.APP. 496 507 P.2d 837, 837. 10. In Stroud s dictionary, the term possession has been defined as follows: Possession (Drugs (Prevention of Misuse) Act 1964 (c. 64), s.1 (1)). A person does not lose possession of an article which is mislaid or thought erroneously to have been destroyed or disp .....

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ed author has suggested certain factors which have been held to be relevant to conclude whether a person has acquired possession for the purposes of a particular rule of law. Some of the factors enlisted by him are; (a) degree of physical control exercised by person over a thing, (b) knowledge of the person claiming possessory rights over a thing, about the attributes and qualities of the thing, (c) the persons intention in regard to the thing, that is, animus possessionis and animus domini , (d .....

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ng varying weight to different factors relevant to possession according to the particular rule in question. According to Harris, the Judges have at the back of their mind a perfect pattern in which the possessor has complete, exclusive and unchallenged physical control over the subject; full knowledge of its existence; attributes and location, and a manifest intention to act as its owner and exclude all others from it. As a further statement he elucidates that courts realise that justice and exp .....

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y still be conferred the possessory rights. The purpose of referring to the aforesaid principles and passages is that over the years, it has been seen that courts have refrained from adopting a doctrinaire approach towards defining possession. A functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy. Thus, the word possessi .....

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5 of the NDPS Act. The said provision reads as follows:- 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 intention, .....

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licit articles. The expression possess or possessed is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act. 13. In Noor Aga v. State of Punjab and Anr. (2008) 16 SCC 417, the Court noted Section 35 of the NDPS Act which provides for presumption of culpable mental state and further noted that it also provides that th .....

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isions of this Court, therefore, cannot be said to be ex facie unconstitutional. We would, however, keeping in view the principles noticed hereinbefore, examine the effect thereof vis-à-vis the question as to whether the prosecution has been able to discharge its burden hereinafter. And thereafter proceeded to state that:- 58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in .....

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prove the guilt of the accused on the prosecution is beyond all reasonable doubt but it is preponderance of probability on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as .....

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35 would come into play. While dislodging the conviction, the Court stated:- it is apparent that the initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting narcotics still lay on the prosecution, as would be clear from the word knowingly , and it was only after the evidence proved beyond reasonable doubt that he had the knowledge would the presumption under Section 35 arise. Section 35 also presupposes that the culpable mental state .....

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ring the offending truck cannot by any stretch of imagination fasten him with the knowledge of its misuse by the driver and others. 15. Having noted the approach in the aforesaid two cases, we may take note of the decision in Dharampal Singh v. State of Punja (2010) 9 SCC 608, when the Court was referring to the expression possession in the context of Section 18 of the NDPS Act. In the said case opium was found in the dicky of the car when the appellant was driving himself and the contention was .....

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of the car 65 kg of opium was recovered. The vehicle driven by the appellant Dharampal Singh and occupied by the appellant Major Singh is not a public transport vehicle. It is trite that to bring the offence within the mischief of Section 18 of the Act possession has to be conscious possession. The initial burden of proof of possession lies on the prosecution and once it is discharged legal burden would shift on the accused. Standard of proof expected from the prosecution is to prove possession .....

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in the context of all the statutes. Possession is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18 of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge. xxx xxx xxx xxx 15. From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of ill .....

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presume that the accused had culpable mental state and have committed the offence. In somewhat similar facts this Court had the occasion to consider this question in Madan Lal v. State of H.P. (2003) 7 SCC 465, wherein it has been held as follows: (SCC p. 472, paras 26-27) 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statu .....

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sition of law it is quite vivid that the term possession for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the chattel i.e. the illegal substance at a particular loca .....

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trol at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary .....

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discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and p .....

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Section 18 of the NDPS Act, it would tantamount to retrospective operation of law imposing penalty which is prohibited under Article 20(1) of the Constitution of India. Article 20(1) gets attracted only when any penal law penalises with retrospective effect i.e. when an act was not an offence when it was committed and additionally the persons cannot be subjected to penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. The Arti .....

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ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a Court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of a particular Court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved. In the in .....

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offence, for on the said date he would have both the corpus and animus necessary in law. 18. We would be failing in our duty, if we do not analyse the decision in Harjit Singh (supra). In the said case the Court was dealing with the Notification dated 18.11.2009 that has replaced the part of the Notification dated 19.10.2001. Dealing with the said aspect, the Court held:- 13. Notification dated 18-11-2009 has replaced the part of the Notification dated 19-10-2001 and reads as under: In the Tabl .....

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ts pure drug content. 14. Thus, it is evident that under the aforesaid notification, the whole quantity of material recovered in the form of mixture is to be considered for the purpose of imposition of punishment. However, the submission is not acceptable as it is a settled legal proposition that a penal provision providing for enhancing the sentence does not operate retrospectively. This amendment, in fact, provides for a procedure which may enhance the sentence. Thus, its application would be .....

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sically a possession of the contraband articles. He has commended us to the authority in State of Bihar v. Deokaran Nenshi & Anr. (1972) 2 SCC 890 , wherein it has been held that:- A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until t .....

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ce of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all. 20. Mr. Shiv Mangal Sharma, learned AAG for the State has also drawn inspiration from Udai Shankar Awasthi v. State of Uttar Pradesh and Anr. (2013) 2 SCC 435 In the said case, while dealing with the concept of continuing offence, after referring to Section 472 of Criminal Procedure Code, 1973, (CrPC) the Court has stated that the expression continuing offence has .....

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in the case of a continuing offence, the ingredients of the offence continue i.e. endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue. 21. In this context, it would be fruitful to refer to a threeJudge Bench decision in Maya Rani Punj v. Commissioner of Income Tax, Delhi .....

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a well-recognised meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But we may have offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences. 22. We have dwelled upon .....

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the NDPS Act and hence, the conviction is vitiated. It is urged by her that the Investigating Officer has not reduced the information to writing and has also not led any evidence of having made a full report to his immediate official superior. The High Court has taken note of the fact that information given to Bheem Singh, PW-12, and recovery was made by him who was the Sub-Inspector and SHO at the police station. That apart, in this context, we may refer with profit to the Constitution Bench de .....

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on Bench explaining the position opined that Abdul Rashid (supra) did not require about literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham (supra) hold that requirement of Section 42(1) and 42(2) need not be fulfilled at all. The larger Bench summarized the effect of two decisions. The summation is reproduced below:- (a) The officer on receiving the information of the nature referred to in sub-section (1) of Section 42 from any person had to record it in wr .....

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d, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer .....

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sfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with suff .....

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with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001. 24. In Rajinder Singh v. State of Haryana (2011) 8 SCC 130, placing reliance on the Constitution Bench, it has been opined that total non-compliance with the provisions of sub-sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with satisfactory explanation for the delay can, however, be countenanced. 25 .....

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. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non-compliance of Section 42(2) does not arise. The aforesaid view gets support from the decisions in Directorate of Revenue and Anr. v. Mohammed Nisar Holia (2008) 2 SCC 370 and State, NCT of Delhi v. Malvinder Singh (2007) 11 S .....

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of Punjab v. Balbir Singh (1994) 3 SCC 299, has held that Section 57 is not mandatory in nature and when substantial compliance is made, it would not vitiate the prosecution case. In Karnail Singh (supra), the Constitution Bench, while explaining the ratio laid down in Sajan Abraham (supra), analysed the requirement of Section 42(1) and 42(2) and opined that the said pronouncement never meant that those provisions need not be fulfilled at all. However, the Constitution Bench has not delved into .....

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2. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted noncompliance with these provisions in their entirety, the court has to examine the element of prejudice. The element of prejudice is of some significance where provisions a .....

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Abraham is entirely misplaced, firstly in view of the Constitution Bench judgment of this Court in Karnail Singh. Secondly, in that case the Court was also dealing with the application of the provisions of Section 57 of the Act which are worded differently and have different requirements, as opposed to Sections 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requi .....

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n accordance with the provisions of Sections 42, 50 and 57 of the Act. They are neither interlinked nor interdependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases. 29. In the instant case, on perusal of the evidence, it is clear that there has been substantial compliance of Section 57 of the NDPS Act and, therefore, the questio .....

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ection with FIR No. 95 of 1985, he was arrested and while he was interrogated, he led to discovery in connection with the stolen contraband articles from the malkhana which was the matter of investigation in FIR no. 96 of 1985. There is no shadow of doubt that the accused-appellant was in police custody. Section 27 of the Indian Evidence Act, 1872 provides that when any fact is deposed to as discovery in consequence of the information received from a person accused of any offence in custody of a .....

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e emphasis is on receipt of information from a person accused of any offence. Therefore, when the accused-appellant was already in custody in connection with FIR no. 95 of 1985 and he led to the discovery of the contraband articles, the plea that it was not done in connection with FIR no. 96 of 1985, is absolutely unsustainable. Be it stated here, that the recovery has been proven to the hilt. The accused, accompanied by the witnesses, had gone beneath the bridge built between Gupal Sariya and M .....

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