TMI Blog2020 (3) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... o Section 35 of the Act, the Court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove contrary. The presumption though rebuttable but during examination under Section 313 neither any plea has been taken by the accused nor any prayer has been made to rebut the presumption under the said provision. Conviction in the present case is not based only on the confessional statement made by the accused under Section 67. His confessional statement is coupled with too many other grounds on which conviction is based - The element of threat or coercion is totally absent in the present case even no such allegation has been made and this is partly evident that he never attempted to retract this statement made under Section 67 of the act. In this case, there is no room for the appellant to advance an argument that he is an innocent person or that he has been falsely implicated in the instant proceeding. The recovered hashish (charas), from the rucksack apparently was in possession of the accused persons as evident from the inventory and seizure list and the Panchnama as well duly signed by the independent witnesses and employee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lti-coloured rucksack bag was handed over by aforesaid person, that is, Md. Imran to the appellant. Ultimately, on search the contraband drug was recovered weighed 5 kg. from the possession of the appellant. Samples were taken in presence of two independent witnesses as also the accused persons. The Officer of the Directorate seized that recovered Alamat like multi-colorued rucksack, 10 polythene packets and the brown-coloured adhesive tapes, two bus tickets of the Modern Travels, two old mobile Handsets. On preparation of seizure list one copy of the said seizure list, that is, Panchnama and inventory was handed over to the accused persons in presence of witnesses. Thereafter, notice under Section 67 of the NDPS Act was served and in response thereof accused rendered his voluntary statement before the Directorate on 3rd August, 2011, wherein the said Md. Imran admitted, inter alia, that he had come to Kolkata from Siliguri along with 5 Kg. Hashish for delivering the same to Md. Arif, that is, accused No.2 at Dharmatala Bus Stand. Similarly, accused no.2/appellant also rendered his voluntary statement on 03.08.2011 that he used to receive Hashish (Charas) and after receiving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Whether there had been substantial compliance under Section 52A of the said Act and if the order of conviction could have been passed even after non-compliance thereof. 5) Evidence adduced by the prosecution had no corroborative value to lead to conviction. To combat the first point urged by the learned Advocate for the appellant that the complainant joined office just before the complaint was lodged, learned Advocate Mr. De for the respondent submitted that the complainant Saikat Saha as per pay registrar maintained by the Directorate, was in the Office since 2008 and at least from 1st April, 2008 as Senior Intelligence Officer. He submitted there was no bar for him to make the complaint as submitted by the appellant. Pay registrar has been shown to the court and the same has been verified in open Court. Therefore, the first point urged by the appellant cannot be sustained. Complainant Saikat Saha has been examined as PW1. He is a Senior Intelligence Officer of the Directorate of Revenue Intelligence, zonal Unit, Calcutta. He deposed that he filed complaint against accused persons in discharge of his official duty as a public servant and he proved the said compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted.-- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court held in the same context as has been raised by the learned Advocate for the appellant that question of compliance or non-compliance of Section 50 of NDPS Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc does not come within the ambit of Section 50 of the NDPS Act, because Section 50 expressly speaks of search of a person. However, applying the interpretation of the word search of person laid down by the Hon ble Apex Court in the decision in State of H.P. Vs. Pawan Kumar reported in (2005) 4 SCC 350, compliance of Section 50 is not recorded where the accused was confronted by the officials and he was informed that he has the right to either be searched before the Gazetted Officer or before the Magistrate and the accused chose the former to be searched before the Gazetted Officer and when before the Gazetted Officer he was searched and the contraband was found from his possession it is immaterial whether the contraband was found from the bag or from the packet. Therefore, argument of the learned Advocate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has no bearing on the present case. The decision in Sukhdeb Raj Sodhi (supra) is also on the principle under Section 50 of NDPS Act where the Hon ble Supreme Court referring to a decision in Vijay Sinh Chandubha Jadeja Vs. State of Gujarat reported in 2011 (1) SCC 609 has held that compliance of Section 50 is mandatory. In the present case the accused was presented before the Gazetted Officer. Statute clearly mandates that either the accused should be produced before the Magistrate or before the Gazetted Officer; it neither says only Magistrate nor both Gazetted Officer and Magistrate. Therefore, in our considered view there has been substantial compliance of Section 50 in the present case where the accused was produced before the Gazetted Officer. Ram Avatar (supra) cited on the same ratio complaining of non-compliance of Section 50. In the cited case, an appeal was preferred by the accused challenging conviction and order of sentence. High Court taking note of the notice which was allegedly issued to the accused under Section 50 of the Act returned a finding in accordance with settled principle of law, that the notice served upon the accused was not in conformity with p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent-accused taken before a Gazetted Officer/Magistrate, or that there were no independent witnesses to evidence this offer, hardly makes any difference to the situation. In our view, therefore, the High Court erred in holding that the action of the police officers was contrary to Section 51 of the Act and giving the benefit of doubt to the respondent-accused when there was no scope for raising such a doubt at all. Undisputedly, according to the evidence, recovery of Hashish (Charas) found from the rucksack which was in possession of the accused person and which is evident from the inventory and seizure list as well as from the panchnama both were duly signed by independent witnesses and the employee of Modern Travels as also by the accused persons. PW3 being the Gazetted Officer in his crossexamination stated that he was present at the time of search and seizure, such being the evidence on record, possession of the said Hashish (charas) from the custody of the accused person is beyond doubt. That apart, there were no retraction of the said fact by the appellant during the trial including examination under Section 313 of the Code of Criminal Procedure when the accused was exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the Court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove contrary. The presumption though rebuttable but during examination under Section 313 neither any plea has been taken by the accused nor any prayer has been made to rebut the presumption under the said provision. From the law laid down by the Hon ble Apex Court in various decision it is no more disputed that once possession of the contraband material with the accused is established, which is the foundational fact of the case arose due to the complaint lodged by the prosecution, the accused has to establish how could he be in possession of the same as it is thus is subject only and therefore, the case must fall within the meaning of the provisions of Section 106 of the Evidence Act which is set out below: S.106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate appearing for the respondent/D.R.I. placed reliance on Ajmer Singh (supra) which we have aleady discussed earlier and we do not repeat the same again and again save and except that we firmly hold that official witnesses even in absence of its corroboration by independent evidence, can form basis of conviction as held by the Hon ble Apex Court in Ajmer Singh (supra). The same is also the ratio in Gian Chand (supra) where law has been settled to be Non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants . We do not find any situation different from the situation dealt with by the Hon ble Court in those two decisions. Therefore, neither the appellant, is entitled to any benefit of doubt nor any order of acquittal on this submission as has been advanced. So far as the issue urged by the appellant regarding confessional statement under Section 67 of the NDPS Act and his reliance upon the self-same decisions in Radheshyam (supra) where the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , unless made under threat or coercion. Because of this vital difference, statement under Section 67 of the NDPS Act is to be used as a confession against the person making it and exclude if from the operation of Sections 24 to 27 of the Evidence Act. In this case also nothing appears from the evidence on record that the appellant has made this statement under Section 67 under any kind of compulsion or threat after he had been placed under arrest which could render such statement inadmissible and not capable of being relied upon in order to convict him. In this case it may not be out of place to mention that arrest memo has been proved as Exhibits 85 and 86 and, thereafter, notice under Section 67 was given to both the accused and they made voluntary statement under Section 67 of the said act. Those documents have been proved by the prosecution and marked Exhibits 101 and 102. In the decision of Kanhaiyalal (supra) the Hon ble Apex Court clearly held The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution came on record. Court held that the prosecution failed to prove alleged possession of the contraband by the appellant and as such presumption under Section 35 and 54 could not be made applicable and conviction passed thereon had been held to be bad. This issue is not at all similar to the present case. Bal Mukund (supra) is a case where conviction was set aside by the High Court by a judgment of acquittal which was challenged before the Hon ble Supreme court and the Hon ble Supreme Court did not interfere with the said judgment of acquittal on the ground that the procedure adopted by the prosecution for search and seizure as also taking samples for the purpose of chemical examination were in complete doubt and not in compliance of the mandatory statutory provisions vis- -vis direction issued by the Central Government in doing such search and seizure. The fact on which the said decision was passed is completely distinguishable from the present one. The decision, however, has also elaborately discussed about the scope of voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act and the ratio decided in Shri D.K. Basu, Ashok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply with the provisions of Section 52A of the said Act does not render any benefit to the appellant. In this case, there is no room for the appellant to advance an argument that he is an innocent person or that he has been falsely implicated in the instant proceeding. The recovered hashish (charas), from the rucksack apparently was in possession of the accused persons as evident from the inventory and seizure list and the Panchnama as well duly signed by the independent witnesses and employee of Modern Travels and after all signed by the accused persons. If this factum is taken into consideration the fact that the accused persons as well as the officers of the raiding team read with the voluntary statement of admission made by the accused persons under Section 67 of the NDPS Act together with the fact that there had been no retraction statement by them, the reasonable conclusion would be to hold the accused/appellant guilty. More so, when during examination of the accused under Section 313 of the Code of Criminal Procedure, they never questioned and/or doubted the recovery, seizure nor even raised any question that their confession under Section 67 of the said Act was t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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