2000 (9) TMI 1031 - SC - Customs

Supreme Court Upholds Conviction under Narcotic Drugs Act

The Supreme Court upheld the conviction and sentence in a case involving the Narcotic Drugs and Psychotropic Substances Act. The appellant's arguments ... Power to stop and search conveyance - power of seizure and arrest in public places - reason to believe/personal knowledge requirement under Section 42 - distinction between officer-in-charge of nearest police station and officer empowered under Section 53 - procedure under Section 55 regarding custody, sealing and samples - presumption as to possession under Section 35 - onus to rebut statutory presumptionPower to stop and search conveyance - power of seizure and arrest in public places - reason to believe/personal knowledge requirement under Section 42 - procedure under Section 55 regarding custody, sealing and samples - distinction between officer-in-charge of nearest police station and officer empowered under Section 53 - Validity of the search, seizure, sealing and custody procedure followed after interception of the truck and whether non-compliance with Section 55 required acquittal - HELD THAT: - The Court held that Section 42 is attracted only where the officer acts on personal knowledge or information requiring the special safeguards provided therein; otherwise, seizure in transit/public place falls under the powers of Section 43 and the power to stop and search a conveyance under Section 49. Where the arrested person and seized articles are forwarded under Section 52(3)(b) to an officer empowered under Section 53, the strict requisites of Section 55 (as applicable to the officer in charge of the nearest police station) are not insistable. The distinction between the officer in charge of the nearest police station and an officer empowered under Section 53 was held to be deliberate and based on differing safeguards and administrative arrangements. On the facts the Court found that the preventive party properly stopped, searched and seized the opium in transit, took samples, sealed bundles and produced them in court; the procedure under Section 49 read with Section 43 applied and was complied with in substance. Consequently the submission that absence of the particular formalities of Section 55 entitled the appellant to acquittal was rejected.Procedure followed on stopping, searching and seizing the conveyance was lawful under Sections 43 and 49 read with applicable provisions; non compliance with the formalities of Section 55 did not vitiate the prosecution in the facts of this case and did not warrant acquittal.Presumption as to possession under Section 35 - onus to rebut statutory presumption - Whether the appellant had discharged the onus to rebut the statutory presumption under Section 35 and establish absence of culpable mental state - HELD THAT: - Applying the legal principles, including this Court's earlier reasoning in Abdul Rashid Ibrahim Mansuri v. State of Gujarat , the Court examined the evidence and found that the appellant had not discharged the burden to rebut the presumption of possession under Section 35. The material proved that the appellant was transporting the opium with conscious knowledge; the ingredients of the offence were established by the prosecution and the defence failed to establish absence of culpable mental state or any other exculpatory circumstance sufficient to negate the statutory presumption.The presumption under Section 35 was not rebutted; the appellant remained guilty as found by the courts below.Final Conclusion: The appeals are without merit; the conviction and sentence affirmed in substance: the procedural challenges under Sections 42/49/52/55 fail on the facts and the statutory presumption under Section 35 was not rebutted, therefore the appellant's conviction stands. Issues Involved:1. Compliance with procedural safeguards under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).2. Applicability of Section 42 of the NDPS Act.3. Compliance with Section 55 of the NDPS Act.4. Presumption under Section 35 of the NDPS Act and the appellant's culpable mental state.5. Legality of the search and seizure operation.Issue-wise Detailed Analysis:1. Compliance with Procedural Safeguards under the NDPS Act:The appellant contended that the procedural safeguards under the NDPS Act were not followed, entitling him to acquittal. The trial court and the appellate court were accused of arriving at the appellant's guilt based on wrong assumptions.2. Applicability of Section 42 of the NDPS Act:The trial court held that the provisions of Section 42 were not applicable in this case. The court reasoned that under Section 49, it was unnecessary for Inspector Nand Lal Rai to reduce in writing the reason for suspicion before taking the actual search. This was because the truck was intercepted in transit, not in a stationary position. The High Court upheld this view, stating that Section 42 did not apply and that the compliance of Section 55 was not necessitated.3. Compliance with Section 55 of the NDPS Act:The appellant argued that the mandate of Section 55, which requires the officer in charge of the police station to take charge and keep in safe custody articles seized under the Act, was not followed. The trial court found that the mandatory provisions of Section 55 were duly complied with. The High Court also found that the compliance with Section 55 was not necessitated as the procedure prescribed under Clause (a) of sub-section (3) of Section 52 was not resorted to.4. Presumption under Section 35 of the NDPS Act and the Appellant's Culpable Mental State:The appellant's counsel argued that no presumption under Section 35 could be drawn against the appellant. The counsel relied on the judgment in Abdul Rashid Ibrahim Mansuri v. State of Gujarat to contend that the appellant had discharged the onus of proof regarding his plea of absence of culpable mental state. However, the court found that the appellant had not discharged the burden of proof to rebut the presumption under Section 35. The court held that the appellant was transporting the opium with a conscious mind and full knowledge.5. Legality of the Search and Seizure Operation:The appellant was apprehended and arrested while driving a truck carrying 96.600 kgs of opium. The search and seizure operation was conducted by a Preventive Party, including Inspector Nand Lal Rai and other officers. The truck was taken to the Control Room of the Central Narcotics Bureau, Kota, due to rain and lack of light at the initial search location. The search revealed three gunny bags containing opium, and samples were taken for chemical examination. The court held that the procedure prescribed under Section 49 read with Section 43 was followed. The compliance with Section 55 was found to be duly met, as the seized articles were produced in court in the same sealed condition as when they were seized.Conclusion:The Supreme Court dismissed the appeal, finding no merit in the appellant's contentions. The court upheld the conviction and sentence, confirming that the procedural safeguards under the NDPS Act were followed, and the appellant had not rebutted the presumption of culpable mental state under Section 35. The search and seizure operation was conducted legally, and all ingredients of the offenses were proved by the prosecution.