TaxTMI 
TaxTMI 
2020 (3) TMI 903
X X X X Extracts X X X X
X X X X Extracts X X X X
....a, that acting on a specific intelligence that one person named Imran would be coming from Siliguri with a consignment of 'Hashish' (Charas) by a Sleeper coach Bus of Modern Travels and would hand over the same to one Arif, the appellant herein at Dharmatala Bus Terminus in Kolkata. Accordingly, a batch of Officers belonging to the Directorate rushed to the said Bus Terminus on 03.08.2011 and kept surveillance in and around the said place. When the Officers noticed one person getting down from a luxury bus of Modern Travels, at the said Terminus, along with one multi-coloured rucksack on his back. The Officers found that after getting down from the bus, the said person waiting in front of the ticket counter of Modern Travels and while they started talking each other the multi-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 b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s on dock against the order of conviction namely, 1) The complainant who lodged the complaint and joined the Directorate just before the filing of the complaint which according to the defence, is not permissible and according to the learned Advocate for the appellant the complainant at least ought to have been in the said Directorate for six months prior to lodging of the complaint. 2) There has been no compliance of Section 50 of the NDPS Act by the prosecution and yet the order of conviction has been passed. 3) Examination of the independent witnesses is absent and hence the prosecution case is bound to fail. 4) Whether the learned trial Court passed the order of conviction considering the confessional statement made under Section 67 of the NDPS 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 Advocat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n-compliance of Section 50 and the submission made by the learned Advocate for the appellant that this will render the order of conviction unsustainable, he relies on the following decisions to substantiate his argument about noncompliance of Section 50 thereof. * Beckodan Abdul Rahiman -Vs. - State of Kerala reported in AIR 2002 SC 1810; * Narcotics Central Bureau -Vs. - Sukdev Raj Sodhi reported in (2011) 4 SCC 319; * State of Delhi -Vs. - Ram Avatar reported in (2011) 6 SCC 134; * Md. Saif -Vs. - State of West Bengal reported in (2006) 1 CLT 196 (HC). The answer is hidden in Section 50 of the NDPS act itself. Section 50 of the NDPS Act is set out herein below:- "S.50. Conditions under which search of persons shall be 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 befor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....om the rucksack not from their person and therefore, option under Section 50 was not required at all. It is submitted by the learned advocate for the appellant that in such circumstances there could be no application of Section 50 of the NDPS Act. This argument advanced by the learned Advocate for the appellant cannot stand inasmuch as a written option has already been furnished by the accused/appellant without contradicting anything and they admitted possession of the contraband in their custody during search and seizure. Learned Advocate appearing for the respondent, however, relied on a decision of the Hon'ble Apex Court in Ajmer Singh -Vs. - State of Haryana reported in (2010) 3 SCC 746 where the Hon'ble Apex 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 sear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to hand over the same to another person who had been waiting before to take charge of the same contraband and he was taken to D.R.I. Office. He was informed about the option to mention in Section 50 regarding search being conducted in presence of Gazetted Officer or the Magistrate. The accused opted for Gazetted Officer and in pursuance of such search and seizure, he was arrested. Therefore, ratio of the decision is different to the extent that search and seizure was made by the inspector himself acting on the basis of the option not being exercised by the accused. Meaning thereby he agreed to be searched by the inspector himself. The present case is totally different. As a result the ratio of the said decision 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 M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."" Paragraph 8 of the said decision is relevant for the present case and the same is set out below: "8. In the present case, for both the reasons discussed earlier, we are of the view that Section 50 does not apply at all. The mere fact that the officer concerned offered to have the search of the respondent-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) fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.]" To buttress his argument learned Advocate for the respondent has relied on a decision in Gian Chand & Ors. -Vs. - State of Haryana reported in AIR 2013 SC 3395. The Hon'ble Apex Court in this decision held that if the accused is found to be in possession of the contraband article, he is presumed to 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 variou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e confessional statement under Section 67 is absent in the present case and further that an attempt was made to file an application for retraction which was found to be without the signature of the appellant. Why such a futile exercise was undertaken by the appellant is best known to him. Fact remains, no attempt was made to claim retraction of the statement made apart from the fact that the statement of confession made under Section 67 of the act was duly signed by the appellant and witnessed by the two witnesses. The decision cited by the appellant has no manner of application in the fact situation of the present case. Mr. De learned Advocate 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....'ble Apex Court held that in order to arrive at a decision in regard to such issue it will have to be considered whether such a statement would attract both Sections 24 to 27 of the Indian Evidence Act as also Article 20 (3) of the Constitution of India. Ultimately, it has been held by the Hon'ble Apex Court that an officer vested with the powers of an officer-in-charge of a police station under Section 52 of the above act is not a 'police officer' within the meaning of Section 25 of the Evidence Act. The Hon'ble Apex Court held that statement made under Section 67 of the NDPS Act is not a statement under Section 161 of the Code, 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....minal Appeal No. 652 of 2012; * Tej Bahadur Singh & Anr. -Vs. - Narcotic Control Bureau & Anr. reported in (2000) 1 CHN 803. The decision in Makhan Barman (supra) has no manner of application in the present case inasmuch as the conviction based on the charge under Section 20(b)(c) of the NDPS Act has been found to be unsustainable for the reason that the prosecution held to have miserably failed to prove that any contraband articles under NDPS Act had been recovered and seized from the house of the appellant by a police team and a fate quite contrary to the said fact stated by 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Sub-section (3) of Section 52- A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of 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 prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... court below permitted Director of Revenue Intelligence (DRI) by its order dated 04.08.2011 to send one set of representative sample to the chemical examiner. Remaining representative samples were duly examined during trial and the chemical examiners recorded their evidence. Chemical examination reports were also exhibited and considered by the learned court below during trial. After conclusion of the trial, seized hashish (charas) was destroyed by the competent authority issued certificate of destruction to this effect. Therefore, it cannot be agitated that the authority did not comply 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 th....