DECIDING AUTHORITY : Supreme Court
DATE OF JUDGMENT: 01/02/2000
BENCH: DR. A.S. ANAND CJ & K.T. THOMAS & S. RAJENDRA BABU
Facts : Appellant was an auto-rickshaw driver. On the evening of 12.1.1988 an auto-rickshaw was intercepted by a posse of police personnel while it was proceeding to Shahpur (Gujarat). Four gunny bags were found stacked in the vehicle. They contained ’Charas’ (Cannabis hemp). Appellant was arrested and prosecuted for offences under Section 20(b)(ii) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short ’the Act’) besides Section 66(l)(b) of the Bombay Prohibition Act. The trial court acquitted the appellant, but on appeal by the State of Gujarat a Division Bench of the High Court of Gujarat set aside the order of acquittal and convicted him of the offences under the above sections. He was sentenced to rigorous imprisonment for ten years and a fine of Rupees one lakh for the first count while no separate sentence was im-posed for the second count.
Judgement : As the appellant did not engage any advocate for himself Mr. Sudhir Nandrajog, Advocate was appointed as amicus curiae to argue for him. Learned counsel contended first that there was total non-compliance with the requirements of Section 50 of the Act which had vitiated the seizure of the contraband. Section 50 contains the conditions under which search of a person shall be conducted. He further referred the case of State of Punjab v. Baldev Singh, [1999] 6 SCC 172.
Sri Vashank P. Adhyaru, learned counsel for the State of Gujarat contended that there was no question of complying with the conditions stipulated in Section 50 of the Act as no search of the person was con-ducted in this case. According to the learned counsel, the search conducted was of the conveyance and the mere fact that appellant was them driving the vehicle would not make it a search of his person. Learned counsel cited the decisions in Kalema Tumba v. State of Maharashtra, [1999] 8 SCC 257 and Sarjudas v. State of Gujarat, [1999] 8 SCC 508.
In the present case, the appellant has no case that he was searched by the police party. The place where the gunny bags found stacked in the vehicle was not inextricably connected with the person of the appellant. Hence it is an idle exercise in this case, on the fact situation, to consider whether there was non- compliance with the conditions stipulated in Section 50 of the Act. But the more important contention advanced by Shri Sudhir Nandrajog, learned amicus curiae was that there was non- compliance with Section 42 of the Act which was enough to vitiate the search as a whole.
Learned counsel for the State next contended that such non- compliance with Section 42 of the Act cannot be visited with greater consequences than what has been held by the Constitution Bench of this Court regarding non-compliance of the conditions in Section 50 of the Act. Learned counsel for the State of Gujarat thereupon contended that as the appellant did not dispute the factum of recovery of the “charas” from the vehicle it does not matter that the information was not recorded at the first instance by the police officer. We cannot approve the contention because non-recording of information has in fact deprived the appellant as well as the court of the material to ascertain what was the precise information, which PW-2 got before proceeding to stop the vehicle. Value of such an information, which was the earliest in point of time, for ascertain-ing the extent of the involvement of the appellant in the offence, was of a high degree. A criminal court cannot normally afford to be ignorant of such a valuable information. It is not enough that PW-2 was able to recollect from memory, when he was examined in court after the lapse of a long time, as to what information he got before he proceeded to the scene. Even otherwise, the information which PW- 2, in this case, recollected itself tends to exculpate the appellant rather than inculpate him.
In the above context, learned counsel for State sought to rely on the legal presumption envisaged in Section 35 of the Act. In this case non-recording of the vital information collected by the police at the first instance can be counted as a circumstance in favour of the appellant. Next is that even the information which PW-2 recollected from memory is capable of helping the accused because it indicates that the real culprits would have utilized the services of an auto-rickshaw driver to transport the gunny bags and it is not necessary that the auto-rickshaw driver should have been told in advance that the gunny bags contained such offensive substance. The possibility is just the other way around that the said culprits would not have disclosed that information to the auto-rick-shaw driver unless it is shown that he had entered into a criminal conspiracy with the other main culprits to transport the contraband. Prosecution did not adduce any evidence to show any such connivance between the appellant and the real culprits. There is nothing even to suggest that those culprits and the appellant were close to each other, or even known to each other earlier. Yet another circumstance discernible from the evidence in this case is that the police had actually arrayed two other persons as the real culprits and made all endeavour to arrest them, but they absconded themselves and escaped from the reach of the police.
From the above circumstances we hold that the accused had dis-charged the burden of proof in such a manner as to rebut the presumption envisaged in Section 35 of the Act. He is therefore, not liable to be convicted for the offences pitted against him.
Held : Appeal Allowed .
By Tejasv Anand ,IVth Year,AMITY LAW SCHOOL,DELHI.
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