Sivakumar alias Kumar alias Sugumar, In re. v. . — 1988 DIGILAW 451 (MAD)

Judgment The appellant Sivakumar alias Kumar alias Sugukumar was tried in S.C.No.13 of 1937 on the file of the IV Additional Sessions Judge, Madras, on four charges. 2. The first charge was for an offence under Sec. 21 of the Narcotic Drugs and Psychotropic Substances Act 1985 (Act 61 of 1985), hereinafter referred to as the Act, in that he had possessed 40 gms. of heroin, a manufactured drug without any licence and also sold the said drug at the rate of Rs.35 per gram, at 5.30 p.m., on 1st April, 1986, at the Frazer Bridge Road, opposite to the Madras Medical College Men’s Hostel. The second charge was for an offence under Sec. 341, I.P.C., for his having threatened, prevented and obstructed P.Ws. 2 and 3 in the course of the same transaction, by brandishing a knife. The third charge related to his having committed theft of the purse of P.W.2, which contained Rs.102 by threat of force, while brandishing a knife, punishable under Sec. 392 read with Sec. 397, I.P.C. The last charge was for an offence under Sec. 506(2), I.P.C, in that he criminally intimidated P.W.3 and one Jamaluddin by threatening to cause grievous hurt to them while abusing and preventing them from helping P.W.2. 3. The trial Court found the appellant not guilty of the offences under Sec. 341 and Sec. 392 read with Sec. 397, I.P.C, referable to charges 2 and 3, but found him guilty under Sec. 21 of the Act (Charge 1) and Sec. 506(2), I.P.C (Charge 4) and sentenced him to undergo the minimum sentence of 10 years rigorous imprisonment and to pay a fine of Rupees One lakh, in default to undergo 3 years rigorous imprisonment on the former charge and to undergo 2 years rigorous imprisonment on the latter charge and directed the concurrent running of the substantive sentences of imprisonment. 4. The prosecution case needs narration, P.W.2, a house broker and a resident of Kalathiamman Koil Street, Vepery happened to visit Mannadi in the course of his professional work on 30th March, 1986 and while on his way back home at or about 5 p.m. found the appellant selling brown powder (Pazhuppu niram), opposite to the Madras Medical College Men’s Hostel at Frazer Bridge Road, which was being purchased by a few persons. When P.W.2 enquired the buyers, they said that it was an intoxicating substance. When P.W.2 enquired the buyers, they said that it was an intoxicating substance. On knowing the nature of the powder, P.W.2 paid Rs.35 to the appellant and purchased one such packet. Soon after the purchase P.W.2 removed the tobacco from a cigarette and filled it up instead with this brown powder and started smoking. Since he felt giddy, he left the scene immediately and reached his house. Even after reaching home, P.W.2 experienced giddiness and on his information, the people in his household obtained for him some homeopathy drugs from a nearby doctor. P.W.2 slept till 10 a.m. on the next morning. The next day (31st March, 1986) also P.W.2 after attending his professional work at Mannadi came towards the Madras Medical College Men’s Hostel and found the appellant at the same spot selling the intoxicating substance. P.W.2 told the appellant that the powder he had purchased the earlier day was of very bad quality and wanted the refund of Rs.35. The appellant refused to accede to the request of P.W.2 which impelled P.W.2 to threaten the former of initiation of Police action. The angered appellant stating that P.W.2 cannot escape from him, if he was going over to the police station, created a scene by brandishing a knife. At that juncture, six people came and caught hold of the appellant and P.W.2 learnt that those six persons were police personnel. At the time of apprehension of the appellant, there was a crowd. When the appellant was creating a scene in the course of the quarrel with P.W.2, some people including P.W.3 came to the rescue of the latter, but in view of the threat of the appellant and the police intervening and catching hold of him, they did not further act in the matter. P.W.5, the Sub-Inspector of Police, snatched the knife from the hand of the appellant and seized from him the bag, the powder and the cash found then in his possession. The bag contained two packets each weighing approximately 20 gms. P.W.5 took 5 gms. from each of those packets and packed them separately in white paper to facilitate despatch for chemical analysis. The police enquired P.W.2 and took him to the police station directing him to give a written Complaint at the police station P.W.2, who went along with the police party preferred a Complaint Ex.Pl at 6.15 p.m at C-1 Flower Bazaar Police Station. The police enquired P.W.2 and took him to the police station directing him to give a written Complaint at the police station P.W.2, who went along with the police party preferred a Complaint Ex.Pl at 6.15 p.m at C-1 Flower Bazaar Police Station. M.O.1 the knife M.O. 2 the green bag, M.Os. 3 and 4 the heroin packets. M.O. 5 the purse, M.O. 6 the cash of Rs. 172, M.O. 7 a slip containing the address of P.W.2 and M.O.8 a piece of paper were the seizures made from the appellant. 5. The police party, who apprehended the appellant, consisted of P.W.5, the Sub-Inspector of Police. Flower Bazaar Police Station, P W. 1, the police constable of the Law College Police Station and a few others. The seizure of M.Os.1 to 8 was made under mahazar Ex.P2 by P.W.5 in the presence of P.W.4 and one Sundaramurthy. 6. P.W.7, the inspector of Police, Flower Bazaar Police Station on receipt of Ex.P1 from P.W.2 registered it as Crime No. 762 of 1986 for offences under Secs. 341, 379, 506(2), I.P.C., and under Sec.21 of the Act. The printed F.I.R. Ex. P6 was sent to the Court. P.W.7 obtained from P.W.5, the material objects as well as the mahazar prepared by the latter. On 2nd April, 1986, while forwarding the appellant for remand, P.W.7 obtained custody of the appellant till 10th April, 1986. P.W.7 sent a requisition, Ex. P3 to the VIII Metropolitan Magistrate for forwarding a packet of 5 gms. of the seizure from the accused to be sent for chemical analysis to the Director of Forensic Science Laboratory. On receipt of the requisition, the learned Magistrate despatched on 2nd April, 1986 one sample packet containing about 5 gms. of suspected heroin powder to the Director, Tamil Nadu Forensic Science Laboratory for chemical examination and report. This 5 gms. packet appears to have been sent through P.C. 2491 Mohamed Isac Sheriff of the Flower Bazaar Police Station who has however not been examined. The report of the chemical analyst is Ex. P5. Ex.P5 disclosed that the analyst had received one paper cover containing 2 polythene packets which were found to contain light brown granules weighing 15.8 gms. and 24.1 gms. respectively. There was also another packet received by the analyst folded in a paper containing 4.9 gms. light brown granules. The report of the chemical analyst is Ex. P5. Ex.P5 disclosed that the analyst had received one paper cover containing 2 polythene packets which were found to contain light brown granules weighing 15.8 gms. and 24.1 gms. respectively. There was also another packet received by the analyst folded in a paper containing 4.9 gms. light brown granules. According to the analyst these substances sent for analysis were heroin which was opium alkaloid, a derivative of morphia, P.W.7 continued investigation and his successor James Kanakaraj filed the final report on 2.6.1986 before the VIII Metropolitan Magistrate, George Town, Madras. 7. To substantiate the prosecution case, P.Ws. 1 to 7 were examined, Exs.P1 to P6 were marked and M.Os. 1 to 8 were produced, Of the seven, witnesses, P.Ws. 1, 5 and 7 are police officials. P.W.6 is the Court clerk while P.W.2 is the buyer of the drug from the appellant and P.Ws. 3 and 4 are the persons who attempted to rescue P.W.2 from the appellant. 8. The appellant when questioned under Sec. 313, Cr.P.C., by the trial Court on the evidence adduced against him denied his Complicity in this crime and dubbed the prosecution case as untrue. He further stated that he was arrested even on 273.1986 and kept in police custody till 10.4.1986. He denied the seizure of the material objects from his possession. The appellant neither examined any defence witness nor marked any defence Exhibits. 9. The trial Court on a consideration of the oral and documentary evidence concluded that the appellant was guilty only for an offence under Sec. 21 of the Act and under Sec. 506(2), I.P.C., but was not guilty of the other charges. Thus the appellant was convicted and sentenced as stated earlier in this judgment. 10. Mr. P.M. Sundaram, learned counsel appearing for the appellant has challenged the conviction and sentence imposed on the appellant on legal and factual grounds. According to the learned counsel, in view of a Complete procedure having been provided in this Special Act for arrest, seizure, enquiry and trial of offences, it was a Complete code in itself and recourse to the provisions of the Code of Criminal Procedure cannot be availed of on those aspects. He would also submit that in view of the definition in R.2(c) to chemical examiner in the rules framed under the Act, which could only be the Chemical Examiner. He would also submit that in view of the definition in R.2(c) to chemical examiner in the rules framed under the Act, which could only be the Chemical Examiner. Government Opium and Alkalid Works Neemuch or as the case may be, Ghazipur, the report of a analyst at Madias will not be legally valid. On facts, he would submit that the offence under Sec. 506(2), I.P.C. being an integral part of the other offences under the Penal Code of which the appellant had been acquitted this conviction will not be sustainable. As far as the date of occurrence is concerned three different dates. i.e., 30.3.86, 31.3.86 and 1.4 86 have been stated, thus indicating a serious discrepancy which struck at the root of the matter. He would challenge the conduct of P.Ws. 2, 3, 4 and the Police party, as opposed to the normal course of human conduct. He would further submit that when only 5 gms. of the seizure had been sent by P.W.7 to the Court to facilitate chemical analysis under Ex.P3 and the same quantity of 5 gms. had been despatched to the analyst by the Court under Ex.P4, it was strange that the analyst had three packets containing 15.8 gms. 24.1 gms. and 4.9 gms. respectively. The receipt of more packets by the analyst than what had been sent for analysis had not been explained and the carrier of the packets P.C. 2491 Mohamed Isac Sheriff had not been put in the witness box, thus leaving a grave lacuna throwing a substantial doubt about the analysis relating to the substance alleged to have been seized from the appellant. He would then comment about P.W.7 having usurped the investigation in this case which must have been done by proper agency under the Act. It was strange that P.W.7 deposed that the agency under the Act turned down his request for investigation by them, but no reason for such refusal had been given. Finally, he contended that in a case of this type, where a minimum sentence is prescribed by law, the evidence let in must be clear and clinching, apart from the need of the statutory authority prescribed by the Act to deal with the offences under the Act. According to him, this goes to the root of the matter and in any event prejudice to the appellant and grave miscarriage of justice were obviously patent. 11. According to him, this goes to the root of the matter and in any event prejudice to the appellant and grave miscarriage of justice were obviously patent. 11. Per contra, Thiru K. Doraiswami, learned Public Prosecutor appearing on behalf of the respondent would submit that though there were discrepancies in the evidence regarding the date of occurrence as well as the quantity of the powder sent to the analyst, a view on the totality of the evidence had to be taken and the prosecution case appreciated. On the powers of the general police to investigate offences under the Act, it is his contention that their powers to investigate had not been taken away, though a category of officers specially empowered had been invested with the power of arrest and seizure. He would contend that subsequent to this case, the State Government had empowered Deputy Superintendent of Police as persons empowered under Sec. 42 of the Act. Offences under the Act being cognizable, he would submit that there could be Parallel investigation by the Officers empowered under the Act and the general police force. Finally, he would contend that once she Court had taken cognizance of the matter even though the investigation was illegal, the conviction was not liable to be set aside, since the trial had been held by a Court of Competent jurisdiction where the appellant had defended himself and there was no miscarriage of justice. 12. Let me now consider the rival contentions put forth by either counsel on questions of taw and fact. It is better to consider the submissions on the legal aspects initially before considering the factual evidence on its inherent merits. 13. This Act had been enacted to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, since the problem was global and the existing enactments were insufficient to cope with the increased use of illicit drug and its clandestine trade. It was in this context the need for empowering certain enforcing agencies to exercise proper control over drugs abuse was thought of. Thus punishment for offences were enhanced and minimum sentences were prescribed. It was in this context the need for empowering certain enforcing agencies to exercise proper control over drugs abuse was thought of. Thus punishment for offences were enhanced and minimum sentences were prescribed. The enactment keeping in view the purpose behind it while exhibiting the concern of the society and the Government to clamp down by stringent measures misuse and abuse of drugs, provided simultaneously certain statutory safeguards for the persons who are to be dealt with under the provisions of the Act. 14. To appreciate the arguments by the learned counsel for the appellant and the learned Public Prosecutor, it becomes necessary to refer to various provisions of the Act. In Chapter V of the Act, so far as they are relevant to the facts of this case. 15. Sec. 41 of the Act refers to the category of Magistrates who may issue warrant of arrest of any person to the category of officials listed in Sub-cl.(2) thereof. Sec. 41 runs thus: "41. Power to issue warrant and authorisation: (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV or for the search, whether by day or by night of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other articles which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics customs, revenue intelligence of any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue drugs control, excise, police or any other department of a State Government as is empowered in this behalf by General or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other articles which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. (3) The officer to whom a warrant under Sub-sec.(1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under Sub-sec.(2) shall have all the powers of an officer acting under Sec. 42." 16. It is seen from Sec. 41(2) that any officer of the gazetted rank specified and empowered by general or special order of the Central Government or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, may arrest a person or search a building, conveyance or place whether by day or night whom he has reason to believe to have committed an offence punishable under Chapter IV of the Act. This sub-section crisply indicates that only a police officer empowered in this behalf by the State Government through a general or special order, or on his authorisation an officer subordinate to him but superior in rank to a peon, sepoy or a constable, duly authorised by such an officer, may arrest or search a person, on a reasonable belief of the commission of an offence under Chapter IV of the Act. 17. Sec. 42 of the Act empowers entry, search, seizure and arrest without warrant or authorisation by the same category of officers, in a manner provided therein. Sec. 43 concerns itself with the power of seizure and arrest in public places by any officer of any of the departments mentioned in Sec. 42. Sec. 49 deals with the powers of the officers authorised under Sec. 42 of the Act to stop and search any "conveyance". Then Sec. 50 deals with the conditions under which search of persons shall be conducted. Since Sec. 50 is of some importance it needs extraction. "50. Conditions under which search of persons shall he conducted: (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 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 Sec. 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-sec.(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 any one excepting a female." It is seen from Sec. 50 that the duly authorised officer under Sec. 42 shall if a person to be searched so requires take such person without unnecessary delay to the nearest gazetted officer of any of the department mentioned in Sec. 42 or to the nearest Magistrate. (4) No female shall be searched by any one excepting a female." It is seen from Sec. 50 that the duly authorised officer under Sec. 42 shall if a person to be searched so requires take such person without unnecessary delay to the nearest gazetted officer of any of the department mentioned in Sec. 42 or to the nearest Magistrate. When the section refers to the right of a person about to be searched, in law there is an inbuilt duty on the concerned officer to inform such person of his right to be taken to the nearest gazetted officer. This requirement will also have a bearing in considering the category of officers who are to be empowered for dealing with the offences under this Act. Then we have Sec.52 which deals with the disposal of the persons arrested and articles seized. It is seen from Sec.52, Sub-sec. (3) that every person arrested and articles seized under Sub-sec.(2) of Sec. 41, Sec. 42, Sec. 43 or Sec. 44, shall be forwarded without unnecessary delay, to the Officer-in-charge of the nearest police station or the officer empowered under Sec. 53, who are expected with all convenient despatch to take such measures as may be necessary for the disposal according to law or such person or article. Then we have Sec. 53 which invests officers of certain departments with powers of an Officer-in-charge of a police station. I am extracting the said section in view of the submission of the learned Public Prosecutor, that since police had been excluded herein, the inclusion of "specially empowered police" in Sec. 42, cannot take away the rights of the general police to investigate offences under the Act. "53. Power to invest officers of certain departments with powers of an Officer-in-charge of a police station: (1) The Central Government, after consultation with the State Government, may by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs revenue intelligence or Border Security Force or any class of such officers with the powers of an Officer-in-Charge of a police station for the investigation of the offences under this Act. (2) The State Government may, by notification publish in the Official Gazette, invest any Officer of the department of drugs control or excise or any class of such Officers with the powers of an Officer-in-Charge of a police station for the investigation of Offences under this Act." Then Sec. 55 casts a duty on the Officer-in-Charge of a police station to take charge of and keep in safe custody pending orders of the Magistrate of articles seized under this Act. This section also postulates the procedure of any officer, who accompanies the seized articles to the police station or who had been deputed for such purpose, fixing their seal to such articles or taking samples of and from them and all samples so taken being sealed with a seal of the Officer-in-Charge of the police station. The duty cast on the officer who effects arrest or seizure under the Act forms the subject matter of Sec. 57, which obliges the officer concerned to make a full report within 48 hours to immediate superior official. A conspectus of these Sections very clearly indicate the purpose behind the Act which had detailed earlier. Two other Sections may also have to be referred and they are Secs.37 and 51. Sec. 37 reads as follows: "37. Offences to be cognizable: Notwithstanding anything contained in the Code of Criminal Procedure 1973, every offence punishable under this Act shall be cognizable." Sec. 51 reads as follows: "51. Provisions of the Code of Criminal Procedure 1973 to apply to warrants, arrests, searches and seizures: The provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act." 18. There is no doubt, that offences under the Act are cognizable notwithstanding anything contained in the Code of Criminal Procedure. Similarly, by virtue of Sec.51, the provisions of the Criminal Procedure Code will apply in so far as they are not inconsistent with the provisions of this Act to all warrants issued and arrests, searches and seizures made under this Act. Let me consider the effect of Secs.37 and 51 initially. 19. Cognizable offence has not been defined under the Act and naturally a reference to Sec. 2(c) of the Criminal Procedure Code has to be made. Let me consider the effect of Secs.37 and 51 initially. 19. Cognizable offence has not been defined under the Act and naturally a reference to Sec. 2(c) of the Criminal Procedure Code has to be made. A cognizable offence is one in which a police officer may arrest without a warrant. Can it therefore be taken that any police officer can arrest an offender without a warrant under this Act giving a go-by to the category of officers mentioned in the Act itself Can it be said that Secs.41 to 43 of the Act and the allied sections dealing with the duties of the officers mentioned therein, would become a dead letter in view of the offences under the Act being cognizable? Can a view be taken that since Secs, 41 to 43 of the Act are not consistent with the provisions of Cr.P.C, which entitled a Police Officer to arrest any person without a Magisterial warrant would make the offences under the Act non-cognizable, in view of a specification of a clause or category of police officers under the Act? It is therefore, necessary to refer to Sec.4 of the Criminal Procedure Code which deals with the trial of offences under the Indian Penal Code and other laws. Sec.4, Cr.P.C, reads as follows: “4. Trial of offences under the Indian Penal Code and other laws: (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” Sec. 4(2), Crl.P.C, clearly envisages for offences under any other law being investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring, into, trying or otherwise dealing with such offences. To my mind it is obvious that when a special law creates special procedure for dealing with the offences under the Special Act, the provisions of the Special Act would apply excluding the Cr.P.C, and only when the other law does not prescribe any procedure for dealing with such offences, the procedure laid down in the Cr.P.C, will get attracted. Thus, if a special procedure is prescribed under the special enactment, it is that procedure which has to be followed and not the one prescribed under the Cr.P.C As discussed earlier by me, this Act provides special procedure and invests certain category of officers with powers to effect arrest, seizure and deal with the offences under the Act. As far as Sec. 51 of the Act is concerned, it is apparent that the provisions of the Cr.P.C, will apply only in so far as they are not inconsistent with the provisions of this Act to all warrants issued and arrests, searches and seizures made under the Act. Now reverting back to the offences being cognizable and the power of a police officer to arrest without a warrant, Set me refer to the decision of the Supreme Court in State of Gujarat v. Lalsingh, [1981) 2 S.C.C. 75: 1981 S.C.C. (Crl.) 330. A.I.R. 1981 S.C. 368: 1980 Crl.L.J. 413. Before this decision was rendered by the Supreme Court, there was a divergence of judicial opinion in regard to the connotation of the words “a police officer” used in Sec. 2(c) of the Cr.P.C. One line of decisions took the view that these words do not necessarily mean any and every police officer, and that it was sufficient to bring an offence within the definition of a “cognizable” offence, if the power to arrest without a warrant was vested under the law in a police officer of a particular class only. The contrary view was that the words “police officer” meant any and every police officer. The Supreme Court while observing that the conflict appeared to have been set at rest by the decision in State of Gujarat v. Lalsingh, (1981) 2 S.C.C. 75 : 1981 S.C.C. (Crl.) 330. A.I.R. 1981 S.C. 368: 1980 Crl. The contrary view was that the words “police officer” meant any and every police officer. The Supreme Court while observing that the conflict appeared to have been set at rest by the decision in State of Gujarat v. Lalsingh, (1981) 2 S.C.C. 75 : 1981 S.C.C. (Crl.) 330. A.I.R. 1981 S.C. 368: 1980 Crl. L.J. 413, stated: “It will suffice to say here that the view which has received the imprimatur of this Court, is that the expression ”Police officer“ in Sec. 4(1) (f) of the Code (present 2(c) does not necessarily mean ”any and every police officer“ and an offence will still be a cognizable offence, within this definition, even if the power to arrest without warrant for that offence is given by statute to the police of a particular rank or class only.” It therefore follows that the offence would remain none the less cognizable if the legislature has limited the power of arrest, seizure etc. to any particular class of police officers. Therefore, there cannot be any violation of Sec. 37 of the Act for the offences under the Act will still be cognizable in spite of the Act authorising only police officers empowered by general or special order by the State Government to arrest, search or seize the offending drug. In my view, the offences under Chap. IV of the Act thus did not cease to be cognizable. The Supreme Court had occasion to consider a similar provision in the Suppression of Immoral Traffic in Women and Girls Act in Delhi Administration v. Ramsingh, (1962) 2 S.C.R. 694 : A.I.R. 1962 S.C. 63, wherein it has been observed as follows: “We are therefore of opinion that the special police officer is Competent to investigate and that he and his assistant police officers are only persons Competent to investigate offences under the Act and that police officer:; not specially appointed as special police officers cannot investigate the offences under the Act even though they are cognizable offences.” In Nilratan v. Lakshmi Narayan. 1965 M.L.J. (Crl.) 411: (1965) 2 S.C.J. 1: (1964) 7 S.C.R. 724 : A.I.R. 1965 S.C. 1, the question considered by the Supreme Court was about the applicability of the provisions of Crl.P.C., relating to searches and warrants vis-a-vis the procedure applicable under the Foreign Exchange Regulation Act. 1965 M.L.J. (Crl.) 411: (1965) 2 S.C.J. 1: (1964) 7 S.C.R. 724 : A.I.R. 1965 S.C. 1, the question considered by the Supreme Court was about the applicability of the provisions of Crl.P.C., relating to searches and warrants vis-a-vis the procedure applicable under the Foreign Exchange Regulation Act. Therein, the Supreme Court has observed as follows: “The Foreign Exchange Regulation Act is a special Act and it provides under Sec.19-A for the necessary investigation into the alleged suspected commission of an offence under the Act by the Director of Enforcement. The provisions of the Code of Criminal Procedure therefore, will not apply to such investigation by him.” In the light of the authoritative pronouncements, it is apparent that for initiation of the prosecution or dealing with the offences under the Act, the authority concerned, must have clear and unambiguous power. At this stage, it will be necessary to refer to the argument of the learned Public Prosecutor with regard to Sec. 53, wherein, police officers have been omitted while investing certain officers of certain departments with powers of an Office!-in-charge of a police station. There can be no doubt that by virtue of Sec. 2(c) of the Cr.P.C, an Officer-in-charge of a police station includes, when the Officer-in-charge of the Police station is absent from the station house or unable from illness or other causes to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable, or when the State Government so directs any other police officer so present. Hence, police officers above the rank of a constable or by direction of the State Government any other police officer will be an Officer-in-charge of the police station. Therefore, for such officers special investment with the power, as an Officer-in-charge of a police station will not be necessary. The other category of officers mentioned in Secs.41, 42 etc., will have to be necessarily invested with the power for investigation of the offences under the Act and that is what has been done under Sec. 53 of the Act. It would be redundant to include police officers as an Officer-in-charge of a police station in Sec.53. The other category of officers mentioned in Secs.41, 42 etc., will have to be necessarily invested with the power for investigation of the offences under the Act and that is what has been done under Sec. 53 of the Act. It would be redundant to include police officers as an Officer-in-charge of a police station in Sec.53. Simply because any officer above the rank of a constable could be an Officer-in-charge of the police station, it cannot be imported into the provisions of this Act, that any such officer can investigate under the Act under the general powers, for then the provisions of Secs.4i and 42 etc. will become a dead letter. If the intention of the legislature was to give powers of investigation to officers -in-charge of a police station, generally, there would have been no need to include “police” and for their being empowered by State Government by general or special order in Secs. 41 and 42 etc. of the Act. So it is clear that the officers who could investigate offences under the Act can only be those who are empowered by a general or special order by the State Government to enter, search, seize, arrest etc. The analogy of the cognizable offence decided by the Supreme Court in State of Gujarat v. Lalsingh, (1981) 2 S.C.C. 75 : 1981 S.C.C. (Crl..) 330: 1980 Crl. L.J 1413: A.I.R 1981 S.C. 368, will be applicable to the investigation as well, for such power, obviously by the statute, will vest in police officers of a particular rank or class who are- empowered by the State Government by general or special order. The argument of the learned Public Prosecutor that the inclusion of police in Secs. 41 and 42 etc. and their exclusion in Sec.53 of the Act would substantiate his argument does not appear to be relevant for if the power of arrest, seizure etc., are vested with the higher cadre of police officers, it will be incongruous and illogical to vest the powers of investigation in any officer above the rank of a constable. If the intention of the legislature was that any Officer-in-charge of a police station could investigate offences under this Act need not have included "police" in Secs. 41 and 42 etc. of the Act. If the intention of the legislature was that any Officer-in-charge of a police station could investigate offences under this Act need not have included "police" in Secs. 41 and 42 etc. of the Act. Learned Public Prosecutor brought to my notice at this stage that by G.O.Ms No. 1437, dated 24.9.1987, the Tamil Nadu Government had notified Deputy Superintendents of Police of the Police Department as officers empowered to exercise the powers under Sec. 41(2) of the Act, within the area of their respective jurisdiction. Of course this Government order is subsequent to the commission of the offence, in this case. The very notification indicates that police officers of a superior cadre are to be entrusted with powers under Sec. 41(2) of the Act and if that be so, the argument that all police officers irrespective of empowerment could investigate the offences under the Act, appears unsustainable. It is not as though the investigating agency was not aware of the law which required investigation of the offences under the Act by special category of police officers. P.W.7, the Investigating Officer in this case, has stated that for investigation of offences relating to intoxicating substances, there was a special branch of the police functioning. He further adds that though he attempted to forward this case for investigation by that agency, they did not accede to his request. He of course conceds that his attempt was only over the phone. This evidence of P.W.7, indisputably indicates the usurping of the investigation by P.W.7 though he was not empowered under the Act. It hardly need be emphasised that the power of the specially empowered police officer who could deal with the offences under the Act including the power to arrest and effect seizures, will be the Competent officer to investigate which essentially includes the powers stated earlier. The meaning of investigation has been explained by the Supreme Court in H.N. Rishbud and another v. State of Delhi, (1955) 1 M.L.J. (S.C.) 173: (1955) 1 S.C.R. 1150 : 1955 S.C.J. 283: 56 Crl. The meaning of investigation has been explained by the Supreme Court in H.N. Rishbud and another v. State of Delhi, (1955) 1 M.L.J. (S.C.) 173: (1955) 1 S.C.R. 1150 : 1955 S.C.J. 283: 56 Crl. L.J. 526: A.I.R. 1955 S.C. 196, as consisting of the following steps: "(1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements in writing, if the officers think fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Sec. 173. The scheme of the Code also shows that while it is permissible for an Officer-in-charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the Officer-in-charge of the police station, it having been clearly provided in Sec. 168 that when a Subordinate Officer makes an investigation he should report the result to the Officer-in-charge of the police station. It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the Officer-in-charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Sec. 551 (New Sec. 36, Crl.P.C.) It is in the light of this scheme of the Code that the scope of the provisions of the Act has to be judged. It is therefore clear that the officers contemplated under Sec. 53 of the Act, for investment with powers of an Officer-in-charge of a police station, will have to be read with the provisions of Secs. 41, 42 etc of the Act. It is therefore clear that the officers contemplated under Sec. 53 of the Act, for investment with powers of an Officer-in-charge of a police station, will have to be read with the provisions of Secs. 41, 42 etc of the Act. The Police Officers to be specially empowered, have already the power of the Officer-in-charge of a police station, in view of the provisions of the Criminal Procedure Code and they apart from the category of the officers mentioned in Secs.41, 42 etc. alone can investigate offences under the Act. If the contrary view were to be taken, it is easy to Comprehend two Parallel investigations carried out by two different agencies, one by ordinary police and the other by officers empowered under the Act. There being nothing in the Act visualizing co-ordination of the activities of these two different agencies with respect to cognizable offences under the Act, the difficulties that mary arise are not impossible to be imagined. To my mind, the powers under the Act have been exclusively conferred to the category of officers specified in Secs. 41 to 43 of the Act. These provisions are mandatory. 20. In this context a reference to Secs. 50 and 57 of the Act may be necessary. The officer empowered under the Act would necessarily be aware of his powers and his duties and would consciously keep the person involved in the offence, informed, that he has a right to be taken before the nearest gazetted officer for being searched (Sec.50 of the Act). Similarly, any person making an arrest, seizure, etc., under the Act has to make a full report of the arrest and seizure to his immediate official superior. As stated earlier, the Act while keeping in view, the great need to curb “drug abuses” had thought it fit to enact sufficient safeguards for the offenders under the Act. Neither the provisions of Sec.50 nor the provisions of Sec.57 have been observed in this case. Needless to add that the arrest and seizure in this case had not been done in accordance with this special provision of the Act. When the Act provides for a minimum sentence of ten years and a fine of Rupees One lakh, it will be not only necessary but will be clearly essential that the intent of the legislature must be carried out in letter and sprit. When the Act provides for a minimum sentence of ten years and a fine of Rupees One lakh, it will be not only necessary but will be clearly essential that the intent of the legislature must be carried out in letter and sprit. The appellant has right to expect a fair investigation and a fair trial keeping in view the basic concept that justice should not only be done but it should also appear to have been done. 21. The learned Public Prosecutor has produced before me a copy of the letter addressed by the Ministry of Finance, Department of Revenue, Government of India, dated 13th May, 1988 to the Chief Secretary, Tamil Nadu, Madras, quoting Sec. 53 of the Act and stating its view that the general provisions contained in Crl.P.C, on investigation matters mutatis mutandis are applicable to the narcotic drugs and psychotropic substances, offences. It further adds that Sec. 53(2) envisaged any class of such officers being invested with powers of an Officer-in-charge of police station. It further reads that for avoidance of any doubt, the police officers of suitable category could also be authorised for investigation of offences under the Act. A communication of this nature expressing the views of the Central Government to the State Government can have no bearing in the consideration of the question involved in this case. However, it is obvious that the possible need of empowering a suitable category of police officers for investigation of the offences under the Act had not been lost sight of. 22. On the facts and circumstances of this case, I am of the view that from the very stage of foundation of this case there is lack of proper authority of law. The provisions of the Act have been observed more in breach than Compliance. 23. Regarding the submission of the learned counsel for the appellant that in view of the definition of chemical examiner in Rule 2(c) of the Rules framed under the Act, Ex.P5, the report of the Chemical Examiner, Madras will be inadmissible in evidence, need not have to be gone into in detail in view of the other legal proposition having been accepted by me. Further, in an appropriate case, this aspect may require consideration in the light of Sec. 293, Cr.P.C., which would make it possible to use the report of the Chemical Examiner or Assistant Chemical Examiner to the Government as evidence in any enquiry, trial or other proceedings under this Code. 24. The last legal submission of the learned Public Prosecutor will have to be now considered. It is no doubt true, that it is settled law that an illegality in the course of an investigation does not affect the Competency and the jurisdiction of the Court for trial, and where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation does not vitiate the result, unless miscarriage of justice has been caused. The Supreme Court in H.N. Rishbud and Inder Singh v. State of Delhi, (1955) 1 M.L.J. (S.C.) 173: (1955) 1 S.C.R. 1150 :1955 S.C.J. 283:A.I.R. 1955 S.C. 196: 56 Crl. L.J. 526, after considering the cases in Prabhu v. Emperor, (1944) 1 M.L.J. 521: A.I.R. 1944 P.C. 73: 57 L.W.408 and Lumbhardar Zutsh v. The King, (1950) 1 M.L.J. 302 : A.I.R. 1950 P.C. 26:63 L.W. 197, has observed as follows: “These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice but both the cases clearly show that invalidity of the investigation has no relation to the Competence of the Court.” 25. The observation of the Supreme Court above extracted, visualizes the distinction between the illegality in arrest and the illegality in investigation while considering prejudice or miscarriage of justice. On facts in this appeal, as referred to by me earlier the provisions of Secs.50 and 57 which are statutory safeguards, have not been followed. The need for a report as contemplated under Sec. 57 of the Act is possible to be visualized, since we have two different dates in this case about the arrest of the appellant, which is the date of occurrent as well. The need for a report as contemplated under Sec. 57 of the Act is possible to be visualized, since we have two different dates in this case about the arrest of the appellant, which is the date of occurrent as well. In Khandu Sonu Dhobi and another v. State of Maharashtra, A.I.R. 1972 S.C. 958, while considering the conduct of investigation in breach of the provisions of the Prevention of Corruption Act, after holding that the invalidity of preceding investigation would not vitiate the conviction, laid down that the illegality in the investigation should not cause prejudice to the accused or bring about miscarriage of justice. While considering the aspect of prejudice or miscarriage of justice, it is my view that the stringent minimum penalty imposed by the Act has also be taken note of. 26. I therefore hold that in view of the mandatory provisions having been ignored altogether, though the investigating agency was aware of a different agency dealing with the offences under this Act, it has resulted in material prejudice to the appellant and grave miscarriage of justice is the consequence. 27. Though Sec. 74 of the Act relating to the transitional provisions have not been referred to by cither party. I am firmly of the view that this provision was meant only for a very limited period to enable the Central or State Government to empower officers by general or special orders at a very early date. This provision cannot be taken to include in its fold delay for months together, without empowering being done by the respective Governments. Further the mandatory provisions of the Act relating to arrest, seizure, etc. cannot be ignored by seeking the aid of Sec. 74 which as the heading itself denotes was purely transitional. 28. Let me now turn to the determination of facts. The oral evidence of P.W.2 Govindaraj discloses that his first meeting with the appellant was at or about 5,00 P.M., on 30.3.1956 on which day he purchased a packet of brown powder from the appellant on payment of Rs.35 and had a smoke utilising this substance. Even in the Chief Examination he would depose that on (31.3.1986), the day after his earlier purchase of the brown powder, he quarrelled with the appellant asking for the return of his money and only in the course of this quarrel the police intervened and arrested the appellant. Even in the Chief Examination he would depose that on (31.3.1986), the day after his earlier purchase of the brown powder, he quarrelled with the appellant asking for the return of his money and only in the course of this quarrel the police intervened and arrested the appellant. Hence, the date of crime is positively fixed as 31.3.1986 by P.W.2 in his oral evidence. Completely contrary to the oral evidence of P.W.2, Ex. P1, the first information report lodged by him at the police station fixes the date of occurrence as 1.4.1986. This first information report was registered on 1.4.1986 at about 6.15 P.M. In the course his Complaint P.W.2 has slated that his first meeting with the appellant was at 5.00 P.M., on 30.3.1986. He also states therein that he became conscious the next day, namely 31.3.1986. However, he would aver in the Complaint that the second meeting with the appellant was at 5.30 P.M., on 1.4.1986. I find from the original Complaint that a portion concerning the date has been changed from 30.3.1986 to 31.3.1986. Before the correction, the word in Tamil yesterday has been written and struck of. When P.W.2 was confronted in cross-examination about the discrepancy in the dates, he has confirmed his first meeting with the appellant on 30.3.1986. He has categorically stated in cross-examination that the arrest of the appellant was on 30.3.1986 and not on 1.4.1986. This assertion gives a third date of incident as 30.3.1986. P.W.2 also denies having stated in Ex.Pl and during investigation that the appellant was arrested on 1.4.1986. In the course of re-examination while admitting that he has put the date as 1.4.1986 in the Complaint in an answer to a Court question, it is asserted that the appellant was at rested on 31.3.1986, but he gave the Complaint only on 1.4.1986. This important contradiction about date of incident goes to the root of the matter, easting a substantial doubt in the truth of the prosecution version. As stated curlier, there are three versions given by P.W.2 about arrest of the appellant either on 30.3.1986, 31.3.1986 or 1.4.1986. This date of arrest which synchronizes with the date of offence becomes important, when it is specifically stated by the appellant, when he was questioned under Sec. 313, Cr.P.C., that he had been arrested even on 27.3.1986 but was remanded on 10.4.1986. 29. This date of arrest which synchronizes with the date of offence becomes important, when it is specifically stated by the appellant, when he was questioned under Sec. 313, Cr.P.C., that he had been arrested even on 27.3.1986 but was remanded on 10.4.1986. 29. If in fact a serious doubt arises with regard to the date of the incident, the evidence of P.Ws. 3 and 4 who are either the witness present at the scene or the mahazar witness, pales into insignificance. If the occurrence had taken place either on 30.3.1986 or 31.3.1986, the deposition of these witnesses as though the occurrence took place on 1.4.1986 cannot obviously hold water. P.W.3 Parasurarnan is an employee in a fruit shop in Bunder Street. He justified his presence on 1.4.1986 near the scene at or about 5.30 P.M. stating that he had gone over there to witness a circus show in that locality. Though he has stated in the chief-examination that the police personnel who arrived at the scene caught hold of the appellant and seized from him the knife, bag and money purse, identified by him as M.Os. 1, 2 and 5, in cross-examination, he contradicts himself that he did not see the actual catching hold of the appellant by the police, because he was inside the Madras Medical College Men’s Hostel at that time wherein he had gone out of fear, when the appellant was threatening him with a knife. It is also admitted by him that during investigation he did not tell the police about M.Os. 1, 2 and 5. Over and above all this it is his version that after the police left for the police station, he followed them along with another and was waiting outside the police station. Though the police station he voluntarily went in and told the Inspector of Police about the incident. According to him, in the statement recorded from him his signature was also obtained. He was not a witness to the seizure and it is not clear as to the statement in which his signature had been obtained. The evidence of P.W.3 does not impress me to be true and credible. P.W.4 is the attestor to the seizure mahazar Ex. P2 under which M.Os. 1, 2 and 5 were seized. He belongs to Ernavur, which is within the limits of Ennore Police Station. The evidence of P.W.3 does not impress me to be true and credible. P.W.4 is the attestor to the seizure mahazar Ex. P2 under which M.Os. 1, 2 and 5 were seized. He belongs to Ernavur, which is within the limits of Ennore Police Station. It is stated that Ernavur is situate at a distance of approximately 25 Kms. from the scene of occurrence. P.W.4 is therefore a chance witness and according to him he was present at the scene, since he had gone over there to witness the circus show. P.W.4 was not able to identify the appellant in Court. This is quite conceivable since he had been examined about a year and three months after the incident, but in respect of the mahazar Ex. P2, in which he had signed, he categorically admits that even before he was called to sign in the mahazar, it had already been written. He also feigns ignorance about the contents of Ex.P2. He admits that another person was also called along with him to attest the mahazar but he was unable to give details of the other witnesses who also attested the mahazar with him. Ex.P2 denotes that the other witnesses who had signed in the mahazar in the earlier serial number is one Sundaramurthy belonging to the same village Ernavur, of P.W.4. It is a rather strange co-incidence that two villagers of Ernavur who are not persons of the locality, where the offence took place, had been called to attest the seizure mahazar. Further it has been suggested to P.W.4 that he was present at the police station to take back a v. C.R. lost by one Jayachandran of Ernavur, which had been recovered and kept in the Flower Bazaar Police Station and that he had obliged the police by attesting Ex.P2. In the background of the evidence of P.W.4 which does not readily command itself for acceptance, this suggestion cannot be altogether brushed aside as without significance. It cannot be gainsaid that the place of arrest is a very busy locality with a few shops nearby and any number of locality witnesses would have been easily available. This aspect also creates a considerable doubt about the date of incident as well. P.Ws. 1 and 5 are the police constables attached to the Law College Police Station and the Inspector of Police attached to the Flower Bazaar Police Station, respectively. This aspect also creates a considerable doubt about the date of incident as well. P.Ws. 1 and 5 are the police constables attached to the Law College Police Station and the Inspector of Police attached to the Flower Bazaar Police Station, respectively. These are the two police officials who while patrolling, caught hold of the accused and took him to the police station along with P.W.2. P.W.5, the superior officer specifically states in his evidence that from M.Os. 3 and 4 which contained four packets, in all he took out 5 gms., from each packet for the purpose of chemical analysis. It is one such 5 gms. packet which has been despatched to the VIII M.M. George Town, Madras, by P.W.7 as deposed to by him, under Ex.P3. A look at Ex.P3 shows that the signature of the sending official is in English not decipherable, while P.W.7 has signed in Tamil in all other documents. Whatever that might be, it is very clear that only a packet of about 5 gms. was sent along with Ex.P3 to Court for being sent to the Forensic Laboratory for analysis. Ex.P4, the communication from the Magistrate to the Director also shows that the list of property sent was one sample packet containing about 5 gms. of suspected heroin powder. It appears from the contents of Ex.P4 that the sealed packet was sent through one Mohammed Isac Sheriff, a police constable of the C1 Flower Bazaar Police Station, who has not been examined in this case. Ex.P5, the report of the analyst while detailing about the samples received discloses that there were two different packets, one of which contained two polythene covers, each one of them containing light brown granules weighing 15.8 gms. and 24.1 gms. respectively. The second packet contained a similar substance weighing 4.9 gms. These substances according to the analyst report, were heroin, which is opium Alkaloid, a derivative from morphine. There is no evidence to correlate the obvious difference in the packets which were despatched to the analyst and those which had been received by the latter. This could have been achieved by examining Mohammed Isac Sheriff, the police messenger who carried the sample from the Court to the Laboratory. No attempt whatsoever had been made to show, how more quantity of brown substance had been sent to the analyst though only a packet of 5 gms. This could have been achieved by examining Mohammed Isac Sheriff, the police messenger who carried the sample from the Court to the Laboratory. No attempt whatsoever had been made to show, how more quantity of brown substance had been sent to the analyst though only a packet of 5 gms. had been despatched to the Court by P.W.7 and in turn sent to the Laboratory. I find from the unmarked documents that two green plastic packets each containing 20 gms. of brown colour powder and another packet containing 5 gms. of intoxicating powder with the name Sukumar (Appellant) written over it had been received by the Cashier of the Court on 24 4.1986. This cashier who has been examined as P.W.6, confirms the receipt of Ex.P3 from the investigating agency and the despatch of the substance for analysis under Ex.P4 and the receipt of the analyst report Ex. P5. His evidence is also not clear as to how more packets had been received by analyst than what had been despatched through Ex.P4. This difference in what had been sent to the analyst and received, definitely casts a considerable suspicion, about the very same seizure effected in this case, having been sent for analysis and report. Contrary to all the documentary evidence, the stray answer of P.W.7 in cross-examination, as though he had sent the entire seizure for chemical analysis, on the face of it appears incredible. This is a very grave lacuna in the prosecution case. P.W.5 has not given a report to his higher authority as ordained in Sec. 57 of the Act. He has also not intimated the appellant that he has a right to be taken before a gazetted officer or a Magistrate for search of his person, if he so required. He would also depose that the appellant was detained under Prevention detention in respect of this very crime. Even now, the appellant is in jail, his sentence not having been suspended pending appeal. The evidence of P.W.1, the police constable who was in the patrolling party while deposing about the occurrence, said to have taken place on 1.4.1986, has stated that P.W.2 had asked for the return of the monies from the appellant which he had paid on the earlier day for the purchase of the intoxicating substance. This earlier day will get fixed as 31.3.1986. This earlier day will get fixed as 31.3.1986. Realising that this was contrary to the prosecution version, he has later changed and stated that P.W.2 was narrating about the earlier incident on 30.3.1986. Thus I find that the discrepancy in the date runs throughout the fabric of the prosecution case and it is not a stray and plausible irrelevant mistake. 30. P.W.7 is the Investigating Officer who had received the first information report from P.W.2 as also the material objects and the seizure mahazar produced by P.W.5. It is he, who had the appellant remanded after jetting police custody, in spite of his awareness about the existence of an independent investigating agency under the Act and his futile attempt to have them, take over this investigation. It is clear that in spite of his awareness about the provisions of this Act vis-a-vis the investigating agency, he had usurped the powers which had not been conferred with the investigation. As stated earlier, if the basic fact of !he occurrence date is clouded in doubt, the whole edifice of the prosecution has to fall. Needless to add that if the very occurrence is doubted, an offence under Sec. 506(2), I.P.C., cannot survive. 31. It is really unfortunate and a matter for sorrow that the investigation in this case had not been done with due care and attention which it requires. When an offence of this type affects the society at large and results in grave consequences, the need for a meticulous and proper investigation cannot be gain said. The path of investigation, to minimise the evils arising out of drug abuse cannot be a matter of fact, mechanical or a routine affair without application of mind by the proper agency; for sufficient and clinching material has to be placed before the Court to seek a conviction of the offender. The lacuna in the despatch of the drug seized in this case for analysis, presents a very sorry state of affairs. It is not sufficient for the prosecuting agency to just initiate the prosecution and do nothing further, but ultimately blame other agencies, if cases fail for want of evidence or other legal lacuna. When the Act provides for a severe minimum sentence, there is all the more need for clinching and incontrovertible evidence being furnished. It is not sufficient for the prosecuting agency to just initiate the prosecution and do nothing further, but ultimately blame other agencies, if cases fail for want of evidence or other legal lacuna. When the Act provides for a severe minimum sentence, there is all the more need for clinching and incontrovertible evidence being furnished. Courts will have to hold the scales even between (a) the avowed object of the Act and the society’s concern to clamp down heavily on misuse and abuse of drugs and (b) the safeguards provided for the offenders under the Act, as well as the prime need of minimum acceptable evidence. 32 The woeful state of evidence in this case coupled with the legal lacuna constrains me to acquit the appellant of both the offences for which he had been convicted. I set aside the convictions and sentences imposed by the trial Court and acquit him. The fine if pay, paid shall be refunded. The order passed by the trial Court regarding the disposal of M.Os.1 to 8, stands confirmed.