Manijan Bibi v. State of Manipur — 1997 DIGILAW 127 (GAU)

This appeal is against the judgment and order dated 29.6.94 of this Special Judge No. 1. Manipur Imphal in Special Trial (NDPC) Case No.8 of 1993 thereby convicting the above accused-appellant for the offence under section 21 of the Narcotic Drugs and Psychtropic Substances Act 1985 (hereinafter referred to ND & PS Act) and sentencing her to undergo 10 (ten) years RI with a fine of Rs. 1 (one) lakh, in default, of payment of the fine, further imprisonment for 10 (ten) months. 2. Heard Mr. N. Kerani Singh. the learned senior counsel for the accused--appellant and also heard Smti Bidyamani Devi, the learned Additional Public Prosecutor for the State. 3. On 17.5.91 a police party of Border Affairs PS led by Shri L. Seisou Mao. Sub Inspector (PW 1), while making a round on duty around Thoubal area at about 9 AM for checking and the detecting any drug trafficking, received an information that certain amount of heroin powder No.4 was kept for sale in her house by the accused Smti Manijan Begum, thus, the police party proceeded to the house of the accused, conducted search of the house and in course of the search, seven small plastic packets containing "No.4 heroin powder weighing 1 (one) gm each were recovered from beneath the matress of the sleeping bed of the accused. The seized articles along with the accused were brought and handed over to the Officer in-charge, Border Affairs PS and an ejahar Ext P3 was lodged. Officer-in-charge, BA Police Station registered a case being FIR Case No.97 (5) 91 of BA Police Station. On obtaining a positive report from the expert in respect of the seized articles, the accused had been charged and on trial the learned Special Judge passed the judgment and order of conviction and the sentence as recorded above. 4. The plea of the accused as gathered from her statement recorded under section 313 CrPC and also from the version of the defence witnesses is of total denial. 5. Mr. N. Kerani Singh, the learned counsel for the accused/appellant criticised e and assailed the judgment of the trial Court on more than one grounds and the learned counsel has taken me through the evidence and judgment recorded by the learned Special Judge. 6. The first line of attack of Mr. 5. Mr. N. Kerani Singh, the learned counsel for the accused/appellant criticised e and assailed the judgment of the trial Court on more than one grounds and the learned counsel has taken me through the evidence and judgment recorded by the learned Special Judge. 6. The first line of attack of Mr. N. Kerani Singh, the learned counsel for the appellant/accused is that the PW 1 had not recorded the information before proceeding to the house of the accused for search and seizure of the contraband in violation of the mandatory provision of law prescribed under section 42 of the NDPS Act. Thus, the entire prosecution has been vitiated. 7. PW 1 as the informant has mentioned in the FIR (Ext P3) and also deposed before the Court that while he was at Thoubal Bazar he got the information that the accused was selling drugs at her house. 8. In this regard, the point is no more res intergra as the law has been settled by the Supreme Court in the case of State of Punjab vs. Balbir Singh reported in AIR 1994 SC 1872 . The Apex Court at sub-para 2 (c) of the para 26 of the judgment held : ''Under section 42 (1) the empowered officer if he has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offence are concealed in any building etc, he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial." Again at sub-para 3 of the same para, the Apex Court continued - "Under section 42 (2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42 (1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case." 9. In the Full Bench decision of Gauhati High Court reported in 1996 (II) GLT 449 (1996 (2) GL J 435) it has been held that the recording of information as required by section 42 (1) of NDPS Act, even in case where no prejudice was caused to the accused at the time of search and seizure of the contraband goods, was mandatory. 10. Now, the legal position is clear. If the empowered officer received a prior information given by any person, that should be recorded, in case the officer himself has reasons to believe from his personal knowledge, then the provision does not mandate; that he should, record his reasons of belief. 11. Now coming to our present case, as stated above, PW 1 got information from others, so he should have recorded reasons for his belief before he proceeded to the house of the accused for search and arrest. There is no evidence to show that PW 1 recorded the inforamtion which he received from others before proceeding to the house of the accused. Though the PW 1 has stated in the Court that he recorded in writing in the general diary of all facts of receiving the information that certain amount of heroin powder was found being concealed/ possessed by the accused in her house. Here, the requirement of law is that before proceeding for the search and seizure, the officer was to record reasons for his belief on the basis of the information received from others. Thus, recording of the information after the search and seizure cannot be taken as compliance of the aforementioned mandatory provisions of law. Contravention of this mandatory' provisions has affected the prosecution and vitiated the trial. 12. The second line of attack of Mr. N. Kerani Singh is that there is no evidence to prove that the accused possessed heroin powder and also that the actual search and seizure was not proved. 13. Unlawful possession of the contraband article is sine qua non for conviction under NDPS Act. 12. The second line of attack of Mr. N. Kerani Singh is that there is no evidence to prove that the accused possessed heroin powder and also that the actual search and seizure was not proved. 13. Unlawful possession of the contraband article is sine qua non for conviction under NDPS Act. In the case of Ali Mustaffa vs. State of Kerala reported in AIR 1995 SC 244 , the Apex Court held : "A contraband seized as a result of illegal search or seizure, cannot be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. 'Unlawful possession' of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act." 14. Under section 35 and 54 of the NDPS Act, the pro visions for presumption of law and of facts respectively, are found. The same are reproduced below : "Section 35 : Presumption of culpable mental state - (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in the prosecution. Explanation - In this section 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. Explanation - In this section 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. Section 54 : Presumption from possession of illicit articles - In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of - (a) nay narcotic drug or psychotropic substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus special designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactory." 15. In view of the provisions of section 3 5 and 5 4 of the NDP S Act. possession per se has been made culpable and burden is placed upon the accused to prove that he had no culpable mental state or to satisfactory account for his possession of the article, as the case may be. 16. In this case, the search and seizure was made by P\y 1 in presence of 2 (two) independent witnesses from the locality. Both the local witnesses, namely Md. Liklai (PW 4) and Mr. Rajak Shaha (PW 5) were declared hostile by the prosecution and their credibility was impeached by7 contradicting them with their previous statements recorded by the Police. PW 2 and PW 3 are the Constables working unier SI Seisou Mao (PW 1) and they supported the version of PW 1. According to them the contraband articles were found under the matress of the sleeping bed of the accused and her bed was identified by the accused herself. According to the defence witnesses, there were 2 (two) other persons (her husband and her father-in-law) living in the house and there were 3 beds in the room. According to Mr. Kerani Singh. the prosecution has not established that the bed in which the contraband was alleged to have been found belonged to the accused. The submission of Mr. Kerani has force. There were three beds in the room. According to PW 1. According to Mr. Kerani Singh. the prosecution has not established that the bed in which the contraband was alleged to have been found belonged to the accused. The submission of Mr. Kerani has force. There were three beds in the room. According to PW 1. he found the packets containing the contraband beneath the sleeping bed of the accused and the accused herself identified the bed to be her own. Here, the ownership of the other beds in the room was not identified, the other two inmates were also not present at the time of search and seizure. Thus the so called identification or the statement of the accused herself made to the police, which has been denied by the accused in her statement under section 313 CrPC in the absence of any other independent evidence may not be sufficient to prove that the accused was the owner of the bed and possessor of the seized contraband. 17. Mr. Kerani Singh, further, submitted that PW 1 should have offered himself to be searched by the accused in presence of the witnesses before he (PW 1) conducted the search and seizure of the contraband. 18. PW 1 seized 7 (seven) small packers each containing 1 gm powder and out of those packets, PW 6 the Investigating Officer, sent to the expert 50 mg from each of the seized 7 packets by packing in seven separate packets and putting them in a beg in presence of the Magistrate for examination. But, in the report Ext P6 it has been disclosed that 35 mg of white powder in weight was found in each packet marked as Ext A to G, thus, there is a difference of 15 mg in weight in each packet. The learned Special Judge opined that the difference in weight may be due to the fact of failure on the part of the Investigating Officer to give the accurate weight as he is not an expert in the field. 19. Severe punishment are prescribed in the NDPS Act and in most of the penal provisions, minimum punishment of 10 years imprisonment with a fine of Rs.1 lakh are prescribed. In handing heinous offence like the present one the authorities particularly the police and other empowered officers should be very cautious and should proceed in every step and stages in due compliance of the procedure prescribed under law. In handing heinous offence like the present one the authorities particularly the police and other empowered officers should be very cautious and should proceed in every step and stages in due compliance of the procedure prescribed under law. From the above discussion and finding it is concluded that the mandatory provision of section 42 of the NDPS Act was not followed thereby vitiating the trial and conviction. Even the evidence regarding the possession of the contraband, proof of the seizure including the manner in which sample of the seized article was sent and, was received by the expert are not free from doubt. And accordingly, the impugned judgment and order of conviction and sentence is quashed and the accused is acquitted. Appeal is, therefore, allowed. The accused is on bail to which she need not surrender.