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2000 DIGILAW 609 (KER)

Abdul Rasheed v. State of Kerala

2000-11-20

M.R.HARIHARAN NAIR

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JUDGMENT M.R. Hariharan Nair, J. 1. The challenge in the appeal is with regard to conviction entered against the appellant as accused in C.C.No.45/96 on the II Additional Special Court (II Additional Sessions Court), Ernakulam for the offence under S.22 of the Narcotic Drugs and Psychotropic Substances Act and sentence of rigorous imprisonment for ten years and fine of Rs. 1,00,0007- imposed therefor. 2. The prosecution case that at 3.35 p.m. on 16-8-1996 the accused was found in possession of 29 ampoules of Tidigesic (Buprenorphine) along with a syringe with needle and three spare needles at the eastern portion of the Azad Road at Kaloor, stands established under the impugned judgment in the light of the evidence of PWs 1 to 10 and Exts. PI to P17 and M.Os. 1 to 7 series. 3. Sri T.D.Robin, who appeared for the appellant, submitted that the quantum allegedly seized in the case is a small quantity and hence, the conviction, if at all any, should have been under S.27 of the N.D.P.S. Act. It is also argued that the seizure and trial are vitiated in so far as there was failure on the part of PW-9 to inform the accused of his rights under S.50 of the N.D.P.S. Act and also in not taking the accused, to a Gazetted Officer or a Magistrate before making the search alleged by the prosecution. 4. On the arguments advanced in the case the points that arise for decision are:- 1. Whether there is violation of S.50 of the N.D.P.S Act in the matter of the search conducted on the accused? ; 2. Whether the evidence available is sufficient to find the accused guilty of the offence under S.22 of the N.D.P.S. Act? 3. Whether the offence in question can be brought under S.27 of the N.D.P.S. Act? 5. Point No.1:- In the nature of the contention raised by the appellant it is necessary to quote S.50 herein:- 50. Conditions under which search of persons shall be conducted (1) When any officer duly authorised under S.42 is about to search any person under the provisions of S.41, S.42 or S.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 S.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-section (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 anyone excepting a female. 6. The thrust of the argument of the learned counsel for the appellant was on the words if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer/nearest Magistrate. (Emphasis supplied). 7. It is the admitted case of the prosecution that there was no attempt to take the accused to a Gazetted Officer or a Magistrate; but the offer was to bring another Gazetted Officer to the place where the accused was found, in case he was not satisfied with PW-3 who is a Gazetted Officer taken to the spot by PW-9 Seizing Officer and actually available at the time of seizure. 8. It was found in Baldev Singh's case ( AIR 1999 S.C. 2378 ) that the Investigating Agency must follow the procedure as envisaged by the statute scrupulously in the matter of search and the violation of this, though may not vitiate the trial, would render recovery of the illicit article suspect and vitiate the conviction and sentence of an accused where such conviction is recorded only of the basis of the possession of the illicit article recovered from his person during the alleged search. It was also held that the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned Official so that the laxity on the part of the investigating authority is curbed. No doubt, the prescribed procedure has therefore to be followed scrupulously; but will not bringing of a Gazetted Officer or a Magistrate to the place where the accused is available be sufficient instead of the accused being taken to the place where the Gazetted Officer or the Magistrate is available? The learned counsel for the appellant may be right in his submission that this particular question was not specifically considered in any of the judgments rendered so far. May be no one has raised it. The learned counsel for the appellant may be right in his submission that this particular question was not specifically considered in any of the judgments rendered so far. May be no one has raised it. But even so, I do not find any merit in the said contention for the following reasons :- A) The appellant has not succeeded in showing that any additional benefit would be available, if the search is conducted after taking the accused to the place where nearest Gazetted Officer or nearest Magistrate is available which will not be there if the search is conducted at the place where the accused is available after bringing the Gazetted Officer or the Magistrate thereto. Of course, the procedure prescribed has to be scrupulously followed; but that does not mean that it should be stretched to an unreasonable extent. If the rights available to the accused can be safeguarded even if the search is made at the place where he is available after bringing the Magistrate or the Gazetted Officer to that spot, there is no meaning in insisting that instead of doing so, the accused should be carried to the place where the Gazetted Officer or the Magistrate is available. What is important appears to be only conduct of search in the presence of the prescribed Gazetted Officer or the nearest Magistrate, after apprising the accused of his right for such search. B) The Supreme Court has gone into the rationale behind the provision in Para.25 of the judgment in Baldev Singhs case (1999 S.C. 2378). The court noted that the right to be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right that the legislature has given to him having regard to the grave consequences that may entail the possession of illicit articles under the N.D.P.S. Act. The rationale behind the provision manifest therein, it was held, is the fact that search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and the seizure to follow. It was further held that there is no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing him of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate. 9. It was further held that there is no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing him of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate. 9. None of the decisions rendered so far, it appears, goes to the extent of saying that such examination is insufficient and that scrupulous adherence to S.50 of the Act would necessitate the accused being physically taken to the nearest Magistrate or Gazetted Officer. In State of Punjab v. Jasbir Singh and others ( 1996 (1) S.C.C. 288 ) the Supreme Court observed that direction given by S.50 of the Act is a valuable right to the offender and compliance thereof is intended to be mandatory. The searching Officer, it was held that, is required to inform the offender that he has the right to have the search conducted in the presence of a Gazetted Officer or a Magistrate. State of Punjab v. Balbir Singh ( AIR 1994 SC 1872 ), Joseph Fernandez v. State of Goa (2000) 1 S.C.C. 707 ) & Mohinder Kumar v. State, Panaji, Goa (1998) 8 S.C.C. 655 ) also go only to that extent. In the circumstances, I am not persuaded to accept the appellants contention that the seizing official, in the instant case, was bound to inform the accused of his right not of bringing a Gazetted Officer or a Magistrate to the spot as proved to be done in the present case; but of taking him to the nearest Gazetted Officer or the nearest Magistrate. 10. Point No.2 - The evidence of PW-9, who was the Sub Inspector of Police, Ernakulam Town North Police Station, shows that at about 2.10 p.m. on 16-8-1996 he got information from PW-2 over phone that a person with psychotropic substances has been detained at Azad Road south of Mathrubhumi Press at Kaloor and that he accordingly recorded the information in the G.D. and sent extract thereof to his official superior, PW-10 vide Ext.P12. He requested for the presence of PW-3, who is the Excise Circle Inspector, to witness the search and it was in the company of Pw-3 that PW-9 proceeded to the spot where the accused had, in the meantime, been detained by the officers of the flying squad. He requested for the presence of PW-3, who is the Excise Circle Inspector, to witness the search and it was in the company of Pw-3 that PW-9 proceeded to the spot where the accused had, in the meantime, been detained by the officers of the flying squad. The accused was told that his body was going to be searched in the presence of PW-3, Who is a Gazetted Officer, and also asked whether the presence of another Gazetted Officer or Magistrate was required. The accused answered in the negative. There is clear corroboration forthcoming with regard to the entire details spoken to by PW-9 from PW-1, who is a loading worker and as such an independent witness, as also from PW-2 Head Constable and PW-3, Circle Inspector of Excise. In the circumstances, it is futile to contend that there was failure to comply with the requirements of S.50 of the N.D.P.S.Act. Here is a case where the accused, who was given an offer, not only did not insist that he should be examined in the presence of a Gazetted Officer other than PW-3 but also where the search was in fact conducted in the presence of Pw-3 who is a Gazetted Officer. I do not think that there is any material violation of the provisions in S.50 of the N.D.P.S. Act involved in this case in the aforesaid circumstances. It is also seen from the above evidence as also the evidence of the other witnesses that there is unimpeachable evidence to show that the accused was actually found in possession of 29 ampoules of Buprenorphine (Tridigesic) when his body was searched at 3.35 p.m. on 16-8-1996 while at Azad Road, Kaloor. 11. Point No.3:- The learned counsel for the appellant submitted that the quantum of Buprenorphine allegedly seized from the accused, in any event, is a small quantity being of less than one gram and that as such the accused should have been punished only under S.27 of the N.D.P.S. Act and not under S.22 of the Act. In this regard, it was pointed out that the accused is an addict to the particular psychotropic substances as borne out by the medical evidence available in the case. 12. It is not in dispute that the small quantity of Buprenorphine is upto one gram. In this regard, it was pointed out that the accused is an addict to the particular psychotropic substances as borne out by the medical evidence available in the case. 12. It is not in dispute that the small quantity of Buprenorphine is upto one gram. The ampoules of Tidigesic seized in the case were all of 2ml.lt is seen from the report of the Chemical Examiner that the total quantity of Buprenorphine seized in the case is only 17.4 mgs., which is far below the limit of small quantity, namely, one gram. 13. Merely because of the above fact, the appellant cannot get the benefit of scaling down the offence from S.22 of the Act to that under S.27 (2) of the N.D.P.S. Act. S.27(2) of the N.D.P.S. Act is quoted below: 27(2)-Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person. 14. As clear from this section itself in order that the accused may get the benefit, he has not only to show that what he was possessing was only a small quantity, but also that it was intended for his personal consumption and not for sale or distribution. The section is also clear that the burden of proof in this regard is on the accused himself. 15. Admittedly, the accused has not adduced any positive evidence to show that he was holding the substance for his own consumption and not for sale or distribution. It is to be noticed here that S.35 of the N.D.P.S. Act specifies that 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, though it shall be a 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 that prosecution. In the explanation of. this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. In the explanation of. this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. Under S.35(2) for the purpose of the section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by preponderance of probability. 16. Abdul Rashid Ibrahim Mansuri v. State of Gujarat ( AIR 2000 S.C. 821 ) went into the nature of proof required under S.35 for claiming benefit of S.27 of the Act. It was found that burden can be discharged under any of the following 3 modes, namely, (1) by relying on materials available in the prosecution evidence; (2) by eliciting answers from the prosecution witnesses and (3) by direct defence evidence. The evidence adduced in the case, according to me, is insufficient to show that the accused has discharged the burden under S.35 of the Act even if we proceed as per the guidelines in the aforesaid decision. Admittedly, no defence evidence was adduced on the point. Nor was there any question put to the relevant witnesses to bring out that the purpose for which the accused was holding the 29 ampoules was prospective own consumption. However, the evidence of Pw-7 who is the Casualty Medical Officer of the General Hospital, Ernakulam supports the case of the appellant with regard to the possibility of the seized item or at least a part thereof being held for the use of the accused himself. 17. PW-7-Medical Officer has deposed that when the accused was taken to him by Pw-9 on 16-8-1996, he was told by the police party that the accused was an addict to Tidigestic. In fact, the accused had been taken there in view of the abnormal behaviour shown by him. PW-7 concluded on examination of the accused, that he was suffering from withdrawal symptoms. The accused also told PW-7 at the time that he wanted an injection of Tidigesic. There were no external injuries found by PW-7 on the accused except some marks near the right auxilla. PW-7 identified these marks as injection marks and issued Ext.P6 certificate to the effect that the accused is a drug addict. The accused was also admitted and treated by PW-7 for two days. Ext.P7 is the discharge certificate. There were no external injuries found by PW-7 on the accused except some marks near the right auxilla. PW-7 identified these marks as injection marks and issued Ext.P6 certificate to the effect that the accused is a drug addict. The accused was also admitted and treated by PW-7 for two days. Ext.P7 is the discharge certificate. Even in Ext.P7, it is endorsed that the accused was admitted with signs and symptoms suggestive of drug withdrawal, treated accordingly and then discharged in relieved condition. 18. Merely by showing that the accused is an addict to Tidigesic he cannot contend successfully that he is entitled to the benefit of S.27 of the Act. The burden which rests on him under S.35 of the Act has to be effectively discharged. Here is a case where three spare needles were also seized from the accused and the number of ampoules found were also not required for use by one person for two or three days. Definitely, more evidence is required from the accused, if at all he is to be granted the benefit of S.27 of the Act. 19. Faced with the above situation the learned counsel for the appellant sought for a remand so that necessary further evidence can be adduced in this regard. Normally, such a request at this belated stage would not be entertained; but I am persuaded to allow such a remand for the reason that according to the law which prevailed earlier, as can be seen from the decision in Ruben Joseph v. State of Kerala ( 1993 (2) KLT 121 ),Tidigesic was being treated as a manufactured drug and the present limit of small quantity (one gram) was not applicable then. Though ignorance of law is not a defence in criminal law, the contention of the appellant that he was unaware of the new prescription of small quantity of Tidigesic as one gram or about its categorisation as a psychotropic substance and that was why he did not adduce defence evidence cannot be lightly brushed aside as unbelievable. As already mentioned, even the evidence of PW-7 supports the case of the accused that he was actually an addict. As already mentioned, even the evidence of PW-7 supports the case of the accused that he was actually an addict. To claim protection under S.27 of the Act what is required is only some more evidence and as far as the accused is concerned, the difference involved would be substantial in so far as the subtantive punishment for the offence under S.27 of the Act is subject to a maximum limit of one year, and the minimum fine of Rs. 1,00,000/- would also not applicable in that event. 20. Perhaps the accused may also be entitled to the benefit of R.66 of the N.D.P.S. Rules which provides as follows:- "66. Possession, etc. of Psychotropic substances. (1) No person shall possess any psychotropic substance for any of the purposes covered by the 1945 Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under these Rules. (2) Notwithstanding anything contained in sub-rule (1), any research institution or a hospital or dispensary maintained or supported by Government or local body or by charity or voluntary subscription, which is not authorised to possess any psychotropic substance under the 1945 Rules, or any person who is not so authorised under the 1945 Rules, may possess a reasonable quantity of such substance as may be necessary for their genuine scientific requirements or genuine medical requirements, or both for such period as is deemed necessary by the said research institution or, as the case may be, the said hospital or dispensary or person: Provided that where such psychotropic substance is in possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred josage units at a time. (3) The research institution, hospital and dispensary referred to in sub-rule (2) shall maintain proper accounts and records in relation to the purchase and consumption of the psychotropic substance in their possession." (Emphasis supplied) 21. In the circumstances, justice demands that the accused is given one more opportunity to adduce evidence required under S.27(2) read with S.35 of the N.D.P.S. Act or even regarding the ingredients, of R.66 afore-mentioned. 22. In the circumstances, justice demands that the accused is given one more opportunity to adduce evidence required under S.27(2) read with S.35 of the N.D.P.S. Act or even regarding the ingredients, of R.66 afore-mentioned. 22. In the circumstances, the conviction entered against the accused for the offence under S.22 of the N.D.P.S. Act is set aside and the matter is remitted to the trial court with a direction to afford further opportunity to the accused to adduce defence evidence in support of his contention that the offence is only under S.27 of the N.D.P.S. Act or even claiming the benefit under R.66 of the N.D.P.S. Rules. After the prospective evidence, the court below will pass fresh orders based on the then available evidence, that is, evidence now existing as also prospective. 23. The question now arises whether the accused can be released on bail pending further trial. I have heard the learned Public Prosecutor also on the point. 24. Here is a case where the accused has been in custody and under imprisonment continuously from 16-8-1996. If the accused is ultimately given the benefit of S.27 of the Act, the punishment for the offence will have to be deemed as already undergone. Learned counsel for the appellant assures that the accused, if let on bail, shall not repeat the offence of this nature. Considering all these facts, it is directed that the accused will be released on bail on execution of a bond forRs.15,000/- with two solvent sureties each for the like amount on the accused's undertaking to appear before the Sub Inspector of Police, Fort Kochi, at 10 a.m. on every Sunday until final disposal of the case. He will also undertake not to involve himself in offences of this nature during the period of bail. If any of these conditions are violated, it will be open to the Public Prosecutor to move for cancellation of bail.