LOUIS OBIOHA Vs. NARCOTIC CONTROL BUREAU

JUDGEMENT

(1.) THIS Appeal arises out of the Order dated 10-1-1994 passed in n. D. P. S. Spl. Case No. 1343 of 1988 whereby the appellant herein was convicted under section 21 read with 8 (c) of the Narcotic Drugs and psychotropic Substances Act, 1985 (hereinafter referred to as the said Act ) and was sentenced to suffer R. I. for 10 years and to pay a fine of rs. 1 lakh in default to suffer R. I. for six months more. The case of the prosecution is that on 26-9-1988, the complainant along with his companion intelligence Officers of Narcotic Control Bureau (NCB), Bombay had gone to the Esplanade Court for producing before the Court one Nigerian National by name Felix Chike Ejiofor and on that occasion they found accused moving there in suspicious circumstances and therefore apprehended the appellant and took him to their office for interrogation. Thereafter, on direction from R. N. Kakar, Deputy Director, NCB, Bombay, the Appellant was taken to his Residence at Flat No. 11, JN3 No. 19, Sector 9, Vashi, New Bombay and the Officers searched the said premises and recovered from kitchen one plastic bag containing 80 small balloons of different colours containing 10 grams of brown powder which was tested and identified as heroin and consequently they recovered 80 grams of heroin from the said flat. They seized the entire property and they also recovered weighing and packing material as also cash of Rs. 15,300/ -. All the items were seized under the panchanama drawn on the spot and the Appellant was taken to the office of the NCB, Bombay. After recording the statement of the Appellant under section 108 of the Customs Act and on receipt of the analysis report from the laboratory, the Officer s complaint was filed in the Court of the Chief metropolitan Magistrate, Bombay on 5-12-1988 and the offence being exclusively triable by the sessions Court, the case was committed to the sessions Court on 5-12-1988 in the Court of sessions. The Appellant pleaded not guilty and accordingly he was tried for the said offence. After recording the evidence, he was held guilty for the offence under section 8 (c) of the said Act and therefore, he was convicted by the impugned judgment.

(2.) THOUGH the Appeal has been preferred on various grounds, the challenge to the impugned judgment and order has been restricted by the learned Advocate Shri S. B. Keshwani on two grounds firstly, that the entire prosecution vitiated for non-compliance of section 41 (2) and 41 (2) of the said Act. He submitted that in terms of section 41 (2) of the said Act, the officer can act under the said section pursuant to the reason to believe from the information received by him and taken in writing about the commission of offence under Chapter IV of the said Act; that in the instant case undisputedly PW 6-Kakar who is said to have acted under section 41 did not take in writing the alleged information which was received by him from his subordinates; that there was no material before PW 6 to have reason to believe about the commission of offence under chapter IV of the said Act by the Appellant to enable him, Shri Kakar, to act under section 41 (2)of the said Act and secondly on the ground that there was no material on record to show that the p. W. 6-Kakar had in fact Jauthorised P. W. 1-Bhalchandra K. Thekke and P. W. 2-Vijaykumar S. Shahasane under section 41 (2) to conduct search and seizure of the drugs from the premises from which the same has been seized. Therefore the officer could act only under section 42 (1) of the said Act. Admittedly, the search and seizure has been done during the period between the sunset and sunrise by the said Officer without recording the grounds for their belief for conducting the search after sunset. This has been done in spite of mandatory requirement for such recording of grounds under proviso to section 42 (1) of the said act. Hence according to Shri Keshwani, the entire prosecution has been vitiated and hence the appellant is entitled for clear acquittal.

(3.) IT is contended by Shri Keshwani that the evidence on record shows that P. W. 6/kakar had no personal (sic) about the alleged commission of offence under the said Act by the Appellant and the information received regarding the same was given to him by his subordinates P. W. 1-Thekke and p. W. 2-Vijaykumar Shahasane. However, though the information regarding the alleged commission of offence under Chapter IV of the said Act by the accused was given by the subordinate to P. W. 6-Kakar in his office, he had not recorded the same in writing. In spite of various documentary evidence placed on record by the prosecution, a document showing that such information was recorded in writing by P. W. 6-Kakar before issuing the alleged authorisation to the subordinates to conduct the search and seizure in the flat from which the contraband drugs were seized has not been placed on record. The absence of such document shows that PW. 6-Kakar had no material before him to have reason to believe about the commission of offence under Chapter IV of the said act. Such material is absolutely necessary under section 41 (2) to have a reason to believe to have committed an offence under the said Act. The learned Advocate has relied upon the judgment of the Supreme Court in the matter of State of Punjab vs. Balbirsingh reported in JT 1994 (2) SC 108 in support of his contention. It is further contended by Shri Keshwani that no doubt, P. W. 1-Bhalchandra as well as P. W. 2-Vijaykumar have stated that before proceeding to search the premises they were directed to do so by P. W. 6-Kakar. However, they have also further stated that they did not try to get search authorisation of the premises from the officer empowered under section 41 (2) of the said act. The learned Counsel further submitted that it was incumbent upon said Officers, to obtain such authorisation before conducting said search since the search was conducted after sunset. The learned advocate also drew our attention to the fact that before conducting the search, the concerned officers did not record the grounds for their belief as was otherwise required under the proviso to section 42 (1) of the said Act since search was conducted after sunset. Being so, relying upon the judgment of the Supreme Court in the matter of state of Punjab vs. Balbir Singh (supra), the learned Advocate submitted that the entire proceedings are vitiated and therefore, the appellant is entitled for acquittal.