DINESH KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Since both these appeals involved certain common questions of law on uncommon, but similar facts, these were heard together. In the course of their arguments, the learned counsels for the appellants had vehemently urged that the mandatory provisions contained in Sec. 42, 50 and 52 of the Narcotic Drugs and Psychotric Substances Act 1985(hereinafter referred to as "the N.D.R.S. Act, 1985") were not complied with in letter and spirit, therefore, the trial of the appellants in both the cases had been vitiated. In support of such contention, the learned counsel had relied upon certain decisions of this Court. On the other hand, the learned Public Prosecutor had placed reliance on certain decisions of the Kerala, Delhi and Madras High Courts, in support of his contention that non-observance of certain statutory provisions relating to appeal of the appellants and seizure of the contraband from their possession was not fatal to the success of the prosecution case, unless it was shown that such non-observance of the statutory provisions had been caused prejudice to the accused in his defence. In view of such arguments advanced by the learned counsel for the parties, I had, vide order dated Nov. 11, 1995, referred the matter to the Honourable Chief Justice with the request that the view of a larger bench on the point as to what extent the theory of prejudice to the accused by non-observance of certain statutory provisions of the Act is relevant be solicited in these cases. The Honourable Chief Justice was pleased to refer these appeals to a Division Bench for the purpose. The Division Bench, vide its order dated Feb. 23, 1996, opined that the provisions of Sections 42, 50 and 52 of the N.D.P.S. Act are mandatory in view of the Apex Courts decision in the case of State of Punjab Vs. Balbeer Singh, 1994(3) SCC 299 and in Saiyed Mohd. Saiyed Umar Saiyad & others Vs. State of Gujarat 1995(2) Crimes 182 and therefore, the reference was uncalled for The appeals were directed to be listed before the Single Bench for disposal in accordance with law. Both the appeals again fell for hearing before me. I, therefore, heard the learned counsel for both sides at considerable length.

(2.) In so far as the question whether the provisions of Sec. 42, 50 and 52 of the N.D.P.S. Act 1985 are mandatory or directory is concerned, that stands concluded by the two judgments of the Apex Court referred to by the Division Bench in its order dated Feb. 23, 1996. It was urged on behalf of the appellants that in view of the opinion of the Division. Bench, the impugned judgements in both the appeals may conveniently be set-aside without entering into further scrutiny and examination of the evidence on the record of the case. The learned Public Prosecutor, however, urged that a study of the evidence, brought on the record of the Trial Court in the two cases, would clearly disclose that the provisions contained in Sec. 42, 50 and 52 had not been violated and, therefore, these cases cannot be thrown on the assumed ground that the mandatory provisions, as aforementioned, were not complied with. The learned Public Prosecutor further submitted that even if it was found on examination of the evidence on the record of the two cases that there has been some non-compliance of the statutory provisions, then in view of Sec. 465 Cr.P.C, the cases cannot be thrown outright unless the court comes to the conclusion that the non-compliance has caused failure of justice. It was submitted that the theory of prejudice to the accused has to be considered even in those cases wherein there has been a breach of one or more of the mandatory provisions of the N.D.P.S. Act.

(3.) In view of the arguments advanced by the learned counsel for the parties it becomes necessary first to examine as to what could be the consequence of the non-compliance of the mandatory provisions of Sections 42, 50 and 52 in the facts and circumstances of the present case.