Holding

Section 55’s sealing requirement is triggered only when seized articles are sent to the officer in charge of the nearest police station; forwarding to an officer empowered under Section 53 obviates that requirement, and the appellant failed to rebut the Section 35 presumption, so the conviction stands.

Summary

Karnaill Singh, a truck driver, was stopped by a preventive party of the Narcotic Bureau and his vehicle was searched, leading to the seizure of 96.6 kg of opium. The seized goods and samples were sealed by the inspecting officer, but were later forwarded to the Superintendent of the Central Narcotic Bureau rather than the officer in charge of the nearest police station. The appellant argued that Section 55 of the NDPS Act required the seal of the nearest police‑station officer and that the presumption under Section 35 should be rebutted. The Supreme Court held that Section 55 applies only when the articles are sent to the nearest police‑station officer; forwarding to an officer empowered under Section 53 dispenses with that requirement. It also held that Section 42 was inapplicable because the officer acted without personal knowledge, and the appellant failed to discharge the burden of proof to rebut the Section 35 presumption. Consequently, the conviction and sentence were upheld and the appeal dismissed.

Issues considered

Whether the procedural requirement of Section 55 of the NDPS Act was complied with when seized articles were forwarded to the Superintendent, Central Narcotic Bureau instead of the officer in charge of the nearest police station.
Whether Section 42 of the NDPS Act applies when the seizing officer acts without personal knowledge or information.
Whether the appellant discharged the burden of proof to rebut the presumption of guilt under Section 35 of the NDPS Act.
Whether the procedural safeguards under Sections 49, 52, 53 and 55 were violated warranting acquittal.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 35, s. 42, s. 43, s. 49, s. 51, s. 52(3)(a), s. 52(3)(b), s. 52A(2), s. 53, s. 55

Subjects

NDPS ActSection 55seizure of narcoticsprocedural safeguardpresumption of guiltburden of prooftruck driver conviction

Judgment

-
A KARNAIL SINGH
v.
STA TE OF RAJASTHAN

SEPTEMBER 13, 2000

B [K.T. THOMAS AND R.P. SETHI,JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 51,
52 (3) (a), (b), 53, 55-Appellant was searched by the preventive party of
the Narcotic Bureau-Samples were taken and the FIR was lodged before
C Superintendent, Central Narcotic Bureau-High Court upheld conviction
made by Trial Court-On appeal held, officer required to affix seal under
Section 55 is the officer incharge of the nearest police station distinguished
from officers mentioned in Section 53-Jf arrested person is forwarded to
officer incharge of the nearest police station then procedure under Section
D 55 would apply, but if he is forwarded to an officer mentioned in Section 53
then similar procedure cannot be insisted-No procedural irregularity-
Conviction upheld

Sections 42 and 43-Applicability-Provisions of Section 42 would
not apply if action is taken without personal knowledge or information of
E the officer.

Section 35-Presumption-Held, burden of proof not discharged in
any manner as offence was committed with a conscious mind and with full
knowledge-Presumption not rebutted

F A preventive party of the Narcotic Bureau apprehen4ed the appellant
and told him that they suspected presence of opium in his truck. The truck
was driven to the Control Room of Central Narcotic Bureau after he conveyed
that any officer or employee could conduct the search. The suspected bags
were seized and sealed by the officers and some samples were taken. He
signed the panchnama and was later on arrested. The samples proved to be
G opium and investigation began after the First Information Report was lodged
in the office of the Superintendent, Central Narcotic Bureau. Trial Court
convicted him. High Court upheld the conviction reducing the sentence.
Hence this appeal.

Appellant contended before this Court that the mandate of Section 55
H 250
KARN AIL SINGH v. ST ATE OF RAJAS THAN 251
of the Narcotic Drugs and Psychotropic Substances Act, 1985 was not A
followed; and that no presumption under Section 35 of the Act could be drawn
as the onus of proof regarding absence of culpable mental state had already
been discharged by him.

Dismissing the appeal, the Court
B
HELD: Section 55 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 mandates an officer in-charge of a police station to take charge
and keep in safe custody the articles seized under the Act within the local
area of that police station which may be delivered to him and shall allow any
officer who may accompany such article to the police station or who may be
deputed for the purpose to affix his seal to such articles or to take samples C
of and from them and all samples so taken shall also be sealed with a seal
of the officer-incharge of the police station. Section 51 read with Section 52
and 53 would mean, the officer required to affix the seal etc. under Section
55, would be "the officer incharge of the nearest police station" as
distinguishable from the officer incharge of a police station empowered D
under Section 53. If resort is had to the procedure prescribed under Section
52 (3) (a) where the arrested person is forwarded to the officer incharge of
the nearest police station the applicability of Section 55 would be attracted
but if the arrested person and the seized articles are forwarded under
Section 52 (3) (b) to the officer empowered under Section 53 of the Act, the
compliance of Section 55 cannot be insisted upon. [257-F-H; 258-A-B] E
1.2. The distinction between the officer incharge of the nearest police
station and the officer empowered under Section 53 of the Act is distinct and
clear based upon a reasonable object, because as in case the person and the
seized articles are referred to the 'officer incharge of the nearest police
station,' a distinct agency, than the officers contemplated under section 53, F
comes into the picture which requires the taking ofsufficient safeguards to
protect the seized property in the interests of the arrested persons. The
distinction is also evident from Section 52A(2). [258-D]

2. For attracting applicability of Section 42, it is necessary that the G
officer empowered thereunder, before exercise of his right, should have
reason to believe from personal knowledge or information regarding the·
movement of narcotic drug or psychotropic substance. If action is taken
without his personal knowledge or information, the requirements of Section
42 would not be applicable. However, in the present case the procedure
prescribed under Section 49 read with Section 43 has been found to be H
252 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A followed. (256-B; 258-F)

3. The appellant had not discharged the burden of i>roof in any manner
to rebut the presumption envisaged under Section 35 of the Act. He has been
proved to be transporting the opinum with a conscious mind and full
knowledge. All ingredients of the offences with which he has been convicted
B and sentenced had been proved by the prosecution. (258-G)

Abdul Rashid Ibrahim Mansuri v. State of Gujarat, [2000) 2 SCC 513,
relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
C 781 of 2000.

From the Judgment and Order dated 2.9.98 of the Rajasthan High Court
in S.B. Crl. A. No. 449 of 1994.

Jayant Bhushan (A.C.) for the Appellant.
D
Sushil Kumar Jain, A. Misra and Ms. Anjali Doshi for the Respondent.

The Judgment of the Court was delivered by

SETHI, J. Leave granted.
E
The appellant, a truck driver was apprehended and arrested on 21st
August, 1992 by a Preventive Party, on the Kota-Bundi Road in Rajasthan as
he was shown to be carrying 96.600 kgs. of opium in his Truck No.PCT 9997.
The opium was found concealed in three gunny bags containing 21 raxine
bags. After compliance of the requisite legal formalitit::s, a case under Section
F 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
called "the Act") was registered. The seized goods and samples were kept in
double lock malkhana. On conducting tests, the articles se°ized were found to
be opium. On trial, the appellant was found guilty of the offences with which
he was charged under the Act. He was convicted and sentenced to rigorous
G imprisonment for 15 years and to pay a fine of Rs.1.5 lakhs or in default of
the fine to 11ndergo rigorous imprisonment for one year. In appeal, the High
Court upheld the conviction but reduced the sentence of imprisonment to I 0
years and fine of Rs. I lakh, vide the order impugned in this appeal.

Mr. Jayant Bhushan, Advocate who appeared as amicus ~uraie has
H raised some legal questions which, according to him, had not been taken note
-
KARNAIL SINGH v. STATE OF RAJASTHAN [SETHI, J.] 253
of either by the Trial Court or by the High Court. He contended that as the A
procedure prescribed under the Act was not followed, the appellant was
entitled to acquittal. It was further submitted that no presumption under
Section 35 of the Act could be drawn against the appellant. Relying upon the
judgment of this Court in Abdul Rashid Ibrahim Mansuri v .. State o/Gujarat,
[20001 2 sec 513 he contended that the appellant had discharged the onus B
of proof regarding his plea of absence of culpable mental state which should
have been accepted and the appellant acquitted.

Regarding violation of the procedural safeguard under the Act, it has
been contended on behalf of the appellant that the mandate of Section 55 of
the Act has not been followed and as the Trial Court as well as the Appellate C
Court arrived at the guilt of the appellant on wrong assumptions, the appeal
be accepted by setting aside the impugned judgment.

In order to appreciate this submission some facts of the case are
required to be noticed. There is no dispute that the truck, when intercepted,
was not stationary but was in transit being driven by the appellant. The D
raiding party comprised ofNand Lal Rai, Inspector (PW8), Mohan Lal (PWI),
Bajrang Lal (PW2) and Zaheen Ahmad (PW7). Suspecting that in the truck
some narcotic drugs might be transported, Inspector Nand Lal Rai (PW8)
called independent witnesses Onkar and Ram Lal and in their presence told
the appellant that he had a suspicion of opium being transported in the truck. E
As he wanted to take search of the truck, he inquired from the appellant

- whether he would get the truck searched in the presence of a Gazetted Officer
or a Magistrate. He was told by the accused that the truck may be searched
by any officer or employee. As by that time rain had started and there was
no arrangement of light at the place of checking, the preventive party took
the truck along with its driver to the Control Room of Central Narcotics F
Bureau, Kota. PW8, Nand Lal Rai along with other employees searched the
truck in the presence of Anand Singh Negi and other witnesses and found
three gunny bags containing opium, as noticed earlier. From each of the
gunny bags 2-2 samples of 24-24 grams opium was taken for chemical
examination and the samples seized in the presence of the witnesses. The G
raxine bags containing opium were placed in the gunny ~ags in the condition
as it were and each of the gunny bags was wrapped in white cloth and sealed.
Nand Lal Rai, Inspector (PW8), Anand Singh Negi (PW4) and other employee-
witnesses of the Department put their signatures on the sample$ and the three
bundles. They also signed the Panchanama. The appellant was arrested under
the Act. Inspector Nand Lal Rai then went to the office of the Superintendent, H
254 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A Central Narcotic Bureau, Kota and lodged the First Information Report. The
Superintendent, Central Narcotic Bureau, Kota handed over the investigation
..
to Inspector Shiv Narain. The information of the incident was sent to the
higher authorities on 23rd August, 1992. Samples taken from the seized opium
were sent to the General Manager, Government Opium and Alkaloid Works,
B Neemach. On examination, the samples were found to be of opium.

In the trial Court, the defence counsel argued that the provisions of
Section 42, 50, 52A, 52(1)&(2), 55 and 57 had not been complied with. The
Court, however, held that the provisions of Section 42 of the Act were not
applicable and under Section 49, which was the relevant Section for the case,
C it was not necessary for Inspector Nand Lal Rai (PW8) to reduce in writing,
the reason for suspicion before taking the actual search. The alleged violation
of Section 52A of the Act did not affect the merits of the case. No prejudice
was held to have been caused on account of alleged non-compliance of the
provisions of Section 52(1)&(2) of the Act. Section 52(3) of the Act was held
to have been complied with. So far as compliance of Section 55 of the Act
D was concerned, the Trial Court held:

"On the basis of above discussion of evidence, I am of the view that
mandatory provisions of Section 55 of the Act have been duly complied
with. Bundles containing remaining opium and samples were sealed at
the site by officer Incharge of the police station i.e. Nand Lal Rai
E Inspector under his own seal. And it is proved beyond reasonable
doubt that these bundles of Opium were produced in the court in the
same sealed condition and that samples were sent to laboratory for
examination in the same sealed condition. Not only this that after
..
examination samples were produced in the court in open condition
and bundles of Opium were also produced in the court in sealed
F condition, but also PW4 Anand Singh Negi and PW5 Rama Shanker
Prasad have deposed, while giving statement and after seeing above
samples and packets, that these packets and samples bear the same
wax seal of Nand Lal Rai which was affixed by him at the time of
sealing these packets and samples at the site. The chits affixed on
G above packets and samples bear today also the same signatures of
Anand Singh which were put by him at the time of sealing these
packets and samples. Therefore, in my opinion mandatory provisions
section 55 of the Act have been duly complied with."
,
The High Court also found that the provisions of Section 42 of the Act
H were not applicable in the case and as resort was not had to the procedure
KARNAIL SINGH v. STATE OF RAJASTHAN [SETHI, J.] 255
prescribed under Clause (a) of sub-section (3) of Section 52, the compliance A
of Section 55 was not necessitated.

The Act was enacted to consolidate and amend the law relating to
narcotic drugs, to make stringent provisions for the control and regulation of
operations relating to narcotic drugs and psychotropic substances to provide
for the forfeiture of property derived from, or used in, illicit traffic in narcotic B
drugs and psychotropic substances, to implement the provisions of the
International Conventions on Narcotic Drugs and Psychotropic Substances
and for the matters connected therewith. Chapter V comprising of Sections
41 to 68 deals with the procedure relating to issuance of warrants and
authorisation, power of entry, search, seizure and arrest without warrant or C
authorisation, procedure where seizure of goods liable to confiscation not
practicable, conditions under which searches shall be conducted, disposal of
persons arrested and articles seized, presumptions regarding possession of
illicit articles, punishment for vexatious entry, search, seizure and arrest,
confiscation of goods used for concealing illicit drugs and substances,
procedure for making confiscation and power to tender immunity from D
prosecution, etc. Section 42 provides that any Authorised Officer of the
Departments of Central Excise, Narcotics, Customs, Revenue Intelligence or
any other Department of the Central Government or the Border Security Force,
specially empowered by general or special order by the Central Government,
or any such officer of the Revenue, Drugs Control, Excise, Police or any other E
Department of a State Government empowered in that behalf by general or
special order, ifhe has reason to believe from personal knowledge or information
given by any person that any narcotic drug or psychotropic substance, in
respect of which ,an offence punishable under Chapter IV has been committed
or any document or other article which may furnish evidence or the commission
of such offence is kept or concealed in any building, conveyance or enclosed F
place, may, between sunrise and sunset, enter into any such building,
conveyance or place and in case of resistance, break open any door and
remove any obstacle to such entry. Such officer has the power to seize the
drug or substance and all material used in manufacture thereof and any other

. article or conveyance which he has reason to believe to be liable to confiscation G
under the Act and detain and search, and if he thinks proper, arrest any
person whom he has reason to believe to have committed any offence
punishable under Chapter IV. If such officer has reason to believe that such
warrant and authorisation cannot be obtained without affording opportunity
for the concealment of evidence or facility for escape of an offender, he has
the authority to enter such building, conveyance or enclosed place any time H
256 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A between sunset and sunrise but after recording the grounds of his belief. For
attracting the applicability of Section 42, it is necessary that the officer
empowered thereunder, before exercise of his right, has reason to believe from
personal knowledge or information regarding the movement of narcotic drug
or psychotropic substance. However, if the action is taken not upon his
B personal knowledge or information, the requirements of Section 42 woulahot
be applicable.

Section 43 of the Act provides:

"Power of Seizure and arrest in public places.- Any officer of any
of the departments mentioned in section 42 may-
c
(a) seize, in any public place or in transit, any narcotic drug or
psychotropic substance in respect of which he has reason to
believe an offence punishable under Chapter IV has been
committed, and, along with such drug or substance, any animal
or conveyance or article liable to confiscation under this Act,
D and any document or other article which he has reason to
believe may furnish evidence of the commission of an offence
punishable under Chapter IV relating to such drug or substance.
(b) detain and search any person whom he has reason to believe to
have committed an offence punishable under Chapter IV, and, if
E such person has any narcotic drug or psychotropic substance
in his possession and such possession appears to him to be
unlawful, arrest him and any other person in his company.
Explanation-For the purposes of this section, the expression "public
place" includes any public conveyance, hotel, shop or other place
F intended for use by, or accessible to, the public."

Section 49 of the Act provides:

"Power. to stop and search conveyance -Any officer authorised
under Section 42, may, if he has reason to suspect that any animal or
G conveyance is, or is about to be, used for the transport of any
narcotic drug or psychotropic substance, in respect of which he
suspects that any provisions of this Act has been, or is being, ·or is
about to be, contravened at any time, stop such animal or conveyance,
or, in the case of an aircraft, compel it to land and~

H (a) rummage and search the conveyance or part thereof;
KARNAIL SINGH v. STATE OF RAJASTHAN [SETHI, J.] 257
.. (b) examine and search any goods on the animal or in the A
conveyance;
(c) if it becomes necessary to stop the animal or the conveyance,
he may use all lawful means for stopping it, and where such
means fail, the animal or the conveyance may be fired upon."
B
Section 53 of the Act empowers the Central Government, after
consultation with the State Government to invest any officer of the Department
of Central Excise, Narcotics, Customs, Revenue Intelligence or Border Security
Force or any other class of such officers with the powers of an officer-
incharge of a police station for the investigation of the offences under the
Act. The provisions of the Code of Criminal Procedure, 1973 have been made C
applicable in so far as they are not inconsistent with the provisions of the
Act to all warrants issued and arrests, searches and seizure under the Act.
Section 52 of the Act requires an officer arresting a person under Sections
41, 42, 43 or 44, as soon as may be, to inform him of the grounds for such
arrest. Every person arrested and articles seized under warrant issued under D
sub- section ( 1) of Section 41 is required to be forwarded without necessary
delay to Magistrate by whom the warrant was issued. Sub-section (3) of
Section 52 provides:

"(3) Every person arrested and article seized under sub-section (2) of
section 41, section 42, section 43 or section 44 shall be forwarded E
without unnecessary delay to---

(a) the officer-in-charge of the nearest police station, or

(b) the officer empowered under section 53."

Section 55 mandates an officer in-charge of a police station to take F
charge and keep in safe custody of articles seized under the Act within the
local area of that police station which may be delivered to him (Emphasis
supplied) and shall allow any officer who may accompany such article to the
police station or who may be deputed for the purpose to affix his seal to such
articles or to take samples of and from them and all samples so taken shall G
also be sealed with a seal of the officer-incharge of the police station. Relying
upon this Section Mr. Jayant Bhushan, learned amicus curaie, submitted that
as after the seizure the goods were sent to the Superintendent, Central
Narcotic Bureau, Kota, who, as per law, being incharge of a police station, had
not affixed his seal on the articles and the samples, the whole of the procedure
followed being illegal, entitled the appellant to be acquitted. The argument, H
258 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A though attractive on the face of it, when analysed in depth, is found to be ..
without any substance. With the application of Section 51 read with Sections
52 and 53 of the Act, the officer required to affix the seal etc., under Section
55 of the Act, would be "the officer incharge of the nearest police station"
as distinguishable from and officer incharge of a police station empowered
under Section 53 of the Act. If resort is had to the procedure prescribed under
.B sub-section 3(a) of Section 52, the applicability of Section 55 of the Act would
be attracted but if the arrested person and the seized artiCles are forwarded
under Clause (b) of sub-section (3) of Section 52 of the Act to the officer
empowered under Section 53 of the Act, the compliance of Section 55 cannot
be insisted upon. The distinction between the officer in charge of the nearest ...
C police station and the officer empowered under Section 53 of the Act is
distinct and clear. The distinction is apparently based upon a reasonable
object, because as in case the person and the seized articles are referred to
the 'officer incharge of the nearest police station', a distinct agency, than the
'officers contemplated under Section 53' of the Act, comes into the picture
which requires the taking of sufficient safeguards to protect the seized property
D in the interests of the arrested persons. The distinction is also evident from
Section 52A(2) of the Act. Keeping in view the multifarious activities and the
duties cast upon the officer incharge of the police station under the Code of
Criminal Procedure and he being apparently busy with the duties under the
Code, the officers mentioned in Section 53 of the Act have been mandated·
E to take action for disposal of seized narcotic drugs and psychotropic
substances by filing application which, when filed, has to be allowed by the
Magistrate as soon as may be. We are of the opinion that in the present case
the procedure prescribed under Section 49 read with Section 43 was attracted,
which, on facts, has been found to be followed.

F Keeping in mind the facts and circumstances of the case and the
mandate of law, as explained by this Court in Abdul Rashid Ibrahim Mansuri's
case (supra), we are of the opinion that the appellant had not discharged the
burden of proof in any manner to rebut the presumption envisaged under
Section 35 of the Act. He has been proved to be transporting the opium with
G a conscious mind and full knowledge. All ingredients of the offences with
which he has been convicted and sentenced had been proved by the
prosecution.

We find no merit in this appeal which is accordingly dismissed.

H A.Q. Appeal dismissed.