SAJAN ABRAHAMversusSTATE OF KERALA

                             SAJAN ABRAHAM                                         A
                                    v.
                            STATE OF KERALA

                              AUGUST 7, 2001

  [DR. A.S. ANAND, CJ., A.P, MISRA AND SHIVARAJ V. PATIL, .11]                     B


      Narcotic Drugs and Psychotropic Substances Act, 1985:

      Section 42-Seizure of illegal injectable narcotic drugs and three syringes
from accused-Recording of the information in writing and communication to          C
immediate superior before seizure and arrest-Requirement of-Held,
compliance of a mandatory provision should be examined with a pragmatic
approach-In facts and circumstances of the case had the immediate action
not taken, the accused would have escaped-Hence no violation.
                                                                                   D
      Section 50-Communication to the accused about his right of examination
before Magistrate or -Gazetted Officer-Validity of oral communication-Held,
valid •

       Section 57-Submission of full report of seizure and arrest by Sub-
 lnspector to immediate superior within 48 hours-Compliance of-Held, on            E
facts, substantial compliance has been made.

      On receiving information about illegal trafficking, a Head Constable
and two otlier constables of Special Squad informed to Sub-Inspector of Police,
who came to the site along with his police party. They found appellant standing
with a packet in his hand. On search and examination, the packet contained         F
25 ampoules of injectable narcotic drug and three syringes for injecting the
same. The appellant was arrested. Trial Court acquitted the appellant on
finding certain discrepancies in the evidence of prosecution witnesses. In
appeal by the prosecution, High Court, after reappraisal of evidence, set aside
the order of acquittal passed by the Trial Court and convicted the appellant       G
under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985
and sentenced him to undergo rigorous imprisonment of 10 years with a fine
of Rs. I lakh.

     · In appeal to this court, the appellant contended that the prosecution
                                     335
                                                                                   H
     336                     SUPREME COURT REPORTS [2001) SUPP. 1 S.C.R.

A has violated the procedure laid down under section 42 of the Act on the ground
     that the Sub-Inspector has not recorded the information received from the
     Head Constable in writing and communicated to his immediate superior
     before his arrest; that the prosecution has violated the mandatory provision
     under section 50 of the Act in that the appellant was not informed by the
B    prosecution in writing of his right to be searched in the presence of a
     Magistrate or a Gazetted Officer; that the oral communication is not a
     compliance under Section 50 of the Act; and that the prosecution has not
     complied with Section 57 of the Act on the ground that a full report of all
     particulars of such and seizure was not sent to his immediate superior within
     48 hours of such arrest and seizure.
c
           Dismissing the appeal, the Court

            HELD : 1.1. In construing any facts to find, whether prosecution has
     complied with the mandate of any provision which is mandatory, one has to
     examine it with pragmatic approach. The law under the Narcotic Drugs and
D    Psychotropic Substances Act, 1985 being stringent to the persons involved in
     the field of illicit drug traffic and drug abuse, the legislature, time and again
     has made some of its provisions obligatory for the prosecution to comply,
    which the courts have interpreted it to be mandatory. This is in order    • to
    balance the stringency for an accused by casting an obligation on the
E   prosecution for its strict compliance. The stringency is because of the type of
    crime involved under it, so that no such person escapes from the clutches of
    law. The Court, however, while construing such provisions strictly should not
    interpret it so literally so as to render its compliance impossible. However,
    before drawing such an inference, it should be examined with caution and
    circumspection. If in a case, the following of mandate strictly results in delay
F   in trapping an accused, which may lead the accused to escape, then
    prosecution case should not be thrown out. [340-A, B, q

           1.2. The Head Constable got information with reference to the appellant
    that the person is selling injectable narcotic drugs at a designated place. When
G   the Constable proceeded to the Police Station to give this information to his        ....
    immediate superior i.e., Sub-Inspector, he was on patrol duty with his police
    party. Hence the information was communicated orally by the Constable to
    the Sub-Inspector. Thereafter, the Sub-Inspector along with his police party
    and the Head Constable Immediately proceeded towards the place where the
    appellant was standing. Had they not done so immediately, the opportunity
H   of seizure and arrest of the appellant would have been lost. Had they not
             SAJAN ABRAHAM v. STATE OF KERALA [MISRA . .I.]                 337

acted immediately, appellant would have escaped. On these facts, no inference       A
could be drawn that there has been any violation of Section 4.2 of the Act.
                                                               1340-D, E, Fl

       2. The High Co1Jrt recorded a finding that the Sub-Inspector informed
the appellant about his right as provided under Section 50 of the Act which
is established not only by the oral evidence of the witnesses but also by the       B
recitals made in the seizure mahazar prepared by the Sub-Inspector and the
F.I. Statement given by the appellant. The oral communication is valid under
Section 50 of the Act. 1341-B, q

      State of Punjab v. Baldev Singh, !19991 6 SCC 172 (CB), relied on.
                                                                                    c
        3. It is true that the communication to the immediate superior has not
 been made by the Sub-Inspector in the form ofa report, but it is found, which
 is also recorded by the High Court that the Sub-Inspector has sent copies of
 FIR and other documents to his superior officer which is not in dispute. The
 Exhibit shows that copies of the FIR along with other records regarding the        D
arrest of thC; appellant and seizure of the contraband articles were sent by
the Sub-Inspector to his superior officer immediately after registering the said
case. So, all the necessary information to be submitted in a report was sent.
This constitutes substantial compliance and mere absence of report cannot
be said to have prejudiced the accused. This section is not mandatory in
nature. When substantial compliance has been made, it would not vitiate the         E
prosecution case. In the present case, it is found t~at the Sub-Inspector has
sent all the relevant material to his superior officer immediately and thus there
is no violation of Section 57 of the Act. 1341-E, F, GI

     State of Punjab v. Balbir Singh, 1199413SCC299, referred to.
                                                                                    F
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
I 022 of 1997.

      From the Judgment and Order dated 2.9.1997 of the Kerala High Court
in Crl. Appeal No. 533/I 994.
                                                                                    G
     Mr. R. Sathish and Mr. T.G.N. Nair for the Appellant.

     Mr. K.M.K. Nair and Mr. Vipin Nair for the Respondent.

     The Judgment of the Court was delivered by

     MISRA, .J. This appeal is directed against the judgment and order of           H
    338                       SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A the High Court of Kerala in criminal appeal setting aside an order of acquittal
    passed by the Trial Court convicting the appellant under Section 21 of the
    Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred
    to as the •Act') and sentencing him to undergo rigorous imprisonment for I0
    years and a fine of rupees one lakh, in default to undergo simple imprisonment
B   for one year. In order to appreciate the controversy, we are herewith giving
    the essential matrix of facts.

           The appellant was put on trial for an offence punishable under Section
    21 of the Act. As per prosecution story, on the 10th October, 1993 at 7.45
    p.m. the appellant was in possession of manufactured drug by name 'Tidigesic'
C   and three syringes for injecting the same, by the road .near the Blue Tronics
    Junction at Palluruthy. The Head Constable PW 3 and two other Constables
    of the Special Squad got information at about 7 p.m. on the said date that a
    person was selling injectible narcotic drugs near the Blue Tronics Junction,
    Palluruthy. They informed this to PW5, Sub Inspector of police, Palluruthy
    Cusba Police Station who was coming in a jeep along with his police party.
D   Thereafter PW5 along with his police party including PW3 and other members
    of the Special Squad went to the scene of occurrence and stopped their
    vehicle little away from the spot. On reaching there they found the accused
    standing on the road with a packet in his hand. He was identified by PW3
    and apprehended by PW5. On search, the packet possessed by the appellant
E   revealed it contained 5 strips of 5 ampoules each of Tidigesic and three
    injection syringes and a purse containing currency note of Rs. I0/-. At the
    spot one ampoule was taken as sample for chemical analysis and the said
    contraband articles were seized as per Ex.PI seizure mahazar prepared at the
    spot. The appellant was also arrested there. The charge sheet was submitted,
    the appellant pleaded not guilty.
F
          The trial court found discrepancies in the evidence of the prosecution
    witnesses thus disbelieved the prosecution story, hence acquitted the appellant.

           In the trial court records, Ex.PS is a certificate of analysis issued by the
G   Regional Chem'ical Examiner's Laboratory, Kakkanad, which shows that the
    articles seized was. Buprenorphine Hydrochloride solution containing 0.3
    milligram of Buprenotphine per milli litre and that Buprenorphine is a thebaine
    derivative. It is accepted that baine is a phenanthrene alkaloid, an opium
    derivative and as such ic is a manufactured drug coming within the ambit of
    Section 21 of the N.D.P.S. Act. As per the evidence of PW 3, he got the
H   information about the appellant at about 7 p.m. and to ascertain this he
             SAJANABRAHAMv. STATEOFKERALA[MISRA,J.]                           339

actually arrived there at 7.30 p.m. After identifying him he proceeded to             A
Palluruthy Police Station to inform his superior the sub-Inspector of Police.
 But on the way he met S.I. of Police, Palluruthy who was on patrol duty.
Then they all went to the place where the appellant was standing. The
prosecution case is that before search the prosecution complied with the
condition as laid down under Section 50 of the NDPS Act. Thereafter he was
searched wherein it was found that he was in possession of 25 ampoules of
                                                                                      B
Tidigesic in 5 strips and three injection syringes. PWI and one Shamsuddin
CW2 are two independent witnesses of the seizure mahazar Ex.Pl since other
three witnesses are police constables. Since Shan'lsuddin was not available
for examination in spite of the efforts, PW! deposed about the said search
and seizure. Finally, the High Court held that PW1 's evidence is fully               C
corroborated by PW3 and PW5 with respect to the prosecution version
regarding the seizure of the contraband and the arrest of the appellant by
PW5. The discrepancies in their testimony as pointed out by the trial court
were trivial which do not affect the veracity or the credibility of the prosecution
story. The High Court on reappraisal of evidence came to the conclusion that
the trial court was not justified in acquitting the appellant. It held that the       D
prosecution has established with positive evidence beyond reasonable doubt
that the appellant has committed an offence punishable under Section 2 I of
the Act, hence convicted and sentenced the appellant as aforesaid.

       The leaned counsel for the appellant submits with vehemence that the           E
prosecution has violated mandatory provisions of the Act, namely, Section
42, Section 50 and Section 57, hence conviction and sentence is liable to be
set aside.

       With regard to Section 42, the submission is that PW5 has not recorded
the information given by PW3 with respect to the appellant's involvement              F
before proceeding to arrest him in this case. This constitutes violation of
Section 42 of the Act. It is true under Section 42( I), the officer concerned,
when he has reason to believe from his personal knowledge or information
received from any person, he is obliged to take it down in writing if such
information constitutes an offence punishable under Chapter IV of the Act             G
and send it forthwith to his immediate superior. Such an officer is empowered
to search any building, conveyance and in case of any resistance, break up
any door or remove any obstacle for such entry, seizure of such drug or
substance and to arrest such person whom he has reason to believe to have
committed any offence punishable under the said Chapter. Thereafter such
officer has to send a copy of this information forthwith to his immediate             H
    340                     SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A superior. Submission is that PW5 after receiving the said information has not
   communicated it to his immediate superior which constitutes violation of
   Section 42. In construing any facts to find, whether prosecution has complied
   with the mandate of any provision which is mandatory, one has to examine
   it with pragmatic approach. The law under the aforesaid Act being. stringent
B to the persons involved in the field of illicit drug, traffic and drug abuse, the
   legislature time and again has made some of its provisions obligatory for the
  prosecution to comply, which the courts have interpreted it to be mandatory.
  This is in order to balance the stringency for an accused by casting an
  obligation on the prosecution for its strict compliance. The stringency is
  because of the type of crime involved under it, so that no such person escapes
C from the clutches oflaw. The court, however, while construing such provisions
  strictly should not interpret it so literally so as to render its compliance,
  impossible. However, before drawing such an inference, it should be examined
  with caution and circumspection. In other words, if in a case, the following
  of mandate strictly, results in delay in trapping an accused, which may lead
  the accu5ed to escape, then prosecution case should not be thrown out.
D
           In the present case, PW3 the Head Constable got information with
    reference to the appellant only at about 7 p.m. that the person is selling
    injectable Narcotic drugs near the Blue Tronics Junction, Palluruthy. When
    he proceeded for Pilluruthy Police Station to give this information to his
E   immediate superior S.I. of Police PW5, he found PW5 along with his police
    party, who were on patrol duty coming, hence the said information was
    communicated there by PW3 to PW5. Thereafter, PW5 along with his police
    party and PW3 immediately proceeded towards the place where the appellant
    was standing. Had they not done so immediately, the opportunity of seizure
    and arrest of the appellant would have been lost. How PW5 could have
F   recorded the information given by P\Y3 and communicated to his superior
    while he was on .motion, on patrol duty, in the jeep before proceeding to
    apprehend him is not understandable? Had they not acted immediately,
    appellant would have escaped. On these facts, we do not find any inference
    could be drawn that there has been any violation of Section 42 ~f the Act.
G
          Next submission is, the prosecution has violated Section 50 of the Act
    which is mandatory as held by the Constitution Bench of this Court in State.
    of Punjab v. Ba/dev Singh, [ 1999] 6 SCC 172. The submission is, the appellant
    was not informed in writing of his right to be searched in the presence of a
    Magistrate or a Gazetted Officer.
H
                SAJAN ABRAHAM v. STATE OF KERALA [MISRA, J.)                  341
         We find PW!, PW3 and PW5 have deposed that PW5 has informed the              A
   respondent orally about it but the appellant opted out of this right. It is only
   thereafter a search was made.

         In the present case we find the High Court recorded a finding that PW5
   informed the appellant about his right as provided under Section 50 of the
   Act which is established not only by the oral evidence of PWs. I, 3 and 5,         B
   but also by the recitals made in Ext.Pl the seizure mahazar prepared by PW5
   and the F.I. Statement given by the respondent (the appellant before us). The
   submission, however, is communicating orally to the appellant is not a
   compliance under Section 50. We cannot agree. The aforesaid Constitution
   Bench upholds, oral communication also to be valid under S~ction 50 of the         C
   Act. Hence, this submission has no merit.

         Thus in our considered opinion, we do not find, on the facts of this
   case, as also recorded by the High Court that there has been any violation of
   Section 50 of the Act.
                                                                                      D
          The last submission for the appellant is, there is non-compliance of
   Section 57 of the Act. He submits under it, an obligation is cast on the
   prosecution while making an arrest or seizure, the officer should make lull
   report of ali particulars of such arrest or seizure and send it to his immediate
   superior officer within 48 hours of such arrest or seizure. The submission is,
   this has not been done. Hence the entire case vitiates. It is true that the E
   communication to the immediate superior has not been made in the form of
   a report, but we find, which is also recorded by the High Court that PW5 has
   sent copies of FIR and other documents to his superior officer which is not
   in dispute. Ex.P9 shows that the copies of the FIR along with other records
   regarding the arrest of appellant and seizure of the contraband articles were
                                                                                    F
   sent by PW5 to his superior officer immediately after registering the said
   case. So, all the necessary information to be submitted in a report was sent.
   This constitutes substantial compliance and mere absence of any such report
   cannot be said it has prejudiced the accused. This section is not mandatory
   in nature. When substantial compliance has been made, as in the present case
   it would not vitiate the prosecution case. In the present case, we find PW5 G
(. has sent all the relevant material to his superior officer immediately. Thus we
   do not find any violation of Section 57 of the Act.

        In State of Punjab v. Balbir Singh, (1994) 3 SCC 299, this Court held:

              'The provisions of Sections 52 and 57 which deal with the steps         H
    342                     SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A          to be taken by the officers after making arrest or seizure under Sections
           41 to 44 are by themselves not mandatory .. "

          In view of our aforesaid findings, we do not find any infirmity in the
    impugned order of the High Court. Accordingly the present appeal fails and
    has no merit and is dismissed.
B
    B.S.                                                        Appeal dismissed.