LexSAJAN ABRAHAM versus STATE OF KERALA
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SAJAN ABRAHAM A v. ST A TE 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. Section 50-Communication to the accused about his right of examination before Magistrate or -Gazetted Officer-Validity of oral communication-Held, valid • D 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 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 F 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 H 335 336 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 p
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