Hemant Vyankatesh Agwan Vs. State of Maharashtra - Court Judgment

M.S. Deshpande, J.

1. This is an appeal by the accused who was convicted under section 22 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default to suffer rigorous imprisonment for two years.

2. The incident on the basis of which the appellant came to be tried occurred on June 4, 1989. At about 4.10 p.m. P.S.I. Khodke of Ambazari Police Station of Nagpur, received information that the appellant was in possession of brown sugar and used to sell on plot No. 269, Abhyankar Nagar, Nagpur. After receiving this information, he called two panchas and told them and Shri Thakre. Assistant Commissioner of Police, Sitabuldi Zone and proceeded to the spot where he found the appellant. After offering their search to him, the appellant was searched and was found to be in possession of 65 small packets covered with plastic bag in the left pocket of his full-pant and an amount of Rs. 30/- in his right pocket. Finding that the packets contained white powder, 5 packets were separated as a sample and put in a separate cover while 60 packets were wrapped separately and both these packets were seized and sealed. A seizure memo was prepared and the appellant and the seized articles were brought to the Police Station at Ambazari and the property was deposited in the property room. The appellant was arrested and a complaint against him was lodged in the Police Station by P.S.I. Khodke. The five packets which were separately wrapped were sent for analysis to the Chemical Analyser who certified that it contained heroin. The appellant then came to be tried by the learned Additional Sessions Judge. The appellant while pleading not guilty to the charge, contended that P.S.I. Khodke and a police constable came to his house, called him out of the house and on the pretext that they had some work with him took him to the police station where his signatures were obtained on three blank papers and he was kept in custody without informing him what offence he had committed. The learned Additional Sessions Judge found the prosecution evidence to be credible and convicted and sentenced the appellant as stated above. Aggrieved thereby, the appellant has filed this appeal.

3. The first contention of Shri V.R. Manohar, the learned Counsel for the appellant, in this Court was firstly that the evidence led at the trial was entirely unsatisfactory and unreliable, secondly the provisions of sections 42, 50, 52-A, 55 & 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short) being mandatory and their non-compliance vitiated both the Investigation and the trial and conviction of the appellant was, therefore, unsustainable.

4. For understanding the contentions raised, it is necessary to set out briefly the scheme of the Act. Chapter III prohibits certain operations in respect of the Narcotic Drugs and Psychotropic Substances and invests the Central Government with powers to provide, control, regulate the cultivation, production and manufacture of these drugs. Chapter IV deals with offences and penalties, section 20 makes the contravention of any provision of the Act referred therein punishable under clause (ii) for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees. Section 31-A prescribes for death penalty for certain offences for an offender previously convicted. Chapter V prescribes the procedure to be followed in the matted of investigation. Section 41 empowers a special class of Magistrates to issue warrants and authorisations. Section 42 deals with power of entry, search, seizure and arrest without warrant or authorisation by officers of certain rank. Section 50 enumerates conditions under which search of persons shall be conducted. section 52 has reference as to how the persons arrested have to be dealt with and the articles seized to be disposed of. Section 52-A makes special provisions regarding disposal of seized narcotic drugs and psychotropic substances and section 55 imposes a duty on the officer-in charge of the police station to take charge of the articles seized and delivered to him. Section 57 requires a report of arrest and seizure to be made within forty eight hours after such arrest or seizure by the officer effecting arrest or seizure to his immediate official superior.

5. While setting out the grounds on which it is urged that the above provisions are mandatory, the learned Counsel for the appellant referred specifically to Chapter V-A which has been introduced by the Amending Act 2 of 1989 which has far-reaching consequences relating to fortfeiture of property derived from, or used in illicit traffic and enables the competent authority to seize and freeze illegally acquired property which may belong to the relatives of the offender, the term 'relative' being defined under section 68-B(i). Under that clause relative means, spouse, brother or sister of the person, brother or sister of the spouse of the person, any lineal ascendant or descendant of the person of the person or the spouse and any lineal descendant of the brother or sister of the person or brother or sister of his or her spouse.

6. It is apparent that the Act was brought about 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 Drugs and Psychotropic Substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Obviously the need for enacting the stringent provisions was felt because those who used the drugs became their slaves and are slowly pushed into the graves of their own making. Trafficking in drugs results in collecting illegal wealth and deterrent punishment came to be provided to curb and eradicate the evil. On the other hand several safeguards have been provided under the Act so that the investigation may be fair and the stringent provisions of the Act do not result in abuse thereof. That is why special provisions have been made about the rank of the officers who are to investigate into the offences, and for controlling their actions by requiring the reports to be made at several stages of the investigation.

7. Our attention was drawn to several reported rulings to which we shall refer in detail later. But it is well settled that the question as to whether a statute is mandatory or directory, depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. It is apparent that in respect of none of the provisions which we have reproduced above, the non-compliance thereof is visited by any penalty nor have the serious or the trivial consequences which shall flow there from been enumerated. It is obvious that if the object of the enactment is defeated by holding the above provisions as directory, they shall have to be construed as mandatory and if by holding them as mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of the enactment, the same will be construed as directory. Though all the above provisions which he has stated are controlled by the word 'shall' which in legal parlance and requirement is imperative, the word 'shall' need not be given that meaning and the provisions can be interpreted as directory depending upon the purpose which the legislature wanted to achieve as disclosed by the scheme of the Act and the rules. All these provisions bear upon the steps to be taken by the investigating machinery with the object of creating safeguards for the alleged offender and it is apparent that they shall to be obeyed. It does not appear to us that it is only upon the observance of the safeguards that the power of investigation could be exercised and therefore, it is difficult to regard the safeguards so created, as laying down conditions for exercise of the powers of investigation, the non-observance of the safe guards entailing nullification of the entire investigation.

8. However, it was pointed out to us that the provisions of section 42 of the present Act are pari materia with the provisions of sections 53 and 54 of the Mysore Excise Act (21 of 1966) which were held in K.L. Subhayya v. State of Karnataka : 1979CriLJ651 to be mandatory, the Court (constituted by a bench of two Hon'ble Judges of Supreme Court) observing that section 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. In that case the inspector who had searched the car of the accused had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act was being committed before proceeding to search the car, and it was held that as the provisions of section 54 were not at all complied with, the entire search was rendered without jurisdiction and as a logical corollary, vitiated the conviction under section 34 of that Act. Since the identical provisions of Mysore Excise Act were held to be mandatory, the submission was that we shall have to hold that the provisions of section 42(1) of the Narcotics Act are also mandatory because there is nothing in the provisions of the Narcotics Act which would justify our holding the provisions of section 42(1) to be merely directory. On the other hand consequences ensuing here would be far more serious.

9. In this context we may refer to the observations of the Supreme Court in H.N. Rishbud v. State of Delhi : 1955CriLJ526 a decision of three Hon'ble Judges of the Supreme Court which are to the following effect :---

'A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in section 190, Criminal Procedure Code as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 Criminal Procedure Code is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings.' The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of section 190(1) and in any case cognizance so taken is only in the nature of error in a proceedings antecedent to the trial. To such a situation section 537, Criminal Procedure Code is attracted. -----If, therefore, cognizance is in fact taken., on a police report visited by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled.'

We may with respect point out that the question regarding the applicability of section 537 of the Criminal Procedure Code was not raised in K.L. Subhayya's case referred to above which was decided by a Bench of two Hon'ble Judges of the Supreme Court. In Radha Kishan v. State of Uttar Pradesh : (1963)IILLJ667SC which is also a decision of three Hon'ble Judges of the Supreme Court, it is observed that it may be that where the provision of section 103 and 165, Criminal Procedure Code are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequence no further consequence ensues, and the seizure of the articles is not vitiated.

10. In Chittranjan Das v. State of West Bengal, A.I.R. 1963 S.C. 1969 it was observed (by a bench of three Hon'ble Judges) that requirements of procedure are generally intended to subserve the ends of justice, and so, under emphasis on mere technicalities in respect of matters which are not of a vital or important significance in a criminal trial, may some times frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves, but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by sections 535 and 537 of the Criminal Procedure Code. Thought' the learned Counsel for the appellant also relied on these observations it is clear that they came to be made in respect of the non compliance of mandatory provisions regulating a criminal trial. Breach of mandatory provisions resulting a criminal trial can by no means be equated with the non compliance of mandatory provisions governing the investigation. It is obvious that the present case would be covered by the ratio in H.N. Rishbud's case, and would not fall within the ratio of Chittranjan Das's case. Reference was also made to Santa Singh v. State of Punjab A.I.R. 1976 S.C. 2386 where the Supreme Court was concerned with the non-compliance of the requirements of sections 235(2) of the Criminal Procedure Code and it was held that such a non-compliance cannot be described as mere irregularity in the course of the trial curable under section 465 because it amounted to be passing an important stage of the trial and omitting it altogether, so that the trial cannot be said to be that contemplated in the Code. Under section 235(2) it is obligatory for the Court to hear the accused on the question of sentence before an order of conviction is recorded before passing sentence on him according to law. The breach which was complained of in that case also was a mandatory provision which had relation to a trial in the Court and not regarding the breach of the mandatory provision in the course of the investigation antecedent to the trial. In our view these two cases do not lend any support to the contention raised on behalf of the appellant.

11. In Bai Radha v. State of Gujarat : 1970CriLJ1279 while considering the provisions of section 15(2) of the Supression of Immoral Traffic in Women and Girls Act, 1956, (by a bench of three Hon'ble Judges) it was pointed out that the investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in sub-sections (1) and (2) of section 15 of the Act. The Legislature in its wisdom provided special safeguards owing to the nature of the premises which have to be searched involving inroads on the privacy of citizens and handling of delicate situations in respect of females. But the entire proceedings and the trial do not become illegal and vitiated owing to the non-observance of or non-compliance with the directions contained in the aforesaid provisions. The Court, however, has to be very careful and circumspect in weighing the evidence where there has been such a failure on the part of the investigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and sentence cannot be set aside. In State of Rajasthan v. Rehman : 1960CriLJ286 while dealing with the provisions of section 14 of the Central Excise and Salt Act, 1944 (1 of 1944) it was pointed out that the recording of reasons does not confer on the officer jurisdiction to make a search, though it is a necessary condition for making a search. The jurisdiction or the power to make a search is conferred by the statute and not derived from the recording of reasons. Again in State of Maharashtra v. Natwarlal Damodardas : 1980CriLJ429 it was stated that the police had power under Criminal Procedure Code to search and seize the gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo, that the search was illegal, then also it will not affect the validity of the seizure and further investigation by the Customs authorities or the validity of the trial which followed on the compliant of the Assistant Collector of Customs.

12. In this context it is necessary to point out that by virtue of the provisions of sections 4(2) and 5 of the Code of Criminal Procedure all offences under any other law besides the Indian Penal Code, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Criminal Procedure Code, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with any such offences. Section 37 of the Narcotics Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the public procecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Section 51 of the Narcotics Act makes provisions of the Code of Criminal Procedure, 1973 applicable to warrants, arrests, searchers and seizures in so far as they are not inconsistent with the provisions of this Act. It would, therefore, follow that the powers exercisable under sections 41, 42 and 43 onwards in Chapter V of the Narcotics Act, are to be exercised in accordance with the provisions of the Code of Criminal Procedure unless there is an inconsistency between the provisions of the Code of Criminal Procedure and the Narcotics Act. It is noteworthy that section 42 does not cover all the contingencies but deals with the situation where the authorised officer has reason to believe from personal knowledge or information given by any person and taken down in writing, that any offence under the Act has been committed or any document or any other article which may furnish evidence of the commission of such offence may be kept or concealed in any building, etc. If the authorised officer or any of the officials of the Central enforcement agencies were to come across evidence to show that an offence under the Narcotics Act has been committed, in the course of investigation of other offences, neither the occasion nor the obligation to record the reasons to believe, which flows from sub-section (1) of section 42, would arise, nor would the obligation under section 50 to take the reason without unnecessary delay to the nearest Gazetted Officer or the Magistrate as required by sub-section (1) of section 50. In the instance mentioned above the performance of the duty enjoined by sub-section (1) of section 42 would not arise. If the circumstances contemplated by sections 41 and 42 are not the only ones in which the offence under the Narcotics Act would be brought to light and would fall to be investigated, it is difficult to regard the provisions of section 42 to be mandatory. As we have already pointed out from the relevant provisions of the Narcotics Act, the powers to search, seize or arrest do not flow from the recording of the reasons under section 42 but from the other enabling provision. What has to be kept in mind is that the provisions of a statute enjoining performance of public duties are generally speaking directory and merely because some procedural instructions requiring strict compliance by public functionaries incorporated in the Act, the non-observance of these instructions would not nullify the actions taken. Considering the scheme of the Narcotics Act in the light of the larger bench decisions of the Supreme Court, which bind us, we hold that the provisions of section 42(1) are not mandatory.

13. That takes us to section 50. The contention on behalf of the appellant was that in view of obligation to take the person without unnecessary delay to the nearest Gazetted Officer of any of the Departments mentioned in section 42 or to the nearest Magistrate, there would be a corresponding obligation on the authorised officer to inform the person to be searched of his right to be so taken, because otherwise the right conferred by sub-section (1) of section 50 would be illusory. In order to determine whether this provisions is mandatory or not we would have to go by the language employed and it is apparent that sub-section (1) does not cast duty on the authorised officer to inform the person to be searched that he has a right to be taken to the Gazetted Officer or the Magistrate. The obligation is only to take the person to the Gazetted Officer or to the nearest Magistrate if such person so requires. It would not be open to read into the section, words which have not been used there and inferentially create an obligation which the legislature in its wisdom did not deem fit to impose and as a sequel to regard the performance of that supposed duty mandatory.

14. We were referred to the observations in a Single Bench decision to the following effect in Hakam Singh v. Union Territory Chandigarh :

'Before making a search, the provisions of section 50 of the Act lay down that the Officer who is duly authorised will not conduct any search, if the person to be searched so requires, before taking such person to the nearest gazetted officer of any of the Department mentioned in section 42 of the Act or to the nearest Magistrate. The words 'if such person so requires', are mandatory and the officer has to ask the person if he wanted to be taken to the said nearest gazetted officer or, to the nearest Magistrate. Unless the person to be searched is informed about his right, to the said word would not come into operation.'

However, a Division Bench of the Himachal Pradesh High Court in State of Himachal Pradesh v. Sudarshan Kumar expressly stated that some of their conclusions including the mandatory nature of section 50 are at variance with those of Karam Singh 1987(2) CLR (Cri.) 240 and Hakam Singh v. Union Territory Chandigarh . In B.K. Srinivasan v. State of Karnataka : [1987]1SCR1054 it was indicated that the interpretation which may depart from common understanding of statute should be avoided. In State of Mysore v. V.K. Kangan : [1976]1SCR369 it was pointed out that the intention of law maker has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow construing it in one way or the other. Though we have no doubt that section 51 lays down a very useful safeguard, to say that if that safeguard is not observed, the evidence if otherwise reliable establishing the possession of the person searched, of the Narcotic Substances should be entirely disregarded, would be defeating the very object of the Act. An option given to the person to be searched can be waived by him, and it would be another pointer to the provision being directory and not mandatory. We, therefore, hold that the provisions of section 50 are only directory.

15. That brings us to the consideration of section 52 which requires the officer arresting the person under sections 41 to 44 to inform him about the grounds of such arrest and to forward him without unnecessary delay either to the Magistrate or the officer-in-charge of the nearest police station or to the officer empowered under section 53. We have no doubt that these are very salutory provisions, considering that the grounds of arrest have to be informed after the arrest and seizure, but it is difficult to regard non-compliance of these provisions as invalidating the antecedent search and seizure. Reliance was placed on State of Himachal Pradesh v. Sudarshan Kumar to the following effect :---

'When informed about the grounds of arrest at the earliest opportunity, the accused becomes aware of at the very outset, what he has to meet in the long run. Failure to do so, would certainly prejudice his defence. Similarly, the provision requiring the person making arrest or seizure to make a full report to his immediate superior officer within 48 hours, brings into existence a document which can be used for purpose of cross-examination in defence. The making of such a report within 48 hours will also bring to an end the possibility of improving the prosecution version, after that time. If these provisions are not strictly complied with, the prosecution must fail, but the same cannot be said with respect to the remaining provisions incorporated in section 52(2), 52(3) and 55. In their case, the defence will have to show that the failure of justice has resulted due to compliance thereof.'

The decisions of the Supreme Court above referred make a distinction between illegality in investigation and the trial after the cognizance is taken and therefore, we find it difficult to agree with the observations that if the provisions of section 52(1) are not strictly complied with, the prosecution must fail. It is true that if a report is prepared at the earliest possible opportunity it would be more credible than the one made after considerable delay, but the prejudice that may be cause to the defence can hardly be a factor determining the directory or mandatory nature of the provision. Inference arising from inaction or dilatoriness can always be drawn at the trial after a careful scrutiny of the evidence. We therefore, find it difficult to take the view that the provisions of sub-section (1) of section 52 or of sub-sections (2) to (4) are mandatory and hold that they are only directory.

16. Section 52-A relates to disposal of seized narcotic drugs and psychotropic substances and while sub-section (1) prescribes the procedure for disposal of the drugs, sub-section (2) requires the seized drugs to be forwarded to the officer-in-charge of the nearest police station or the officer empowered under section 53 after preparing an inventory of such narcotic drugs or psychotropic substances containing the details relating to their description, quality, quantity mode of packing, marks, numbers or such other indentifying particulars of the narcotic drugs or psyhotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances. Sub-section (4) enables the Court to treat inventory the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate as primary evidence in respect of such offence. For the reasons we have already stated and agreeing with the view taken by the Himachal Pradesh High Court in State of Himachal Pradesh v. Sudarsham Kumar's case (supra) we hold that these provisions are also directory.

17. That takes us to section 55. Emphasis on behalf of the appellant was on affixing the seal of the officer-in-charge of the police station when samples are to be taken of and from the articles seized and deposited in the police station. The first part of this section cases and obligation on the officer-in-charge of the police station to take charge and keep in safe custody all articles seize under the Act and which may be delivered to him. It does not require the officer-in-charge of the police station to a fix his seals to the articles so deposited with him, presumably because the articles which would be deposited would bear the seals of the officer who seized them. A safeguard is provided in order to prevent tampering of the samples taken of the articles deposited by requiring a seal of the Police Station also to be affixed on the articles which are taken as samples. Though the word 'shall' has been used, we do not think that non-compliance of the directions would per se make the investigation invalid because it would be open to the prosecution to show that despite the non-compliance, proper care has been taken and there was no tampering, while it would be open for the defence also to show that the non-compliance of these provisions has caused prejudice to the accused. We are in agreement with the view taken by the Division Bench in State of Himachal Pradesh v. Sudarshan Kumar with regard to the directory nature of the provisions of section 55.

18. With regard to section 57 it is difficult for us to see why that provision should be regarded as mandatory because what is to follow is only the report within the forty eight hours next after such arrest or seizure of all the particulars of such arrest or seizure to his immediate official superior. It is true that the defence can make use of the report for showing any possible infirmity in the prosecution case in the context of these provisions and the provisions of section 42(2). Section 42(2) also requires the officer to send a copy of his report to his immediate official superior of the grounds for his belief. There is similarly in these provisions and the provisions of sub-section (2) of section 157 of the Code of Criminal Procedure. In respect of sub-section (2) of section 157 of the Code of Criminal Procedure it was observed in State of U.P. v. Gokaran, : 1985CriLJ511 that it is not that as if every delay in sending a delayed special report to the District Magistrate under section 157 of the Code of Criminal Procedure would necesarily lead to the inference that theFirst Information Report has not been lodged at the time stated or has been ante-time or ante-dated or that the investigation is not fair and forthright. Where the steps in investigation by way of drawing inquest report and other panchnamas started soon which could only follow the handing over of First Information Report, the delayed receipt of special report by District Magistrate would not enable the Court to dub the investigation as tainted one nor could the first information report be regarded as ante timed and ante-dated. Surely the reports under the provisions which we have noticed would not be very different from those under sub-section (2) of section 157 of the Code of Criminal Procedure, and we do not think that the provisions of section 57 or for that matter of section 42(2) can be regarded as mandatory. While considering section 33-B of the Income-Tax Act, 1922 which was not a charging provision, the Supreme Court in Commissioner of Income-tax v. National Tax Traders : [1980]121ITR535(SC) observed that the principal that the fiscal statutes should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could section 32-B be regarded as a charging provision. In 'Legislation and Interpretation' by Jagdish Swarup, it has been pointed out at page 434 that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. However, a beneficial construction to promote the object of an Act is not excluded. No forced or unnatural interpretation should be put upon them so as to stretch their language. The rule is not to be so applied as to narrow the words of the statute to the exclusion of cases which these words in their ordinary expression or in the sense in which the legislature has used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Penal statutes should be strictly construed. But this rule is not an inexorable command to override common sense and evident statutory purpose and does not require that the Act be given the narrowest meaning. It is sufficient if the words are given their fail meaning in accord with the evident intent of the legislature.

19. The learned Assistant Government Pleader has referred to a decision of the Division Bench of this Court in Abdul Sattar v. State : 1989(1)BomCR388 . The question regarding the mandatory nature or otherwise of the provisions of section 40, 42, 50, 55 and 57 was not decided there and what the Court observed in para 15 was that even if the provisions of section 41 to 58 of the Act are mandatory and were not complied with, this procedural infirmity would not by itself vitiate the conviction of the appellant and the only question that fell for determination there was whether the non-compliance of the said provisions had caused any prejudice to the appellant, the Court that the holding answer to this question was in the negative.

20. That brings us to the consideration of the merits of the prosecution case. The main evidence comprises of P.S.I. Khodke (P.W. 2) and panch Yadaorao (P.W. 1) P.S.I. Khodke stated that he had received information at 4-10 p.m. that the accused by name Hemant Agwan was in possession of brown sugar and that he sells and consumes it. He, therefore, made entry in the station dairy accordingly. The entry Ex. 11reads as follows :---

'There is report that P.S.I. Khodke received information that Hemant Agwan resident of Abhyankar Nagar was going towards Abhyankar Nagar taking with him packets of heroin. On such report, P.S.I. Khodke with H.C. Marotrao 2757, P.C. Rajendra 1469 and Raju 924 departed for raid. Similarly, Day Officer P.S.I. Pathare was sent with him, and the charge was given to H.C. 1864. Report was registered.'

Since the substance of the information received was recorded in the station diary, we find that the provisions of section 42(2) of the Narcotics Act, have been substantially complied with. Later when the appellant was seen on Plot No. 269, a search of the raiding party was offered to him and after he took P.S.I. Khodke's search, the appellant was searched and 65 packets covered in a plastic packet were found in the left pocket of his full-pant and an amount of Rs. 30/- was found in the right pocket of his full-pant. These 65 packets were seized and a panchanama was drawn up. The panchanama Ex. 7 purports to show that the information which P.S.I. Khodke received was that one person wearing black pant and half manila of almond colour was sitting and selling brown sugar near Abhyankar Nagar ground and was making wrongful gain and that he was to be caught on the spot. P.S.I. Khodke stated in his evidence that he had given information to the panchas which he had, before leaving the police station. If this was so, we would expect that the name of the appellant would be mentioned in the Panchanama Ex. 7 while referring to the information which was drawn up at the time of seizure. In the First Information Report Ex. 13, P.S.I. Khodke mentioned that he had received from the special reliable informant the information that one person wearing black pant and half manila of almond colour was sitting and selling brown sugar near Abhyankar Nagar ground and was making wrongful gain. The First Information Report also did not disclose that the information was with regard to specific individual An attempt to explain the discrepancy was made by P.S.I. Khodke in his cross-examination by stating that the information was disclosed to the panchas before leaving the police station, but no writing was effected. Besides, the entry in the station diary and the description of the person about whom the information was received was also disclosed to the panchas. This, however, does not explain the omission to mention the name of the appellant in the record which came to be made in the station diary immediately after receipt of the information and considering this unexplained variance in the entry in the station diary, the panchanama and the First Information Report, there is no answer to the criticism that the entry in the station diary must have been made only after the appellant was apprehended. Yadaorao (P.W. 1.) stated that when the appellant was called out from his house, he came out and he was wearing chaddi which was a half-pant and a bundle containing the packets was found in the pocket of his underpant. It is difficult to believe that the appellant would come out of his house with the bundle of narcotics when he knew that the police had arrived at the scene. P.S.I. Khodke does not make any mention of the half pant. According to him the packets were found in the left pocket of the appellant's full-pant. Yadarao's account in cross-examination would suggest that he was in the open ground when he was first seen on reaching the spot. He contradicted his earlier statement by saying that when the appellant was apprehended and searched he was wearing half pant and shirt but after the raid when he was taken to the police station, he had put on a full-pant which he had taken from his house. It is incredible that having found narcotic drugs with the appellant the police would allow him to return to his house for having a change of clothes. It is in this context that the appellant's defence that he was called out of the house and falsely implicated, shall have to be considered. There is nothing in the evidence of P.S.I. Khodke to show that the appellant was informed the reason for arresting him which was a clear no compliance with the provisions of section 52(1) of the Narcotics Act. There is also nothing on record to show that he has made a report of arrest and seizure as required under section 57 and that he had sent a report as required by section 42(2) to his immediate official superior. Considering that the safeguards which have been prescribed, have not been observed, it becomes out duty to scrutinise the evidence with utmost care. The half-pant which the appellant was wearing, was not seized though it would have been useful for the prosecution for dispelling any suspicion regarding the clothes the appellant was wearing at the time of the alleged search.

21. Considerable argument was advanced before us on the requirement of section 55. We have already held that the provisions of section 55 are directory. But in the present case the officer-in-charge of the police station was not examined to show that he took charge of the articles seized. Instead, Head Constable Wamanrao (P.W. 3.) was examined who was only in-charge of the Muddemal property deposited in the police station. The entry in the Muddemal Register was effected not by him but by his subordinate writer and he admitted in his cross-examination that the writer Harichand had actually received the Muddemal in the present case and he was not present when the property was deposited in the Malkhana. Having regard to the positive provisions of section 55 it was the duty of the officer-in-charge of the police station to receive the articles. Another infirmity which is apparent is that the seals of the Station House Officer were not affixed to the samples which were taken out of the police station. The five out of 65 packets which were seized had been kept separately at the time of the seizure for being used as a sample and though they were separately deposited in the police station, since they were to be taken out of the police station it was necessary for the officer-in-charge of the Police Station to seal these samples with his seal in order to allay suspicions regarding tampering. This was not done. If we may say so, most of the safeguards which have been prescribed under the Narcotics Act, have been observed only in breach and this is hardly the manner in which one would expect in conducting an investigation under the provisions of the Narcotics Act which prescribes a very heavy penalty and entails serious consequences for the near relations of the accused person. Merely because the provisions are directory, it would not mean that they could be ignored with impunity and if they were not complied with, we would expect at least some reasons to be given for the non-compliance. Another glaring circumstance is that there is no indication whatsoever about weighing the articles seized. This assumes importance in view of the provisions of section 52-A to which we have referred above and the materially reduced punishment depending upon the quantity seized which the offender can claim by invoking section 27 of the Narcotics Act. Though the burden lies on the offender to show that the articles was intended for his personal consumption and not for sale or distribution, the advantage which he would derive by showing that only a small quantity was seized from him, would be denied to him in the absence of credible evidence to show what was the weight of the article or the exact quantity that was seized from him. In the present case, even this ordinary safeguard has been denied to the appellant and would ipso facto show the prejudice that has been caused to him by the omission.

22. The learned Assistant Government Pleader urged that the prosecution could fall back upon the presumption under section 54 of the Narcotics Act. But that is the presumption from possession of illicit articles and before the presumption can be raised, it is necessary to establish that the person concerned was in possession of the contraband articles. We find in the present case that the evidence of P.S.I. Khodke and panch Yadaorao does not establish beyond reasonable doubt the search and seizure from the appellant of the 65 packets of brown sugar and his possession of the brown sugar. Disagreeing with the learned Additional Sessions Judge, therefore, we find that the conviction of the appellant cannot be sustained.

23. This case illustrates once again that it is not enough to bring out a comprehensive and well thought out legislation for curbing social evils and it is also necessary that an informed and efficient machinery should be created for enforcement of the carefully worked out legislation. We do hope that more attention would be paid by the investigating agencies created under the Act to the observance of the statutory directions and the investigation will not be done in a casual and cavalier manner if the drug menace in to be eradicated.

24. In the result, the appeal is allowed. The conviction and sentence imposed on the appellant are set aside and it is directed that the appellant be set at library forthwith, if not required is any other offence.