BANK ACCOUNT WHTETHER PROPERTY UNDER SECTION 102 Cr.P.C.?

Hon’ble Supreme Court in case of State of Maharashtra  vs. Tapas D Neogy 1999(7) SCC 685 held that bank account of accused and any of his relative is a property within the meaning of section 102 Cr.P.C. and police officer can seize of prohibit the operation of said account if such assets have direct links with the commission of offence for which the police officer is investigating  into.

PROCEDURE TO BE FOLLOWED FOR DISPOSAL OF NARCOTIC DRUGS AND PSYCHOTROPIC AND CONTROLLED SUBSTANCES AND CONVEYANCES.

There are two aspects that need to be noted at this stage. The first is that notification dated 16th January, 2015 does not in terms supersede Standing Order No. 1/89 insofar as the said Standing Order also prescribes the procedure to be followed for disposal of Narcotic Drugs and Psychotropic and controlled Substances and Conveyances.

Specific overriding of the earlier Standing Order would have avoided a certain amount of confusion which is evident on account of simultaneous presence of Standing Order No. 1/89 and notification dated 16th January, 2015.

For instance in para (1) of Standing Order No. 1/89 only certain narcotic drugs and psychotropic substances enumerated therein could be disposed of while notification dated 16th January, 2015 provides for disposal of all Narcotic Drugs and Psychotropic and controlled Substances and Conveyances. Again in terms of Standing Order No. 1/89 the procedure for making of application was marginally different from the one stipulated in Notification dated 16th January, 2015 not only insofar as the procedure related to the officers who could make the application is concerned but also in relation to the procedure that the DDC would follow while directing disposal.

 In both the notifications are prescribed the limits up to which the disposal could be directed. In case of excess quantity the disposal under the Standing Order No. 1/89 had to be done in the presence of the head of the Department whereas according to notification of 2015 in the event of excess quantity or value the disposal has to be by a high level Drug Disposal Committee to be constituted by the head of the Department. Again while Standing Order No. 1/89 specifically required the approval of the Court for disposal, notification dated 16th January, 2015 does not stipulate such approval as a specific condition. Be that as it may, to the extent the subsequent notification prescribes a different procedure, we treat the earlier notification/Standing Order No. 1/89 to have been superseded.

In order to avoid any confusion arising out of the continued presence of two notifications on the same subject we make it clear that disposal of Narcotic Drugs and Psychotropic and controlled Substances and Conveyances shall be carried out in the following manner till such time the Government prescribes a different procedure for the same:

(1) CASES WHERE THE TRIAL IS CONCLUDED AND PROCEEDINGS IN APPEAL/REVISION HAVE ALL CONCLUDED FINALLY:

In cases that stood finally concluded at the trial, appeal, revision and further appeals, if any, before 29th May, 1989 the continued storage of drugs and Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is of no consequence not only because of the considerable lapse of time since the conclusion of the proceedings but also because the process of certification and disposal after verification and testing may be an idle formality.

We say so because even if upon verification and further testing of the seized contraband in such already concluded cases it is found that the same is either replaced, stolen or pilferaged, it will be difficult if not impossible to fix the responsibility for such theft, replacement or pilferage at this distant point in time. That apart, the storage facility available with the States, in whatever satisfactory or unsatisfactory conditions the same exist, are reported to be over-flowing with seized contraband goods. It would, therefore, be just and proper to direct that the Drugs Disposal Committees of the States and the Central agencies shall take stock of all such seized contrabands and take steps for their disposal without any  further verification, testing or sampling whatsoever.

The concerned heads of the Department shall personally supervise the process of destruction of drugs so identified for disposal. To the extent the seized Drugs and Narcotic Substances continue to choke the storage facilities and tempt the unscrupulous to indulge in pilferage and theft for sale or circulation in the market, the disposal of the stocks will reduce the hazards that go with their continued storage and availability in the market.

(2) DRUGS THAT ARE SEIZED AFTER MAY, 1989 AND WHERE THE TRIAL AND APPEAL AND REVISION HAVE ALSO BEEN FINALLY DISPOSED OF:

In this category of cases while the seizure may have taken place after the introduction of Section 52A in the Statute book the non-disposal of the drugs over a long period of time would also make it difficult to identify individuals who are responsible for pilferage, theft, replacement or such other mischief in connection with such seized contraband.

The requirement of para 5.5 of standing order No. 1/89 for such drugs to be disposed of after getting the same tested will also be an exercise in futility and impractical at this distant point in time. Since the trials stand concluded and so also the proceedings in appeal, Revision etc. insistence upon sending the sample from such drugs for testing before the same are disposed of will be a fruitless exercise which can be dispensed with having regard to the totality of the circumstances and the conditions prevalent in the maalkhanas and the so called godowns and storage facilities.

The DDCs shall accordingly take stock of all such Narcotic Drugs and Psychotropic and controlled Substances and Conveyances in relation to which the trial of the accused persons has finally concluded and the proceedings have attained finality at all levels in the judicial hierarchy. The DDCs shall then take steps to have such stock also destroyed under the direct supervision of the head of the Department concerned.

(3) CASES IN WHICH THE PROCEEDINGS ARE STILL PENDING BEFORE THE COURTS AT THE LEVEL OF TRIAL COURT, APPELLATE COURT OR BEFORE THE SUPREME COURT:

In such cases the heads of the Department concerned shall ensure that appropriate applications are moved by the officers competent to do so under Notification dated 16^th January, 2015 before the Drugs Disposal Committees concerned and steps for disposal of such Narcotic Drugs and Psychotropic and controlled Substances and Conveyances taken without any further loss of time. 

To sum up we direct as under:

(1) No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A (ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub-Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading ‘seizure and sampling’. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order.

(2)The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate steps to set up storage facilities for the exclusive storage of seized Narcotic Drugs and Psychotropic and controlled Substances and Conveyances duly equipped with vaults and double locking system to prevent theft, pilferage or replacement of the seized drugs. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures as stipulated in Standing Order No. 1/89 to ensure proper security against theft, pilferage or replacement of the seized drugs.

(3) The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one districts.

(4)Disposal of the seized drugs currently lying in the police maalkhanas and other places used for storage shall be carried out by the DDCs concerned in terms of the directions issued by us in the body of this judgment under the heading ’disposal of drugs’.

 Keeping in view the importance of the subject we request the Chief Justices of the High Courts concerned to appoint a Committee of Judges on the administrative side to supervise and monitor progress made by the respective States in regard to the compliance with the above directions.

 (Union of India   Versus  Mohanlal & Anr. Crl Appeal .652 of  2012 SC January 28, 2016)

POWER OF POLICE TO TAKE FINGERPRINT, PHOTOGRAPH OF THE ACCUSED.

A Police officer may take the fingerprints of the accused  or photograph under section 4 of the Identification of  Prisoners  Act 1920. The investigating officer may apply to the Magistrate under section 5 of the Act if the accused refuses to give the fingerprints or photograph. (Sonvir vs State of NCT Delhi  2018(3) Crimes 173 SC)

POLICE CANNOT DRAG THE ACCUSED FROM THE COURT

In Contempt Petition No.1538 of 2018 against Robert, Head Constable of Singanallur Police Station, Tiruppur. Dated 16-07-2018 the Madras High Court punished the head constable Robert for dragging the accused from the court hall disrupting the court proceeding.

WHETHER PERSON RELEASED ON ANTICIPATORY BAIL CAN BE INTERROGATED BY THE POLICE?

Hon’ble Supreme Court in case of Fida Hussain Bohra Versus The State of Maharashtra Criminal Appeal No.420  of 2009 decided  on March 3, 2009 Supreme Court permitted the investigating agency to apply for interrogation of the accused either alone or with the other accused person, and directed that the application shall be allowed and made following observation:-

“We, therefore, are of the opinion that in the facts and circumstances of this case interest of justice would be sub-served if it is directed that the appellant shall in the event, any application therefore is filed by the investigation agency may be interrogated at any time suitable for the Investigating Officer either alone or with other accused persons, shall be allowed. Appellant shall comply with such other direction or directions as may be issued by the learned Sessions Judge, if and when, the learned Sessions Judge passes an order at the instance of the investigating agency or otherwise relying or on the basis of these observations.”

COMPLAINCE OF SECTION 41 AND 42 N.D.P.S ACT WHETHER MANDATORY?

Hon’ble Supreme Court while dealing with the above issue held that if search is made on the basis of secret information received by the police officer then it becomes mandatory for the police officer to forward the same to the senior police officer, within the time mentioned in the Section and also if the search is to be made after sunrise and sunset, warrant must be obtained. If there are reasons to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Recording of grounds of belief is must and sending the information to the senior officer is must and absence of these will vitiates trial. If search seizure is conducted in violation of  section 41 and 42 it will vitiate the trial.

Hon’ble Supreme Court  in case of State of Rajasthan vs Jag Raj Singh @ Hansa, 2016 (4) SCR 451 concluded:-

1- Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

2 Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

3 Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

4.Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has  been explained or not, will be a question of fact in each case.

EVIDENTIARY VALUE OF TEST IDENTIFICATION PARADE

The law as it stands today is set out in the following decisions of this Court which are reproduced as herein under in Munshi Singh Gautam vs. State of M.P. (2005) 9 SCC 631, at page 643:

" As was observed by this Court in Matru vs. State of U.P. 1971 2 SCC 75 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines.

The identification can only be used as corroborative of the statement in Court. ( Santokh Singh vs. Izhar Hussain 1973 2 SCC 406.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses.

The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source.

The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.

The identification proceedings are in the nature of tests  and It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.