Full Judgment Text
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CASE NO.:
Appeal (crl.) 312 of 2002
PETITIONER:
Bharatbhai Bhagwanjibhai
RESPONDENT:
State of Gujarat
DATE OF JUDGMENT: 29/10/2002
BENCH:
Umesh C. Banerjee & B.N. Agrawal.
JUDGMENT:
J U D G M E N T
BANERJEE, J
The Statement of Objects and Reasons of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to as
the "NDPS Act") categorically records the inadequacy of the
existing legislation to combat illicit drug traffic and drug abuse,
both at the national and international levels and it is by reason of
such deficiencies in the existing laws, the legislature thought it
prudent to consolidate the same and bring about a comprehensive
legislation so as to meet the exigencies of the situation. A plain
look at the provisions of the Act read with the Statement of Objects
and the Preamble would depict the intent of legislature as regards
the offences under the said consolidated legislation, which stands
expressed in rather explicit language as one of the most heinous
ones in nature. This Court, however, in consonance with criminal
jurisprudence of the country has been insisting on strict
compliance of the safe-guards provided under the Statute so as to
be in tune therewith.
At this juncture, however, it would be convenient to advert
to the contextual facts briefly : The factual score records that on
23rd January, 2000, Inspector Mr. Katara along with two Head
Constables and four Constables was on patrolling duty and whilst
on duty at the bus stand at Chowk in Upleta at about 3.00 p.m. it
was noticed that the accused on seeing the police started running.
This undue movement however aroused the curiosity and as such
accused was intercepted and upon having the presence of two
Panchas was searched which however led to the disclosure of
small size plastic bag containing Charas of about 12 gms. in
weight. The inspector lodged a complaint at about 1630 hours and
necessary entries were made in the records. The substance found
in the plastic bag was forwarded to the Forensic Science
Laboratory for opinion and all necessary formalities thereafter
were complied with culminating into the filing of the charge-sheet.
The learned Sessions Judge framed the charge against the accused
who pleaded ’not guilty’ and as a matter of fact in his statement
under Section 313 Cr.P. Code, the appellant has stated that the
evidence stands created, as he was not aware of any such incident
as noticed above. The learned Sessions Judge, however, on the
basis of available records convicted the accused person and
sentenced as noticed earlier. The High Court, however, confirmed
the conviction as well as sentenced the accused to suffer rigorous
imprisonment for 10 years and a fine of Rs.1.00 lakh with a default
clause as well.
The principal contention raised that since the deterrent
punishments are prescribed under the NDPS Act, the legislature
has taken care to incorporate several provisions in Chapter V of the
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Act and as interpreted by this Court, the provisions are mandatory
in nature and non-compliance therewith would completely vitiate
the trial. It is on this score it has been contended in support of the
appeal that by reason of the factum of ascertainment of the wishes
and desires of the accused as regards the search and seizure and
that being a mandatory requirement and there being admitted non-
compliance therewith, question of either maintaining the guilt of
the accused person by the Additional Sessions Judge or
confirmation thereof by the High Court would not arise. In this
context Section 50 has been very strongly emphasised, which we
feel it convenient to set out along with Sections 51 and 57 on
which the appellant also laid strong emphasis. The said provisions
read as below :
"50. Conditions under which search of persons
shall be conducted (1) When any officer duly
authorised under Section 42 is about to search any
person under the provisions of Section 41, Section 42 or
Section 43, he shall, if such person so requires, take
such person without unnecessary delay to the nearest
Gazetted Officer of any the departments mentioned in
Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may
detain the person until he can bring him before the
Gazetted Officer or the Magistrate referred to in sub-
section (1).
(3) The Gazetted Officer or the Magistrate
before whom any such person is brought shall, if he
sees no reasonable ground for search forthwith
discharge the person but otherwise shall direct that
search be made.
(4) No female shall be searched by anyone
excepting a female.
(5) When an officer duly authorised under
Section 42 has reason to believe that it is not possible to
take the person to be searched to the nearest Gazetted
Officer or Magistrate without the possibility of the
person to be searched parting with possession of any
narcotic drug or psychotropic substance, or controlled
substance or article or document, he may, instead of
taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided
under Section 100 of the Code of Criminal Procedure,
1973 (2 of 1974).
(6) After a search is conducted under sub-
section (5), the officer shall record the reasons for such
belief which necessitated such search and within
seventy-two hours send a copy thereof to his immediate
official superior."
"51. Provisions of the Code of Criminal
Procedure, 1973 to apply to warrants, arrests,
searches and seizures - The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974) shall apply,
insofar as they are not inconsistent with the provisions
of this Act, to all warrants issued and arrests, searches
and seizures made under this Act."
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"57. Report of arrest and seizure
Whenever any person makes any arrest or seizure under
this Act, he shall, within forty-eight hours next after
such arrest or seizure, make a full report of all the
particulars of such arrest or seizure to his immediate
official superior."
Turning attention to the requirement of Section 50, it is now
well settled that the same is mandatory in nature and thus there
exists an obligation to comply with the provisions and non-
compliance thereof would entail an order of acquittal in a
proceeding under the NDPS Act. This Court consistently and
without even sounding a contra note followed the same and as such
we need not dilate thereon any further.
Incidentally, Section 51 of the Act is an enabling provision
under which the provisions of Code of Criminal Procedure have
been made applicable to warrants, searches, arrests and seizures
under the Act provided further the same be not inconsistent with
the provisions of the special statute being the Act of 1985. It is in
this context that Section 4 of the Code of Criminal Procedure, 1973
ought to be noticed which provides for trial of offences under the
Indian Penal Code and other laws since sub-section (2) thereof
expressly records that all offences under any other law shall be
investigated, inquired into, tried and otherwise dealt with
according to the same provisions, but subject to any enactment for
the time being in force regulating the manner or place of
investigation and other incidentals noticed above.
On a reading of the aforesaid provisions thus, it appears that
Section 51 of the Narcotics Act permits introduction of Section 4
of the Criminal Procedure Code even in the matter of investigation,
searches, seizures, etc.
As regards the provisions of Section 57, we do not find any
infraction thereof. As such no question can be raised as regards
the intimation of arrest and seizure and a report to that effect.
Turning attention to the contextual facts once again,
admittedly, the search was not in accordance with the requirement
of Section 50 and it is on this score that learned Advocate was
rather vocal and emphatic as regards the factum of the learned
Additional Sessions Judge being subjected to a very serious error
and the High Court also by reason of its concurrence has been in a
manifest error. The issue, however, is slightly different in the
contextual facts. Section 50 categorically lays down that if the
search is to be conducted by an officer duly authorised under
Section 42 and the search is about to be conducted under the
provisions of Sections 41, 42 or 43, the concerned officer does owe
a duty to intimate the person to be searched that if the latter so
requires, he would be taken to the nearest Gazetted Officer or to
the nearest Magistrate for the purpose of having the search in their
presence. But in the event of a situation otherwise, as in the
contextual facts, viz., the accused person on seeing the patrolling
police party started running, which created a suspicion in the mind
of the concerned officer, who thereafter intercepted him and then
in the presence of Panchas effected a search, question of
compliance with the safeguards as prescribed under Section 50 of
the Act would not arise. In Balbir Singh (State of Punjab v. Balbir
Singh 1994 (3) SCC 299) this Court in the similar vein answered
the question in the negative in the manner following :
" It thus emerges that when the police,
while acting under the provisions of Cr.P.C. as
empowered therein and while exercising surveillance or
investigating into other offences, had to carry out the
arrests or searches they would be acting under the
provisions of Cr.P.C. At this stage if there is any non-
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compliance of the provisions of Section 100 or Section
165 Cr.P.C. that by itself cannot be a ground to reject
the prosecution case outright. The effect of such non-
compliance will have a bearing on the appreciation of
evidence of the official witness and other material
depending upon the facts and circumstances of each
case. In carrying out such searches if they come across
any substance covered by the NDPS Act the question of
complying with the provisions of the said Act including
Section 50 at that stage would not arise. When the
contraband seized during such arrests or searches
attracts the provisions of NDPS Act then from that
stage the remaining relevant provisions of NDPS Act
would be attracted and the further steps have to be
taken in accordance with the provisions of the said
Act."
Admittedly, on perusal of the evidence as is available on the
records, it is clear that there was no prior information to the police
officer that the accused is likely to come with a narcotic substance,
neither the inspector had any reason to believe from his personal
knowledge or information that the accused is likely to be in the
area from where he was found with the contraband item. As a
matter of fact, even at the time of effecting search, there was no
knowing that an offence under Chapter IV of NDPS Act has been
committed by the accused. The Inspector merely suspected the
commission of an offence by reason of the fact that the accused
started running on seeing the patrolling party. The evidence on
this score is clear and categorical to the effect as discussed
hereinbefore. Though the Panchas have given a slightly different
version of the search and seizure, but that does not by itself take
away the primary evidence as regards the search and subsequent
discovery of Charas in the possession of the accused and the
resultant seizure thereof. The contextual facts thus depict a
situation not covered within the purview of Section 50. In this
context, the observation of the Constitution Bench of this Court in
State of Punjab v. Baldev Singh (1999 (6) SCC 172) also lends
credence to the above statement of law. In paragraph 12 of the
Report, this Court stated as below :
"12. On its plain reading, Section 50 would come
into play only in the case of a search of a person as
distinguished from search of any premises etc.
However, if the empowered officer, without any prior
information as contemplated by Section 42 of the Act
makes a search or causes arrest of a person during the
normal course of investigation into an offence or
suspected offence and on completion of that search, a
contraband under the NDPS Act is also recovered, the
requirements of Section 50 of the Act are not attracted."
The learned Advocate in support of the appeal further
contended that the decision of this Court in Ahmed v. State of
Gujarat (2000 (7) SCC 477), upon reference to both Balbir and
Baldev (supra) came to a conclusion of the applicability of Section
50 in all cases of NDPS. Unfortunately, however, the reliance on
Ahmed (supra) is totally misplaced by reason of the fact that this
Court in Ahmed was considering the issue of empowered officer or
a duly authorised officer. This Court went on to record that to
ensure fairness in the search itself and for compliance with Section
50 of the Act, no differentiation can be made whether the search is
being made by the empowered officer, who obviously is an officer
of a gazetted rank or the authorised officer, who may be a
subordinate officer to whom the empowered officer authorises.
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This Court went on to observe that a combined reading of the
provisions of Sections 42 and 50 would make it crystal clear that
wherever a search of a person is about to be made on the basis of
personal knowledge or information received in that behalf, then if
the person to be searched requires to be taken to a gazetted officer
or the nearest Magistrate, the same must be complied with and
failure to comply with the same would constitute an infraction of
the requirements of the provisions of Section 50, which would
ultimately vitiate the conviction and it is on this score this Court
relied upon the plain and categorical language used by the
legislature in Section 50. The decision in Ahmed (supra) does not
lend any credence to the submissions in support of the appeal.
The High Court in fact recorded a categorical satisfaction as
regards the acceptance of evidence as credible and trustworthy and
we also do not find any reason to record a different opinion in
regard thereto.
On the wake of the aforesaid, we are not inclined to interfere
with the order of the High Court. As such this appeal fails and is
dismissed.