Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 164 OF 2002
Hamidhbai Azambhai Malik ..Appellant
Versus
State of Gujarat ..Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of the Division Bench of
the Gujarat High Court upholding the conviction of the appellant for
offence punishable under Section 20 (b)(ii) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short the “NDPS Act”). The learned
Additional Sessions Judge, Bharuch had found him guilty under the
aforesaid provision for having committed the offence under Section 8(c) of
the NDPS Act. Minimum sentence of 10 years’ rigorous imprisonment and
a fine of Rs.1,00,000/- with default stipulation was imposed.
2. The appellant, who is the original accused in Sessions Case No. 84 of
1996, was charged for having committed offence punishable under Section
20(b) (ii) of the NDPS Act, on the basis of a complaint lodged by one PSI
KD Pandya, LCB Branch, Aharuch District, Complainant in Course of
investigation of one snottier offence, registered vide CR No, II 135 of 1995,
under the NDPS act, came to know that accused is also possessing and
selling the contraband articles at his residence. Upon such information he
and other Officers started for raid.
3. Initially, he informed about having received such information to the
higher officers, namely D.S.P. and Circle Inspector of Bharuch District, by
writing a report in a sealed envelope, and sent it through one Police
Constable.
4. On the basis of the said report, entry came to be recorded in Jambusar
Police Station Diary at SL. No.17 of 1995 at about 2.30 P.M., the raid was
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effected on 15. 12.1995 after calling panchas and other officers and a
photographer, and after undertaking other exercise required under law.
5. The raiding party led by Mr. Pundya, PSI, went to the residence of
accused, bearing Bharuch Municipal House No, 3132. The door of the
house was open, and one person standing there was questioned, who replied
that his name was Hamidbhai Azambhai Malik, the accused and the
appellant before us. After introducing himself, he prepared a memorandum,
to the effect as to whether, accused would like his house to be searched in
presence of an Executive Magistrate or a Gazetted Officer, to which,
accused replied in the nagative. Since, accused had no objection, before
starting search, PSI Pandya, took the signature of the accused on the
memorandum, produced at Exh. 29.
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6. Thereafter, the house was searched in presence of Panchas, and a
ladies purse containing 17 closed plastic small bags were found out,
containing small tablets. Out of 17, the 16 small plastic bags contained the
same weight. Plastic bags were opened and verified and weighed in
presence of panchas, photographs were taken and again they were placed in
the plastic bags. It was apprehended that on account of the unpleasant odour
and smell, it seemed to be contraband articles like 'Charas'. The necessary
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procedure for seizure was undertaken and after the procedure was followed,
the seal of LCB Branch, Bharuch was applied on the cover. The total weight
of the contraband articles, like charas came to 4,900 mgs. The sealed
mudammal contraband articles charas thereafter was forwarded to the
Director of Forensic Science Laboratory, for examination and report, who
upon examination reported, it to be falling within the prohibited and
contraband article under the NDPS Act i.e. ‘Charas’. The FSL authority
had, also, verified the seal and it tallied with the forwarding letter and the
item sent. Upon the basis of the report, the accused came to be charged as
stated above.
7. In support of the prosecution case, the prosecution placed reliance on
as many as nine prosecution witnesses and also on 21 documents. The
defence of the accused was of total denial. No defence evidence was led.
Upon the analysis and appraisal of the evidence of the prosecution, the
learned Addl. Sessions Judge found accused guilty for having committed an
offence punishable under Section 20(b) (ii) of the NDPS Act, and after
hearing on the quantum of sentence, awarded minimum sentence prescribed
i.e. 10 years rigorous imprisonment and a minimum fine of Rs.1,00,000/-
and in default, to undergo further simple imprisonment of one year more.
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8. The accused preferred an appeal before the high Court which was
dismissed as aforestated. Primary stand was that the officer who conducted
the search was not authorized and was not an empowered officer. It was
pleaded that there was non-compliance with the requirement of Section 42
(2) of the Act.
9. Learned counsel for the respondent-State on the other hand supported
the judgment of the trial court and affirmed by the High Court.
10. Before dealing with the factual aspect certain observations made by
this Court in State of Punjab v. Baldev Singh [1999(6) SCC 172] need to be
noted:
“9.Sub-section (1) of Section 42 lays down that the
empowered officer, if has a prior information given by
any person, he should necessarily take it down in writing
and where he has reason to believe from his personal
knowledge that offences under Chapter IV have been
committed or that 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 he
may do so without recording his reasons of belief.
10.The proviso to sub-section (1) lays down that if the
empowered officer has reason 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. Vide sub-section (2) of Section 42,
the empowered officer who takes down information in
writing or records the grounds of his belief under the
proviso to sub-section (1), shall forthwith send a copy of
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the same to his immediate official superior. Section 43
deals with the power of seizure and arrest of the suspect
in a public place . The material difference between the
provisions of Section 43 and Section 42 is that whereas
Section 42 requires recording of reasons for belief and
for taking down of information received in writing with
regard to the commission of an offence before
conducting search and seizure, Section 43 does not
contain any such provision and as such while acting
under Section 43 of the Act, the empowered officer has
the power of seizure of the article etc. and arrest of a
person who is found to be in possession of any narcotic
drug or psychotropic substance in a public place where
such possession appears to him to be unlawful.
17.The trial court in those cases had acquitted the
accused on the ground that the arrest, search and seizure
were conducted in violation of some of the “relevant and
mandatory” provisions of the NDPS Act. The High Court
declined to grant appeal against the order of acquittal.
The State of Punjab thereupon filed appeals by special
leave in this Court. In some other cases, where the
accused had been convicted, they also filed appeals by
special leave questioning their conviction and sentence
on the ground that their trials were illegal because of
non-compliance with the safeguards provided under
Section 50 of the NDPS Act. A two-Judge Bench
speaking through K. Jayachandra Reddy, J. considered
several provisions of the NDPS Act governing arrest,
search and seizure and, in particular, the provisions of
Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57 of the
NDPS Act as well as the provisions of the Code of
Criminal Procedure relating to search and seizure
effected during investigation of a criminal case. Dealing
with Section 50, it was held that in the context in which
the right had been conferred, it must naturally be
presumed that it is imperative on the part of the officer to
inform the person to be searched of his right that if he so
requires he shall be searched before a gazetted officer or
Magistrate and on such request being made by him, to be
taken before the gazetted officer or Magistrate for further
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proceedings. The reasoning given in Balbir Singh case
was that to afford an opportunity to the person to be
searched “if he so requires to be searched before a
gazetted officer or a Magistrate” he must be made aware
of that right and that could be done only by the
empowered officer by informing him of the existence of
that right. The Court went on to hold that failure to
inform the person to be searched of that right and if he so
requires, failure to take him to the gazetted officer or the
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Magistrate, would mean non-compliance with the
provisions of Section 50 which in turn would “affect the
prosecution case and vitiate the trial”. The following
conclusions were arrived at by the two-Judge Bench in
State of Punjab v. Balbir Singh [ 1994 (3) SCC 299]
(SCC pp. 320-22, para 25)
“ 25 . The questions considered above arise
frequently before the trial courts. Therefore we find
it necessary to set out our conclusions which are as
follows:
( 1 ) If a police officer without any prior
information as contemplated under the
provisions of the NDPS Act makes a search or
arrests a person in the normal course of
investigation into an offence or suspected
offences as provided under the provisions of
CrPC and when such search is completed at
that stage Section 50 of the NDPS Act would
not be attracted and the question of complying
with the requirements thereunder would not
arise. If during such search or arrest there is a
chance recovery of any narcotic drug or
psychotropic substance then the police officer,
who is not empowered, should inform the
empowered officer who should thereafter
proceed in accordance with the provisions of
the NDPS Act. If he happens to be an
empowered officer also, then from that stage
onwards, he should carry out the investigation
in accordance with the other provisions of the
NDPS Act.
( 2-A ) 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
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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-B ) 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.
( 2-C ) 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.
( 3 ) 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.
( 4-A ) If a police officer, even if he happens
to be an ‘empowered’ officer while effecting an
arrest or search during normal investigation
into offences purely under the provisions of
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CrPC fails to strictly comply with the
provisions of Sections 100 and 165 CrPC
including the requirement to record reasons,
such failure would only amount to an
irregularity.
( 4-B ) If an empowered officer or an
authorised officer under Section 41(2) of the
Act carries out a search, he would be doing so
under the provisions of CrPC namely Sections
100 and 165 CrPC and if there is no strict
compliance with the provisions of CrPC then
such search would not per se be illegal and
would not vitiate the trial.
The effect of such failure has to be borne in mind
by the courts while appreciating the evidence in
the facts and circumstances of each case.
( 5 ) On prior information the empowered
officer or authorised officer while acting under
Sections 41(2) or 42 should comply with the
provisions of Section 50 before the search of the
person is made and such person should be
informed that if he so requires, he shall be
produced before a gazetted officer or a
Magistrate as provided thereunder. It is
obligatory on the part of such officer to inform the
person to be searched. Failure to inform the
person to be searched and if such person so
requires, failure to take him to the gazetted officer
or the Magistrate, would amount to non-
compliance of Section 50 which is mandatory and
thus it would affect the prosecution case and
vitiate the trial . After being so informed whether
such person opted for such a course or not would
be a question of fact.
( 6 ) The provisions of Sections 52 and 57 which
deal with the steps to be taken by the officers after
making arrest or seizure under Sections 41 to 44
are by themselves not mandatory. If there is non-
compliance or if there are lapses like delay etc.
then the same has to be examined to see whether
any prejudice has been caused to the accused and
such failure will have a bearing on the
appreciation of evidence regarding arrest or
seizure as well as on merits of the case.”
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23. In Mohinder Kumar v. State, Panaji, Goa [ (1998) 8
SCC 655] a three-Judge Bench (to which one of us,
Sujata V. Manohar, J., was a party) once again
considered the requirements of Sections 42 and 50 of the
Act. In that case the police officer “accidentally” reached
the house while on patrol duty and had it not been for the
conduct of the accused persons in trying to run into the
house on seeing the police party, he would perhaps not
have had any occasion to enter the house and effect
search. But when the conduct of the accused persons
raised a suspicion, he went into the house and effected
the search, seized the illicit material and caused the
arrest. The Court opined that in the facts and
circumstances of the case, when the investigating officer
accidentally stumbled upon the offending articles and
himself not being the empowered officer, then on
coming to know that the accused persons were in
possession of illicit articles, then from that stage
onwards he was under an obligation to proceed further in
the matter only in accordance with the provisions of the
Act. On facts it was found that the investigating officer
did not record the grounds of his belief at any stage of
the investigation, subsequent to his realising that the
accused persons were in possession of charas and since
he had made no record, he did not forward a copy of the
grounds to his superior officer nor did he comply with
the provisions of Section 50 of the Act, inasmuch as he
did not inform the person to be searched that if he
required, his search could be conducted before a gazetted
officer or a Magistrate. The Bench held that for failure to
comply with the provisions of Sections 42 and 50, the
accused was entitled to an order of acquittal and
consequently the appeal was allowed and the order of
conviction and sentence against the accused was set
aside.”
11. Coming to the factual background it has to be noted as follows:
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The search was made by the raiding party at about 4.30 P.M. on
15. 12.1995. Section 42 will be invocable only if the search is made
by the police officer or the concerned authority, upon the prior
information. If such a person has reason to believe from personal
knowledge or information given by any person and obliged to take
down in writing as such the information about the accused having
possessed of and dealing with contraband article like 'charas' came to
be appraised of by the concerned PSI Mr. K,D,Pandya, LCB Branch
of Bharuch Police Station, in course of his investigation of an
offence, registered vide CR No.II-135 of 1995. Therefore, it is settled
proposition of law when such an information or intimation or
knowledge comes to the notice of the Investigating officer in course
of the regular patrolling or an investigation of some other offence, it
is not necessary to follow in all cases the conditions incorporated in
Section 42.
12. However, it may also be noted that by way of abundant precaution,
the PSI Mr. Pandya though he was investigating the offence registered with
CR No. 135 of 1995 under the NDPS Act, upon receipt of an intimation or
information about the present offence, also noted down such an information
taken down in writing, which is produced at Exh. 30, and such information
was transmitted through a messenger immediately to the higher officers.
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Not only that this part of the procedure, by way of abundant precaution,
exercised and followed by the PSI, is also manifestly recorded in the
complaint at Exh.32.
13. Additionally, the question as to whether the officer who conducted
the proceedings was empowered officer or not was not raised before the trial
court and the High Court and, therefore, that plea cannot be entertained.
14. The appeal is without merit, deserves dismissal which we direct.
…………………………………..J.
(Dr. ARIJIT PASAYAT)
…………………………………..J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
January 12, 2009
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