Andhra Pradesh High Court - Amravati

Jagadeeshan , vs The State Of A.P., Rep By Pp., on 13 October, 2023

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

               CRIMINAL APPEAL NO.51 OF 2009

JUDGMENT:-

      The judgment, dated 19.01.2009 in Sessions Case No.3 of

2008, on the file of Special Judge for NDPS Cases-cum-I

Additional District and Sessions Judge, Ongole ("Special Judge"

for short), is under challenge in the present appeal filed by the

unsuccessful Accused, who faced trial for the charge under

Section 20(b)(ii)(B)   r/w   8(c) of the    Narcotic Drugs and

Psychotropic Substance Act, 1985 ("NDPS Act" for short) and

was convicted and sentenced to undergo rigorous imprisonment

for 7 ½ years and to pay fine of Rs.500/- in default to suffer

simple imprisonment for one month.

      2)    The parties to this Criminal Appeal will hereinafter

be referred to as described before the trial Court for the sake of

convenience.

      3)    The State, represented by the Prohibition & Excise

Inspector, Ongole, filed a charge sheet in PR.No.150/2007-08 of

Prohibition & Excise Station, Ongole, alleging the offence under

Section 20(b)(ii)(B) r/w 8(c) of the NDPS Act.

      4)    The case of the prosecution, in brief, is that on

07.12.2007

L.W.8-K. Venkateswara Rao, Prohibition & Excise

S.I. along with L.W.3-Ch. Harinarayana, P.C.1040‟ L.W.4-Sk.Md.

Rafi, P&EC.228; L.W.5-P. Narapureddy, P.C.1988; L.W.6-M.

Rajasekhara Reddy, P.C.1534 and L.W.7-T. Ratnakumar,

P.C.1634, Prohibition & Excise Station, Ongole, conducted

vehicular checking for Prohibition & Excise offences at the scene

of offence. At about 2-30 a.m., they stopped one APSRTC Bus

bearing No.A.P.28-Z-1850 going to Tirupati. They requested the

passengers to act as mediators, but they refused to do so.

Then, they requested L.W.1-Ravilla Krishnama Naidu and L.W.2-

Chinthamakula Sivaiah, the drivers of the said APSRTC bus to

act as mediators and they accepted to act as mediators. Then

the Prohibition & Excise S.I. served search proceedings under

Section 165 of the Code of Criminal Procedure ("Cr.P.C." for

short) on L.W.1. During search of the bus, they noticed the

accused in the last seat of bus in a disturbed mood. He was in

possession of one cream colour suitcase at his feet along with

one zip bag. On questioning, the accused stated that they

belonged to him and it contains Ganja. Then L.W.8 informed to

L.W.9-M. Bhaskara Rao, P&E Inspector. Thereafter, L.W.9

reached to the scene of offence. They informed the accused

about Section 50 of the NDPS Act procedure in writing, for which

the accused refused the same. On verification of suitcase and

bag, they found wet Ganja with leaves, buds, seeds, etc. They

also found one ticket with the accused. The accused revealed his

identity particulars and confessed the commission of offence.

L.W.9 got weighed the Ganja in suitcase which is of 8.500 kgs.

and the zip bag contains Ganja of 4.500 kgs. L.W.9 took 50

grams of Ganja from the suitcase and zip bag as samples, kept

the remaining Ganja in the very same suitcase and zip bag. He

seized the same along with bus ticket. He arrested the accused

under the cover of mahazarnama. He registered the mediators

report as a case in PR.No.150/2007-08 under Section 8(c) r/w

20(b)(i) of NDPS Act. He forwarded the accused for judicial

custody. Samples were sent to analyst and the analyst opined

in Rc.No.1920/2007, dated 19.12.2007 that the samples are of

Ganja. Hence, the charge sheet.

5) The learned Special Judge, Ongole, took cognizance

of the case under the above provisions of law. After appearance

of the accused, copies of case documents were furnished to him

as required under Section 207 of the Cr.P.C. Then, a charge

under Section 20(b(ii)(B) r/w 8(c) of N.D.P.S Act was framed

and explained to the accused, for which he pleaded not guilty

and claimed to be tried.

6) During the course of trial, on behalf of the

prosecution, P.W.1 to P.W.5 were examined and Ex.P.1 to

Ex.P.9 and M.O.1 to M.O.3 were marked. After closure of the

evidence of prosecution, the accused was examined under

Section 313 of Cr.P.C. with reference to the incriminating

circumstances appearing in the evidence let in by the

prosecution, for which he denied the same and stated that he is

an innocent and he has no defence witnesses.

7) The learned Special Judge, Ongole, on hearing both

sides and on considering the oral as well as the documentary

evidence, found the accused guilty of the charge under Section

20(b(ii)(B) r/w 8(c) of the NDPS Act and convicted him. After

questioning him about the quantum of sentence, he was

sentenced to undergo rigorous imprisonment for 7 ½ years and

to pay fine of Rs.500/- in default to suffer simple imprisonment

for one month. Felt aggrieved of the same, the unsuccessful

accused filed the present Criminal Appeal.

8) Now, in deciding this Criminal Appeal, in the light of

the contentions, the points for determination are as follows:

(1) Whether the compliance of Sections 42, 43, 50 and 57 of the NDPS Act is necessary and if so whether they are complied?

(2) Whether the prosecution has proved that the accused was found in possession of 13 Kgs. of Ganja in the suitcase and zip bag in the manner as alleged?

(3) Whether the prosecution has proved the charge under Section 20(b(ii)(B) r/w 8(c) of the NDPS Act beyond reasonable doubt?

(4) Whether the judgment of the learned Special Judge, Ongole, dated 19.01.2009 in S.C.No.3 of 2008, is sustainable under law and facts and whether there are any grounds to interfere with the same?

POINT NOS.1 TO 4:-

9) Sri Kurra Srinivas, learned counsel for the appellant,

would contend that P.W.1 turned hostile to the case of the

prosecution. P.W.2, another driver, supported the case of the

prosecution. Police party did not secure the presence of the

officials, who used to work at tollgate and did not join any

passengers, who were the natural witness. Deliberately, the

police party picked up P.W.1 and P.W.2, who were the drivers of

the APSRTC bus, as independent witnesses. However, P.W.1

turned hostile to the case of the prosecution. If his evidence is

considered, entire recovery is nothing but false. Due to fear or

otherwise, P.W.2 obliged to depose in favour of the prosecution.

However, according to his answers in cross examination, the

Ganja bags were seized in the middle of the bus from the

luggage point, as such, conscious possession of Ganja cannot be

attributed to the accused. None of the witnesses have spoken

about the conscious possession of Ganja. The learned Special

Judge at all did not consider this important aspect. There is a

violation of Section 50 of the NDPS Act. The recovery of Ganja

is nothing but farce as the police party effected the recovery

without joining any gazetted officer. According to the case of the

prosecution, one of the excise officials was secured to act as

gazetted officer for which the accused gave consent that bags

can be searched even before the mediators without the presence

of the gazetted officer. It is not at all proper compliance of

Section 50 of the NDPS Act. Further, when the bus was

searched, compliance of Section 42 of the Act is necessary and it

is not at all complied. Further Sections 43 and 57 of the Act is

also not complied. The entire case of the prosecution is based

upon the interested testimony of excise officials and evidence of

P.W.2 is of no use, as recovery was said to be effected in the

middle of the bus from luggage point, as such, there is nothing

to convict the accused and ignoring everything available on

record, the learned Special Judge erred in convicting the

accused, as such, the Criminal Appeal is liable to be allowed.

10) The learned counsel for the appellant would rely

upon the decision of the Delhi High Court in Kamruddin vs.

State (NCT of Delhi)1. With the above said contentions, he

contends that the Criminal Appeal is liable to be allowed.

11) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

as the entire Ganja was seized from the suitcase and zip bag of

the accused, there is no need to comply Section 50 of the NDPS

Act. There are several decisions of the Hon‟ble Supreme Court

in this regard to that effect. The decision cited by the learned

counsel for the appellant has no application to the present case

on hand. P.W.2 supported the case of the prosecution. His

evidence is consistent with the evidence of P.W.3 to P.W.5-

excise officials. According to the case of the prosecution as

narrated in mahazar and the oral testimony of P.W.2 to P.W.5,

the accused was sitting in the last row of the bus on the right

side and the contraband was found in front of his legs. The

answers spoken by P.W.2 in cross examination that the Ganja

was recovered from the middle of the bus from the luggage seat

is nothing but a slip of tongue. Even otherwise, P.W.3 to P.W.5

were not cross examined as to where from the Ganja was

seized. The evidence of P.W.3 to P.W.5 is consistent with

mahazar. The answers spoken by P.W.2 in cross examination is

contrary to the record. In the absence of any challenge to the

2022 SCC OnLine Del 3761

testimony of P.W.3 to P.W.5, the recovery of Ganja is to be

believed from the front side of the accused. The learned Special

Judge rightly appreciated the entire evidence on record.

Sections 42, 43 and 57 of the NDPS Act have no application to

the case on hand. The learned Special Judge rightly appreciated

the evidence on record, as such, the Criminal Appeal is liable to

be dismissed.

12) Turning to the evidence of P.W.1, one of the drivers

of the subject matter of APSRTC bus bearing No.A.P.28Z 1850,

he deposed that they were plying the bus from Vijayawada to

Tirupati. By the time of search by the Excise Police, he was

driving the bus. By the time the bus reached Tangutur toll plaza,

the Excise officials stopped the bus and obtained signatures of

him and other driver. They took the signatures on white paper

only. The accused was not arrested by the Excise Police. P.W.1

did not support the case of the prosecution as regards the

recovery of Ganja. The prosecution got declared him as hostile

and during cross examination, he admitted that the search

proceedings contain his signatures and the search proceedings

contain the printed matter. He denied that he is deposing false

in support of the accused.

13) Coming to the evidence of P.W.2, another driver of

APSRTC bearing No.A.P.28Z 1850, his evidence is that on

06.12.2007 he and P.W.1 were the drivers of RTC bus. They

were driving the bus from Tirupati to Vijayawada. It was

returning from Vijayawada to Tirupati on the intervening night of

6/7-12-2007. It reached Tangutur toll plaza by 3-30 a.m. Then

the Excise officials in order to search the bus woke up him and

served search proceedings on P.W.1. Thereafter, they all

entered into bus and searched to detect Excise offences. The

Excise police found one suitcase and one bag at the feet of one

person sitting on the last seat of the bus. He cannot identity

him and the luggage. The Excise officials questioned the said

person about the contents of the bags, but he did not give any

reply. They opened the bag and suitcase and found Ganja. They

drew samples from the suitcase and bag, packed and sealed and

affixed identity slips. The said person was arrested and Ganja

was seized under mahazarnama in his presence and in the

presence of P.W.1. Police also seized ticket.

14) Turning to the evidence of P.W.3, the Excise Police,

he deposed that during intervening night of 6/7-12-2007, Excise

S.I. L.W.8 picked up him and other staff and they proceeded to

Tangutur tollgate. At 2-30 a.m., one RTC bus bearing

No.A.P.28Z 1850 came there from Vijayawada side and halted at

toll plaza for payment of tollgate fee. Then he and Excise SI-

L.W.8 served search proceedings-Ex.P.3 on P.W.1. Then they

entered into the bus and searched the same. In the last seat

they found the accused sitting in six seater. The accused on

seeing Excise Officials perturbed. On suspicion they looked at his

feet and found one zip bag and suitcase. M.O.1 is yellow colour

suitcase and M.O.2 is black colour zip bag. The accused revealed

that the bags contained Ganja. The Excise SI tried to secure

panchayathdars from the passengers, but none come forward.

Hence, he requested P.W.1 and P.W.2 to act as panchayathdars,

for which they agreed. The S.I. passed intimation to Excise

Inspector-L.W.9, who rushed to the scene. After arrival of

Inspector, he questioned the accused and informed him of his

right to be searched in the presence of gazetted officer or

Magistrate and served a notice to that effect. Ex.P.4 is the

served notice on the accused. The accused failed to avail that

opportunity and gave reply in Ex.P.5. Then Excise Inspector

opened M.O.1 and M.O.2 and found Ganja. He got weighed the

same and found that M.O.1 was containing 8.500 kgs. of Ganja

and M.O.2 was containing 4.500 kgs. of Ganja. He drew

samples of 50 grams from each of M.O.1 and M.O.2, packed and

sealed them. They affixed identity slips containing the

signatures of Excise Officials and Panchayathdars and accused

on M.O.1 and M.O.2. Remaining Ganja was kept in M.O.1 and

M.O.2. They were packed and sealed and they were affixed with

identity slips. L.W.9 seized bus ticket under Ex.P.1 and obtained

the signatures of panchayatdars. Ex.P.1 was issued for two

passengers. One passenger got down at Ongole and accused

alone was traveling in the bus as he has to get down at Kavali.

Then SI arrested the accused and seized Ganja under Ex.P.2

mahazarnama.

15) P.W.4 is the Prohibition & Excise Sub Inspector, who

deposed that on 06.12.2007 at about 11-30 p.m., he along with

five Constables proceeded to toll plaza of Tangutur at N.H.5 for

patrolling including of the vehicles. In the intervening night of

6/7.12.2007 at about 2-30 a.m., they stopped RTC bus bearing

No.A.P.28 Z 1850 proceeding from Vijayawada to Tirupati. He

served search proceedings on the bus driver under Ex.P.3. He

informed that they want to check the baggage and other

luggage of the passengers in the bus. They asked the

passengers that anybody is willing to act as mediators, but

nobody came forward. In the presence of the drivers of bus

while they were searching the luggage, they found the accused

sitting in the last row in six seaters in perturbing condition with

one suitcase and zip bag kept at his feet. On suspicion they took

him into custody and on questioning, he disclosed his identity

particulars and that those bags belonged to him and that they

contained Ganja. Immediately, he informed to L.W.9- Inspector

over phone. L.W.9 came within half an hour. Then, in the

presence of mediators, L.W.9 and he informed the accused that

L.W.9-Bhaskara Rao is a gazetted officer and if he still required

any other gazetted officer for searching the baggage, they could

secure. The accused informed no necessity of any gazetted

officer in writing under Ex.P.4 and Ex.P.5. Then in the presence

of mediators, they seized the ticket under Ex.P.1. P.W.1-the

driver of bus confirmed the seized ticket which was issued to the

accused and another passenger together for the journey from

Vijayawada to Kavali and from Vijayawada to Ongole

respectively. Then they opened the zip bag and suitcase and

found Ganja. They seized 8 ½ kgs of Ganja from the suitcase

and 4 ½ kgs of Ganja from the zip bag and that he drew 50

grams of Ganja as samples. The seized contraband and sample

were duly packed and sealed by him and also affixed identity

slips duly signed by him, the mediators and the accused. M.O.1

and M.O.2 is contraband and M.O.3 is samples. They arrested

the accused informing the illegal possession of Ganja under the

cover of mediatornama duly signed by him, the mediators and

the accused. He brought Ex.P.1 to Ex.P.5, M.O.1 to M.O.3 along

with accused to the Excise Station and handed over to the

Inspector, Bhaskara Rao. He informed the same to his superior,

C.I.-Bhaskara Rao about the proceedings covered under Ex.P.6.

16) P.W.5 is the Prohibition & Excise Inspector, who

deposed that on 06.12.2007 for patrolling at the tollgate area of

Tangutur on N.H.5, P.W.4 along with five Constables were

deputed. There was GD entry made by him to that effect. After

few hours on the intervening night at about 2-00 a.m., P.W.4

telephoned to him that they found one person in RTC bus with

contraband. Thereafter he reached thereby about 3-30 a.m. and

he and P.W.4 searched the person of the accused and seized

Ex.P.1 bus ticket from his shirt pocket after confirmation. They

also seized suitcase and zip bag containing M.O.1 and M.O.2

contraband. They drew samples, duly packed and sealed under

the cover of Ex.P.2 panchanama. He put his signature thereon.

Later, he left the place to Station. By 6-30 a.m., while he was

on duty, P.W.4 produced the accused, Ex.P.1 to Ex.P.6 and

M.O.1 to M.O.3 before him. Having gone through Ex.P.2, he

registered a case in PR.No.150/2007-08 under Section 8(c) r/w

20(b)(i) of NDPS Act and issued Ex.P.7-FIR. He submitted

original FIR to the Court. He also informed to his superiors. He

forwarded the accused to the Court for judicial custody. He

submitted M.O.1 to M.O.3 to the Special Court with letter of

request to send the samples contraband to RFSL, Guntur for

chemical examination. Ex.P.8 is letter of request. The remaining

contraband was returned by Court for safe custody. Later, he

received Ex.P.9-chemical analysis report opining that the

samples are of Ganja. After completion of investigation, he filed

charge sheet against the accused.

17) P.W.1 and P.W.2 were the drivers of A.P.S.R.T.C.

Bus bearing No.A.P.28 Z 1850. P.W.1 did not support the case

of the prosecution. P.W.2 supported the case of the prosecution.

P.W.1 admitted the search made by the excise officials at

Tangutur toll plaza with regard to the bus bearing No.A.P.28 Z

1850. His evidence is that the excise officials stopped the bus

and obtained signature of him and other driver on white papers.

His evidence is contrary to Ex.P.2-mahazarnama. P.W.1, being

RTC driver was not expected to sign on white papers simply at

the request of police. It all shows that deliberately he deviated

from Ex.P.2-mahazarnama. There is no dispute that Ex.P.3-

search proceedings were in printed one. It is rather improbable

on the part of P.W.1 to sign on white papers as required by the

excise officials. It all shows his conduct that deliberately he

deviated from the case of the prosecution. On the other hand,

the evidence of P.W.2 falsify the evidence of P.W.1. Though

P.W.2 could not identify the accused due to long lapse of time,

but he categorically admitted about the search made by the

excise officials in APSRTC Bus bearing No.A.P.28 Z 1850 at

Tangutur toll plaza. He further supported the case of the

prosecution that the excise police found one suitcase and zip

bag at the feet of one person sitting at the last seat of the bus.

Simply because he could not identify the accused, the case of

the prosecution cannot be thrown out. There is evidence of

P.W.3 to P.W.5, Excise Constable, Excise Sub Inspector and

Excise Inspector respectively, who supported the case of the

prosecution even with regard to the identity particulars of the

accused. In fact, the evidence of P.W.2 to P.W.5 is consistent as

to the place where from the suitcase and zip bag were spotted

i.e., at the feet of the accused when he was sitting in the last

row i.e., six seater row on the right side of the bags. The

contention of the accused before P.W.2 to P.W.5 is that he did

not travel in the APSRTC Bus. The contention of accused before

P.W.5 is that when he was at tea stall at Railway Station,

Ongole, he was taken away by the police. If that be the case of

the accused, there should have been a complaint about

purported ill-treatment by the excise officials at the time of

production of the accused before the learned jurisdictional

Magistrate. No such things were found. It is not the case of the

accused that he made such a statement pointing out any illegal

detention. As seen from Ex.P.1, it is the ticket handed over by

the accused to the excise officials. P.W.1 admitted his signature

on Ex.P.1. By virtue of the above, the prosecution categorically

established that during intervening night of 06/07-12-2007 at

around 3-30 a.m., police while doing routine patrolling duties,

searched the bus and found the accused. In this regard, the

case of the prosecution is convincing.

18) The contention of the accused by virtue of the

answers from P.W.2 and P.W.3 in cross examination is that

there was a possibility for the excise police party to get

independent mediators from the employees of toll plaza or from

the passengers of the bus and non-joining of them is fatal to the

case of the prosecution. It is very difficult to accept such a

contention. When P.W.1 and P.W.2 were the drivers, which is

not in dispute, nothing wrong on the part of the excise officials

to request them to act as mediators, when none of the

passengers were coming forward to act as mediators. Hence,

the contention of the accused that the excise police failed to join

mediators from among toll gate staff or from among the

passengers deserves no merits.

19) Now, this Court would like to deal with the

contention of the appellant that Section 50 of the NDPS Act is

not followed. Section 50 of the Act runs as follows:

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 of 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.]

20) In this regard, the learned counsel for the appellant

would rely upon a decision in Kamruddin's case (1 supra). As

seen from the above said decision, the factual matrix were that

on secret information about the appellant possessing charas in

heavy quantity and after prior approval, the raid party arranged

a raid. They reached in front of Delite Cinema, where the

accused was apprehended having raxine bag in his right hand.

He was offered that his search could be conducted before any

gazetted officer or a Magistrate, if he so desired, but, he did not

opt for the search to be conducted in the presence of the

gazetted officer. Later, the search was conducted into so-called

raxine bag and into his person and the contraband was

recovered. The learned trial Court recorded conviction. The

matter was canvassed before the Delhi High Court. The Delhi

High Court looked into the fact that Ex.P.W.5/B indicates that

the personal search of the appellant was also conducted, but the

appellant was not informed of his legal right of his personal

search in the presence of gazetted officer or a Magistrate.

Therefore, the Delhi High Court held that there was a violation

of Section 50 of the Act.

21) Now, coming to the present case on hand, Ex.P.2-

mahazarnama literally whispers that after noticing the suitcase

and zip bag and the version of the accused as to the contents in

the same, the Sub Inspector of Excise Police sent information to

P.W.5 to come to the spot and P.W.5 is the Excise Inspector and

after his arrival, they communicated to the accused that P.W.5

is also a gazetted officer and if he so desires, they will arrange

search before any other gazetted officer or a Magistrate, for

which the accused replied that there is no need to secure the

presence of any other gazetted officer or a Magistrate. Thus, the

excise party claimed to have searched the suitcase as well as zip

bag and found Ganja.

22) It is to be noted that prior to making search the

excise party served search proceedings under Section 165 of the

Cr.P.C. on P.W.1. Further after arrival of P.W.5, they served

notice under Ex.P.4, which runs that the raid party intended to

search the suitcase and zip bag and if the accused has any

desire, they will be searched before any other gazetted officer or

a Magistrate. Ex.P.5 is the purported reply on a separate sheet

which runs that the accused has no objection for search of

suitcase and zip bag before the C.I. and mediators and there no

necessity to get the presence of any other gazetted officer or a

Magistrate. The facts in Kamruddin's case (1 supra) are

distinguishable from the present case on hand. Here Ex.P.4 and

Ex.P.5 indicates that excise officials intended to search the

suitcase and zip bag. In Kamruddin's case (1 supra), the raid

party obtained the signature of the accused on the notice served

on him. So, it is very clear that the facts in Kamruddin's case (1

supra) are distinguishable from the present case on hand. In

the present case Ganja was not recovered on account of the

personal search of the accused.

23) Now this Court would like to deal with well

established precedents relating to Section 50 of the NDPS Act.

24) A close perusal of Section 50 of the Act means that

if the arrested person requires that he should be searched

before a Gazetted Officer or a Magistrate, the empowering

officer shall take him to the Gazetted Officer or Magistrate. The

law is well settled with regard to Section 50 of the Act. It has

no application when there is no personal search of the accused.

25) In Bodaband Sundar Singh vs. State of A.P. 2 ,

there was a case where the investigating agency found

contraband in possession of a box and zip bag of the accused.

The trial court recorded conviction against the accused. Then,

the matter went in appeal before the High Court of A.P., at

Hyderabad. The High Court of A.P. referred various decisions

and held that Section 50 of the N.D.P.S. Act would come into

play only in the case of a search of a person as distinguished

from search of any place etc. The High Court of A.P. in arriving

at such a conclusion relied on a decision of the Hon‟ble Supreme

Court in Kalema Tumba vs. State of Maharashtra 3 and

further the Constitutional Bench decision of the Hon‟ble Supreme

Court in State of Punjab vs. Baladev Singh4. The High Court

of A.P. by following the above said decisions held that the search

of a person indicates search of the body of the person but not

2001(2) ALD (Crl.) 928 (AP)

AIR 2000 SC 402

(1999) 6 SCC 172

other belongings like hand bags, suitcases, etc., as such when

there is search of a person, then only the procedure

contemplated under Section 50 of the Act has to be resorted to.

26) In Saikou Jabbi vs. State of Maharashtra in

Criminal Appeal No.103 of 20035, the Hon‟ble Supreme Court

dealing with Section 50 of the Act and also by relying upon the

earlier decisions in Kaleme Thumba's case (3 supra) and

Baladev Singh's case (4 supra), held that language of Section 50

is implicitly clear that the search has to be in relation to a

person as contrasted to search of premises and is not applicable

to other types of search.

27) The Hon‟ble Supreme Court in State of Haryana v.

Jarnail Singh and others 6 also by following earlier decisions

reiterated that Section 50 of the N.D.P.S. Act did not apply when

the search of a Tanker was conducted because it was not a

personal search.

28) Apart from this, the Hon‟ble Supreme Court in State

of Rajasthan vs. Parmanand and another7 had an occasion

to refer the Constitutional Bench decision in Baladev Singh (4

supra). The Hon‟ble Supreme Court extracted the observations

in Baladevi Singh's case (4 supra) as follows:

2004 (14) ILD 271

AIR 2004 Supreme Court 2491

(2014) 5 Supreme Court Cases 345

(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 being taken to the neared Gazetted Officer or to the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a Gazetted officer or a Magistrate would cause prejudice to an accused.

(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.

29) As seen from the judgment of the Constitutional

Bench of the Hon‟ble Supreme Court in Baldev Singh's case (4

supra), if any search is conducted violating Section 50 of the

Act, it may not vitiate the trial but render the recovery of the

illicit article suspect and vitiate the conviction and sentence of

an accused, if the conviction has been recorded only on the

basis of the possession of the illicit article, recovered from his

person, during a search conducted in violation of the provisions

of Section 50 of the Act.

30) Coming to the present case on hand, this Court is

not encountering with any situation where the Ganja was

recovered on account of the personal search of the accused. The

very intention of the excise officials as evident from Ex.P.4 and

Ex.P.5 was to search the suitcase and zip bag. Undoubtedly, in

view of the above said well established precedents, absolutely,

there is no necessity whatsoever to comply the statutory

requirement under Section 50 of the Act when the search was

relating to only from suitcase and zip bag. However, out of

lacking proper legal knowledge or under any misconception, the

excise officials claimed to have issued Ex.P.4 and obtained the

reply under Ex.P.5. Therefore, when there is no statutory

requirement to comply Section 50 of the Act when the search is

relating to the suitcase and zip bag and out of innocence or

ignorance, when the excise officials claimed to have complied it,

the search is not vitiated in my considered view. It is no doubt

true that the gazetted officer as contemplated under Section 50

of the Act should be one unconcerned with the investigation.

Admittedly, the act of the excise officials showing that P.W.5 is

also a gazetted officer and if the accused so desires, they will

secure any other gazetted officer is not proper. If really there is

recovery of Ganja from the person of the accused, then

admittedly such search is vitiated because P.W.5 cannot be

termed as an independent gazetted officer. Hence, viewing

from any angle, the facts in the present case totally are distinct

from that of the facts in Kamrudding's case (1 supra).

31) Hence, this Court is of the considered view that

absolutely the contention of the accused that Section 50 of the

Act is violated is not at all tenable.

32) Coming to the contention of the accused that there

was violation of Section 42 of the N.D.P.S. Act, now, I proceed

to deal with the same. Firstly, I would like to deal with as to

whether the compliance of Section 42 of the Act is necessary in

this case and if so it is complied. Section 42 of the Act runs as

follows:

2[42. Power of entry, search, seizure and arrest without warrant or authorisation.--

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or

controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,---

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

1[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further that if such 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.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]

33) A close perusal of Section 42 of the Act means that

if the empowered officer has any information out of his personal

knowledge or information given by any person and taken down

in writing about the storage of any narcotic drug or psychotropic

substance in any house, enclosed place or in any conveyance,

he may between sunrise and sunset enter into and search any

building, conveyance or place and seize such contraband. The

proviso of Section 42 reveals that such search can be conducted

between sunset and sunrise. When Section 42(1) contemplates

search during day time, the proviso contemplates search during

night time. According to Section 42(2) of the Act where an

officer takes down any information in writing under sub-section

(1) or records grounds for his belief under the proviso thereto,

he shall within 72 hours send a copy thereof to his immediate

official superior.

34) The evidence on record reveals that the vehicular

checking made by P.W.3 to P.W.5 was only a routine one. It

was not based on any specific information. Hence, absolutely, it

is not a case where compliance of Section 42 of the Act is not

necessary.

35) Turning to the contention of the appellant that

Section 43 of the Act is violated, this Court would like to extract

here Section 43 of the Act.

Section 43 of the N.D.P.S. Act runs as follows:

1[43. Power of seizure and arrest in public place.--Any officer of any of the departments mentioned in section 42 may--

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.--For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.]

36) A close perusal of Sections 42 and 43 of the Act

reveals that Section 43 of the Act refers to the power of seizure

and arrest in public place. Nowhere it is provided under Section

43 of the Act that procedure contemplated under Section 42 has

to be violated.

37) Apart from this, the Hon‟ble Supreme Court in

Jarnail Singh's case (6 supra) clearly held that "Section 42 and

43 contemplate two different situations. Section 42

contemplates entry into and search of any building, conveyance

or enclosed place, while Section 43 contemplates a seizure made

in any public place or in transit. If seizure is made under Section

42 between sunset and sunrise, the requirement of the proviso

thereto has to be complied with. There is no such proviso in

Section 43 of the Act and, therefore, if a pubic conveyance is

searched in a public place, the Officer making the search is not

required to record his satisfaction as contemplated by the

proviso to Section 42 of the NDPS Act for searching the vehicle

between sunset and the sunrise. In the instant case, the tanker

was moving on the public highway when it was stopped and

searched. Section 43, therefore, clearly applied to the facts of

the case. Thus there was no requirement of the Officer

conducting the search to record the grounds of his belief as

contemplated by the proviso to Section 42. More so, when

Superintendent of Police was also a member of the searching

party."

38) While holding so, the Hon‟ble Supreme Court

reversed the judgment of Punjab and Haryana High Court and

restored the conviction imposed against the respondents by the

learned Special Judge.

39) Hence, absolutely, the contention of the appellant

that Sections 42 and 43 of the NDPS Act is violated does not

deserve any merits.

40) Turning to Section 57 of the NDPS Act, it

contemplates to report to the superior officers about the arrest

and seizure within 48 hours after arrest and seizure by making a

full report. It is to be noted that the accused was duly produced

before the concerned Court for the purpose of remand within 24

hours. Though the prosecution did not produce any document

that the investigating officer forwarded the arrest and seizure to

the superiors, but thing is that for conducting routine vehicular

checking, the S.I. of Police obtained permission under Ex.P.6

from the superiors. Though there is no document marked with

regard to the report of arrest and seizure to the superior officers

of P.W.4 or P.W.5, but the fact remained is that hardly within 24

hours the factum of seizure and arrest was borne out by the

record before the concerned Court. The provisions of Section 57

of the Act are directory in nature. Hence, none production of any

document as to the compliance of Section 57 of the Act would

not vitiate the conviction.

41) Now this Court would like to proceed to deal with

Supreme Court Judgments

High Court Judgments

Campus Buzz

Library

Legal Education

More

Circulars & Notices

Jagadeeshan , vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 4950 AP

LatestLaws Partner Event : IDRC

LatestLaws Partner Event : IJJ

Jagadeeshan , vs The State Of A.P., Rep By Pp.,2023 Latest Caselaw 4950 AP

LatestLaws Partner Event : IDRC

LatestLaws Partner Event : IJJ

Jagadeeshan , vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 4950 AP