Jabbi Vs. State of Maharashtra  Insc 608 (3 December 2003)
Raju & Arijit Pasayat. Arijit Pasayat, J
appellant, a Gambian national, was apprehended around mid- night of 17.9.1993
at the Sahara Airport Bombay for carrying heroin in his baggage in ET Flight
No. 661. Ashok Thaker, (PW-1) an intelligence officer attached to the Narcotic
Bureau screened the baggage and seizure was made of the heroine weighing about
1 kg. which was concealed in a suitcase. After recording the statement accused
was taken for alleged contravention of various provisions of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short the 'Act') and also under the
Customs Act, 1962 (in short the 'Customs Act'). He was charged for offence
punishable under Sections 21, 23, 28 and 29 of the Act and also Sections 135(1)(a)(ii)
of the Customs Act. Accused pleaded innocence.
tried in the Court of Special Judge for Greater Bombay who found that there was
non-compliance with the requirement of Section 50 of the Act as he was not made
aware of his right to be searched before a gazetted officer or a Magistrate
before the search was conducted. It was also held that the requirement of
Section 42(2) to submit the gist of information to higher officer immediately
was also not established. The accused was acquitted of all the charges. The
prosecuting agency filed an appeal before the Bombay High Court which by the
impugned judgment held the accused guilty for offences punishable under Section
8(c) read with Section 21 of the Act for which custodial sentence of 10 years
imprisonment and fine of Rs.1 lakh for default stipulation was awarded.
for offence relatable to Sections 28 read with Section 23 of the Act a similar
sentence was awarded. Though he was convicted under Section 135(1)(a)(ii) of
the Customs Act, but no separate sentence was awarded. The High Court held that
Section 50 was not attracted to the facts of the case. Similarly, it was held
that there was compliance of requirements of Section 42(2) of the Act.
judgment of the High Court is under challenge in this appeal.
support of the appeal, learned counsel appearing for the appellant submitted
that the trial Court was justified in holding that the accusations were not
established against the appellant.
the High Court had on an erroneous reading of Sections 42 and 50 came to hold
that there was compliance with the requirements of the said provisions. The
seized articles were sent for chemical examination on 23.9.1993. This was in
violation of Section 55 of the Act.
counsel for the respondent-State submitted that the High Court was justified in
its conclusion and correct interpretation of the relevant provisions of the Act
have been made. Further, the plea that there was any prejudice to the accused
on account of delayed dispatch was not taken before the courts below. In any
event, the investigating officer categorically stated that the seized articles
were kept in safe custody. There was not even any material brought on record to
doubt the statement.
dealing with rival submissions, it is appropriate to take note of the factual
background noticed by the trial Court and the High Court.
the night between 17.9.1993 and 18.9.1993 PW-1 attached to Narcotic Control
Bureau (in short 'NCB') Office, received information that the accused, a
Gambian national, was likely to smuggle heroin in his baggage by ET flight 661,
scheduled to arrive at 0645 hours that night. He received the information when
he was at the airport. He reduced the same to writing (Exh. 16-A) and placed it
before his immediate superior Assistant Director, Mr. S.C. Rohatgi, who was
present at the Airport. Mr. Rohatgi perused it and put his signature and asked
the officer to act upon the said information. At the Airport, he called two panchas
and kept a watch at the X-ray machine counter. One Mr. Karanjla, who was a
security officer, was Screen Machine Operator at the relevant time. When the
accused placed three baggages for screening, the security officer gave signal
to PW-1. On the monitor of the screening machine PW-1 noticed green dense
patches/spot when a blue coloured caravan make zipper suitcase was put. All the
3 baggages of the accused were placed on the screening machine. PW-1 as well as
the security officer suspected concealment of contraband in blue coloured
three baggages of the accused were therefore, kept separately near the counter.
PW-1 the intelligence officer, who was also an empowered officer disclosed his
identity to the accused and his intention to search his baggages. This officer
along with the accused, panchas and 3 baggages of the accused went to the Air
Traffic Room of Air India for the purpose of search of those baggages. In that
room PW-1 took charge of the travel document of the accused consisting of his
passport, ticket etc. Accused opened blue coloured suitcase with his keys. The
same was filled with old and new garments and one bed sheet. Two polythene bags
containing brown powder were found in the folds of bed sheet. Small quantity of
the brown powder was taken out for the purpose of testing which, when tested on
testing kit, answered positive for heroin. Both the polythene bags were emptied
in one big polythene bag. The total quantity of powder found in the said bags
weighed 990 grams. Three samples were drawn in separate small polythene bags.
Those bags were sealed by heating and were put in separate paper bags which
these samples packets were sealed with office seal bearing No.03-NCB in the presence
of panchas whose signatures were obtained after putting particulars and marked
S-1, S-2 and S-3. Sample packets were also signed by PW-1 as well as the
accused. The remaining quantity of powder was separately sealed with the seal
of N.C.B. and the signatures of the panchas and the accused were taken on the
labels. The seizure panchnama (Exh. 17) was prepared. The panchnama was singed
by both the panchas as well as PW-1. One copy of the said panchnama was handed
over to the accused which he acknowledged by putting his signature on the
seizure panchnama. The blue suitcase, the contraband and the bed sheet were
seized. Other two suitcases were returned to the accused. The travel documents
and foreign currency worth 201 US $ and 700 Francs recovered in personal search
of the accused were also seized under the panchnama.
the accused along with the contraband and samples was brought to the N.C.B.
Office. A note about the interception, search and seizure was prepared by the
officer, (Exh. 17-A). The same was placed before his superior officer Mr. S.C. Rohatgi
along with seizure panchnama and the muddemal property. Summons were served to
the accused under Section 67 of the Act and his statement was recorded by PW.1
on 18.9.1993 in which the accused admitted the recovery of 990 grams of heroin
from his suit case. The same was marked as (Exh.18). His further statement was
recorded on 19.9.1993 as per (Exh.19). The accused was arrested on 19.9.1993.
23.9.1993, sample packet marked as S-1 was handed over to the Dy. Chief of the
Laboratory and Chemical Analyst's Report from the Laboratory dated 26.10.1993
was received (as per Exh.21), according to which the sample was of heroin
(diacetylmorphine). After the investigation was completed complaint was filed.
The Special Judge framed charges against the accused under Section 8(c) read
with Sections 21, 23, 28 and 29 of the Act and under Section 135(1)(a)(ii) of
the Customs Act. Separate charge under Section 8(c) of the Act read with
Section 21 of the Act was also framed against the accused. As the accused
pleaded not guilty, prosecution led evidence of two witnesses.
as noted above Ashok Thaker, who had received the information, conducted the
search and also investigated the case. The other witness examined was panch
PW-2 Ankush Yerunkar, who was panch to the search and seizure of the contraband
from the accused. He fully supported the prosecution case. The prosecution has
also produced on record the relevant documents like copy of the information
reduced to writing, Seizure panchnama, Chemical Analyst's Report etc.
first aspect which needs to be considered is whether there was any
non-compliance of Sections 42 and 50 of the Act as pleaded. So far as these two
provisions are concerned, they read as follows:
42: Power of entry, search, seizure and arrest without warrant or
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,-
into and search any such building, conveyance or place;
case of resistance, break open any door and remove any obstacle to such entry;
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
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.
that if such officer has reason to believe that a search warrant or
authorization cannot be obtained without affording opportunity for the
concealment or 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.
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.
50: Conditions under which search of persons shall be conducted-
When any officer duly authorized 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
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
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.
female shall be searched by anyone excepting a female.
When an officer duly authorized 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
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." Now comes
the question whether there was non-compliance of Section 50 of the Act.
reading of Section 50 shows that it only applies in case of personal search of
a person. It does not extend to search of a vehicle or a container or a bag, or
premises. (See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999 (8) SC
293), The State of Punjab v. Baldev Singh (JT 1999 (4) SC 595), Gurbax Singh v.
State of Haryana (2001(3) SCC 28). The language of Section 50 is implicitly
clear that the search has to be in relation to a person as contrasted to search
of premises, vehicles or articles. This position was settled beyond doubt by
the Constitution Bench in Baldev Singh's case (supra). Above being the
position, the contention regarding non-compliance of Section 50 of the Act is
also without any substance.
case at hand the contraband articles were suspected to be hidden in the blue
suitcase of the accused, and was not in his physical possession. The suitcase
was put on the screening machine. This cannot be equated to be a recovery made
from the person of the accused by a personal search.
Kar v. State of Orissa (2001 (9) SCC 541) it was held that when there was a
recovery from a plastic bag belonging to the accused on which he was found
sitting on railway compartment, Section 50 was not applicable. Baldev's case
(supra) was referred to hold that Section 50 in case of search comes into play
only in case of search by a person as distinguished from search from any
premises etc. The position was also highlighted recently in Madan LaL & Anr.
v. State of Himachal
Pradesh (2003 AIR SCW
3969). Above being the position the High Court was justified in holding that
Section 50 had no application.
as compliance with Section 42(2) is concerned, the statement of PW-1 to the
effect that he had informed his superior remained unshaken and there was even
no cross-examination to point out any falsity in the said statement. The note
of intelligence information was placed on record vide Exh. 16-A to substantiate
the testimony of PW- 1. That being so the High Court was justified in holding
that the provisions of Section 42(2) had been complied with.
to the plea regarding non-compliance of Section 55 of the Act, as rightly
submitted by learned counsel for the respondent-State, there was not even any
argument advanced on that score before the trial Court and the High Court. Even
otherwise also the evidence of the investigating officer about safe custody of
the contraband articles have not been challenged or shaken in the
cross-examination. That being the position we are not inclined to accept the
plea that there was non- compliance with the requirements of Section 55 of the
at from any angle, the appeal is sans merit, deserves dismissal, which we