Malik Vs. State of Gujarat  INSC 39 (12 January 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 164 OF 2002
Hamidhbai Azambhai Malik ..Appellant Versus State of Gujarat ..Respondent
Dr. ARIJIT PASAYAT,
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
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.
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.
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 effected on
15. 12.1995 after calling panchas and other officers and a photographer, and
after undertaking other exercise required under law.
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.
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 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
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.
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.
counsel for the respondent-State on the other hand supported the judgment of
the trial court and affirmed by the High Court.
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:
(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.
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 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 proceedings. The reasoning given in
Balbir Singh case1 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 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
(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
(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.
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-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
(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 8 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."
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."
to the factual background it has to be noted as follows:
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.
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.
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.
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.
appeal is without merit, deserves dismissal which we direct.
(Dr. ARIJIT PASAYAT)