Beckodan
Abdul Rahiman Vs. State of Kerala [2002] Insc
205 (16 April 2002)
R.P.
Sethi & D.M. Dharmadhikari Sethi,J.
For
allegedly possessing 11 gms. of opium without licence, the appellant has been
convicted under Section 9(c) read with Section 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as "the
Act"). He has been sentenced to undergo rigorous imprisonment for 10 years
and to pay a fine of Rs.1 lakh and in default of payment of fine to suffer
further rigorous imprisonment for six months. It is stated at the Bar that the
appellant has already undergone sentence of about 8 years.
No-one
has appeared for the appellant. From the memo of the appeal it is found that
the conviction and sentence awarded to the appellant has been assailed mainly
on the ground of violation of the provisions of Sections 42 and 50 of the Act.
The learned counsel, appearing for the respondent-State has, however, contended
that as there was substantive compliance of the provisions of the Act, no
interference is called for.
According
to the prosecution, the Sub Inspector of Police received a telephonic message
on 6.10.1990 at about 8.30
a.m. that narcotic
drugs were being sold at T.C. Junction. He recorded the information in the
general diary and proceeded to the scene of occurrence in a jeep. on reaching
T.C. Junction at about 8.45
a.m. he saw the
accused carelessly walking from the bus shelter towards Kathu Parambu side.
Allegedly seeing him in suspicious condition, the Sub Inspector along with his
party approached him and after disclosing his identity searched the person of
the accused in presence of witnesses. It was found that inside the fold of
Dhoti, which the appellant was wearing, opium had been concealed in a polythene
bag. As he was found unauthorisedly possessing the opium, he was arrested and
the opium seized was weighed to be 11 gms. Out of that 2 gms. each were
separated and two samples were roped in plastic paper. On enquiry from the
accused whether he would like to meet any higher official or Gazetted Officer,
he allegedly replied in negative. Section 42 of the Act provides:
"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 or of the Border Security
Force 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, drug 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
personal knowledge or information given by any person and taken down in
writing, that any narcotic drug, or psychotropic substance, in respect of which
an offence punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such offence 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 Chapter IV relating to such drug or substance;
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 Chapter IV relating to
such drug or substance:
Provided
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 sun set and sun
rise 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 forthwith
send a copy thereof to his immediate official superior." Section 50 of the
Act prescribes:
"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 or 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 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."
Keeping
in mind the grave consequences which are likely to follow on proof of
possession of illicit articles under the Act, namely, the shifting of the onus
to the accused and severe punishment to which he becomes liable, the
Legislature has enacted and provided certain safeguards in various provisions
of the Act including Sections 42 and 50 of the Act. A Constitution Bench of
this Court in State of Punjab vs. Baldev Singh [1999 (6) SCC 172] has held that
while conducting search and seizure in addition to the safeguards provided
under the Code of Criminal Procedure, the safeguards provided under the Act are
also required to be followed. The harsh provisions of the Act cast a duty upon
the prosecution to strictly follow the procedure and compliance of the
safeguards. In that case the Court observed:
"Prior
to the passing of the NDPS Act, 1985 control over narcotic drugs was being
generally exercised through certain Central enactments though some of the
States also had enacted certain statutes with a view to deal with illicit
traffic in drugs. The Opium act, 1857 related mainly to preventing illicit
cultivation of poppy, regulating cultivation of poppy and manufacture of opium.
The Opium Act, 1878 supplemented the Opium Act, 1857 and made possession,
transportation, import, export, sale, etc., of opium also an offence. The
Dangerous Drugs Act, 1930, was enacted with a view to suppress traffic in
contraband and abuse of dangerous drugs, particularly derived from opium,
Indian hemp and coca leaf etc. The Act prescribed maximum punishment of
imprisonment for three years with or without fine, in so far as the first
offence is concerned and for the second or the subsequent offence the
punishment could go up to four years' RI. These Acts, however, failed to
control illicit drug traffic and drug abuse on the other hand exhibited an
upward trend. New Drugs of addiction known as psychotropic substances also
appeared on the scene posing serious problems. It was noticed that there was an
absence of comprehensive law to enable effective control over psychotropic
substances in the manner envisaged by the International Convention on
Psychotropic Substances, 1971.
The
need for the enactment of some comprehensive legislation on narcotic drugs and
psychotropic substances was, therefore, felt. Parliament with a view to meet a
social challenge of great dimensions, enacted the NDPS Act, 1985 to consolidate
and amend existing provisions relating to control over drug abuse etc. and to
provide for enhanced penalities particularly for trafficking and various other
offences. The NDPS Act, 1985 provides stringent penalties for various offence.
Enhanced penalties are prescribed for the second and subsequent offences. The
NDPS Act, 1985 was amended in 1988 w.e.f. 29.5.1989. Minimum punishment of 10
years' imprisonment which may extend upto 20 and a minimum fine of Rs.1 lakh
which may extend up to Rs.2 lakhs have been provided for most of the offences
under the NDPS Act, 1985. For the second and subsequent offices, minimum
punishment of imprisonment is 15 years which may extend to 30 years while
minimum fine is Rs.1.5 lakhs which may extent to Rs.3 lakhs. Section 31(a) of
the Act, which was inserted by the Amendment Act of 1988, has even provided
that for certain offences, after previous convictions, death penalty shall be
imposed, without leaving any discretion in the court to award imprisonment for
life in appropriate cases.
Another
amendment of considerable importance introduced by the Amendment Act, 1988 was
that all the offences under the Act were made triable by a Special Court. Section 36 of the Act provides for
constitution of Special Courts manned by a person who is a Sessions Judge or an
Additional Sessions Judge. Appeals from the orders of the Special Courts lie to
the High Court. Section 37 makes all the offences under the Act to be
cognizable and non-bailable and also lays down stringent conditions for grant
of bail. However, despite the stringent provisions of the NDPS Act, 1985 as
amended in 1988 drug business is booming; addicts are rapidly rising;
crime
with its role in narcotics is galloping and drug trafficking network is
ever-growing. While interpreting various provisions of the statute, the object
of the legislation has to be kept in view but at the same time the
interpretation has to be reasonable and fair." After referring to host of
judgments, the Constitution Bench of the Court held that the provisions of
Sections 42 and 50 are mandatory and their non compliance would render the
investigation illegal. It was reiterated that severer the punishment, greater
the care to be taken to see that all the safeguards provided in the statute are
scrupuously followed. The safeguards mentioned in Section 50 are intended to
serve a dual purpose to protect the person against false accusation and
frivolous charges as also to lend credibility to the search and seizure
conducted by the empowered officer. If the empowered officer fails to comply
with the requirements of the Section, the prosecution is to suffer for the
consequences. The legitimacy of the judicial process may come under the cloud
if the court is seen to condone acts of lawlessness conducted by the
investigating agency during search operations and may also undermine respect
for the law and may have the effect of unconscionably compromising the
administration of justice.
In
State of Punjab vs. Balbir Singh [1994(3) SCC 299] it was held that under
Section 42(2) the 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 a total non
compliance of the provisions the same affects the prosecution case. To that extent
it is mandatory. To the same effect is the judgment in Saiyad Mohd. Saiyad Umar
Saiyad & Ors. vs. State of Gujarat [1995
(3) SCC 610].
In
this case the violation of the mandatory provisions is writ large as is evident
from the statement of K.R. Premchandran (PW1).
After
recording the information, the witnesses is not shown to have complied with the
mandate of sub-section (2) of Section 42 of the Act.
Similarly
the provisions of Section 50 have not been complied with as the accused has not
been given any option as to whether he wanted to be searched in presence of a Gazetted
Officer or Magistrate. The compliance of Section 50 is held to have been
fulfilled on his (PW1) asking the accused "whether I should search him in
the presence of senior officers or Gazetted officer". The accused was
required to be apprised of his right conferred under Section 50 giving him the
option to search being made in presence of gazetted officer or the Magistrate.
The
accused is not shown to have been apprised of his right nor any option offered
to him for search being conducted in the presence of the Magistrate.
We are
of the firm opinion that the provisions of sub-section (2) of Section 42 and
the mandate of Section 50 were not complied with by the prosecution which
rendered the case as not established. In view of the violation of the mandatory
provisions of the Act, the appellant was entitled to be acquitted. Both the
trial court as well as the High Court have failed to consider this aspect of
the matter which warrants the setting aside of the impugned judgment.
Under
the circumstances the appeal is allowed by setting aside the impugned judgment.
The appellant is directed to set at liberty forthwith unless required in any
other case.
......................J.
(R.P. Sethi)
......................J.
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