Bharatbhai
Bhagwanjibhai Vs. State of Gujarat [2002]
Insc 450 (29 October
2002)
Umesh
C. Banerjee & B.N. Agrawal. Banerjee, J
The
Statement of Objects and Reasons of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as the "NDPS Act")
categorically records the inadequacy of the existing legislation to combat
illicit drug traffic and drug abuse, both at the national and international
levels and it is by reason of such deficiencies in the existing laws, the
legislature thought it prudent to consolidate the same and bring about a
comprehensive legislation so as to meet the exigencies of the situation. A
plain look at the provisions of the Act read with the Statement of Objects and
the Preamble would depict the intent of legislature as regards the offences
under the said consolidated legislation, which stands expressed in rather
explicit language as one of the most heinous ones in nature. This Court,
however, in consonance with criminal jurisprudence of the country has been insisting
on strict compliance of the safe-guards provided under the Statute so as to be
in tune therewith.
At
this juncture, however, it would be convenient to advert to the contextual
facts briefly : The factual score records that on 23rd January, 2000, Inspector
Mr. Katara along with two Head Constables and four Constables was on patrolling
duty and whilst on duty at the bus stand at Chowk in Upleta at about 3.00 p.m.
it was noticed that the accused on seeing the police started running.
This
undue movement however aroused the curiosity and as such accused was
intercepted and upon having the presence of two Panchas was searched which
however led to the disclosure of small size plastic bag containing Charas of
about 12 gms. in weight. The inspector lodged a complaint at about 1630 hours
and necessary entries were made in the records. The substance found in the
plastic bag was forwarded to the Forensic Science Laboratory for opinion and
all necessary formalities thereafter were complied with culminating into the filing
of the charge-sheet.
The
learned Sessions Judge framed the charge against the accused who pleaded 'not
guilty' and as a matter of fact in his statement under Section 313 Cr.P. Code,
the appellant has stated that the evidence stands created, as he was not aware
of any such incident as noticed above. The learned Sessions Judge, however, on
the basis of available records convicted the accused person and sentenced as
noticed earlier. The High Court, however, confirmed the conviction as well as
sentenced the accused to suffer rigorous imprisonment for 10 years and a fine
of Rs.1.00 lakh with a default clause as well.
The
principal contention raised that since the deterrent punishments are prescribed
under the NDPS Act, the legislature has taken care to incorporate several
provisions in Chapter V of the Act and as interpreted by this Court, the
provisions are mandatory in nature and non-compliance therewith would
completely vitiate the trial. It is on this score it has been contended in
support of the appeal that by reason of the factum of ascertainment of the
wishes and desires of the accused as regards the search and seizure and that
being a mandatory requirement and there being admitted non- compliance
therewith, question of either maintaining the guilt of the accused person by
the Additional Sessions Judge or confirmation thereof by the High Court would
not arise. In this context Section 50 has been very strongly emphasised, which
we feel it convenient to set out along with Sections 51 and 57 on which the appellant
also laid strong emphasis. The said provisions read as below :
"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 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."
"51. Provisions of the Code of Criminal Procedure, 1973 to apply to
warrants, arrests, searches and seizures - The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not
inconsistent with the provisions of this Act, to all warrants issued and
arrests, searches and seizures made under this Act." "57. Report of
arrest and seizure Whenever any person makes any arrest or seizure under this
Act, he shall, within forty-eight hours next after such arrest or seizure, make
a full report of all the particulars of such arrest or seizure to his immediate
official superior." Turning attention to the requirement of Section 50, it
is now well settled that the same is mandatory in nature and thus there exists
an obligation to comply with the provisions and non- compliance thereof would
entail an order of acquittal in a proceeding under the NDPS Act. This Court
consistently and without even sounding a contra note followed the same and as
such we need not dilate thereon any further.
Incidentally,
Section 51 of the Act is an enabling provision under which the provisions of
Code of Criminal Procedure have been made applicable to warrants, searches,
arrests and seizures under the Act provided further the same be not
inconsistent with the provisions of the special statute being the Act of 1985.
It is in this context that Section 4 of the Code of Criminal Procedure, 1973
ought to be noticed which provides for trial of offences under the Indian Penal
Code and other laws since sub-section (2) thereof expressly records that all
offences under any other law shall be investigated, inquired into, tried and
otherwise dealt with according to the same provisions, but subject to any
enactment for the time being in force regulating the manner or place of
investigation and other incidentals noticed above.
On a
reading of the aforesaid provisions thus, it appears that Section 51 of the
Narcotics Act permits introduction of Section 4 of the Criminal Procedure Code
even in the matter of investigation, searches, seizures, etc.
As
regards the provisions of Section 57, we do not find any infraction thereof. As
such no question can be raised as regards the intimation of arrest and seizure
and a report to that effect.
Turning
attention to the contextual facts once again, admittedly, the search was not in
accordance with the requirement of Section 50 and it is on this score that
learned Advocate was rather vocal and emphatic as regards the factum of the
learned Additional Sessions Judge being subjected to a very serious error and
the High Court also by reason of its concurrence has been in a manifest error.
The issue, however, is slightly different in the contextual facts. Section 50
categorically lays down that if the search is to be conducted by an officer
duly authorised under Section 42 and the search is about to be conducted under
the provisions of Sections 41, 42 or 43, the concerned officer does owe a duty
to intimate the person to be searched that if the latter so requires, he would
be taken to the nearest Gazetted Officer or to the nearest Magistrate for the
purpose of having the search in their presence. But in the event of a situation
otherwise, as in the contextual facts, viz., the accused person on seeing the
patrolling police party started running, which created a suspicion in the mind
of the concerned officer, who thereafter intercepted him and then in the
presence of Panchas effected a search, question of compliance with the
safeguards as prescribed under Section 50 of the Act would not arise. In Balbir
Singh (State of Punjab v. Balbir Singh 1994 (3) SCC 299) this Court in the
similar vein answered the question in the negative in the manner following :
"It
thus emerges that when the police, while acting under the provisions of Cr.P.C.
as empowered therein and while exercising surveillance or investigating into
other offences, had to carry out the arrests or searches they would be acting
under the provisions of Cr.P.C. At this stage if there is any non- compliance
of the provisions of Section 100 or Section 165 Cr.P.C. that by itself cannot
be a ground to reject the prosecution case outright. The effect of such non-
compliance will have a bearing on the appreciation of evidence of the official
witness and other material depending upon the facts and circumstances of each
case. In carrying out such searches if they come across any substance covered
by the NDPS Act the question of complying with the provisions of the said Act
including Section 50 at that stage would not arise. When the contraband seized
during such arrests or searches attracts the provisions of NDPS Act then from
that stage the remaining relevant provisions of NDPS Act would be attracted and
the further steps have to be taken in accordance with the provisions of the
said Act." Admittedly, on perusal of the evidence as is available on the
records, it is clear that there was no prior information to the police officer
that the accused is likely to come with a narcotic substance, neither the
inspector had any reason to believe from his personal knowledge or information
that the accused is likely to be in the area from where he was found with the contraband
item. As a matter of fact, even at the time of effecting search, there was no
knowing that an offence under Chapter IV of NDPS Act has been committed by the
accused. The Inspector merely suspected the commission of an offence by reason
of the fact that the accused started running on seeing the patrolling party.
The evidence on this score is clear and categorical to the effect as discussed
hereinbefore. Though the Panchas have given a slightly different version of the
search and seizure, but that does not by itself take away the primary evidence
as regards the search and subsequent discovery of Charas in the possession of
the accused and the resultant seizure thereof. The contextual facts thus depict
a situation not covered within the purview of Section 50. In this context, the
observation of the Constitution Bench of this Court in State of Punjab v. Baldev Singh (1999 (6) SCC 172)
also lends credence to the above statement of law. In paragraph 12 of the
Report, this Court stated as below :
"12.
On its plain reading, Section 50 would come into play only in the case of a
search of a person as distinguished from search of any premises etc.
However,
if the empowered officer, without any prior information as contemplated by
Section 42 of the Act makes a search or causes arrest of a person during the
normal course of investigation into an offence or suspected offence and on
completion of that search, a contraband under the NDPS Act is also recovered,
the requirements of Section 50 of the Act are not attracted." The learned
Advocate in support of the appeal further contended that the decision of this
Court in Ahmed v. State of Gujarat (2000 (7) SCC 477), upon reference to both Balbir
and Baldev (supra) came to a conclusion of the applicability of Section 50 in all
cases of NDPS. Unfortunately, however, the reliance on Ahmed (supra) is totally
misplaced by reason of the fact that this Court in Ahmed was considering the
issue of empowered officer or a duly authorised officer. This Court went on to
record that to ensure fairness in the search itself and for compliance with
Section 50 of the Act, no differentiation can be made whether the search is
being made by the empowered officer, who obviously is an officer of a gazetted
rank or the authorised officer, who may be a subordinate officer to whom the
empowered officer authorises.
This
Court went on to observe that a combined reading of the provisions of Sections
42 and 50 would make it crystal clear that wherever a search of a person is
about to be made on the basis of personal knowledge or information received in
that behalf, then if the person to be searched requires to be taken to a gazetted
officer or the nearest Magistrate, the same must be complied with and failure
to comply with the same would constitute an infraction of the requirements of
the provisions of Section 50, which would ultimately vitiate the conviction and
it is on this score this Court relied upon the plain and categorical language
used by the legislature in Section 50. The decision in Ahmed (supra) does not
lend any credence to the submissions in support of the appeal.
The
High Court in fact recorded a categorical satisfaction as regards the
acceptance of evidence as credible and trustworthy and we also do not find any
reason to record a different opinion in regard thereto.
On the
wake of the aforesaid, we are not inclined to interfere with the order of the
High Court. As such this appeal fails and is dismissed.
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