Rajendra
and Anr Vs. State of Madhya
Pradesh [2003] Insc
655 (17 December 2003)
Doraiswamy
Raju & Arijit Pasayat Arijit Pasayat, J.
Appellants
faced trial for alleged commission of offences punishable under Section 8 read
with Section 20 (B)(1) of the Narcotic Drugs and Psychotropic Substances Act,
1985 (in short 'the Act'). Each was found guilty and sentenced to undergo
imprisonment for 3 years and to pay a fine of Rs.2,000/- with default
stipulation by the learned Special Judge (NDPS) Bhopal. The conviction and sentence were maintained by the High
Court of Madhya Pradesh at Jabalpur by
the impugned judgment.
Background
facts as projected by the prosecution during trial are as follows:
On
31.3.2001, while Inspector Ajay Singh Bisen (PW-10) was on duty at G.R.P.
Police Station, Bhopal, he received an information that
two persons had got down from Madhya Pradesh Express and were waiting at
platform No.2 for Coolie with suitcases and bags in which they were carrying
contraband article (Ganja). This information was recorded by him (Ex.P-25) and
thereafter, he proceeded with his staff to the place as per the information
received by him. He found the appellants standing with the suitcases and bags.
On search of the suitcase of appellant no.1 Rajendra, he found 23 kilograms of
"Ganja" therein, which was seized.
Likewise,
on the search of the bag of appellant no.2 Kalicharan he found 17 kilograms of
"Ganja" therein, which was also seized. PW-10 prepared the seizure
memos (Exh.P-5 and P-8 respectively). He took samples of 25 grams each and
sealed the same. The sample Panchnama is Exh.P-7. The seized articles were kept
in sealed condition in the Malkhana. PW-10 had sent the sealed samples with
specimen of seal to the Forensic Science Laboratory, Sagar vide Exh. P-23 on
12.4.2001 and the report of the laboratory is Exh.P-29. PW-10 sent the full
report of the search and seizure to the senior railway police as per Exh. P-28,
dated 1.4.2001.
K. Barsaiya
(PW-3) was posted as Malkhana Moharrir in the Police Station, Government
Railway Police, Bhopal and on 31.3.2001, the seized
"Ganja" and the sample packets along with the suitcase and bag which
were seized from the appellants were deposited by him in the Malkhana in a
sealed condition.
Placing
reliance on the evidence adduced, the trial Court recorded conviction and
imposed sentence as noted supra. Appeal before the High Court did not bring any
relief.
In
support of the appeal, learned counsel for the appellants submitted that there
was violation of Sections 42 and 50 of the Act.
There
was no proof of endorsement to the superior officer as mandated in Section
42(2) of the Act. Before the search was made the accused persons were not
intimated of their right to be searched in the presence of prescribed
authority. There was also non-compliance with the requirements of Sections 55
and 57.
Learned
counsel for the State on the other hand submitted that both the trial Court and
High Court have analysed the factual and legal position in detail. There is no
infraction as alleged and the impugned judgment suffers from no infirmity.
The
requirements vis-`-vis Sections 42 and 50 have been dealt with in many cases,
more particularly by a Constitution Bench in State of Punjab v. Baldev Singh
(1999 (6) SCC 172). In para 17 the conclusions in an earlier judgment State of Punjab v. Balbir Singh (1994 (3) SCC 299
at para 25) were quoted and approved. We are concerned with conclusions (2-C)
and (3) which read as follows:
"(2-C)
Under Section 42(1) the empowered officer if has a prior information given by
any persons, 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.
(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 prosecutions 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." Section 42 deals with power of entry, search, seizure and arrest
without of authorization. The provision reads as follows:
"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, 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 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)
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 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 forthwith
send a copy thereof to his immediate official superior." Section 42
enables certain officers duly empowered in this behalf by the Central or State
Government, as the case may be, to enter into and search any building,
conveyance or enclosed place for the purpose mentioned therein without any
warrant or authorization. Section 42 deal with "building, conveyance or
enclosed place" whereas Section 43 deals with power of seizure and arrest
in public place. Under sub-section (1) of Section 42 the method to be adopted
and the procedure to be followed have been laid down. If the concerned officer
has reason to believe from personal knowledge, or information given by any
person and has taken down in writing, that any narcotic drugs or substance in
respect of which an offence punishable under Chapter IV of the Act has been
committed or any other articles which may furnish evidence of the commission of
such offence is kept or concealed in any "building or conveyance or
enclosed place" he may between sunrise and sunset, do the acts enumerated
in clauses (a), (b), (c) and (d) of sub-section (1).
The
proviso came into operation if such officer has reason to believe that search
warrant or authorization cannot be obtained without affording opportunity for
the concealment of evidence or facility for the escaped offender, he may enter
and search such building, conveyance or enclosed place any time between sunrise
and sunset after recording grounds of his belief. Section 42 comprises of two
components. One relates to the basis of information i.e. (i) from personal
knowledge (ii) information given by person and taken down in writing. The
second is that the information must relate to commission of offence punishable
under Chapter IV and/or keeping or concealment of document or article in any
building, conveyance or enclosed place which may furnish evidence of commission
of such offence. Unless both the components exist Section 42 has no
application. Sub-section (2) mandates as was noted in Baldev Singh's case
(supra) that 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.
Therefore, sub-section (2) only comes into operation where the officer
concerned does the enumerated acts, in case any offence under Chapter IV has
been committed or documents etc. are concealed in any building, conveyance or
enclosed place. Therefore, the commission of the act or concealment of document
etc. must be in any building, conveyance or enclosed place.
The
trial Court and the High Court after analyzing the evidence have come to hold
that there was compliance of Section 42(2) in the sense that requisite
documents were sent to the superior officer, though per se Section 42 had no
application to the facts of the case. Though learned counsel for the appellant
tried to submit that there was no definite evidence about sending copies of the
requisite documents to the superior officers, yet in view of the analysis of
evidence done by the trial Court and also by the High Court, we do not find any
substance in the plea that there was violation of Section 42(2).
So far
as non-compliance of Section 50 is concerned, the said provision reads 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." As in the instant
case the search was of the bags and not of the persons, Section 50 has no
application and the High Court was right in its conclusions.
A bare
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), Baldev Singh's case (supra),
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.
A
similar question was examined in Madan Lal and Anr. v. State of Himahal Pradesh (2003 (6) Supreme 382).
Coming
to the question of alleged non-compliance of the requirement of Sections 55 and
57, we find the trial Court has referred to the evidence of the witnesses and
held that articles were kept in Malkhana in safe custody and were sent for
chemical examination after necessary orders by the Magistrate and, therefore,
the requirement of Section 55 were complied with. Section 57 relates to
reporting of arrest and seizure to immediate superior officer. The evidence
shows that same has been done. We find no infirmity in the conclusions of the
trial Court and the High Court regarding compliance of Sections 55 and 57 to
warrant interference.
Learned
counsel for the appellant residually submitted that the accused have suffered
about 2 years and 9 months of custodial sentence, and, therefore, sentence
should be altered to the sentence undergone. We find no substance in the plea
looking to the gravity of the offence committed and large quantity of
contraband articles seized. The appeal is without any merit and is dismissed.
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