K. Chithhayan Vs. State of
Tamil Nadu [2008]
INSC 940 (15 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 827 OF 2005 K. Chithhayan
...Appellant Versus State of Tamil Nadu ...Respondent
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to
the judgment of a learned Single Judge of the Madras High Court upholding the
conviction of the appellant for offence punishable under Section 8 (c) read
with Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in
short the `Act') and sentence of 10 years rigorous imprisonment and a fine of
Rs.1,00,000/- as was imposed by learned Special Judge, Salem.
2. Background facts in a nutshell
are as follows:
Veerannan (PW-1), Sub Inspector of
Police, attached to N.I.B. C.I.D., Salem on 16.12.1999 at about 9.00 A.M. along
with Vellingiri (PW-4), Head Constable No.910 and other Police party on secret
information were patrolling at Pethanayakkampalaym Bus Stop. They found
activities of the appellant/accused, who stood near the bus stop with a yellow
colour bag on his right hand, at about 12.00 noon, to be suspicious. P.W.1
after introducing himself, conveyed to him that he is entitled for the conduct
of the search before a Gazetted Officer or a Judicial Magistrate. The accused
gave consent to be searched by the official himself. Accordingly, P.W.1
searched his bag in the presence of the two independent witnesses namely
Duraisamy (PW-2), Village Administrative Assistant and Duraisamy Assistant
(PW-3) and P.W.4 Head Constable and found 2 Kilograms of Diazepam.
P.W.1 seized the same under Ex.P2
mahazar in the presence 2 of the said witnesses. He took two samples of 25
grams each marked as M.0.2 and affixed the seal and the rest of the contraband
was sealed, which is marked as M.0.1.The appellant/accused was arrested under
Ex.P3 arrest memo, a copy of which was served on him. The accused was brought
to the Office, and a case was registered in Crime No. 91/99 under Sec. 20(b)
(1) of the Act. Ex.P4 printed F.I.R. was prepared. The accused was taken to the
concerned Court along with the F.I.R and the material objects. A detailed
report under Ex.P5 under Sec.57 of'-the Act was prepared and sent to the higher
officials. Sankarapandian (PW-6), Inspector of police, NIB CID, Salem took up
further investigation after obtaining Ex.P5 and other relevant records from
PW-1. He proceeded to the site of occurrence and also to the house of the
accused, made a search in front of the witnesses, prepared Ex.P7 search memo,
examined PWs 1 to 4 and recorded their statements. The investigating officer
(PW-6) made a request under Ex.P8 to the Court for sending M.O.2 for chemical
analysis. Accordingly, the sample was analysed by Arulanandam (PW-5) Scientific
Assistant attached to the 3 Forensic Laboratory, who found that the sample
under M.O.2 is diazepam. PW-5 sent Ex.P6 report to the Court. On 19.1.2002 PW-6
examined PW-5 and recorded his statement.
On completion of the
investigation, PW-6 filed a charge sheet against the accused under Section 22
of the Act.
Since the accused pleaded
innocence the trial was held.
Six witnesses were examined and
several exhibits and material objects were brought on record. In his
examination under Section 313 of the Code of Criminal Procedure, 1973 (in short
the `Code') the accused-appellant flatly denied the accusations. He examined
his wife as PW-1. The trial Court found that the prosecution has been able to
establish its accusations. Two grounds were taken before the High Court
relating to the alleged non compliance of the mandatory provisions of Sections
42(2) and the other 50 of the Act. The High Court did not find any substance.
Accordingly, the appeal was dismissed.
4
3. In support of the appeal,
learned counsel for the appellant submitted that even if the prosecution case
is accepted in toto there is clear material to show the contravention of the
requirements of Sections 42(2) and 50 of the Act.
4. Learned counsel for the
respondent-State supported the judgments of the trial Court and the High Court.
5. Sections 42(2) and 43 of the
Act are as under:
"42(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 within seventy-two hours send a
copy thereof to his immediate official superior.
43. Power of seizure and arrest in
public place.-Any officer of any of the departments mentioned in section 42
may- (a) seize in any public place or in transit, any narcotic drug or
psychotropic substance or controlled substance in respect of which he has
reason to believe an offence punishable under this Act has been committed, and,
along with such drug or substance, any animal or conveyance or article liable
to confiscation 5 under this Act, any document or other article which he has
reason to believe may furnish evidence of the commission of an offence
punishable under this Act 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;
(b) detain and search any person
whom he has reason to believe to have committed an offence punishable under
this Act, and if such person has any narcotic drug or psychotropic substance or
controlled substance in his possession and such possession appears to him to be
unlawful, arrest him and any other person in his company.
Explanation.-For the purposes of
this section, the expression "public place" includes any public
conveyance, hotel, shop, or other place intended for use by, or accessible to,
the public."
6. So far as Section 42(2) is
concerned it is to be noted that search was made in public place and not in a
building and as such what was applicable was Section 43 and not Section 42 (2)
of the Act. The decision of this Court in State of Punjab vs.
Baldev Singh (1999 (6) SCC 172) is
clearly applicable to the facts of the present case. The view in Baldev Singh's
case 6 (supra) was re-iterated in State of Haryana v. Jarnail Singh and Ors.
(2004 (5) SCC 188).
7. So far as the applicability of
Section 50 of the Act is concerned, it is to be noted that there was search of
the bag carried by the appellant and there was no personal search. It has been
held in State of H.P. v. Pawan Kumar (2005 (4) SCC 350) that when there is no
personal search and the search is effected in relation to a bag, Section 50 of
the Act has no application.
8. Above being the position, we
find no infirmity in the judgment of the High Court to warrant interference.
The appeal is without merit and is dismissed accordingly.
..................................J.
(Dr. ARIJIT PASAYAT)
..................................J.
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