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CASE NO.:

Appeal (crl.) 312 of 2002

PETITIONER:

Bharatbhai Bhagwanjibhai

RESPONDENT:

State of Gujarat

DATE OF JUDGMENT: 29/10/2002

BENCH:

Umesh C. Banerjee & B.N. Agrawal.

JUDGMENT:

J U D G M E N T

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

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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."

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"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-

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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.

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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.