Madras High Court
Nityanandam vs State By Inspector Of Police, Nib; Cid, ... on 19 February, 2002
Equivalent citations: 2002CRILJ2342
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. Nithyanandam, the appellant herein, challenging the conviction for the offence under Section 8(c) read with 21 of the N.D.P.S. Act and sentence to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/-, has filed this appeal.
2. The short facts leading tot he conviction are as follows:
"(a) P.W.3 Kalidhasan, the Sub Inspector of Police, NIB CID received the information Ex.P4 on 22.9.1993 at about 11.15 P.M. regarding the offenders involving in the possession of heroin at Periyamedu. He recorded the same in Ex.P5 and sent it to P.W.5,the Inspector of Police, NIB CID. Then, he proceeded to the spot for surveillance at the junction of Naval Hospital Road and E.V.R. Periyar Road at Periyamedu. He secured the help of one Jayakumar P.W.4 to be as a witness for search.
(b) P.W.3 and Head Constable P.W.1 along with P.W.4 were watching the movements of the offenders. At that time, i.e. on 23.9.1993 early morning, they found two persons including the appellant walking along the road. They accosted them and disclosed their identity to them. After informing their right of exercising their option with regard to the search, those persons allowed P.W.3 to search them. Accordingly, they were searched. From A1 Kabila De Silva, 6 paper packets weighing about 72 grams were seized. From the appellant Nithyanandam, 4 packets weighing about 50 grams were seized. After packing and sealing, P.W.3 arrested both of them and took them to the Police Station at about 2.30 A.M. and registered a case under Section 8(c) read with 21 of the N.D.P.S. Act. Then, he sent a report Ex.P7 under Section 57 of the Act to the Inspector of Police P.W.5.
(c) Thereafter, P.W.5 took up further investigation. He sent the contraband drug for the chemical analysis through the Court. P.W.2. the Scientific Assistant gave a report stating that it contained Di acetyl morphine which is a narcotic drug called heroin. P.W.5 after finishing the further investigation, filed charge sheet against both the accused for the above offences.
(d) Since the first accused, viz., Kabila De Silva after his release on bail was absconding, the case in respect of the appellant was split up.
(e) During the trial against the appellant, on the side of the prosecution, P.Ws.1 to 5 were examined, Exs.P1 to P9 were filed and M.Os.1 and 2 were marked.
(f) When the accused was questioned under Section 313 Cr.P.C., he denied his complicity in the crime. Ultimately, the trial Court convicted the appellant for the above said offence and sentenced him thereunder."
3. Challenging this judgment, Mr. Sudanthiram, the learned counsel appearing for the appellant would make the following contentions:
(I) The search and seizure took place on the midnight 22/23.9.1993. As per G.O.Ms.No.161 Prohibition and Excise Department dated 12.8.1992, the police officers not below the rank of Head Constable in the State Police Department were empowered to exercise the powers under Section 42(1) of the Act. Section 42(1) of the Act speaks about the power of the officer regarding the search and seizure only during the sunrise and sunset. Therefore, on the date of seizure, i.e. on 23.9.1993, P.W.3 Sub Inspector of Police was not empowered to effect search and seizure during the night time. Though the proviso to Section 42 Cr.P.C. would empower the officer to make search and seizure at any time between sunset and sunrise, he should record the grounds of his belief. In this case, the grounds of belief are not recorded. Therefore, the search and seizure is illegal.
(II) As per G.O.Ms.No.163 Prohibition and Excise Department dated 12.8.1992, only the police officers of and above the rank of Inspector of Police under Section 41(2) were empowered to exercise the powers for the search and seizure or to give authorisation under the Act. In this case, P.W.3, who is below the rank of Inspector of Police, without the authorisation of Inspector of Police seized the contraband. Therefore, the seizure is illegal.
4. In reply to the above contentions, the Additional Public Prosecutor would submit that both Sections 41 and 42 would not apply to the present facts of the case, as this is a case of recovery from public place and as such, Section 43 alone is attracted and therefore, there is no illegality in the search and seizure and consequently, the conviction has to be held as legal.
5. The counsel for both the parties would cite number of authorities.
6. As regards the first point, namely non-compliance of Section 42, it shall be stated that Section 42 would not apply to the present facts of the case. According to the prosecution through P.Ws.1 and 3, both the accused were accosted in the public road and on the search, they were found to be in possession of 6 packets of heroin weighing about 72 grams and 4 packets of heroin weighing about 50 grams respectively.
7. It is the specific evidence adduced by both of the witnesses, namely P.Ws.1 and 3 that they went to the spot for surveillance and at about 12.30 mid night on 22/23.9.1993 both the accused were walking along the road proceeding towards the North from the junction of Naval Hospital Road and E.V.R. Periyar Road at Periyamedu and they were interrogated and searched. Therefore, it is the case where recovery was made in public place.
8. Though Section 42 would provide the powers only for the empowered officers for search and seizure only between the sunrise and sunset, it would relate to the places like building, conveyance and enclosed place alone and as such, Section 42 would not cover the public place.
9. In STATE OF PUNJAB v. BALBIR SINGH (1994 Drugs Cases 342), in paragraph 10, the Apex Court would observe as follows:
"We may mention here that Section 43 which deals with the power of seizure and arrest in public places is slightly different from Section 42 in certain respects. Under this provision any empowered officer under Section 42 has the power to seize, detain, search or arrest in public place or in transit if he has reason to believe that an offence punishable under Chapter IV relating to such drug or substance has been committed and seize any document or other article which may furnish evidence of the commission of such offence and can seize any animal or conveyance or article liable to confiscation and can detain and search any person similarly. The empowered office while acting under Section 43 need not record any reasons of his belief. This section also does not mention anything about the empowered officer having prior information given by any person or about recording the same, as compared to Section 42."
10. The above decision would show that in the case of search and seizure in public places, the provisions of Section 43 of the N.D.P.S. Act are attracted. It is clearly observed by the Apex Court that Section 43 of the Act does not require the officer while acting under Section 43 of the Act to record any reason of his belief nor this section mentions anything about the officer concerned having prior information given by any person or about the recording of the same as compared to Section 42.
11. Section 43 would provide thus:
"43. Power of seizure and arrest in public places.--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 in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug of substance, any animal or conveyance or article 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 an offence punishable under Chapter IV relating to such drug or substance;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company."
12. The caption of the section itself shows that it deals with the power of the officer of seizure and arrest in public places, whereas the caption of Section 42 deals with the power of entry, search, seizure and arrest without warrant or authorisation, which denotes the search and seizure of the drug can be in any building, conveyance or enclosed place.
13. Thus, it is to be concluded that in a case of search and seizure in public places, the provisions of Section 43 of the Act are applicable and the provisions of Section 42 of the Act are not applicable. Section 43 of the Act does not require the authorised officer exercising the power under Section 43 to record the reasons of his belief or information received by him or any person about the commission of an offence under the Act.
14. In other words, as the search, in the present case, was not made in building, conveyance or enclosed place, but was made in a public place, the present case covers the provisions of Section 43 of the Act.
15. In this case, P.W.3 Sub Inspector of Police received the information Ex.P4 and recorded the same in Ex.P5 and send it to P.W.5, his superior officer at about 11.30 P.M. and the same was received at 12.30 mid night by P.W.5, the Inspector NIB CID. Though the information received by P.W.3 was sent to P.W.5, this cannot be considered as a compliance of Section 42 which mandates for the recording of information and sending of the same to the superior officer, as it would not relate to the search in the specified places contained in Section 42.
16. Similarly, Section 42(1) proviso also would not apply regarding the recording of grounds of belief, since it would not cover the places mentioned in the said section. Therefore, while proceeding to the public place on receipt of some information, recording the information and sending of the same to the superior officer would not deter P.W.3 from conducting search and seizure in public place as contained in Section 43.
17. In other words, Exs.P4 and P5 would not be construed to be the documents under Section 42(1) and (2). Though under Section 43 of the Act, it is not obligatory for the officer concerned mentioned in Section 42 to record the information or record the grounds of belief, it cannot be said that since it was recorded by the officer, it must be construed that officer has invoked Section 42, so long as the search and seizure was not effected from the building, conveyance or enclosed place. Therefore, it is clear that Sections 42 and 43 are independent with each other and as far as the public place is concerned, Section 43 alone is applicable and as such, Section 42 is having no relevance at all in this case.
18. In this context, making a faint attempt, the counsel for the petitioner would contend that the wordings contained in Section 43 "any officer of any of the departments mentioned in Section 42 may" would mean both the cadre of the officers as well as the details of the departments mentioned in Section 42 and since Sub Inspector of Police (P.W.3) was not a competent officer under Section 42 for effecting search and seizure during the night time, Section 43 also would not confer power.
19. This contention, in my view, is not tenable. The wordings "any officer of any of the departments mentioned in Section 42" do not indicate the cadre of the officers. Section 42 would provide the details of the officers conferring on them which are empowered by the general or special order by the State Government and Central Government between sunrise and sunset. The wordings "any officer of any of the departments" would not relate to the categories of the officers mentioned in Section 42, but would only relate to the departments mentioned in Section 42.
20. If the Legislature wanted to include those categories of officers, the word "authorised" would have been included with any officer of any of the departments. In other words, Legislature would have said, any officer authorised under Section 42. Since the word "authorised" is not found in the wordings "any officer of any of the departments mentioned in Section 42", it would relate to the departments only and not to the specified officers.
21. If we look at Sections 49 and 50, we will get those words. Section 49 would begin as "any officer authorised under Section 42, may". Similarly, Section 50 would begin as "when any officer duly authorised under Section 42 is about to search". From this, it is clear that the word 'authorised' as found in Sections 49 and 50 which is absent in Section 43 would indicate even the officers not authorised and not empowered of the departments specified in Section 42 can invoke Section 43 for effecting search and seizure in public place.
22. Therefore, even assuming that P.W.3 was not having powers to search during night time under Section 42, that would not affect his powers of seizure and arrest in public places under Section 43. Therefore, there cannot be any complaint over the non-observance of Section 42 of the Act on the ground that he was not empowered. Under those circumstances, the first ground would fail.
23. Let us now come to the second ground.
24. It is contended that Section 41(2) has not been complied with, as there is no authorisation obtained by P.W.3 from P.W.5. Section 41(2) would refer to the power of the Gazetted Officer to conduct search in any building, conveyance or place either by himself or through somebody else on authorisation. The said power is exercised by the Gazetted Officer only when he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence of the Act and when the contraband is kept or concealed in any building, conveyance or place. This section would only apply when there is an information received by the Gazetted Officer, who in turn can go to the spot directly or to authorise some other person to go to the spot.
25. The facts of the case would not reveal that P.W.5 authorised P.W.3 after getting the information to record the information or P.W.3 applied for authorisation from P.W.5 on the basis of information. On the other hand, the intimation Ex.P5 was sent at 11.30 P.M. on 22.9.1993. In view of the urgency, P.W.3 was proceeding to the spot for recovering the narcotic drug. The intimation is as follows:
"I request that the information about Narcotic heroin recovered and recorded by me on 22.9.93 at 11.15 P.M. is enclosed herewith for kind perusal.
As information required immediate action, I am proceeding to the spot mentioned in the information with my party. The result will be submitted in due course."
Along with this Ex.P5, the information which was received by him from the informant was also sent. This information is as under:
26. The above information would indicate that the narcotic drug can be recovered from the party, if immediate action is taken by coming over to the spot immediately. Exs.P4 and P5 would show that Ex.P4 was received at 11.15 P.M. and message was sent to the superior officer at 11.30 P.M. Thereafter, P.W.3 along with the other officers was proceeding to the spot without any delay. Therefore, the question of authorisation by the Gazetted officer under Section 41(2) would not arise at all in this case, especially when P.W.3 could go to the public place for effecting search and seizure as contemplated under Section 43 of the Act.
27. Thus, the second ground also, in my view, would fall to the ground. Consequently, the conviction and sentence imposed upon the appellant by the trial Court are liable to be confirmed and accordingly, confirmed. Hence, the appeal is dismissed.