Kerala High Court
Abdul Azeez vs State Of Kerala on 12 February, 2001
Equivalent citations: 2001(1)ALT(CRI)302, 2001CRILJ2131
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
JUDGMENT M.R. Hariharan Nair, J.
1. Is there need for compliance with S. 42(2) of the NDPS Act in a case where the information that the seizing official gets in with regard to the availability of the contraband in a place other than a building, conveyance or enclosed place? This is the main question that is raised in the present appeal. Of course, violation of S. 50 of the NDPS Act is also alleged by the appellant besides violation of S. 42. The appellant is armed with the decisions in Johnson v. State of Kerala (2001(1) KLT SN 5 at page 4) and Salim v. State of Kerala (2001 (1) KLT SN 6 at page 5) with regard to his submissions on the former aspect.
2. Factual details: According to the prosecution, at about 5.45 p.m. on 15.8.1997 the Circle Inspector of Police, Koduvally, got an information that brown sugar was brought by a person near Koduvally bridge. He recorded the same in the Station G.D. and conveyed the information to the Deputy Superintendent of Police, who is the official superior, and then proceeded to the place along with the police party. He found the accused standing on the western side of the Koduvally bridge on the roadside. The accused was surprised to see the police party and tried to escape; but he was intercepted. After questioning him with regard to his option under S. 50 of the NDPS Act, and on getting a negative reply which was recorded at the spot, body of the accused was about to be searched. The accused then took out a packet and handed it over to the Circle Inspector of Police which on opening was found to contain brown sugar, weight of which was ascertained as 18 grams at the spot. After necessary sampling and other legal formalities, the contraband and the arrested accused were removed to the Police Station and the matter proceeded with in accordance with law.
3. The version of PW2, who is the Circle Inspector of Police concerned, in the box, was that the aforesaid information which he received, after being recorded in the G.D., was conveyed to the Deputy Superintendent of the Police in writing and it was thereafter that he proceeded to the spot. He relied on Ext. P4 extract in support of aforesaid averments. However, in cross-examination he was confronted with the aspect that Ext. P4 does contain the name of the appellant herein, whereas his version in chief-examination was that he had not obtained the name of the culprit initially and that the name came to his notice only when the accused was questioned at the spot. Obviously, in the information conveyed to the official superior herein which allegedly, was before going to the spot, the name of the accused could not have crept in and the very availability of the name in Ext. P4 is a certain indication that it was not actually prepared at the time claimed by the witness; but only after the accused was at least questioned after being intercepted.
4. P.W. 2, when confronted with this situation, tried to wriggle out of the unpleasant situation by stating that Ext. P4 was only a copy of the wireless message that he had sent and that written information under S. 42(2) was sent only later on. P.W. 3, who continued the investigation commenced by PW. 2, stated before court in cross-examination that he was aware of a written report sent to the Deputy Superintendent of Police by PW. 2 and that this was a type written information which is not the one produced before court. He also asserted that such a report was available in the C.D. file. For proper compliance with the requirement of S. 42(2) of the NDPS Act, it was essential that the report concerned was produced before court and market. In the absence of the alleged type written report produced and marked before court and in view of the admission of PW. 2 that Ext. P4 was not actually copy of the relevant written report; but only of a wireless message, it is obvious that there has been no report within the scope of S. 42(2) of the NDPS Act. Whether S. 42(2) itself is attracted to the facts of the case is another question which I shall deal with immediately.
5. S. 42(1) of the NDPS Act provides for entry, search, seizure and arrest without warrant or authorisation. According to this provision, where an empowered officer who 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 or conveyance or enclosed place' may, between sunrise and sunset into and search any such building, conveyance or place.
6. S. 42(2) of the NDPS Act provides as follows:
"42(2). Where an officer takes down any information in writing under sub-s. (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior."
7. A joint reading of S. 42(1) and S. 42(2) of the NDPS Act therefore makes it very clear that the requirement in S. 42(2) will be attracted only to a case where the information relates to the availability of narcotic drug or psychotropic substance in a 'building, conveyance or enclosed place' as distinct from their availability in a 'public place' which is covered by a separate Section, namely, S. 43. In S. 43 of the NDPS Act there is no provision similar to that in S. 42(2) which makes it obligatory for the officer who receives information to record the information and to send it to the official superior. The aforesaid position makes it further clear that S. 42(2) will be attracted only in respect of the information relating to the availability of the contraband in a 'building, conveyance or enclosed place'.
8. The aforesaid aspect was dealt with in detail in State of Punjab v. Balbir Singh (AIR 1994 SC 1872). After taking note of the ingredients of Ss. 41 and 42 of the NDPS Act, it was provided in para-26 of the said decision as follows:
"(2C). Under S. 42(1) the empowered officer if has a prior information given by any person, 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 S. 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial."
It may be mentioned here that there is no observation in the said para or in any other portion of the said judgment that S. 42(2) would apply even to a case where the information relates to the availability of the contraband in a public place.
9. After referring to the aforesaid decision and after detailed consideration of the provision in Ss. 41, 42 and 43 of the NDPS Act, another five member Bench of the Apex Court observed in State of Punjab v. Baldev Singh (AIR 1999 SC 2378) that the material difference between the provisions of S. 43 and 42 is that whereas S. 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, S. 43 does not contain any such provision and as such, while acting under S. 43 of the NDPS Act, the empowered officer has the power of seizure of the article etc., and for arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.
10. The said decision, according to me, contains clear and categoric declaration of law that the provisions of S. 42(2) will apply only to the case of information relating to the availability of the contraband in a 'building, conveyance or enclosed place' and that the said provisions will not have any application in a case of information relating to possession of contraband by any person as available in a public place.
11. Another three Judge Bench of the Apex Court looked in the question of application of Ss. 42 and 43 in Abdul Rashid Ibrahim Mansuri v. State of Gujarat (AIR 2000 SC 821). That was a case where the information received by PW. 2 - Inspector of Police was that one Iqbal Syed Husen was trying to transport Charas to Shahpur in an auto-rikshaw bearing No. GTH 3003. In other words, the information pertains to transport of the contraband in a conveyance. He admitted in the box (see para-14 of the judgment) that he proceeded to the spot only on getting the information that somebody was trying to transport narcotic substance. When he was asked in cross-examination whether he has taken down the information in writing he had answered in the negative. Nor did he even apprise his superior officer of any such information either then or later, much less sending of copy of the information to the superior officer. The court found that the information was precisely within the purview of S. 42(1) of the NDPS Act and that PW. 2 cannot hence wriggle out of the conditions stipulated in the said S. 42(2). The court proceeded to conclude that there was non-compliance with S. 42 of the NDPS Act and acquitted the accused. In this decision also there is no finding that S. 42(2) will have any application even with regard to the information regarding availability of the contraband in a public place.
12. Koluttumottil Razak v. State of Kerala ((2000) 4 SCC 465) is a case decided by a Bench of two Judges of the Apex Court. The facts of the case are not very clear from the said decision. In Para-5 it is mentioned that the information received by PW. 1 was that one man was selling brown sugar near the Sarada Mandiram Bus-stop. Where exactly he was reportedly available near the Sarada Mandiram Bus-stop is not clear from the decision. He could be in an open area; he could be in a conveyance; he could be in a building or even in an enclosed place near the bus stop. There is no discussion available in the said judgment that S. 42 will apply to the information relating to the availability of the contraband in a public place, though the accused was given the benefit of violation of S. 42 and acquitted. However, in the absence of any clear finding with regard to the applicability of S. 42(2) in case of information regarding the availability of the contraband in a public place, the said decision, according to me, is insufficient to conclude, even indirectly, that the Apex Court has found that S. 42(2) would apply even to the recovery from the place mentioned S. 43 of the NDPS Act.
13. I now come to the decision of the learned single Judge of this court relied on by the appellant. Johnson v. State of Kerala (2001 (1) KLT SN 5 at page 4) was a case where there was non-compliance of S. 42(2) of the NDPS Act though the exact information which was received by the seizing official concerned is not discernible from the judgment. Nevertheless, reference is made in the judgment to the fact that the Public Prosecutor tried to explain before this Court that it was not a case of search in an enclosed place and that being a search from a public place, S. 42(2) was not attracted. The Court however, held that "even then being a search in a public place, as stated by the Apex Court in Baldev Singh (supra), the moment a search is made on prior information of a person under S. 43 or S. 50 of the NDPS Act, the accused entitled to be asked of his right to be searched in the presence of either a Gazetted Officer or a Magistrate any nobody else". As already mentioned earlier, 'Baldev Singh' or Balbir Singh' never mentioned anything indicative of the fact that the provisions of S. 42(2) would apply to a case of information regarding the availability of the contraband in a public place and hence the said single Bench decision of this court, according to me, is insufficient to be an authority to conclude that S. 42(2) would apply even to a case of information regarding the availability of the contraband in a public place.
14. The Short Note report available in Salim v. State of Kerala (2001 (1) KLT SN at page 5), according to me, does not give the full facts of the case. The full text of the said judgment is not placed before me during hearing also. All that can be discerned from the report is that the accused was apprehended and arrested by PW. 11 on the strength of the information furnished by PW. 7; that PW. 11 had not asserted in his evidence that he recorded the information received from PW. 7 and sent a copy of the same to his superior officer and that there was no reliable material on record to show that the information was recorded by PW. 11 as envisaged in S. 42(1) of the NDPS Act and a copy of the same sent to his superior officer as required under S. 42 of the NDPS Act. The court also noticed that even according to the trial Judge, there was no evidence in the case to show that the information alleged to have been received by PW. 11 was taken down in writing. The learned trial Judge was of the view that since the search and seizure were effected at a public place, S. 42 of the NDPS Act was not attracted.
15. Suresh v. State (1995 (1) KLT 636) it appears, was placed before the learned single Judge in support of the prosecution contention that the question of compliance of the mandatory provisions contained in S. 42 regarding the recording of information does not arise if the search is made in a public place. It would appear from the Short Notes report that the learned single Judge was persuaded to brush aside the said contention "in view of the decision of the Supreme Court reported in Koluttumottil Razad v. State of Kerala (2000 (4) SCC 465)". I have already referred to the said decision and to the fact that though reference is made to the fact that the contraband involved there was available near a bus stop, the exact place where it was available is not clear from the said judgment. In any case, the observations in the said judgment cannot be seen isolated from the larger Bench decisions in Baldev Singh, Balbir Singh and Abdul Rashid Ibrahim Mansuri of which reference was already made (supra) in this judgment wherein the consistent view taken in that S. 42(2) would apply only to a case where information relates to the availability of the contraband in a 'building, conveyance or public place'.
16. In the circumstances, I am not persuaded to extent the benefit of non-compliance with S. 42(2) of the NDPS Act and to acquit the accused merely based on the two decisions of the learned single Judges of this Court. On the basis of the provisions in Ss. 42(1), 42(2) and 43 of the NDPS Act as also on the basis of the decisions in Baldev Sigh, Balbir Singh and Abdul Rashid Ibrahim Mansuri, I am of the humble view that S. 42(2) of the NDPS Act will not apply to a case of information regarding the availability of the contraband in a public place as it happens in the present case. It follows that the accused is not entitled to get an acquittal based on alleged violation of S. 42(2) of the NDPS Act, albeit the prosecution has failed to establish that the information received by PW. 2 was recorded by him and a copy sent to the superior officer in writing before PW. 2 proceeded to the scene of occurrence.
17. I now come to the aspect of alleged non-compliance with the requirement in S. 50 of the NDPS Act. The said Section provides that when any officer duly authorised under S. 42 is about to search any person under the provisions of S. 41, S. 42 or S. 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 S. 42 or to the nearest Magistrate. As is clear from the provision itself, it has application to the accused available in a public place covered by S. 43 as well.
18. In State of Punjab v. Baldev Singh the Constitution Bench has observed that though the information regarding the rights of the accused under S. 50 need not be communicated in writing and communication in the presence of reliable witness is sufficient, it should be proved, during trial, to the satisfaction of the court that the accused was made aware of his rights under S. 50 and an effective opportunity afforded to him, lest it would cause prejudice to the accused.
19. The learned counsel for the appellant placed reliance on certain observations of the Apex Court in Koluttumottil Razak v. State of Kerala ((2000) 4 SCC 465). The Court held therein that when the law requires that the appellant must be afforded with an opportunity to have the presence of a Gazetted Officer or a Magistrate, the appellant has a right to be taken to the nearest Gazetted Officer or Magistrate for the purpose of conducting search in his presence. The said right cannot be sidelined as a mere formality. In the fact-situation of the particular case, especially in the absence of any corresponding entry in any of the police records, the court found it difficult to believe the mere oral vibration made by PW. 1 that he asked the appellant whether he should require the search to be conducted in the presence of any once of the above officers and that the appellant declined the offer. The court noted that the graver the consequences the greater must be the circumspection to be adopted. What is apparent from the facts narrated in the judgment is that in the particular case, the sole evidence placed before the court with regard to the compliance with S. 50 of the NDPS Act was the oral evidence of the seizing official which was totally unsupported by any other witness and also not corroborated by any other contemporaneous records like seizure, mahazar, F.I.R. etc.
20. As far as the present case is concerned, the situation is not the same. PW. 2, of course, stated before court that he asked the accused after he was intercepted and questioned generally and after the accused himself had divulged the fact that brown sugar was available at the fold of the dothi worn by him, whether the accused required the presence of another Gazetted Officer or a Magistrate as allowed by law and that the answer given by the accused was that such presence was unnecessary and that PW. 2 was free to search his body. In fact, PW. 2 did not have to make the search at all because in the meantime the accused himself took out the packet from the fold of the dothi and handed it over to PW. 2. The said version of PW. 2 finds corroboration from PW. 1, who is an absolutely independent witness. He stated that PW. 2 told the accused that he had the right to insist on the presence of a Gazetted Officer and at that stage the accused stated that PW. 2 himself could search the accused. PW. 2 then wanted the accused to put down his version in the matter in writing and the accused stated that he was illeterate. Thereupon, a Police Constable recorded the answer and the accused himself signed therein. The said contemporaneous record containing the reply of the accused is produced in the case as Ext. P1. Ext. P2 seizure mahazar which was prepared at the scene of occurrence at 17.45 hours on 15.8.1997 and which has reached the court concerned on the very next day also contains the narration of the facts leading to the body search and about the negative answer regarding the presence of a Gazetted Officer or a Magistrate given by the accused. Ext. P3 FIR which has also reached the Special Court concerned on the very next day also refers to the fact that the accused was giver option regarding the search before a Magistrate or a Gazetted Officer and the accused had given a negative reply. In the face of such contemporaneous evidence to corroborate the evidence of PWs. 1 and 3, I am of the view that it is idle to contend that the accused herein did not get any effective opportunity to have the search conducted before a Gazetted Officer or a Magistrate and that this has prejudiced him.
21. The learned counsel for the appellant submitted, during arguments today, that the version of PW. 2 was that the accused was asked about the need for bringing another Gazetted Officer or a Magistrate and that this was insufficient. It is argued that PW. 2 had a duty to specifically inform the accused about his right under S. 50 before he was asked about the option and that this defect entitles the accused to get an acquittal. Here again, I find it difficult to aspect the said contention.
22. Joseph Fernandez v. State of Goa ((2000) 1 SCC 707) is a case where the accused was merely informed that if he wished, he might be searched in the presence of a gazetted Officer or a Magistrate. The Apex Court has found that the said conveyance of information can be taken as substantial compliance with S. 50 of the NDPS Act and that merely because the accused was not specifically informed about the details of his rights under S. 50, he cannot be given an acquittal.
23. A learned single Judge of this Court has also found in Rasheed v. State of Kerala (1999 KLT 133) that even though it is incumbent upon the searching officer to inform the suspect that he is entitled to be searched either before a Gazetted Officer or the nearest Magistrate it cannot be said that the failure to inform the suspect that he is entitled to choose in between the two alternatives for his search and if only one of the alternatives is mentioned to the suspect, it will the only partial compliance violating the mandatory provisions of S. 50 of the NDPS Act. The mention to be suspect that he is entitled to be searched before a Gazetted Officer alone or the nearest, Magistrate alone, it was held, itself can be taken as substantial and adequate compliance of the mandatory provisions of S. 50 of the NDPS Act unless it is established that due to the failure of the searching officer to mention about both the alternatives to the suspect prejudice was caused to him.
24. Here is a case where the accused, even after he was given the option relied that he did not want the benefit. He even put it down in writing. In the circumstances, I am not convinced that the accused had suffered any prejudice in the matter of search. It has to be remembered here that the seizure in the instant case was not exactly based on any physical search of the body of the accused and that when the Inspector made the preliminary questioning and was about to search the body, the accused himself voluntarily took out the packet containing the contraband and surrendered it to the police. By no stretch of imagination can it be said that in such a case of voluntary surrender the accused has suffered any prejudice merely because he was not specifically told of his rights under S. 50 before such surrender took place. In the circumstances, I find no merit in the contention of the appellant based on violation of S. 50 of the NDPS Act also.
25. The trial court which has the benefit of seeing the performance of the witnesses in the box has chosen to accept the evidence of PW. 2 duly corroborated by PWs. 1 and 3, to conclude that there was, in fact, recovery of the contraband of 18 grams of brown sugar from the accused. I do not find anything to come to a conclusion that the finding of the trial court in favour of the prosecution with regard to the seizure suffers from any defect. Nor was any such defect brought to my notice during arguments today except with regard to the alleged violation of Ss. 42 and 50 of the NDPS Act, of which I have already referred to in detail. The conviction entered against the appellant is therefore well justified. As far as the sentence is concerned, what the court granted was only the minimum possible under law.
26. In the circumstances, the appeal is found to be without merit and it is accordingly dismissed.