Kerala High Court
V. Muhammed Basheer vs State Of Kerala on 30 November, 1994
Equivalent citations: 1995CRILJ1171
JUDGMENT K.P. Balanarayana Marar, J.
1. The accused in Sessions Case No. 44 of 1991 before the Assistant Sessions Judge, Manjeri is the appellant. He was found guilty of the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (for short the Act) and convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 50,000/- and in default to undergo simple imprisonment for a further period of five months. Set off for the period of detention was allowed under Section 428 of the Criminal P. C. The conviction and sentence are challenged by the accused in this appeal.
2. The case of the prosecution is that while the Circle Inspector of Police, Perinthalmanna and other police officials were on patrol duty at 5 a.m. on 9-12-1990 they found the accused standing on the north-eastern corner of the verandah of the KSRTC bus stand at Perinthalmanna. He was found keeping possession of a bag. The police officials being suspicious of the movement of the accused seized the bag and on opening the same found 1.2 Kgs. of Ganja inside. The Head Constable who was present in the police party was asked to bring a balance and a police constable was sent to the Circle Office to bring seal and lac. In the presence of a Security Guard of K.S.R.T.C. and a driver mahazar was prepared and the contraband article was taken into custody. Samples were taken in three packets and all the packets were scaled. A case was registered under Section 20(b)(i) of the Act. One of the samples was sent for chemical analysis and the same was found to be Ganja. The Assistant Sessions Court to which the case was transferred for trial examined eight witnesses on the side of the prosecution and Exts. P1 to P7 and MOs. 1 to 6 were marked. On the side of the defence one witness was examined and a document was marked as Ext. Dl. After hearing counsel and on a consideration of the evidence on record, the Assistant Sessions Judge found the accused guilty of the offence charged against him, convicted him and awarded the sentence referred above. Hence the appeal.
3. Heard counsel for appellant and Public Prosecutor.
4. One of the main aspects argued by learned Counsel for appellant is that the entire trial is vitiated for non-compliance of the provisions contained in Sections 42 and 50 of the Act. Section 42 directs that any authorised officer, 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 enter into and search any such building, conveyance or place. In case of resistance, the officer can break open any door and remove any obstacle to such entry. He is also empowered to seize 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 the Act. He can also seize any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV. The officer has power to 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. But he can enter and search such building, conveyance or enclosed place at any time between sunset and sunrise only after recording the grounds of his belief that and a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. Subsection (2) of Section 42 of the Act says that were an officer takes down any information in writing under sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.
5. The power of seizure and arrest in public places is conferred upon an authorised officer under Section 43 of the Act. The officer is empowered to seize, in any public place or in transit, any narcotic drug or psychotropic substance in relation to which he has reason to believe an offence punishable under Chapter IV has been committed. Along with such drug or substance, he can also seize any animal or conveyance or article liable to confiscation, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV He can also detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV and arrest him and any other person in his company. For the purpose of Section 43, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
6. The conditions under which search of persons shall be conducted are provided in Section 50, Sub-section (1) reads :
(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.
Sub-section (2) enables the officer to detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1). The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees on reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. But a female cannot be searched by anyone except a female.
7. Learned Counsel for appellant contended that the provisions contained in Sections 42 and 50 are mandatory in character and the non-compliance of those provisions vitiates the trial. While considering the question whether a provision in a statute is mandatory or not, the real intention of the legislature has to be ascertained keeping in view the whole scope of the Act. The Supreme Court in State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : (1994 Cri LJ 3702) observed that the object of the NDPS Act is to make stringent provision for control and regulation of operations relating to those drugs and substances mentioned in the Act. At the same time, certain safeguards are provided to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers and those provisions are to be observed strictly. One of the provisions relates to the recording of the information received together with the ground for the belief that an offence punishable under Chapter IV has been committed and sending a copy thereof to the immediate official superior. Some of the conditions under which search of persons shall be conducted are prescribed in Section 50 of the Act. The question whether these provisions are mandatory and whether contravention thereof would affect the prosecution case and vitiate the trial were considered by the Supreme Court in the aforementioned decision. Since the questions considered by the Supreme Court arise frequently before the trial courts, the Supreme Court found it necessary to set out the conclusions. The ponclusions were set out in para 26 which are as follows : (at page 3718 of Cri LJ) (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements there under would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.
Likewise only empowered officers or duly authorised officers as enumerated in S 41 (2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal.
(2B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.
(2C) Under Section 42(1) the empowered officer if he 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 Section 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.
(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 prosecution 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.
(4A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of Sections. 100 and 165, Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity.
(4B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. P.C. namely Sections 100 and 165, Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information, the empowered officer or authorised officer while acting under Section 41(2) or 42 should comply with the provisions and Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided there under. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc., then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
8. Here is a case of seizure of Ganja from a public place. The seizure is therefore effected under Section 43 of the Act. Authorised officer is empowered to seize any narcotic drug or psycho-tropic substance from any public place. He can detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV. He is also empowered to arrest him and any other person in his company. The place from where the article was seized is the KSRTC bus stand at Perinthalmanna. which, as per the Explanation to Section 43 is a public place. The question arises whether the conditions prescribed in Section 50 of the Act had been complied with and whether Section 50 is mandatory in character and whether the non-compliance vitiates the trial.
9. According to learned Counsel for appellant, the conditions prescribed in Section 50 are to be complied with in a case of seizure and search of a person from a public place under Section 43 of the Act. Para 17 of the judgment in Balbir Singh's, (1994 Cri LJ 3702) case deals with this aspect. The Supreme Court held that the language of Section 50 is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. One of the submissions before the Supreme Court was whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the authorised officer to inform such person that if he so requires, he would be produced before a gazetted officer or Magistrate and thereafter the search would be conducted. The Supreme Court observed that a valuable right has been given to the person under Section 50 to be searched in the presence of a gazetted officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthi-ness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. But while setting out the conclusions in sub-paragraph (5) of Paragraph 26, no reference is seen made to Section 43 of the Act. On the other hand, it is held that the authorised officer while acting under Section 41(2) or Section 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided there under. It is further held that it is obligatory on the part of such officer to inform the person to be searched and failure to inform so and failure to take him to the gazetted officer if he so requires would amount to non-compliance of Section 50 which is mandatory. It is also observed that the question whether such person opted for such a course or not would be a question of fact.
10. After setting out the submissions made by counsel and referring to the mandatory nature of the provisions contained in Section 50, the Supreme Court in the conclusions set out in para 26 which are intended to be followed by the trial courts and other courts in this country, did not refer to the mandatory nature of Section 50 as far as the seizure under Section 43 of the Act is concerned. That being so, the principles laid down by the Supreme Court in sub-paragraph (5) of Paragraph 26 of the judgment in Balbir Singh's case cannot be made applicable to a seizure under Section 43 of the Act. The result is that in the case of a seizure under Section 43 of the Act, the conditions prescribed in Section 50 cannot be said to be mandatory. Section 50 direct the authorised officer to take the person from whom a narcotic drug or psychotropic substance was seized from a public place to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate only if the person so requires. This Court in Ahammed Koya v. State of Kerala, (1990 (2) KLT405) held that unless and until such a request is made by the accused, the officer is not bound to take the accused before a Gazetted Officer or a" Magistrate. In a subsequent decision reported in Haneefa v. State of Kerala, (1993 (1) KLT 513 : (1993 Cri LJ 2125) this Court held that the very wording of Section 50 is such that it is for the accused to require that he should be taken to the Gazetted Officer or the Magistrate and on the wording of the said Section, it is not possible to agree that it is for the Officer to ask the accused whether the search is to be made in the presence of the Gazetted Officer or the Magistrate.
11. The position therefore is that while acting under Section 41 (2) or Section 42 of the Act, the empowered officer or authorised officer should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires he would be produced before a Gazetted Officer or a Magistrate as provided there under. It is obligatory on the part of such officer to inform the person to be searched and failure to inform so and failure to take him to the Gazetted Officer or the Magistrate on making such request would amount to non-compliance of Section 50 which is mandatory and would affect the prosecution case and vitiate the trial. On the other hand, in the case of a seizure under Section 43 of the Act, the empowered officer or the authorised officer has to comply with the provisions contained in Section 50 of the Act only if the person makes a request and on such request being made, he shall be produced before a Gazetted Officer or a Magistrate as provided there under. It is not obligatory on the part of the officer to inform the person to be searched of his right under Section 50 of the Act.
12. Counsel for appellant has drawn attention to the decision of the Supreme Court reported in Ali Mustafa Abdul Rahaman Moosa v. State of Kerala, 1994 (6) JT SC 326 : (1994 AIR SCW 4393). Therein the Supreme Court agreed with the observations contained in para 17 of Balbair Singh's case. At the same time, the request made by counsel for the State of Kerala a for a reconsideration of the decision in Balbir Singh's case was turned down by observing that there are no compelling reasons advanced by counsel for the State of Kerala for reconsideration of that decision. It may be that the Supreme Court in that case was considering the mandatory nature of the requirement in Section 50 of the Act in case of a seizure under Section 43 of the Act, the seizure having made from the first class waiting room of the railway station at Quilon. But the Supreme Court in that case had followed the law laid down in Balbir Singh's case and had also refused to reconsider that decision. It therefore follows that the principles laid down by the Supreme Court in the conclusions set out in para 26 of the decision in Balabir Singh's case are to be followed while considering the mandatory nature of Section 50 vis a vis Sections 41, 42 and 43. The decision in 1994 (6) JT SC 326 : (1994 AIR SCW 4393), is therefore of no assistance to appellant.
13. In the light of the principles enunciated in the foregoing paragraphs, the contention of learned Counsel for appellant that the mandatory provision contained Section 50 of the Act has not been complied with is unsustainable. No request is stated to have been made by the accused for producing him before the nearest Gazetted Officer or to the nearest Magistrate for the purpose of search. The trial is therefore not vitiated for that reason.
14. It is then contended that appellant has not been proved to be the owner of the bag which contained Ganja seized by the police. On hearing counsel and on a perusal of the depositions of the witnesses, the finding of the Assistant Sessions Judge that the bag was seized from the possession of appellant appears to be correct. Some of the independent witnesses examined on the side of the prosecution had no doubt turned hostile and a Village Officer was also brought in as a witness on the side of the accused. But the contradictions in the testimony of those witnesses and the evidence of DW. 1 are of no assistance to the appellant to support his plea that the bag did not belong to him. PW1 who is a signatory to Ext. P2 mahazar had seen a bag at that place. He had seen the bag being opened. He had also seen the Security Guard of the KSRTC bus stand present at that place. He has no doubt spoken about the presence of the Village Officer. PW. 3, the Security Guard has also signed the mahazar. The appellant who had alighted from another bus had asked him whether there was any bus to Vazhikadavu. He also stated that the bag was seen near the place where the accused sat. Near him another person and one Government official were also seen sitting. PW. 2 has spoken about weighment of Ganja. He stated that the article weighed 1.2 Kgs. He has also spoken about taking of three sample packets. He denied having signed any paper. Though the independent witnesses examined have not fully supported the prosecution, the fact that the accused was seen in the bus stand and the further fact that a bag was seen near him had been spoken to by PWs. 1 and 3. The dispute can only be as to whether the bag belonged to appellant or not.
15. The appellant had a contention that he was not the owner of the bag. But he had alighted at that bus stand from another bus from Tamil Nadu. In ordinary circumstances one would expect him to be in possession of a bag. The bag which is seized by the police contained clothes also. Both PWs. 1 and 3 have seen the bag near the accused. He has a case that two persons who were sitting there left the place on seeing the police. If the bag seized by the police belonged to one of them, one would expect that fact to be conveyed to the police officers at the time of search both by the accused and by DW. 1 who is stated to be present at that time. No attempt was also made by the accused to see that the persons who had left the place are chased and caught by the police. This inaction on the part of the accused goes a long way in disproving his case that the bag might have been placed there by one or other of the persons who left the place on seeing the police.
16. Considerable stress was laid on the evidence of DW. 1, a village officer. He is stated to be a person who was present at the time when the seizure took place. According to him there was no bag near the place where the accused was sitting. According to PW. 3, the Security Guard of the KSRTC, a person employed in Government service was also sitting by the side of the accused. DW. 1 is stated to be that person. He stated that he had seen the accused sitting in the bus stand and he had asked about his whereabouts. The witness also has told the accused that he is a Village Officer. In cross-examination he stated that he had not given his address to the accused and he not seen him thereafter. How the accused obtained the address of this witness has not been explained. In the circumstances, the Assistant Sessions Judge was right in not placing any reliance on the testimony of this witness though he is a Government official. Had he been present at the time of seizure and had he divulged his identity to the police officers, one would expect him to be made one of the attestors to the seizure mahazar prepared by the police. The police officers were not aware of the presence of a Village Officer at the scene. The testimony of DW. 1 is therefore of an assistance to the appellant to support his plea that the bag was not seized from his possession.
17. On a careful consideration of the entire evidence adduced on the side of the prosecution, it has to be stated that the prosecution has succeeded in proving that the bag containing Ganja was seized from the possession of the accused. That the article seized from him is Ganja has been proved by the report of the analyst. Samples had been taken from the place and the taking of samples and the weighing of the article seized has been spoken to by PW. 2 who is an employee of the canteen in the bus stand. The conviction under | Section 20(b)(i) of the Act is therefore justified and no interference is called for.
18. Sample was seized on 9-12-1990 and the same received in Court on 18-12-1990. There has thus been no delay in producing the sample before the Court.
19. Regarding the setnecne also there is no reason to interfere. Appellant had been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- and in default to undergo simple imprisonment for five months. Taking into consideration the quantity of Ganja seized from him, the sentence awarded is only reasonable.
20. For the aforesaid reasons, the conviction and sentence against the appellant are sustained and the appeal is dismissed.