Kerala High Court
Amina vs Circle Inspector Of Police on 24 August, 2001
Equivalent citations: 2001(2)ALT(CRI)546
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
JUDGMENT M.R. Hariharan Nair, J.
1. The novel question that arises for consideration in this case is the scope and ambit of Section 50(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). If the offender is of the fairer sex, should the search too be conducted by a female officer, who is herself competent to make search under Section 42 of the Act? If not, should the search be supervised or over seen by the authorised male officer? Should the search be done in strict privacy? In that case, should the Gazetted Officer or the Magistrate, whose presence might be demanded and secured, should also be a female officer? These are the various aspects that mainly fall for consideration in the present case.
2. The appellant-Amina, according to the prosecution, was found in possession of 45 grams of ganja made into 22 small packets and concealed inside M.O. 1 polythene bag kept at her waist underneath the sari and skirt worn by her when her body was examined by PW.1- Excise Inspector at about 8.30 a.m. on 10.12.1997 while she was at her residence. The prosecution evidence was accepted by the learned 1st Additional Special Judge for trial of NDPS Act Cases, Ernakulam, and it is the conviction so entered and the sentence of rigorous imprisonment for 2 years and fine of Rs. 20,000/- imposed therefor that are the subject matter of the present case.
3. Sri. T.G. Rajendran, who argued the case of the appellant, submitted that the conviction is unsustainable firstly because the search made in the case is violative of Section 50(4) of the Act and also in violation of all sense of propriety and decency. It is also argued that there is violation of the provisions of Section 42(2) of the Act which entitles the accused to get an acquittal.
4. On the arguments advanced in the case the points that arise for decision are:
(1) Whether there is violation of Section 50(4) of the Act in the search and seizure and if so, its impact?
(2) Whether there is violation of Section (42(2) of the Act and if so, whether such violation justifies acquittal of the accused?
(3) Reliefs?
5. Point No. 1: The substance of the evidence of PW.1 who was the Excise Inspector of the Enforcement and Anti Narcotic Special Squad, Ernakulam as on 10.12.1997 is that in the course of patrol done early in the morning and while his party reached near the Edappally Junction, a person, who did not want to disclose his identity, gave information that the accused in this case residing at Kandangakulam House in Kandangakulam Colony near the railway gate, Edapally, was selling ganga and that after recording the said information and sending search memo to the Magistrate's Court concerned through an Excise Guard by name James, he sent another Excise Guard by name Thomas Paul to the Woman Police Station, Ernakulam, with request for sending a woman Police Constable and that after CW.3- Rajam, a woman Police Constable arrived at the spot in an autorikshaw, the party proceeded to the house of the accused, found her there as the sole occupant and question her. After disclosing the identity of PW1 and also about the availability of the woman Police Constable, she was informed of the proposal to search her house. The search so conducted did not yield any positive result, The accused was therefore informed of her rights under Section 50 of the Act and asked whether she required the presence of a Gazetted Officer of a Magistrate for the proposed search. The accused answered that she required the presence of a Gazetted Officer and accordingly, an Excise Guard by name Rajan was sent over to fetch the nearest available Gazetted Officer, Accordingly, PW.2 who is the Circle Inspector of Excise, Enforcement and Anti Narcotic Special squad was brought. In the presence of PW2 as also two other independent witnesses (PWs.2 and 4), the woman Police Constable searched the body of the accused and ganja covered in the yellow plastic cover was found concealed at her waist underneath the skirt worn by her. Currency notes worth Rs. 960/- was also found in the packet The accused was arrested at the spot and after weighment of the ganja and preparation of samples, Mahazar etc., the accused and the contraband were removed to the excise officer and dealt with according to law after registration of a case.
6. PW.1 stated that at the time when the body search was made, the accused was at the verandah of the house. It is also is case that PW.2, who is the Gazetted Officer and PWs.3 and 4, who are the independent witnesses, were available there and they also saw the search being conducted. According to Sri. T.G. Rajendran, the learned counsel for the appellant, the search so conducted violates all sense of propriety, decency and basis human rights. According to him, it should have been done inside the house by a female officer under strict privacy. He also points out that in a given case, for effective search, the accused might very often have to be stripped naked and that such a search should not at all be done in an open place or in the presence of other male officers like PWs. 1 and 2 or seen by male witnesses like PWs.3 and 4. This may be considered in the light of relevant provision in the Act and in the Cr.P.C.
7.There cannot be any doubt that if a search necessitating stripping of the accused in necessary, that will have to be done in absolute privacy and search also seen only by female officers/witnesses. But neither side has a case that such a body search took place in the present case. All that PW.1 stated was that the body of the accused was searched by the woman Police Constable and when such search took place the contraband was found at the waist portion. Baring of any part of the body of he accused was not brought out in the examination of PW.1 For making a body search, it is not always necessary that the subject should be stripped off her clothes. Very often feeling for availability of foreign bodies underneath the dress worn by the offender by touching over the dress itself would be sufficient to find out whether something is concealed inside the dress. An example is the security check or customs clearance check conducted in the Air Port. What is apparent from the evidence of PWs. 1 and 2 and form the contents of the search list is that only conduct of such a search was done in this case. No act violating the decency or offending the modesty of the accused has been brought out in the present case. Then the question is whether even for a search by touch of body which does not violate the privacy or offend the modesty of the subject there should be absolute privacy in the sense that no male should be allowed to see what is going on or the process of taking out the concealed contraband from the body.
8. Section 100(3) of the Cr. P.C. provides as follows:
"100(3). Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency".
9. Under Section 50(4) of the Act, "no female shall be searched by anyone excepting a female". A joint reading of the aforesaid provisions would make it clear that the requirements of law would be met if the actual process of search is done by a female and done with strict regard to decency. For ensuring such decency what steps should be taken or followed will vary from case to case. There may be cases where the contraband is kept concealed even inside the private parts of a woman. There may be other cases where the contraband might have been well packed and swallowed and available inside her abdomen. The nature of search necessary to bring out the same would vary with the facts and depending upon the circumstances available. The steps for the search to be conducted also would vary. No hard and fast rule can be laid down in these matters. All that can be stated is that there should not be any room for a genuine allegation that the search is conducted without following the steps required for maintaining decency and privacy of the individual or that human rights are violated.
10. During hearing, the learned counsel for the appellant drew may attention to the decision in Kamalabai v. State of Maharashtra (AIR 1962 SC 1189). That was a case under the Suppression of Immoral Traffic in Women and Girls Act. To lay a trap for they accused, the police sent two person and one of them hired a girl from the alleged brothel and when the police officers broke open the door the said person as also the girl hired by him were found lying in compromising position starch naked. Subsequently an one hundred rupees note that was given at the time of hiring the girl was searched out by the police from inside the blouse worn by the appellant who was the madam of the house. Detecting officers were all men. It was argued that the evidence of the police officer with regard to the seizure of 100 rupees, note from inside the blouse worn by the appellant should be discarded as the law does not allow a woman to be searched except by another woman having due regard to the aspect of decency. There was no evidence to show either that the men were asked to move away from the hall or that they actually left the hall during the search which brought out the currency note. However, evidence was there to show that the woman who was requisitioned by the police to witness the search actually arrived only after the recovery had taken place. The court observed that the search was contrary to the letter and spirit of the Cr.P.C. However,it accepted the prosecution case that there was a valid search which brought out 100 rupees currency not and not and on that basis the conviction was confirmed albeit the search of body was not done by any female.
11. State of Punjab v. Surinder Rani (2000) 10 SCC 429) was a case where a bag containing opium wrapped in a glazed paper was found on the body of one Surinder Rani aged 22 years. The search was not conducted in the presence of any female. The Apex Court found that the requirement that the search should be in the presence of a female as insisted by Section 50(4) of the Act is mandatory; and the same cannot be diluted even on the ground that a female was not available to witness the search. The accused was found entitled to get an acquittal as the search was in violation of the said provision.
12. With regard to the scope and ambit of Section 50(4) of the Act, following observations were made in State of Punjab v. Baldev Singh (1966) 6 SCC 172):"
Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provisions is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officers must therefore act, in the manner provided by Section 50(4) of the NDPS Act with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the investigating officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female officer who carried out the personal search of the female concerned should also be disclosed. The personal search memo of the female concerned should indicate complaisance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity".
13. In the instant case, though woman Police Constable (CW.3- Rajam) was not examined, her name and signature are available in Ext. P8 search list which is a document duly proved. Withe regard to her portion from the where the seizure was effected, what is mentioned in Ext. P8 is that it was found at her waist and adjoining her body and under the skirt. The basis requirement in Section 50(4) of the Act that the search should be by a female has certainly been complied with in the present case; but then, the accused has a further case that the woman Police Constable is not an officer empowered to make search and seizure under Section 42 of the Act and that the search was wrongly done in the view of males.
14. The question then arises whether the requirements of Section 42 of the Act have to be read into Section 5094). I am of the view that there is no such need for justification. Section 42 of the Act empowers the officer for making search and seizure under the Act; but Section 50(4) of the Act insists only that such search should be by another female even where the search is conducted by an empowered officer. Those provisions can be compromised if it is provided that the search contemplate under Section 42, in the case of a female offender, should be by a female officer; but under the directions and supervision of the empowered officer albeit he is a male. I also hold that there is nothing in Section 50(4) which show that the female who acts in accordance with the instructions of the empowered officer while making the search herself be empowered under Section 42. If such a requirement was contemplated, Section 5094) would specifically have stated so.
15. If the arguments of the learned counsel for the appellant is accepted, in every case where body search of a female under the Act is to be conducted the police or other empowered officer will have to first of all find a female officer empowered under Section 42 who should go to the spot herself to make the search. Further, if search is to be conducted in camera without it being overseen by any officer, or male witness, in case where the offender desires to have the search in the presence of a Magistrate or a Gazetted Officer, the detecting officer will be forced to the need for finding a female Magistrate or a female Gazetted Officer to witness the search. Insistence on such conditions would very often enable the culprits to escape or deter the authorised officer in booking the offenders considering the practical difficulties. Insistence on impracticable requirements cannot to be read into the specific provision in the Act at the stake of stifling prosecutions. The contention that when search is going on the male Magistrate, male Gazetted Officer or male empowered officer should not be present there also does not appeal to me because Section 42 invests only empowered officer with power to make searches if the subject so opts in the presence of a Gazetted Officers or a Magistrate as well besides other witnesses. In a hypothetical case where the object is concealed inside the private parts or stripping off the subject complete or partial is required, there may be scope for insistence on the extreme requirement of search being made in camera as suggested by the appellant. But as a general rule it cannot be stated that in all cases where a search is made all those who participate in the process namely, the searching officer, the Gazetted Officer/Magistrate and the witnesses, should all be females. The insistence that only female Constable should be present during search in camera will lead to a situation where the search itself would be capable of challenge on the ground that it was the Constable who planted the contraband or that recovery was not from the spot alleged by the prosecution and corroboration to the evidence of the Constable would be impossible. Violation of Section 42 also might be successfully alleged in such cases.
16. The need to have a pragmatic approach in such was underlined by the Apex Court also in Sajan Abraham v. State of Kerala (2001 (3) KLT 146 (SC)=JT 2001 (6) SC 178. While dealing with the requirement of compliance with Section 42, the Apex Court observed thus:
"In construing any facts to find, whether prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the filed of illicit drug traffic and drug abuse, the Legislature time and and again has made some of its provisions obligatory for the prosecution to comply, which the courts have interpreted it to be mandatory. This is in order to balance the stringency fro an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escape from the clutches of law. The Court however while construing such provisions strictly should not interpret it so literally so as render its compliance, impossible. However, before drawing such an inference , it should be examined with caution and circumspection.In other words, if in a case, the following of mandate results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out."
In view of the said decision and the circumstances discussed above, I hold as follows:
(1) The requirements of law would be met if the actual process of search is done by a female and done with strict regard to decency. For ensuring such decency what steps should be taken or followed will vary from case to case.
(2) No hard and fast rule can be laid down in these matters. All that can be stated is that there should not be any room for a genuine allegation that the search is conducted without following the steps required for maintaining decency and privacy of the individual or that human rights are violated.
(3) The search contemplated under Section 42, in the case of a female offender, should by a female officer, but under the directions and supervision of the empowered officer albeit he is a male. I also hold that there is nothing in Section 50(4) which would show that the female who acts in accordance with the instructions of the empowered officer while making the search should herself be empowered under Section 42.
(4) In a hypothetical case where the object is concealed inside the private parts or stripping off the subject, complete or partial is required there may be scope for insistence on the extreme requirement of search being made in camera as suggested by the appellant. But as a general rule it cannot be stated that in such cases where a search is made all those who participate in the process namely, the searching officer, the Gazetted Officer/Magistrate and the witnesses, should all be females.
I am thus of the view that the appellant herein is not entitled to get an acquittal on the ground that M.O. 1 ganja was taken from her waist by a woman Police Constable when the accused was in the verandah of her house.
17. Point No. 2:- The contention of the appellant that there is gross violation of Section 42 of the Act which entitles the appellant to get an acquittal also does not appear to be correct. PW1 stated that when the information was received with regard to the availability of the accused selling ganga, he reduced the same into writing. However instead of immediately forwarding same to the superior officer, namely, PW2 he sent it to the court. Ext. P5 is the information so recorded and it has reached the court on the very same day. However, the fact remains that it was not forwarded to PW2. The question is whether the said lapse justifies an acquittal of the accused. In State of Punjab v. Balbir Singh (AIR 1994 SC 1872), following observations were made with regard to the compliance required under Section 42(2) of the Act:
"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 fort with send a copy therefore to his immediate official superior. It 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 question of fact in each case".
18. As found is Sajan Abraham's case (supra) a pragmatic approach is essential in this matter also. In fact, in Sajan Abraham's case also there was violation of Section 42 of the Act to some extent though the lapse was just the reverse i.e., the information was not recorded, but on the way to the scene of occurrence the officer concerned met the superior officer and orally communicated. Strict compliance was thus not there too. The Court note of the fact that but for immediate action on the part of the officer as above, the opportunity of seizure and arrest of the appellant would have been lost and the appellant would have escaped and for that reason dispelled the plea based on violation of Section 42(2). Taking into account the need for pragmatic approach, the court found that merely on the said violation the accused was not liable to be acquitted. I am of the view that the principles in Sajan Abraham's case can be applied to the present case also. It cannot be said that the accused was prejudiced in any manner or that a false case has been foisted. The information concerned has been recorded promptly and forwarded to the Court on the date of occurrence itself. The evidence of PW1 in the matter remains unshaken. The other purpose behind Section 42(2) viz., prevention of attempts to foist false is also met in the present case in so far as the search and seizure were witnessed by PW2, an officer superior in rank vis-a-vis PW1. Though not based on Ext.P5 he was sent for and he reached the scene of occurrence before the search was conducted. In these circumstances, I am of the view that the accused is not liable to be acquitted for violation of Section 42(2) of the Act also.
19. Though PWs. 3 and 4 turned hostile, PW4 admitted that his signatures are available in the contemporaneous records relating to search and seizure except in Ext. P8. These documents afford sufficient corroboration to the evidence of PW1 and to the evidence of the Gazetted Officer requisitioned, namely, PW.2 with regard to the fact of finding packet of ganja weighing 45 grams on the body of the accused. In these circumstances, the prosecution has succeeded in bringing home guilt alleged on the part of the accused. The conviction entered against the accused is well justified.
20. As regards the sentence, considering the fact that the accused in a female and that there is no previous conviction to her credit. I am of the view that some leniency is due.The sentence imposed on the accused is hence brought down to rigorous imprisonment for one year and fine of Rs. 10,000/-. In case fine is not paid the accused will undergo rigorous imprisonment for six months. The trial court will enforce the sentence by issuing revised warrant in accordance with law.