Gujarat High Court
Mohinuddin Sabarkhan Pathan vs State Of on 13 December, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
MOHINUDDIN SABARKHAN PATHAN....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1261/2007 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO.
1261 of 2007 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ MOHINUDDIN SABARKHAN PATHAN....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:
MS PRAGYA A JHA, ADVOCATE for the Appellant(s) No. 1 MS SM AHUJA, ADVOCATE for the Appellant(s) No. 1 MR HL JANI, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 13/12/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE Z.K.SAIYED) The present Appeal has been filed by the appellant original accused under Section 374 of the Criminal Procedure Code, against the Judgment and order dated 14.8.2004 rendered by the learned Additional Sessions Judge, Modasa, Dist.Sabarkantha, in N.D.P.S.Case No.1 of 2004 whereby the learned trial Judge convicted the appellant accused for the offences under Section 8(C) read with Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act for short) and sentenced him to R.I. of 14 years with fine of Rs.1 lac and in default of payment of fine to undergo 02 years R.I. Briefly stated the prosecution case was that when the complainant was performing his duty as Police Inspector in the Anti Terrorist Squad in the Gujarat State on 24/10/2004, he received information from Mr. R.M. Solanki, S.P., in-charge of A.T.S., at about 10 O'clock that the accused of this case, that is, Moinuddin Sebarkhan Pathan, aged about 35 years, resident of Basvada, who had worn red coloured shirt and blue coloured jeans pant, is to come at Hotel Shimla situated at Modasa during the period between 3:00 hours in the afternoon to 6:00 hours in the evening with brown sugar. On receipt of the information by the complainant, he prepared a written report of the said information and forwarded to Spl.I.G.P., A.T.S., Ahmedabad, and one copy thereof was forwarded to the Superintendent of Police, A.T.S. in a sealed cover, and an instruction was given to Mr. Nagarani, the police constable, pursuant to which two panchas were called. Instructions were given to other police staff for going to conduct the raid in a Marshalo Jeep and Maruti Fronty, and the primary panchnama was drawn as per rules on arrival of panchas. Thereafter, the raiding party reached at 14.00 hours at Hotel Shimla via Naroda, Dahegam, Dhansura and Modasa Bus Stand. By keeping both vehicles in one side, they took positions separately on an open place, and as the person having aforesaid description was found to be coming before the Shimla Hotel during the period of 15.30 hours, the said person was cordoned off. On asking, he stated his name to be Moinuddin Sebarkhan Pathan. The complainant, Mr. B.D. Vadhiya, the Police Inspector, gave his introduction, and as the accused gave consent for the search to be conducted before him, search was conducted. On opening and examining the black coloured bag hanging on his shoulder, gray coloured powder was found inside transparent plastic, and it appeared that no smell was coming therefrom which substance prima facie appeared to be brown sugar. On checking back side pocket of his pant, one brown coloured small wallet was found from which Rs. 750/- and the xerox copy of driving licence of the accused Moinuddin Sebarkhan Pathan were found. As it was found to be necessary to get primary testing of the brown sugar powder found from the accused done by F.S.L., instruction was given to P.S.O., A.T.S., and he was made to call F.S.L. officer from Himmatnagar.
Thereafter, as the sun was about to set, as per the rules, it was decided to come under the tubelight in the varandah of Hotel Shimla. In the meantime, Mr. Damor, F.S.L. Officer, came from Himmatnagar at about 19.00 hours. He prepared the report for first testing, according to which, the substance found from the accused, appeared to be brown sugar. Thereafter, on weighing the said brown sugar along with black coloured polythene bag with the electric weighing machine brought by him, it weighed 936 grams, and on weighing without polythene bag, it weighed 920 grams, out of which, two samples of 10-10 grams each were taken and filled in separate plastic bags. By wrapping separate cloth thereon, stitching with string, placing slips bearing the signatures of panchas and theirs, the seal of Special I.G.P. Operation, Ahmedabad was affixed thereon. On asking for pass permit from the accused to possess brown sugar, he denied having the same. The seizure memo of the articles found from the accused was prepared, and detailed panchnama in that regard was drawn till 21.30 hours. Thereafter, complaint u/s 8(C) and 21 of the N.D.P.S Act was written against the accused, and the arrest memo of the accused was prepared. The raiding party left Modasa at 22.30 hours and returned to A.T.S. office, Ahmedabad at about 1 O'clock in the night on 25/10/04, and after writing report for the procedure of registering offence there, the complaint, panchnama, seizure panchnama, and accused were handed over to P.S.O. The P.S.O. made an entry in the station diary, and the complaint given by the complainant was registered vide Prohi. C.R. No. 02/04, and the investigation thereof was handed over to Mr. J.T. Chudasama, the Police Inspector, A.T.S. Gujarat State.
The prosecution examined the following witnesses to bring home the guilt of the accused :-
Witness No. Ex.
Name of witness 1 29 Bawanji Damjibhai Vadhiya P.W. No.1.2 59
Kanubhai Virjibhai Damor P.W. No.2 3 63 Govindgiri Ganpatgiri Goswami P.W. No.3.4 71
Kishorsinh Gumansinh Jadeja P.W. No.4.5 80
Dashrathsinh Bahadursinh Zala P.W. No.5.6 84
Jagdishsinh Temubha Chudasma P.W.No.6.
The prosecution in support of its case produced the following documents :-
Sr. No. Ex.
Description of document 1 45 Complaint.2 31
Panchnama.3 32
Report of mobile laboratory.4 33
Copy of resolution of Section 42 of the N.D.P.S. 5 34 Copy of resolution of Section 50 of the N.D.P.S. 6 35 Seizure memo.7 36
Copy of resolution of Section 42(a) of the N.D.P.S. 8 37 Copy of yadi written to mobile scientific officer, Himmatnagar.9 38
Arrest memo of accused.10 39
Intimation to District Magistrate regarding arrest of the accused.11 40
Intimation to the relative of the accused for arrest.12 41
Form of arrest of accused.13 42
Copy of report intimating to I.G.P. as per Section 58 of the N.D.P.S. 14 43 Letter sent to Direct of Police, Baswada (Rajasthan) by fax intimating arrest of accused.15 85
Muddamal Ravangi Nondh.16 86
Receipt of Scientific Laboratory.17 87
Report of FSL From Page No.1 to 3 with forwarding letter.18 88
Resolution as per Section 42 for search of house of the accused.19 89
Panchnama of search of house of accused.20 90
Office copy of letter for getting muddamal return at Scientific laboratory.21 91
Copy of seeking permission of S.P., AT.S. for filing charge-sheet.22 92
Permission letter for filing charge-sheet.23 30
Letter addressed by Shri Vadhiya, Police Inspector to I.G.P. 24 64 Station diary.25 72
to 74 Copies with signed of panchas.26 93
Copy of yadi given at Annod Police Station.27 98
Closing purshis.
The prosecution has examined witnesses, complainant, panchas of various panchnamas, forensic expert, as well as Investigationg Officer. Prosecution has also produced panchnama of place of offence, discovery panchnama, medical certificate of the injured witnesses and FSL report.
After prosecution evidence was over, further statement under Section 313 of Criminal Procedure Code was recorded of the accused. The accused had also submitted written explanation.
Heard Ms.S.M.Ahuja, learned counsel for the appellant. She has submitted that on 24.10.2004, Incharge S.P. of Anti Terrorist Squad Shri R.M.Solanki received an information that the appellant Mohinuddin Sabarkhan Pathan aged 35 years resident of Banaswada, Rajasthan is likely to come at around 3 to 6 hours at Hotel Shimla situated in Modasa having possession of some quantity of brown-sugar and he had worn red shirt and blue pant. Ms.Ahuja has submitted that in the present case the Investigating Officer and the complainant have not complied with the mandatory provisions of Sections 42(1), 42(2) and 50 of the N.D.P.S.Act. She has submitted that the first information regarding possession of narcotic drugs in possession of the appellant was received by Incharge S.P. Shri R.M.Solanki, A.T.S. however, he did not comply with the provisions of Sections 41 and 42 of the Act. The Incharge S.P. had received the confidential information he should have reduced in writing and thereafter he ought to have sent the same to his superior officer, but the said procedure is not followed and therefore, as per provisions of Sections 41 and 42 of the Act the complainant had not received the information regarding the alleged offence and hence non-compliance of mandatory provision of the Act vitiate the trial.
It is further submitted that as per Section 42(2) of the Act where any officer is under belief that he is not in a position to obtain search warrant or authorization and there are chances of destruction of evidence or the accused might run away, the officer should write the grounds or reasons for conducting search of any building, vehicle or place between sun-set to sun-rise. In the present case, the search and seizure started at around 19:00 hours and completed at around 21:30 hours and during that period the complainant was duty bound to write the grounds or reasons for the said search and not complying Section 42(2) of the Act the appellant accused.
It is further submitted that there is also non-compliance of Section 50 of the Act, wherein the accused is required to be informed regarding his right to be searched by a gazetted officer or by a magistrate before conducting the search. In the present case, though the accused was informed that he has right to be searched by a gazetted officer or by a Magistrate, he was not given an option and straight away the complainant stated that he is a gazetted officer and as per Section 50 of the Act the accused is to be searched by the gazetted officer. However, no option was given to him that the search can be conducted by any independent gazetted officer or by a Magistrate nor the the appellant was informed about the said right.
It is further submitted that tampering of muddamal in the present case cannot be ruled out because when the muddamal was packed, one slip was prepared narrating the muddamal and said slip was put in the cloth bag and thereafter it was stitched and seal was affixed on the bag. In fact, while sending the muddamal, it is the duty of the seizing officer to describe the muddamal and complaint number on the slip. The police officer should affix the seal on the said slip. In the present case the slip was kept beneath the cloth bag and the seal was affixed on the cloth bag and not on the slip, therefore there are all chances for the Investigating Officer to take new sample. Hence, sentence and conviction imposed by the trial Court is required to be quashed and set aside.
She has submitted that if the complaint is filed by the Police Officer and investigation is also carried out by the same officer then as per the Police Manual he has to narrate all the facts in writing in the weekly diary maintained by him at the concerned police station and copy of the said weekly diary is required to be forwarded to his higher officer. In the present case complainant has not fowarded copy of the weekly diary of the alleged incident to his higher officer nor he has narrated the facts of the present case in the weekly diary and, therefore, it can be presumed that the complainant was not present in the office of the A.T.S. nor he had gone to Modasa to conduct the said raid and present appellant is falsely implicated.
She has submitted that there is no independent evidence against the appellant except the evidence of Police Officer and, therefore, false implication of the appellant cannot be ruled out. In the present case evidence recorded is inconsistent with the facts of the present case and the muddamal recovered is not proved by the prosecution beyond reasonable doubt. Therefore, the sentence and conviction imposed by the trial Court is required to be quashed and set aside.
On the other hand, learned APP Mr.H.L.Jani has supported the judgment of the trial Judge. Mr.Jani has read the contents of the panchnama Ex.31 and contended that as per the oral evidence of the Police Inspector Shri B.D.Vadhiya P.W. No.1 it is established beyond reasonable doubt that at the time of the search of the present appellant it was established that he is a Gazetted Officer. He has further contended that the said officer intimated appellant accused about his right of search before a Magistrate and through oral version as well as documentary evidence, the prosecution has proved the offer made by the said officer to the appellant accused regarding his search.
He has contended that as per provisions of Section 42 of the Act any officer, superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or State Government, is empowered in this behalf by general or special order by the Central Government or State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is liable for seizure under Chapter VA of this Act. In support of this submission he relied on the citation in the case of Karnail Singh Vs. State of Haryana, reported in (2009) 8 SCC 539.
He has further contended that mandatory provisions of Section 50 of the Act are followed by the raiding party. He has submitted that where personal search of a person is involved then for search of bag, briefcase, container etc., carried by accused person, compliance with Section 50 is not required. In support of this submission he relied on the citation in the case of Ajmer Singh Vs. State of Haryana, reported in (2010) 3 SCC 746.
We have heard the learned counsel for the respective parties and perused the papers produced before us. We have also considered the submissions advanced by the learned counsel for the rival parties. We have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record.
We have gone through the oral evidence of the prosecution witnesses-complainant and other witnesses and also perused the charge framed against the appellant accused. The contents of the place of panchnama, discovery panchnama and deposition of the eyewitnesses are proved beyond reasonable doubt.
It appears from the oral evidence of P.W. No.1 Shri B.D.Vadhiya, Police Inspector (Gazetted Officer) that he was present at A.T.S. Office where he was serving. He was informed by the Incharge S.P. Shri R.M.Solanki serving at A.T.S. Office at around 10:00 O clock that one Mohinuddin Sabarkhan Pathan aged 35 years resident of Banaswada, Rajasthan is likely to come at around 3 to 6 hours at Hotel Shimla situated in Modasa having possession of some quantity of brown-sugar and he had worn red shirt and blue pant. Therefore, he arranged members of his unit and informed them regarding information received by him and written report was prepared and sent to I.G.P., A.T.S. as well as S.P., A.T.S. in a sealed cover. Thereafter seal, lakh etc., material of the raid for the purpose of sealing and seizing were obtained from the office and two panchas were called and they were informed regarding the information received. The raiding party left in two vehicles for carrying out raid and at 14:00 hours they reached at Shimla Hotel. At 15:30 hours as per the information received the person - Mohinuddin Sabarkhan Pathan with the same identification arrived. He was informed by these witnesses regarding information received and offer regarding the search was given to him. The complainant informed the appellant accused that he is Gazetted Officer and it is the appellant accused right to get search by him or by the Magistrate. In connection with this evidence, we have perused Ex.33 in which signature of the present appellant accused was obtained by this witness. Prima facie, it appears from this documentary evidence that present appellant accused was informed regarding his right. We have minutely perused cross-examination of this witness and it appears from the same that the appellant has failed to establish that prosecution has not followed mandatory provisions of law. As per evidence of this witness forensic expert was called and test of muddamal article was carried out. Report of the FSL Ex.32 shows that on the spot the muddammal article was tested by him. Ex.30 shows endorsement of I.G.P., and time and date of receipt of the information. Ex.34 shows that prior to search as per provisions of Section 50 of the Act, appellant accused was informed and contents of panchnama are also proved. Therefore, from the contents of complaint, panchnama, oral version of the P.W. No.1 and panch witness we are of the opinion that present complainant has followed mandatory provisions of the Act. No doubt, defence has tried to establish his defence through cross-examination but no fruitful result is obtained. In presence of FSL expert search of the bag was carried out and 920 gram brown-sugar was recovered from possession of the appellant accused and after following proper procedure sample was taken and test of the muddamal article was also carried out by the FSL expert. The FSL expert opinion shows that the muddamal article recovered from possession of the appellant accused was brown-sugar.
P.W. No.1 and panch witness have proved the contents of the arrest memo Ex.38. The District Magistrate was informed through report Ex.39 under Section 58 of the Act. As per evidence of the complainant himself, it is established that father of the accused was informed on telephone and as per contents of Ex.40 it is proved beyond doubt. The complainant himself prepared arrest memo Ex.41 and Ex.42 shows endorsement of the I.G.P, A.T.S. As per evidence of this witness, he has stated that relative of the appellant - accused was informed by fax message Ex.43. In support of this, we have minutely perused oral version of Kishorsinh Gupansinh P.W. No.4 Ex.71, contents of panchnama and complaint, the oral version of P.W. No.1 is fully supported by oral evidence of this witness. This panch witness is an independent witness. It appears from the oral version of the panch witness that preliminary panchnama was carried out in their presence at A.T.S. Office and search of the vehicle was made and then at the place of offence when the accused person came he was introduced by the P.W. No.1 that he is gazetted officer and regarding search the accused was informed orally and in writing and thereafter search was carried out by the P.W. No.1. From cross-examination of this witness it appears that defence has failed to establish that provisions of Section 42 and 50 are not followed. We have also compared contents of the panchnama with the oral version of the P.W. No.4 regarding search, seizure and sealing. We have not found any doubt with regard to the procedure of search, seizure and sealing carried out by the raiding party. The FSL Expert Shri Kanubhai Damor Ex.59 has admitted that he received vardhi on 24.10.2004 at around 17:30 hours through Police Control Room, Himmatnagar and he reached at the place of incident and between 19:00 to 20:30 he performed his duty. Muddamal recovered measured 920 gram on weighing machine and was tested as per Mark 9/1 and 9/2 with the kit. He has prepared certificate Ex.32 showing muddamal article brown-sugar which is fully supported by his oral version and appellant - accused was also identified by him. We have also perused oral evidence of Shri Govindgiri Goswami P.W. No.3 Ex.63. As per his evidence, he was on duty on 24.10.2004 between 12:00 to 20:00 hours. He has received papers and sealed muddamal article from P.W. No.1 and complaint Ex.45 was registered. In the cross-examination this witness has stated that he has made entry in the station diary and muddamal receipt was prepared. From the documents, it appears that this witness has followed proper procedure for registration of offence. We have perused oral evidence of member of raiding party Shri Dashrathsinh Zala P.W. No.5 Ex.80. As per evidence of this witness, he has proved facts of the prosecution case.
Ms.Ahuja learned counsel for the appellant has submitted that provisions of Sections 42 and 50 of the Act are not followed by the raiding party. The Apex Court in the case of M.Prabhulal Vs. Directorate of Revenue Intelligence, reported in (2003) 8 SCC 449, has held as under :-
13. To consider the contention about the applicability of S. 42(2) where arrest, search and seizure is made by an empowered Gazetted Officer, it is necessary to analyse Ss. 41 and 42 of the NDPS Act which read as under :
"41. Power to issue warrant and authorisation.- (1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe 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.
(2) Any such officer of gazetted rank of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if 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 punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under S. 42.
42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, 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,-
(a) enter into and seach any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) 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 this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and
(d) 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 relating to such drug or substance :
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior."
14. Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under S. 41(2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorise an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a Peon, a Sepoy or a Constable. Sub-section (3) of S. 41 vests all the powers of an officer acting under S. 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorised the arrest or search under sub-section (2) of S. 41, and (iii) the officer who is so authorised under sub-section (2) of S. 41. Therefore, an empowered Gazetted Officer has also all the powers of S. 42 including power of seizure. Section 42 provides for procedure and power of entry, search, seizure and arrest without warrant or authorisation. An empowered officer has the power of entry into and search of any building, conveyance or place, break open door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of S. 42. In case of emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorisation, in terms provided in the proviso to sub-section (1) of S. 42. Sub-section (2) of S. 42 is a mandatory provision. In terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for the belief under proviso thereto, is required to be sent by the officer to his immediate official superior.It is clear from S. 41(2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorise his subordinate on the terms stated in the section.Under sub-section (1) of S. 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub-section (1) of S. 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of S. 42.It is clear from the language of sub-section (2) of S. 42 that it applies to officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by sub-section (2) of S. 41, when such Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice S. 43 which relates to power of seizure and arrest in public place. Any officer of any of the departments mentioned in S. 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in S. 43. It can, thus, be seen that Ss. 42 and 43 do not require an officer to be a Gazetted Officer whereas S. 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed on him can also be seen from S. 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under S. 41 and, therefore, it was not necessary to comply with S. 42.The decisions in State of Punjab v. Balbir Singh ((1994) 3 SCC 299); Abdul Rashid Ibrahim Mansuri v. State of Gujarat ((2000) 2 SCC 513) and Beckodan Abdul Rahiman v. State of Kerala ((2002) 4 SCC 229), on the aspects under consideration are neither relevant nor applicable.
15. In view of our conclusion that S. 42(2) is not applicable when search, seizure etc. is conducted by a Gazetted Officer under S. 41(2) and (3), the further contention of Mr. Jain that an attempt was made by the respondent to fill up lacuna to show compliance of S. 42(2) of the NDPS Act as a result of observations made in the order granting bail to the appellants as noticed hereinbefore becomes inconsequential and, therefore, it is not necessary to examine it.
Thus, from the above, it is clear that when the accused expresses a desire to be searched in presence of Gazetted Officer or Magistrate, it is for the searching officer to conduct the search in presence of whoever is the most conveniently available, Gazetted Officer or Magistrate.
In the case of Karnail Singh (Supra) it is observed as under :-
35.
In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c)In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d)While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act.
Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.
In the case of Ajmer Singh (Supra) it is observed as under :-
15 The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, brief case etc., carried by the person and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or non-compliance of Section 50 of the N.D.P.S. Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc., does not come within the ambit of Section 50 of the N.D.P.S. Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the Section speaks of taking of the person to be searched by the Gazetted Officer or Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res integra in view of the observations made by this court in the case of Madan Lal v.
State of Himachal Pradesh, 2003 Cri. LJ 3868 : (AIR 2003 SC 3642 :
2003 AIR SCW 3969). The Court has observed :
"A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999 (8) SC 293) : (AIR 2000 SC 402 : 1999 AIR SCW 4544); State of Punjab v. Baldev Singh (JT 1999 (4) SC 595) : (AIR 1999 SC 2378 : 1999 AIR SCW 2494); Gurbax Singh v. State of Haryana (2001 (3) SCC 28) : (AIR 2001 SC 1002 : 2001 AIR SCW 670). The language of section is implicitly clear that the search has to be in relation to a person as contrast to search of premises, vehicles, or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance."
18. It appears from the evidence on record that the accused was confronted by ASI Maya Ram and other police officials on 24.1.1996 and he was informed that he has the right to either be searched before the Gazetted Officer or before a Magistrate and the accused choose the later. Thereafter, the accused was taken to the DSP, Pehowa, Shri Paramjit Singh Ahalawat and as directed by him, the bag carried by accused on his shoulder was searched and the charas was found in that bag.Thus, applying the interpretation of the word "search of person" as laid down by this Court in the decision mentioned above, to facts of present case, it is clear that the compliance of Section 50 of the Act is not required. Therefore, the search conducted by the Investigation Officer and the evidence collected thereby, is not illegal. Consequently, we do not find any merit in the contention of the learned counsel of the appellant as regards the non-compliance of Section 50 of the Act.
In the case of Bhupatji Shakaraji Vs. State of Gujarat, reported in 2003 (2) GLR 1127, it is observed at para-13 that :-
13. It may be noticed here that a Larger Bench of the Supreme Court in Joseph Fernandez v. State of Goa, reported in AIR 2000 SC 3502, negatived the contention that the authorised officer should have told the person who was subjected to search that he had a right to be searched, holding that the communication to the accused that if he wished, he could be searched in the presence of a Gazetted Officer or a Magistrate, was an offer which was a communication of the information that the accused has a right to be searched so.
It was held that informing the accused that, "If you wish you may be searched in the presence of Gazetted Officer or a Magistrate" cannot be said to be non-compliance with the mandatory provisions contained in section 50 of the Act. The binding effect of this view of the Larger Bench in Joseph Fernandez (supra) decided on 5-10-1999 would not be affected by the observations in paragraph 6 of the judgement in K. Mohanan v. State of Kerala, reported in (2000) 10 SCC 222 on which reliance was sought to be placed on behalf of the appellant.
It may be noted that in the present case the contraband brown-sugar recovered from the possession of the appellant accused was 920 grams which does not fall in the category of small quantity . Further as per notification of the Act, specifying small quantity and commercial quantity, imprisonment of 20 years is prescribed for possessing the contraband weighing 250 grams. The learned Judge has awarded the sentence of 14 years which in our considered opinion does not require any interference, particularly in view of the fact that the contraband brown-sugar seized from the accused was 920 grams for which maximum 20 years imprisonment can be awarded.
In view of the above discussion and considering the ratio of various judgment of this Court and the Apex Court, we are of the considered view that there is no non-compliance of any of the mandatory provisions of the Act warranting interference in the judgment of conviction and sentence passed by the trial Court.
In the result, the appellant accused has failed to establish his case. We, therefore, do not find any error in the judgment and order of the learned trial Judge and we are in agreement with the findings arrived at by the learned trial Judge. There is, therefore, no substance in the present appeal and the same is required to be dismissed.
The appeal of the appellant accused is hereby dismissed. The judgment and order dated 14.8.2004 passed by the learned Additional Sessions Judge, Modasa, Dist.Sabarkantha, in N.D.P.S.Case No.1 of 2004 is hereby confirmed. R & P to be transmitted to the trial Court.
(AKIL KURESHI, J.) (Z.K.SAIYED, J.) KKS Page 37 of 37