2002 (1) TMI 1339 - HC - Indian Laws

Summary

Issues Involved:

1. Compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act.
2. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act.
3. Sufficiency of evidence against the appellants (A4 and A5) for conspiracy and involvement in the offense.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act:

The appellant Rukmani (A3) argued that the mandatory provisions of Section 42(1) were violated as the information obtained by P.Ws.1 and 3 was not recorded or sent to a superior officer. The court, however, found that Section 42 did not apply because the search took place at an airport, which is considered a public place under Section 43. The court referenced the Supreme Court's decision in ABDUL RASHID IBRAHIM MANSURI v. STATE OF GUJARAT, which distinguished between searches in public places and those in conveyances or enclosed places. The court concluded that the airport is a public place and thus Section 43, not Section 42, was applicable. This was supported by the Delhi High Court's decision in UTPAL MISHRA v. NICELAI CHRISTENSEN, which stated that airport areas are public places and Section 43 applies.

2. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act:

Rukmani (A3) also contended that Section 50 was not complied with as she was not informed of her right to be searched before a Gazetted Officer or Magistrate, and the search was not conducted by a lady officer. The court held that Section 50 did not apply because the search was of the bags carried by Rukmani, not her person. The court referenced the Supreme Court's decisions in BIRAKISHORE KAR v. STATE OF ORISSA and KANHAIYA LAL v. STATE OF M.P., which clarified that searches of bags do not constitute searches of the person under Section 50. The court found that the search and seizure were conducted validly and the conviction of Rukmani was correct.

3. Sufficiency of evidence against the appellants (A4 and A5) for conspiracy and involvement in the offense:

For Dayalan (A4) and Joseph Henry (A5), the court noted that the only evidence against them were their confessional statements. There was no recovery of incriminating articles from A4, and the account book seized from A5 was not produced in court. The court found that their confessions only indicated knowledge of A1 and A2's activities but did not prove their involvement in the conspiracy. A4's confession revealed that he assisted A3 for monetary compensation without being a party to the conspiracy. Similarly, A5's confession showed he allowed the use of his telephone booth but did not actively participate in the offense. Consequently, the court acquitted A4 and A5 due to insufficient evidence.

Conclusion:

The appeal of Rukmani (A3) was dismissed, and her conviction and sentence were confirmed with a modification in the default clause of the fine. The appeals of Dayalan (A4) and Joseph Henry (A5) were allowed, and they were acquitted and ordered to be released unless required in another case. A4, being a Sri Lankan national, was to be sent to the Sri Lankan Camp as per relevant rules.