2018 (9) TMI 845 - SC - Indian Laws

Smuggling - Charas - appellant's case is that there is non-compliance with Section 42 of the Act - whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person? - whether the requirements of Section 50 were strictly complied with by PW-2 and PW-4? Held that - PW-2 conducted a search of the bag of the appellant as well as of the appellant s trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant s person - Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1) - Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. The appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him - Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1). Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Detailed Analysis:

Compliance with Section 42:
The appellant argued that there was non-compliance with Section 42 of the Act, which mandates that any information received by an empowered officer regarding narcotic drugs must be taken down in writing and a copy sent to the immediate superior within 72 hours. The appellant contended that PW-2, who received the information, only sought permission from a superior officer but did not diarise it elsewhere. The appellant relied on several judgments to support this claim, including Abdul Rashid Ibrahim Mansuri v State of Gujarat, Directorate of Revenue v Mohammed Nisar Holia, and State of Rajasthan v Jagraj Singh.

The respondent-State argued that since the search was conducted in a public place, Section 42 was not applicable and the case fell under Section 43, which deals with the power of seizure and arrest in public places without the need for prior written information.

The court held that Section 42 is applicable only when the offence is committed in a building, conveyance, or enclosed place. Since the appellant was intercepted in a public place (Picnic Garden Road), Section 43 was applicable, and compliance with Section 42 was not necessary. The court cited State of Punjab v Baldev Singh, Narayanaswamy Ravishankar v Assistant Director, Directorate of Revenue Intelligence, and Krishna Kanwar (Smt) Alias Thakuraeen v State of Rajasthan to support this interpretation.

Compliance with Section 50:
The appellant also argued that there was non-compliance with Section 50, which mandates that a suspect must be informed of their right to be searched in the presence of a magistrate or a gazetted officer. The appellant claimed that he was merely given an option and not informed of his legal right, thus vitiating the search.

The court examined whether Section 50 was applicable, given that the search involved both the appellant's person and the bag he was carrying. The court noted that Section 50 applies strictly to the search of a person and not to bags or articles carried by the person. However, since the search also involved the appellant's person, Section 50 was applicable.

The court found that there was strict compliance with Section 50. PW-2 and PW-4 both informed the appellant of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for a gazetted officer, and the search was conducted accordingly. The court cited Vijaysinh Chandubha Jadeja v State of Gujarat and State of Himachal Pradesh v Pawan Kumar to support the necessity of strict compliance with Section 50.

The court dismissed the appeal, finding no merit in the arguments presented by the appellant.

Conclusion:
The court upheld the conviction and sentence of the appellant, finding that there was no breach of compliance with Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appeal was dismissed.