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TMI Blog1994 (11) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X
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