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TMI Blog2002 (1) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... ame were recovered. Another bag which was in possession of the said Rukmani was also searched. It was found to contain a kerosene pump stove. On opening the cylinder portion, a polythene bag was noticed. On testing the brown coloured substance found in those polythene bags, it was noticed that the said powder was suspected to be heroin. They were seized by observing the procedures required under law. (b) On the basis of the statement of Rukmani(A3), Perinbanayagam alias Inbam(A1), Koneshwaran alias Siva and Dayalan (A4) were traced and apprehended at the Airport Lounge itself. They were brought to the office and interrogated. On the basis of the information given by Perinbanayagam alias Inbam(A1), his residential premises at Choolaimedu was searched and 1,000 grams of brown colour powder, which was concealed in the sandwitch toaster and kerosene pump stove, was seized under mahazar. (c) After getting statement from A1, the commercial premises of A5 Joseph Henry was located at Chennai on 22.7.1993 and search was conducted in the said premises and account book was seized under mahazar Ex.P35 and a statement was obtained from A5 also. There, Sriskandaraja alias Khalifa was appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material to show that he had the knowledge about the activities of the other accused, he did not have any role to play with reference to the commission of the offences. 6. Mr.P.N.Prakash, the learned Special Public Prosecutor, while refuting the submissions made by the counsel for the appellants, would contend that the mandatory provisions have been complied with and the arguments advanced by the counsel for the appellants are not correct, as the search and seizure which was effected by the competent officers is perfectly valid and the same is in accordance with law and as such, the reasonings given by the trial Court while imposing conviction on the appellants are correct. 7. I have carefully considered the submissions made by the respective counsel. 8. Mr. A.Ganesh, the counsel for the appellant Rukmani(A3) would make the following contentions: (1) Admittedly, the search was conducted by P.Ws.1 and 3 at the Airport after intercepting the appellant in pursuance of the information obtained by them. Therefore, under Section 42(1) of the Act, the said information has to be recorded and the same shall be sent to the superior officer. The admission made by P.Ws.1 and 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant would submit that when P.Ws.1 and 3 admitted that they went to the spot only on getting the information, it is duty bound on their part to record that information by taking down in writing as contemplated under Section 42(1) of the Act. 14. The above judgment, in my view, would not be applicable to the present case for two reasons. In the said case, the search was not conducted in the public place. On the other hand, the search was conducted from the person, who was sitting in the Autorickshaw. Moreover, the specific information obtained by the officer concerned in that case is that somebody was trying to transport a narcotic substance in the Autorickshaw. 15. Section 42(1) provides that any competent officer, if he has to reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, etc., in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of commission of such offence is kept or concealed in any building, conveyance or enclosed place may enter into any such building, conveyance or place and seize the same. 16. So, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 CRI.L.J.4475). The observation made by the Delhi High Court is as follows: The Airport or Custom area at the Airport or Custom counter or Luggage hold area or Immigration area or alike at the Airport would thus be a public place. These areas are accessible to the public, may be with certain restriction or requirement of a permission for entry into these areas. No doubt the provisions of Section 42 are mandatory but the said provisions are not applicable at International Airport which is clearly a public place to which Section 43 would apply and not Section 42 of the Act. 24. At this juncture, it may be relevant to point out the decisions rendered by the Supreme Court in KOLUTTUMOTTIL RAZAK v. STATE OF KERALA (2000 S.C.C. (Cri.) 829),STATE OF PUNJAB v. BALDEV SINGH and ABDUL RASHID IBRAHIM MANSURI v. STATE OF GUJARAT (2000 S.C.C.(Cri.) 496). 25. In these decisions, it is held that non-compliance with the requirements of Section 42(1) and (2) would render the resultant search and seizure suspect, though that by itself may not vitiate the proceedings. 26. It is true that for the non-compliance of Section 42(1), the Supreme Court in 2000 S.C.C (Cri.)829 (supra) acquit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observation, it is strenuously contended that even though the bag was searched, since the bag was carried by the accused, it must be construed to mean that the search was conducted only on the person and therefore, Section 50 would apply. 31. On the other hand, the learned counsel for the respondent would submit that on the similar facts of the case,the Supreme Court would hold on the strength of the dictum laid down by the Constitutional Bench that when a person was carrying a bag or some other article with him and narcotic drug was found from it, it cannot be said that it was from his person and therefore, Section 50 would not apply. 32. The same has been confirmed by the Supreme Court in BIRAKISHORE KAR v. STATE OF ORISSA . It is seen from the said judgment that the search on the plastic bag which belonged to the accused would not attract Section 50, as it cannot be construed to be the search on the person. Similarly, it was held in KANHAIYA LAL v. STATE OF M.P. that when a bag which was carried by the accused was searched and 1 kg. of opium was found from it, it is not a search on the person as contemplated under Section 50 of the Act. 33. At this stage, it was conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g article was recovered. 38. As stated above, the only available evidence as against them is the confession made by them. On a perusal of their confession, it is clear that they had only knowledge about the activities of A1 and A2. The confession made by A5 would show that they allowed the other accused to go to telephone booth to make STD calls. There is no material to show that A5 was a party to the offence by helping them by paying money. Similarly, A4 on the instruction by A1 helped A3, while she was staying in a Lodge and went along with her to several places in Madras and lastly, she took him to Airport in an Autorickshaw. Though he stated that he knew about the handing over of the articles containing the contraband to A3, he would state that for helping her, he was given ₹ 100/- or ₹ 200/- on every occasion. Under those circumstances, I am unable to hold that A4 and A5 were parties to the main conspiracy merely on the basis of the confession given by them. 39. In such circumstances, the evidence available on record as against A4 and A5, in my opinion, is not sufficient to hold them guilty for the offences referred to above. Hence, the conviction and sentenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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