BAIL SLIP --- The Accused/Ochaa Devar was directed to be released on bail by the order of the Hon'ble Court dated 4.6.2002 in Crl.M.P.No.4340/2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.01.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.695/2002 Ochaa Devar Appellant Vs State by Inspector of Police NIB, CID, Coimbatore Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 16.11.2001 passed in CC.No.344/2001 by the learned Presiding Officer for Special Court for EC/NDPS Act cases for the Districts of Coimbatore, Erode and Nilgiris at Coimbatore, convicting and sentencing the Appellant for the offence under Section 20(b)(1) of the NDPS Act to undergo 18 months Rigorous Imprisonment and to pay a fine of Rs.5000/- in default to undergo six months Rigorous Imprisonment. For Appellant : Mr.C.H.Vinobhagandhi (Amicus Curiae) For Respondent : Mr.Hasan Mohammed Jinnah, APP JUDGEMENT This Criminal Appeal is filed against the judgement dated 16.11.2001 passed in CC.No.344/2001 by the learned Presiding Officer for Special Court for EC/NDPS Act cases for the Districts of Coimbatore, Erode and Nilgiris at Coimbatore, convicting and sentencing the Appellant for the offence under Section 20(b)(1) of the NDPS Act to undergo 18 months Rigorous Imprisonment and to pay a fine of Rs.5000/- in default to undergo six months Rigorous Imprisonment. 2. The case of the Prosecution is as follows:- a. On 28.8.2001, while PW.1 the Sub Inspector of Police, Narcotic Intelligence Bureau CID, Coimbatore, was on duty at 9.00 a.m. he received a secret information from his informant and reduced the same into writing under Ex.P1 and intimated the information to the Inspector of Police and he along with the Police https://hcservices.ecourts.gov.in/hcservices/ party with necessary accessories and the informant reached Mangarai Arya Vaidhya College Pirivu and were waiting there and watching the arrival of the Appellant/accused. At 10.30 the informant identified the Appellant who was coming from west to east holding a bag on his hand and PW.1 identified the Appellant to the police party. The police party encircled the Appellant and apprehended him and PW.1 introduced himself and his party to the accused and on suspicion, he wanted to make a search on the accused. Before making search, he informed the accused of his right to have a search either before a Judicial Magistrate or a Gazetted Officer, to which he opted to have a search by PW.1 himself and the consent of the Appellant was reduced into writing under Ex.P2, in which the Appellant and PW.2 Police Constable subscribed their signatures. Thereafter PW.1 searched the bag possessed by the accused and found ganja like substance in the bag, took a pinch of it, torched and found smell of ganja and arrested the Appellant for the alleged possession of ganja under arrest memo Ex.P3 and weighed 3 kgs of ganja and took two samples each weighing 25 grams for test and reference and packed them separately and packed the remaining ganja with the bag itself and sealed them with NIBCID Coimbatore SEAL and seized the above material objects under seizure mahazar Ex.P4 in the presence of PW.2 and another Police Constable, in which they subscribed their signatures. b. PW.1 examined the Appellant and recorded his statement under Ex.P5 and brought the Appellant and the materials objects to the Police Station and registered a case in Cr.No.60/2001 and prepared printed FIR Ex.P6 and sent a detailed report Ex.P7 to the Inspector of Police along with the Appellant and the material objects. d. PW.4 Inspector of Police took up the case for investigation and examined the witnesses and recorded their statements and remanded the Appellant and the material objects to judicial custody and intimated the arrest of the accused to his wife by telegram Ex.P11 and sent a requisition Ex.P8 for chemical analysis. PW.3 Head Clerk of the court remanded the property into PR.No.259/2001 and sent the sample packet for chemical analysis on 30.8.2001 with a covering letter Ex.P9 and received the chemical analysis report Ex.P10 dated 31.8.2001 on 5.9.2001. The balance of ganja returned after chemical analysis is MO.1, reference sample is MO.2 and the remaining ganja with bag is MO.3. On coming to know from the report that the sample sent for analysis is ganja, after completing investigation, filed a final report against the accused under Section 20(b)(1) of the NDPS Act. 3. The case was taken on file in CC.No.344/2001 by the learned Presiding Officer for Special Court for EC/NDPS Act cases for the Districts of Coimbatore, Erode and Nilgiris at Coimbatore and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 4 witnesses (PW.1 to PW.4} and also relied on Exs.P1 to P10 and three material objects (Mos.1 to 3). https://hcservices.ecourts.gov.in/hcservices/ 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr.C.G.Vinobhagandhi, the learned counsel for the Appellant (Amicus Curiae) appointed through the Tamil Nadu Legal Services Authority strenuously contended that when the Appellant was subjected to search, the evidence indicated that he was merely asked as to whether he required to be searched in the presence of a gazetted officer or a Magistrate and was not appraised that he had a right under law to have himself searched. Therefore, he would contend that it cannot be a strict compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the non- compliance of the mandatory provision of Section 50 of the Act would entitle the accused for the benefit of doubt and the conviction is liable to be set aside. 8. The learned counsel for the Appellant placed reliance on the decision of the Honourable Supreme Court rendered in the case of K.Mohanan Vs. State of Kerala [2000-10-SCC-222] in support of the above said contention. He submitted that even the letter of consent produced by the police officer who conducted the search in the name of the accused to the effect that he was ready and willing to be searched by the officer in charge instead of a gazetted officer will not in any way help the Prosecution to establish that Section 50 of the said Act was duly complied with. The learned counsel in support of the said submission relied upon the latest judgement of the Honourable Supreme Court rendered in the case of Sarju@Ramu Vs. State of UP [2009-SAR-Criminal-870]. 9. On the other hand, Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor supported the judgement of the Trial Court in convicting the Appellant and referred to the decision of the larger Bench on this question rendered in the case of State of Punjab Vs. Baldev Singh [1999-6-SCC-172], wherein it is held that though it is imperative for the investigating officer to inform the suspect, orally or in writing about his right to be searched before a gazetted officer or a Magistrate, but failure to give such information would not vitiate the trial, but render the recovery of illicit article illegal and may vitiate the conviction and sentence if recorded only on the basis of possession of illicit article. It held as below:- https://hcservices.ecourts.gov.in/hcservices/ "To be searched before a gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The Prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50." 10. The learned Additional Public Prosecutor further submitted that possession of contraband by the accused in this case is established and in the absence of any explanation on the part of the accused as the how he came to be in possession, he is held to be in conscious possession. He also strenuously contended that the mandatory provision of Section 50 of the said Act is applicable, only in case of personal search of a person and it does not extend to search of a bag carried by the accused. He referred to the observation made by the Honourable Supreme Court rendered in the decision cited supra that the language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. 11. Before adverting to the submissions made by the learned counsel on either side, it is relevant to point out to Section 50 of the said Act, which reads as follows:- "Conditions under which search of persons shall be conducted:- (1) When any officer duly authorized under Section 42 is about to search any person under the https://hcservices.ecourts.gov.in/hcservices/ 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. (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub section (1). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." 12. The Honourable Supreme Court after referring to the language used in Section 50 of the said Act held that it only applied in case of personal search of a person and it does not extend to search of a vehicle or a container or a bag or premises. It held as follows:- "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, State of Punjab Vs. Baldev Singh and Gurbax Singh Vs. State of Haryana). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh Case. Above being the position, the https://hcservices.ecourts.gov.in/hcservices/ contention regarding non compliance with Section 50 of the Act is also without any substance." 13. In the present case, PW.1 and 2 have clearly deposed that the Appellant was carrying a bag which contained 3 Kgs of Ganja. There is no suggestion to the said witnesses that the Appellant had not carried any bag containing ganja though a general denial is made to those witnesses by way of suggestion. Therefore, there is no merit in the argument advanced by the learned counsel for the Appellant that Section 50 of the said Act is not complied with. 14. That apart, in this case, there is nothing to suggest regarding non compliance of the provision of Section 50 of the said Act. In fact, by writing a question has been put to the Appellant as to whether he was required to be searched in the presence of a gazetted officer or a Magistrate and he has also been told about the right under law to have himself searched. The evidence of PW.1 and 2 throws some light on this, apart from Ex.P2 whereby the accused had consented for being searched by the officer in charge. PW.1 has stated as found below:- @vjphp bfhz;L te;j igapy; f";rh ,Ug;gjhft[k; mjid nrhjid bra;antz;Lk; vd;Wk;. mg;go nrhjid bra;tjw;F Kd;ghf vjphp tpUk;gpdhy; mUfpYs;s eLth; Kd;ngh. my;yJ murpjH; gjpt[ bgw;w mjpfhhpfs; Kd;ngh nrhjid bra;a ckf;F chpika[s;sJ vd;W vLj;Jf; Twpajw;F vjphpahdth;. ntzlhk; cjtp Ma;thsuhd eP';fns vd;id nrhjid bra;ayhk; vd brhd;djw;fpz';f mUfpYs;s rhl;rpfis miHj;Jk; ahUk; Kd; tuhjf; fhuzj;jpdhy;. vd;Dld; te;j nghyP!; ghh;l;oahd rz;Kfk;. Rg;gpukzpak; Mfpnahh;fis rhl;rpahf ,Uf;f nfl;Lf;bfhz;nld;/@ The evidence of PW.2 is also on the same line. 15. In Ex.P2 which evidences the consent given by the Appellant, a specific question has been put to the accused explaining his right to be searched in the presence of a gazetted officer or a Magistrate, whereto the Appellant has expressed his unwillingness to be searched in the presence of aforesaid officers. 16. In the decision in Sarju @ Ramu Vs. State of UP [2009- SAR-Criminal-870], there was evidence pointing to the fact that the consent letter was obtained from the accused persons only after they have been arrested. Whereas in the present case, before the arrest of the accused, he had been informed that he had a statutory right of being searched by a gazetted officer or a Magistrate. It is pertinent to point that it was not suggested to PW.1 and 2 that no such consent was given by the Appellant to those officers. The Honourable Supreme Court has observed that it is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and https://hcservices.ecourts.gov.in/hcservices/ respectable person witnessing the arrest and search. The Prosecution has established that the information has been duly communicated to the Appellant, that too in writing and also has explained that they could not conduct the search in the presence of independent witness as they refused to be the witnesses to the search. From the evidence adduced, the court is satisfied about the due compliance of Section 50 of the Act and therefore, I am unable to countenance the arguments advanced by the learned counsel for the Appellant. 17. As possession of Ganja by the accused in this case is established beyond reasonable doubt, in the absence of any explanation for having possession of such large quantity of Ganja, he would be deemed to have been in conscious possession and I am of the considered view on going through the entire evidence placed on record that the Prosecution has proved the guilt of the accused beyond all reasonable doubt. The Trial Court has rightly analysed the evidence in a right perspective manner and I do not find any infirmity to interfere with the judgement of the trial court. 18. In the result, this Criminal Appeal is dismissed. It is seen from the records that the Appellant had been enlarged on bail by this court. The bail granted to the Appellant is hereby cancelled. The period of sentence already undergone by the Appellant is ordered to be set off and the concerned court shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. 19. Before parting with this case, this court places on record its appreciation for the valuable assistance rendered by Mr.C.H.Vinobhagandhi, Amicus Curiae. The State Legal Service Authority is directed to pay a sum of Rs.2500/- (Rupees Two Thousand and Five Hundred only) towards his fee. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar Srcm To: 1.The Presiding Officer for Special Court for EC/NDPS Act cases for the Districts of Coimbatore, Erode and Nilgiris at Coimbatore 2.The Inspector of Police, NIB, CID, Coimbatore. 3.The Section Officer, Criminal Section, High Court, Madras-104. https://hcservices.ecourts.gov.in/hcservices/ 4. The Superintendent, Central Jail Coimbatore. 5. The Public Prosecutor, High Court, Madras 6. The Secretary, State Legal Services Authority, High Court, Madras. 1 cc to Mr.C.H.Vinobha Gandhi, Advocate, Sr.No.3915 Judgement in Crl.A.No.695/2002 SSK {CO} TP/29.1.2010. https://hcservices.ecourts.gov.in/hcservices/