CF0000062987 IN THE HICH COORT OF JUHICATUEE AT JABALPOR:K.P. Criminal Appeal No.^ !^0 of 2000. Appellant: Accused (In Jail) Solomaa S/o '-'ambhaja'c Jera, ag'ed aboat 55 years, 'Village & Police Station- Raigarba, Distt. Gajpati, Qrrissa.^ , <" /'ff. ^? •^^'^ff'' /,y ^iJf ^ .f •^' /y-^y ^rf' ^^yj •'y.y y^ Respondent: '-<° \; .f'^' v / ^.^^•" /- A Vs State of..M,P. lbroagl3i Police StatiOn- Saraipali •"LSt-t. mahasamund,M.P. r <y CRIHINAL APPEAL m?GBR SECTIGN 574(2$ CF TH3 COffi OF CRItSIUL FROCEBuRE. — —i'-USE2£UL£3JLTlTHir. -_^.-_3aBEMC£_ \ ^. ^-. HIGH COURT OF CHHATTISGARH AI BILASFUR Criminal Appeal 1004/2000 Soloman Vs. State of M.P. J U D,G M E N T ( 11. 6. 2001 ) The appellant being aggrieved by the .judgment dated 29.2.2000 . passed in Special Case No. 86/99 by the learned Special Judge ( NDPS ) Raipur, convicting the appellant under section 20 (b) o£ the N.D.P.S.Act read with section 8 of tbe said Act and sen'fcenciDg him tp undergo R.I. £or two years and to pay -fine of Rs. 2000/-, in default of payment of fine to further undergo RI for -two months, has filed this appeal. 2. The prosecutlon case in brief is that on 11.9.99 Head constable B.L.Sahu ( PW-5 ) of police station Saraipali was on patrol for checkiEg certain vehicles etc. At about 4.50 A.M. on 12.9.99 while seeicg SK anon-coming bus No, O.R. 05/1765 the said head constable stopped the bus. Finding that the present appellant "ds sittirig on the back seat and was engaged in suspicious activities, the said head constable issued him a notice under sec'tion 50 of the N. D.P.S. A;t and after taking the coasent of the said person ( accused ) too.k his, search. In the ni said search about 6 Kgs.o_C Garija was recovered trom the possession o£ the appellant. The said contraband was.weigbed on the spot and was tbere- after seized by tbe said head constable. The accused BO ;also the contraband were brought to the police station. FIR was registered at the police station. The samples vere drawn. and were sent for the analysis. After obtaining the posi- tive analyticat report the Police anned with such report, the seizure memo and the statements of the witnesses filed the challan. As the accused de.riied commission of ttie o.f£ence,he was put to trial. The prosecution agency in support o£ its case examined as many as five witnesses, and produced number of dociMients. After hearing the parties the trial Court was pleased to convict and sentence the appellant as referred to above. 5. Shri Ashish Si-iukla ,learned counsel appeariug for' the appellant submits that ttae head constable is not an empowered ofiicer either under sections 41,42 or 43 of tbe N.D.P.S.Act 1985,therefore,the search and seizure .. e££ectedby iaini are illegal and iu vlew of the judgment o£ the Supreme Court in the aatter of Sta-te o-C Punjab Vs. Balbir Singh 1994 III SCC 299 AMS S-fcate_o_f_Pyn.jab Vs.Baldev Singh 1999 VI SCC 172, the appellant deserves to be acquitted. It is submitted by bim that i.f a parti- \un^*t^-*^ •^.<A' cular police ol'ficial is not empowered^by chance or accidentally finds some contraband, ttaen he is not required to observe tbe provisions o£ section 50 o£ the N.D.P.S.Act,but the moment he ^finds that o -3- -<; there is breach o£ provisions o£ NHPS Act and he Mmsel.f is not empowered then such officer should stop and should require an empowered Otflcer to proceed furtber. Accordirg to him, tbe search was taken by tbe head constable and as the seizure was effected by bim witbout any authority of law or without any authorisation under sections 41,42 and 43 o£ the NEPS Act, the articles seized by Mm can not : be looked-into nor can ssme be used as evidence against ttie accused. 4. Shri Deep Kesharwani learned counsel appearirg £or fhe state on the other band submits that in the present case Pt<-3 acciden-fcally found. •that the ac<u sed W-^fc/? ^carrying some narcotics with bim and as he himself was not effipowered under sections 41,42 and 45 , necessity o£ compliance of section 50 o£ the NDPS Act does not arise and as the search was taken by him, he was entitled to seize ttae articles. He further submits tfaat seizure o£ the articles at best may be an irregulari'ty and unless the prejudice is shown by the accused,tbe said irregularity shall not affect ttae prosecution case or the conviction. 5. I faave tieard the parties at length and perused the record. 6. Be£ore coming to the core question regarding authorisation and authority of PW-3 B.L.Sahu, It is necessary to see his statenien-t, 7. B.L.Sahu ( PW-5 ) in paragrapb 2 o£ his statement bas clearly stated tbat while checking Bus No. OR 05/ 1765 he found tbat a person was perp^lexed__and was ~"^ SIS lookiug suspAisious. He issued him a notice under section 50 of the Act and after obtaird.ng his con- sent took his search. Accordiug to bim, he bad seized the suitcase and as he had no instruments to seal the said suitcase,he brought the said suit- case in open condi'tion to the Police station. He has .further stated tbat after seizure of the articles he issued notice(Ex P-11 )to tbe accused requiring tbe.accused to produce his authority to possess the contrabaud. In paragraph 5 he states that he brought tbe accused and the contraband to the police station, produced them before the Station House Officer and lodged the First Information Report ( Ex P-4 ) According to bim he bad recorded the statefflents ot Ambikaprasad, Panchram, Maheshwar and Pramod Kumar. In tbe cross examination he bad stated that be had no prior j.nformation about tbe transit / trans- por-fcation of Ganja. He also denied tbe suggestion tbat the memorandums were prepared at th.e Police station. In paragraph 9 be had stated ttiat after completing the seizure formalities at about 5.30 AM he proceeded towards the police sta'tion at 6 AI"5 and reached tbere at 7 AM. He further stated that at the place of seizure be taad recorded the statements of bus conducter and the cleaner. 8. From the statements o£ th»s^witness^^ it would clearly appear that he had no prior in.formation. that a pariticular person sitting in a particular vehicle was transporting or carrying Ganja. When an o.E.ficer whether empowered or not uuder the pro- visions of sections 41,42 and 43 o£ the Act proceeds -5' with tbe searcta without kno-rfing that such person under search is carryi.ng contraband or not,then he is not required to issue him a notice under section 50 of the NEPS Act but the moment the empow-ered o£f.].cer comes to know that the person under search was carrying contraband then he bas to immediately follow the provislons of NDPS Act. If the officer \fho accidentally or by chance .Eound the narcotics is not an empowered o££icerttien immediately af-ter .finding the narcotics be has to inform ttie empowered o££icer wbo should thereafter proceed in accor- dance with the provisions of the NDPS Act. -Ttie que- stion has been very lucratively considered in the case o.f State o£ Pur^ab Vs. Balbir Singh ( supra ). After considerir^ tbe entire law iu relation to sections 41 , 42 aad 45, 50,52 and 57 of the -Act their Lordships have laid-dov/n certain guide-lines. In para 25 (1) their Lor'dships tiave directed as under :- " If a Police o^ficer without any prior information as con-templated under tbe pro- visions or the NDPS Act makes a searcb or arrests a person ia the normal course of investigatlon into an oj'fence or suspected o££encesas provided under the prdvisions of Cr.P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted aiid the question o£ complyirg witb the requireiaents thereunder would not arise. If durirg such search or arrest there is a chance recovery o£ any narcotic dryg or psychotropic substaace then -fche police oiticer, who is not empowered,should inform the empowered of.ficer who sbould therea-fter proceed in acoordance with the provisions of the NDPS Act. If he happens to be anempowered of.fi cer also, then from -that stage onwards,he should carry out ttie investigation in accordance with with the other provisioas ot the NDPS Act." From a perusal o£ tb.e said observatioas tt would clearly ap.pear tbat il a police officer without any prior information makes a search or arrests the person in normal course of investigation into an offence or suspected,.of£euce as provided under tbe provisions of the Gode ofCriminal Procedure > at that stage section 50 of the NDPS Act wauld not be attracted. Their Lordsbips have further observed that if during search tbere is a chance recovery o£ narcotics and psychotropic substance tnen the police of.ficer who is not empowered sfaould in.form the empowered o£.£icerwho shall thereafter proceed in accordance with the provisions o£ the I'OPS Act but i£ the office.r taking tbe search happens to be an empowered o.rficer,then .Crom that stage onwards he should carry-out the investigation in accordanee with the other provisio.ns o£ the Wffi'S Act. 9. The matter again came-up for consideration before "the Supreme Court ia -fche matter o£ State o£ Punjab Vs.'Baldev Singh. After reviewing and re-c&nsidering the entire law on the said subjects. their lord-ships have observed that section 50 of tfae Act would come into play only in the case of searcla of a person 4!as distinguisfaed £rom the search of any premises etc; However, i£ the empowered of£icer witbout any prior information as contefflplated in section 42 of the Act makes a search or causes arrest of a person during the normal course of Investigation into an offe.nce or suspected offence and on completion of that search, a contraband under the NDP S Act is also recovered,the requirement o£ section 50 o£ the NDPS Act is not attracted..Their Lordsbips have further observed that provisipns o.f pfaeyeVSVVf'- -7- sections . lOO.-and 165 of the Code of eriminal Procedure are not in'consistance with the provi- . sions o.f the NDPS Act and are applicable £or e£fe- cting search,seizure or arrest under the NDPS Act also. However, when an ernpowered o££icer caeryirg- on investigation including search,seizure or arrest under the provisions of Code o£ Crlaiinal procedure, comes across a person being in possession of narco- tic drug or the psycbotropic substance then he h.i.msel.f would follow from that stage onwards the provisions o£ the NDPS Act and coutinue ffi'B the investigation as provided thereunder. According to the Supreme Court If the investigating officer an is not^empowered o££lcerthen it is expected of him tnat he bimael-f stiould inform the empowered of£icer under the NDPS Act,who should therea£ter, . proceed from the .stage onwards in accordance with the provisions of the NDPS Act.Their Lordships also observed that if the mandatory provisions oj: tbeAct are not complied with t'nen tbesame may not vitiate the trial but would render the recovery of illicit articles suspected and vitiate tbe conviction and sentence o£ an accused, wbere tiae coiiviction has been recorded only on the basis of possession o£ tbe illicit articles recovered from his person during the search conducted in violation o£ the provisions of section 50 o£ the Act. ®B@&eB@e@®8!W®@Their Lord- ships have also observed tbat .Fe.covsr.yoS.such illi- cit articles in contravention o£ sec'tion 50 of the Act can not be used as evidence o£ proof of unlawful possession of ftie contraband though any otfaer maferial recovered during that search aay be relied upon by tbe prosecution,in other proceedii3gs._ ^Sugreme i -8. Court has also observed that a presumption under section 54 of the Act can only be raised after the prosecution had established that the accused was found. to be in possession of the contraband in his search conducted in accordance with the mandate o£ section 50 but an illegal search can not entitle the prosecu-tion to raise the presumption i under section 54 ot the Act. Sections 41,42 and 45 of the Act clearly provide that a searcJi and seizure can be efi'ected by an officer who has been so authorised either by the Central Goverr^nent or by the State Governnent. There is no notification of the Central Government authorising a bead consfable o£ Police as an e-BDOwered officer. 1@. By notification No. B-6-55-V-SR-85 - 4804 dt. 11.11.85, the State Government in exercise of powers conferred by sect.i.on 42 of the NDPS Act has empowered certain o.fficers £or the purpose of section 42 o£ the Ac.t within their respective jurisdiction. Ihe notification is in relation to certain officers o£ Excise Department,Police department, Revenue depart- ment and Drugs department. The clause relating to the Police departmeiit authorises the following persons : i) Superin-cendenr of Police / Additional Superin- teudent o£ Police. ii) Deputy Superintendent of Police iii) Assistant Superintendent o£ Police iv) Inspector v) Sub Inspector vi) Assistant Sub Inspector. From this notification it would clearly appear that a head constable xs bas not been empov/ered under section 42 of the IOPS Act to conduct search or seizure. 11. Section 42 au-thorises the empowered otficer to enter in certain enclosed premises,takiBg search, making seizure and arrest without warrant or turt'ner authorisation. Section 45 o£ the NIPS Act relates to powers of seizure and arrest ia public place»which provides that any ot'ficer of any o£ the departments menfioned In section 42 may seize in a.ty public place or in transit any narcotic or psychotropic substance in respect o£ v/hich he has reason to believe an of.fence has been committed. Such o.fi'icer has also been authorised to detain and search ary person wbom be has reason to believe to have committed an o.ffence puiu-shable under cbapter 4 and tas i-f such i, person has any narcotic drug or psychotropic substance .1; in bis possession and such possession appears to him l! to be unlaw£ul,arrest hia and another person in his ; company. i 1 11. ' In the presenl; case undisputedly PW-5 B.L.Sahu was Hot aut.horised as an emDOwered oSficer to take ' search and effect seizure.So far as the question of ' de.fence'of ;non coaFaiance o£ section 50 o.C the NDPS Act. is concerned,the same would not be availatole to the accused in view of the above dictua o£ tbe Supreme Court but the question still yould be whether tbe officer who was not empowered^B«»proceed witb the seizure and investigation. If tJ-ie concerned of.fi cer who accidentally or by cbance comes across the narcotic drug and psycbotropic substance then imme- -10- diately on finding the same he has to re-Eer the matter to an empowered officer who shall be obliged to proceed further in tlie matter in accordance with the provisions of the Ac'fc. In ttie present case,the head constable searched the person and immediately ttiereafter seized the articles. He proceeded .Curther with the investi' gation. He did not .iniorm the empowered officer tbat be biaiseif had by chance or accidentally ^ound tbat accused was holding the narcotric drug. He did not request tbe empoi<rered otficer to proceed further with the investigation. 12. Section 55 of the KQPS Act relates to pov/er to invest of.fi cer o.f certain department with the powers of o-fficer incharge of the police si.-ation. Section 55 of ttae NDPS Act reads as under :- 55 Power to invest of.ficers of certain departments wi'th powers of an oificer-in-cbarge of.a police station - (1) TheCentral government,after consultation with the State goverrmient,may, by notification published in tbe official gazette,invest any officer of the department o.f Central Excise,Narcotics,Customes,Revenue, Intelligence or Border Security Kirce or any class of such officers vd.th tbe powers of an officer incharge of a police station for the investigation o£ the oftence under this Act. (2) Tbe State goverrjnent aay,by notification published in tne of.ficial gazette,iavest any officer of the department of drugs control, revenue or excise or any cltiss of such officers with the powers of an officer-in-charge o-f a police statipn for the investigation o£ offences under this A:t." 12. No notification of. -ttie State government has been produced before me to show that the head constable of Police department has been authorised either by the Central goverriment or by the State government to make investigation into such olfences.or such head constable ^ -11- faas beea invested with the powers of an officer incbarge o£ a police s'tation. In tbe absence o£ sucb noti.fication authorisiug or empowering a bead constable,sucb head constable was not erititled to proceed further with the investigation. From the stateiuent o.C PW-5 B.L.Sahu it would clearly appear that a£ter .finding tbe narcotic drug with the accused,he did not request the empowered officer to proceed further with the investigation or seizure but he bimself proceed.ed with tbe seizure and investigatioa. The investigation itself being by a person who was not authorised,can not be held to be valld. 15. From the statement of PW-3 B.L.Sabu,it clearly appears that he acted as aa investigating officer under the provisions of the Code ofCriminal Procedure and not under the NDPS Act ( Special Act ) which did not authorise him to elfect seizure or make further investigation. 14. PW-3 B.L.Sahu in paragraph o£ his statement had clearly stated that after the notice Bc P-10 was given t^ him, accused gave his consent and wbile opening the attache he informed the witness that he was havirg 5 kgs o£ Garya. In accordance with the provisions of law it was expected of B..L.Sahu to stop then and tfaere and request an empovrered officer to proceed furtber. But said B.L. Saliu opened the attacfae and looked icfto the contents of the same. In view of above narration it has to be held that the searcia conducted by B.L.Sahu was illegal because while opgning the attache tbe accused had informed him that be was carrying Snja. Ihe law says that -12. tn such a situation the ampowered officer should have been requested to proceed with search. The search conducted by said B.L.Sahu (PW-5 ) was certainly illegal because tie had the in£ormation that the attache carried by accused contained Ganja. 15. In the F.I.R.(Ex P-4 ) said B.L.Sahu had stated that on inquiries tbe accused had informed him that he was carryir(g Ganja. In tiae report^ said B.L.Sanu had further stated that be bad seized the attache and Ganja <iu»d®t>(ExP-1^), This seizure would again be contrary to the provisions of law. 16. PW-1 Cbandra Badan Mishra, Reader to SDO (P) was examined to prove tbe information sent to the SDO (P) from tbe concerned police station. Pri-2 B.S.Thakur y&s is the Station House Incharge of Police Station Saraipali. Ibis witness has clearly admitted that the accused was produced with the seized Sinja. Accordiag to bim the contraband was weigiaed in the police station and samples were drawn. He also stated that Ganja seized from the accused v/as brought to tbe police station in an open condition. He also admitted that there were certain over-writings in Ex P-1. 17. P'fS-lf- Sunderlal is a witness to sample,memorandum and weighaent. Pw-5 Ambika Prasad is the person before wbom tbe accused was searched and seizure was effected In para 1 o.C his statement be clearly stated that flrst the accused denied but later on informed the police that he was carrying Gar.ya in his attache. From the statement o£ tbis witness also it would appe-ar that before taking-ihjfe^. search the head constable received i Kt •15- the in.formation that accused was carryirjg Ganja a»d1~1- in accordance with law he did not ±n£ormthe empowered of.fi cer to come and take cbarge o£ the furtber pro- ceedlrgs. 18. From tbe above discussion It would clearly appear that ttie search was illegalf. The seizure was ef-fected by the person who was not authorised under the law and the investigation -was conducted by an ot'ficer wbo was not empowered under the law. In view o£ these legal violations of the provisions of law it would not be possible -for the court to adrait tbe evidence relatiiig to searcl'i and seizurejiaor the investigation can be held to be valid. 19. For 'the reasons a-foresaid the appeal deserves to and is accordingly allowed. The conviction o£ the accused and award of sentence to him are set-aside. He is acquitted of all the charges. Ihe accused wbo appears to be in Jail be immediately released if not required in connection vilth any otbeiB case. Sd/- R.S. Garg judge •Jyotishl