Sham Sundar vs State by S.I. NIB, C.B., C.I.D.

Swamidurai, J.—The first accused is the Appellant. The second accused was already acquitted by the trial court. Both the accused were found in possession of Ganja weighing 450 grams of 22 packets packed in three packets without valid permit licence or authority and thereby committed an offence punishable u/s 8(c) of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as the act) and punishable u/s 20(b)(i) of the said Act. The second count of the charge was that both the accused were also found in possession of two packets of Heroin powder weighing 75.6 grams, without valid permit licence or authority and thereby committed an offence u/s 8(c) of the Act punishable u/s 21 of the said Act.

PW.1 is the Inspector of Police (P.I.B.). On 1.7.1986 he had received a telephonic message and on the supervision of Deputy Superintendent of Police, Ponnaian he proceeded to door No. 30, Pillaiyar Koil Street, Vadapalani at 11 a.m. and made a search in the presence of witnesses Moulani and Narayanaswamy. P.W.1 seized four packets from the room occupied by the first accused and in one of the packets there was 23.5 gms. and in another packet there was 19.1 gms. and in the third packet there was 17 gms. and in the fourth packet there was 14 gms of Heroin powder and in a polythene bag there was 130 gms. of ganja and in another bag there was 180 gms. of ganja and in the third bag there was 140 gms. of ganja. Besides these materials P.W.1 had also seized two 100 rupees notes kept in a polythene bag and also 135 gms. of Halwa mixed with Heroin powder and when questioned the first accused he informed PW. 1 that Rajendra Mohan was his younger brother and that he had taken the house on rent. The said Rajendra Mohan is the second accused in this case. Then P.W.1 arrested the first accused and produced the material objects before the Sub Inspector of Police. On seeing P.W.1 the second accused escaped from the scene.

M.O.1 is 23.5 gms of heroin packet. M.O. 2 is 19-1 gms of heroin packet. M.O. 3 is a packet containing 17 gms of heroin powder. M.O.4 is a packet containing 17 gms. of heroin powder M.O.5 is a packet containing 130 gms or Ganja. M.O.6 is a packet containing 180 gms of ganja. M.O.7 is a packet containing 140 gms of ganja. M.O.8 is two hundred rupees notes. P.W.I searched the entire house occupied by the accused and Ex.P.2 is the search list. In the search list he obtained the signatures of Amaludeen and Narayanasamy in which first accused also has signed. P.W.1 has admitted in cross examination that there is a correction of 14 gms in Ex.P.2. It was also submitted by him that there was a message book in the control room and that he had information that heroin business was being carried on at No. 30, Pillaiyar Koil Street. According to him the telephone message would have been recorded but he had not produced the same before the trial court, it was suggested to this witness that no such telephone message had been received by him but the witness denied the suggestion as incorrect. He sent for P.W. 2 an old paper merchant and P.W.2 was having weights from one gram to one kilo. P.W.1 admitted that heroin and other materials were weighed along with papers only, he has also admitted in cross examination that he had made certain corrections in the search list. From his own experience he is telling that the material objects seized by him are ganja and heroin. P.W.2 is the public referred to by P.W.1 in his examination. But this witness turned hostile and, therefore, his evidence is not helpful to the case of the prosecution.

P.W.3 Venkatachalam was the sub inspector of police at the time of the occurrence. His evidence is that P.W.1 came to his office at 3 p.m. on 1.7.1986 and he produced three packets of ganja four packets of heroin powder and two currency notes and some halwa covered in a polythene paper. Ex.P.1 is his special report and on the order of the Deputy Superintendent of police he registered a case in Crime No. 58 of 1986 under Sections 20(b)(1) and 21 of the act. he sent Ex.P.4 express F.I.R. to the court of the Judicial Magistrate and he examined the accused and thereafter he was produced before the Judicial Magistrate Saidapet P.W.3 produced the material objects before the trial court to send the material objects for chemical examination. After receiving the report and after examining the witnesses, P.W.3 was transferred on 12.1.1987. In cross-examination P.W.3 has admitted that whenever he has to go for a search he would take the balance and also the weights. It is admitted by him that he did not seize the material objects from P.W.1. It was suggested to this witness that no such occurrence had taken place and that a false case was laid against the accused but this witness has denied the suggestion as incorrect.

P.W. 4 Michael Raj was the Sub Inspector of Police and he took up further investigation of this case on 12.1.1987. He received the Chemical Examiner''s report and he verified the investigation made by his predecessors and after receiving the report he filed a charge sheet on 9.12.1987 against the accused. Ex. P.7 is the Chemical Examiner''s report. The accused when questioned u/s 313 Cr.P.C with reference incriminating circumstances appearing against him from the evidence of the prosecution witnesses they denied the charge and pleaded not guilty. The learned Sessions Judge found the second accused not guilty, as stated above, and acquitted him. But he found the first accused guilty u/s 21 of the Act and sentenced to undergo R.I. for 10 years and also to pay a fine of Rs. 1,00,000/- in default, to undergo R.I. for 2 1/2 years. Learned Sessions judge also found the first accused guilty u/s 20(b)(1) of the said Act and convicted and sentenced him to undergo R.I. for five years and also to pay a fine of Rs. 50,000/- in default to undergo R.I. for 11/2 years and directed the sentence to run concurrently.

Mr. S. Venkataraman learned Counsel for the Appellant raised several grounds in his grounds of appeal and among others some of them are very relevant, he raised the objection that the prosecution itself is unsustainable in view of the non compliance of the provision u/s 42 of the act. S. 42 of the act reads as follows:

Power of entry, search, seizure and arrest without warrant or authorisation: (1) any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Boarder Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or the constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance in respect of which an offence punishable under chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset.

(a) enter into and search any such building, conveyance or place:

(b) in case of resistance, break open any door and remove any obstacle to such entry,

(c) seize such during or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating such drug or substance; and

(d) detain and search and if he thinks proper arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance:

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the Proviso thereto he shall forthwith send a copy thereof of his immediate official superior.

His objection is that an officer competent to make a search under this Act if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building or conveyance or enclosed place may, between sunrise and sunset enter into any building, conveyance place. Admittedly in this case P.W.1 has not taken down in writing the reason to believe from personal knowledge or information given by any person. The evidence of P.W.1 is that he had received a telephonic message and that the same might have been recorded. But unfortunately he has not produced the telephonic message before the trial court nor has he filed any such document to show that he has taken down in writing his reason to believe from personal knowledge or information given by any person. This part of the section has not been followed by the prosecution.

The second contention raised by learned Counsel for the Appellant is that the provision u/s 50 of the Act has also not been followed by the prosecution. S. 50 of the Act reads as follows:

Conditions under which search of persons shall be conducted:(1) When any officer duly authorised u/s 42 is about to search any person under the provisions of S. 41 and 42 or S. 43 he shall, if such person so requires take such person without unnecessary delay to the nearest Gazetted Officer or 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 any one excepting a female.

S. 50 is a safeguard to the accused, as contemplated by the Parliament, since when any officer duly authorised u/s 42 is about to search any person under the provisions of S. 41, S. 42 or S. 43 he shall, if such person so requires take such person without unnecessary delay to the nearest Gazetted Officer of any other departments mentioned in S. 42 or to the nearest Magistrate. Learned Public Prosecutor submitted that the provision of S. 50 would apply in the case of personal search as contemplated u/s 41 of the Act and not in respect of search made in any building, conveyance or place or in the public place or in a different place as contemplated u/s 42 or 43. According to him S. 50 of the Act is applicable only to S. 41 and to no other searches made u/s 42 or 43 of the act. If that is the intention of the Parliament Parliament need not have incorporated S. 42 or 43 even S. 50 and the Parliament would have avoided Section 42 or 43 within the ambit of S. 50. The second contention raised by the learned Public prosecutor with regard to the provision u/s 50 is that if the accused person so requires then the officer shall take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in S. 42 or to the nearest Magistrate. Here also, I am unable to accept the contention of the learned Public Prosecutor since the Parliament would not have intended that persons who are accused under this act would know the entire provisions of the act thoroughly and would make a request to the officer concerned to take them to the nearest Magistrate or to the Gazetted Officer. This provision also have been misread by the prosecution. The officer concerned could have asked the accused whether he would require to be taken to the nearest Magistrate or to the Gazetted Officer and if that person would say that he was not willing to do so it is not necessary for the prosecution to take the Gazetted Officer. The provision of S. 50 of the Act is mandatory. He shall if such person requires take such person without unnecessary delay to the nearest gazetted Officer of any of the departments mentioned in S. 42 or to the nearest Magistrate. Learned Public Prosecutor contended that the accused is expected to know the law and that therefore the accused did not require the officer to take him to the nearest Gazetted Officer or to the nearest Magistrate. If that argument is accepted, in every case, the prosecution would say that the accused did not require to take him before the Gazetted Officer or Magistrate and therefore he did not do so. Sub Clauses(2)and (3) of S. 50 empowers the Gazetted Officer or the Magistrate before whom any such person brought shall, if he sees no reasonable ground for search forthwith discharge the person but otherwise shall direct that search be made. Therefore S. 50 is also not followed in this case.

Mr. S. Venkataraman,learned Counsel for the Appellant relied upon the judgment in Mithukhan Vs. State of Rajasthan, In the judgment it is stated:

Inspector Narcotics together with the informer and a number of policemen surrounded the Petitioner''s house with a view to hold a raid and search the premises for narcotics believed to be kept concealed thereat. The Inspector had not recorded in writing the grounds of his belief specifying therein the thing for which search was to be made thus violating the provisions of Section 165(1) of Criminal P.C. The Petitioner struck the inspector as also the informer when they were attempting to enter the house and prevented their entry. Petitioner was thereupon prosecuted for his acts.

Held (1) that all searches under Ss.14 and 15 of the Opium Act are to be made in accordance with Section 165 of Crl. P.C. which is mandatory and non compliance of which render the search illegal.

(2) that the person sought to be searched had the right to private defence of property against such illegal search and therefore he would not be guilty for obstructing the officers effecting the search.

(3) that the acts of the officers did not attract the exception contained in S. 99 of Penal Code since u/s 52 of the Penal Code they could not be considered to be bonafide. The officers empowered to the effect searches u/s 14 of the Opium Act should be presumed to know the law and the act having been done in contravention of the mandatory provisions of law it must be held to have been done without due care and attention. The facts were therefore not bonafide within the meaning of S. 52 of Penal Code;

The searches u/s 14 and 15 Of the Opium Act are similar to the provisions of S. 41, 42 and 43 of NDPS Act and the ratio applies to the facts of this case.

10 Excepting evidence of P Ws. l, 3 and 4 who are officials of the department there is no other independent evidence in this case. P.W.3 has turned hostile and his evidence is not helpful. The evidence of P.W.1 also cannot be accepted in the circumstances of the case. His evidence is that he has sent for a public weigher for the purpose of weighing the materials and P.W.2 is an old paper merchant and P.W.1''s evidence is that he was having weights from one gram to one kilo and that all the materials were weighted with papers only. This sort of evidence cannot be accepted at all without any independent corroboration because the accused person has been charged seriously with grave offence and the punishment is ten years, R.I. and a fine of Rs. 1,00,000/- P.W.3 is not an eye witness and therefore his evidence cannot be corroborative to the evidence of P.W.1. Therefore, the prosecution failed to bring the guilt of the accused with acceptable evidence.

In the circumstances the conclusion arrived at by the trial court cannot be upheld. In the result, the conviction and sentence are set aside and the Appellant is acquitted. In the result the appeal is allowed.