Suresh vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned Additional Sessions Judge, Rohtak in Sessions Case No. 31 of 1987 (Sessions Trial No. 2 of 1988) dated 13.7.1988.

The case of the prosecution is that on 1.4.1987, the patrolling party consisting of the Sub Inspector and two Assistant Sub Inspectors and four constables were present at Rohtak. At 5.10 a.m. a bus of Haryana Roadways came from Delhi and the same was stopped by the patrolling party. The accusedSuresh was also one of the passenger standing in the bus with an attachecase. Then the Sub Inspector of Police searched attempting by taking the attache case from the hands of the accused. The said attache case was searched and ply of false bottom was broken and below it there was a plastic bag containing opium and the same was recovered by the Police. Out of it 10 grams opium was separated as sample and parcels of the same and the remaining bulk were prepared and were sealed with seal bearing inscription RK and a ruqa was sent to the Police Station for registration of the case and on the basis of which the investigation was taken up and after completion of the investigation, a chargesheet was filed.

In order to prove the guilt of the accused, the prosecution examined 5 witnesses.

After closure of the evidence of the prosecution, the accused was examined under Section 313 of the Code of Criminal Procedure and in defence the accused has not examined any witness.

On consideration of the evidence on record, the learned Additional Sessions Judge convicted the accused for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. One lakh. In default of payment of fine, to further undergo rigorous imprisonment for a period of two years.

Aggrieved by the same, the appellant preferred the appeal.

The evidence of PW3 shows that the accused was travelling in the bus having an attache case in his hand and on suspicion he was got down from the bus and the attache case was searched and in the ply of the attache case 2 kgs of opium was found in plastic bag and the same was referred in the panchnama. Samples were also taken.

The evidence of PW4 is also to the same effect.

The prosecution did not adduce any evidence whether the accused was informed of his rights either to be searched before the Gazetted Officer or the Magistrate, before making search. Thus, there is a clear violation of the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act which is mandatory in nature.

Learned counsel for the State contended that the search has not made (sic) suspicion that the accused is having possession of narcotic drug and psychotropic substance. Therefore, there is no need to follow the procedure under Section 50 of the Narcotic Drugs and Psychotropic Substances Act.

This contention has to be repelled in view of the decision of the Apex Court in State of Punjab v. Balbir Singh, JT 1994(2) SC 108. The Apex Court observed that the search, seizure, arrest carried out by the Police Officer are obviously under the provisions of Code of Criminal Procedure. The provisions of arrest, warrant, search and seizure are incorporated in Sections 41 to 60, 70 to 81, 93 to 105 and 165 of the Code of Criminal Procedure. It may also be noticed at this stage that NDPS Act is not a complete Code incorporating all the provisions relating to search, seizure or arrest etc. The said Act after incorporating the broad principles regarding search, seizure or arrest etc. in Sections 41, 42, 43 and 49 has laid down in Section 51 that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of the NDPS Act to all warrants issued and arrests, searches and seizures made under that Act. Therefore, the provisions of Section 100 and 165 Cr.P.C. which are not inconsistent with the provisions of the NDPS Act are applicable for effecting search, seizure or arrest under the NDPS Act also. The words "in so far as they are not inconsistent with the provisions of this Act in Section 51 of the NDPS Act" are significant. It may also be noted that Section 4 of the Cr.P.C. 1973 provides that all offences under any other law shall be investigated and inquired as mentioned therein. Section 50 of the NDPS Act laid down that (1) any officer duly authorised under Section 42 to search any person under the provisions of Section 41, Section 42, or Section 43, 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 Subsection (1), (3) The Gazetted Office or the Magistrate whom any such person is brought shall, if he sees no reasonable grounds for search, forthwith discharge the person but otherwise shall direct that search be made.

The Apex Court further held that it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. This is a valuable right given to the person to be searched in the presence of a gazetted officer or a magistrate if he so requires, since such a person (procudure ?) would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provisions implicitly make it obligatory on the authorised officer to inform the person to be searched on his right. It is further observed that it is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power, thus conferred so that any harm to the innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted.

From the evidence of PW3 and PW4, it is clear that they were suspecting the accusedappellant while in bus having in possession of contraband. Therefore, they only picked up the accused out of the several passengers travelling in bus and asked him to get down from the bus and made a search. Thus it is clear that it is only on the basis of suspicion that the accused was having in possession some contraband, the Police party searched him. Therefore, it is clear as held by the Supreme Court in State of Punjab v. Baldev Singh, JT 1999(4) SC 595 : 1999(3) RCR(Crl.) 533 that Section 50 of the NDPS Act would come into play in the case of a search of a person. Since the evidence does not disclose that while conducting search and seizure the provisions of Section 50 of the NDPS Act are not followed, I am of the opinion that the accused is entitled to be acquitted. If a police officer without any prior information as contemplated under the provisions of NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted. But that is not a case here. The patrolling party was not investigating into any other case and that the accused person was not searched for commission of any other offence and no other case against the accused has been registered so that the police required to search.

In these circumstances, in view of the noncompliance of the provisions of Section 50 of the NDPS Act, I am of the opinion that the accusedappellant is entitled to be acquitted of the charges framed against him. Accordingly, the appeal is allowed and the bail bonds stand cancelled.