Whether the compliance of mandatory provisions of Section 50 and 42 of the NDPS Act is necessary in this case ?
Held: There was no personal search of A.1. The Ganja was alleged to be found in the bag which was in possession of A.1. It is a case virtually Section 50 of the NDPS Act has no application when there was no personal search. Absolutely, it is not the case of the prosecution that the investigating officer received any information that Ganja was stored in any building or in any conveyance. So, absolutely, the case on hand does not attract the compliance of Section 42 of the NDPS Act. In the present case the accused and property was produced before the Executive Magistrate i.e., P.W.2 on the date of detection of the case itself and the samples were lifted then and there before the Executive Magistrate i.e., P.W.2. Hence, it cannot be held that there was delay in this case in lifting the sample in violation of Section 52(A) of the NDPS Act - Conviction upheld - Criminal Appeal dismissed.
2024] 1 A.P.L.R. 173 : 2024:APHC:2791
BHAJA JAL v. THE STATE OF A.P. & ANOTHER
(CRIMINAL APPEAL 394 of 2011)
29 January 2024
Sri Justice A V Ravindra Babu
Issue for Consideration
Whether the compliance of mandatory provisions of Section 50 and 42 of the NDPS Act is necessary in this case and if so whether they are complied by the investigating officer and whether the judgment, dated 11.03.2011 is sustainable under law and facts?
Headnotes
The Narcotic Drugs and Psychotropic Substance Act,1985- Sections 42 and 50- A.1 carrying a big shoppy bag with his right hand along with A.2 discussing together. They came out from the bus stand to the rickshaw stand. PW.4 in the presence of mediators detained A.1 and A2 - A.1 and A.2 disclosed their identity on questioning and confessed that they possessed ganja in the bag. Then, L.W.8 issued a search notice to the accused informing the provisions of Section 50 of the NDPS Act - On taking willingness from A.1 and A.2 to be searched before a gazetted officer, a mediatornama was drafted there and both accused were taken to the nearest gazetted officer - Contraband was seized and samples were drawn in the presence of gazetted officer and mediators. Accused No.1 convicted - On Appeal.
Held: There was no personal search of A.1. The Ganja was alleged to be found in the bag which was in possession of A.1. It is a case virtually Section 50 of the NDPS Act has no application when there was no personal search. Absolutely, it is not the case of the prosecution that the investigating officer received any information that Ganja was stored in any building or in any conveyance. So, absolutely, the case on hand does not attract the compliance of Section 42 of the NDPS Act. In the present case the accused and property was produced before the Executive Magistrate i.e., P.W.2 on the date of detection of the case itself and the samples were lifted then and there before the Executive Magistrate i.e., P.W.2. Hence, it cannot be held that there was delay in this case in lifting the sample in violation of Section 52(A) of the NDPS Act - Conviction upheld - Criminal Appeal dismissed. (paras24,28 & 35)
Acts
The Narcotic Drugs and Psychotropic Substance Act, 1985.
Keywords
Personal Search, Mandatory provisions, delay in lifting samples, Ganja,
Case Law/Reference Cited
Matta Prasad v. State, represented by Prohibition Excise Circle Inspector, State of Orissa v. Laxman Jena, BantapalliDurgaRao and others v. State of A.P., rep. by its Public Prosecutor, Kashif vs. Narcotics Control Bureau of High Court of Delhi, BodabandSundar Singh vs. State of A.P., KalemeThumba vs. State of Maharashtra, State of Punjab vs. Baladev Singh, SaikouJabbi vs. State of Maharashtra, State of Haryana v. Jarnail Singh and others
Appearances For Parties
For Appellant: Sri A.S.K.S. Bhargav, representing Sri P. Durga Prasad
For Respondents: Public Prosecutor
Case Arising From
Criminal Appeal is to the judgment, dated 11.03.2011 in NDPS S.C.No.1 of 2007, on the file of Special Sessions Judge for Trial of the Cases under the Narcotic Drugs and Psychotropic Substance Act, 1985-cum-I Additional Sessions Judge, Vizianagaram, where under the learned Special Judge found the present appellant/A.1 guilty of the charge under Section 8(c) r/w 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substance Act, 1985, convicted him under Section 235(2) of the Code of Criminal Procedure and after questioning him about the quantum of sentence, sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for six months. The learned Special Judge found A.2 not guilty of the charge under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and acquitted him under Section 235(1) of Cr.P.C.
Judgment/Order
Challenge in this Criminal Appeal is to the judgment, dated 11.03.2011 in NDPS S.C.No.1 of 2007, on the file of Special Sessions Judge for Trial of the Cases under the Narcotic Drugs and Psychotropic Substance Act, 1985-cum-I Additional Sessions Judge, Vizianagaram (“Special Judge” for short), where under the learned Special Judge found the present appellant/A.1 guilty of the charge under Section 8(c) r/w 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (“NDPS Act” for short), convicted him under Section 235(2) of the Code of Criminal Procedure (“Cr.P.C.” for short) and after questioning him about the quantum of sentence, sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for six months. The learned Special Judge found A.2 not guilty of the charge under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and acquitted him under Section 235(1) of Cr.P.C.
2) The parties to this Criminal Appeal will hereinafter be referred to as described before the Special Court for the sake of convenience.
3) The case of the prosecution, in brief, according to the charge sheet filed by the Prohibition & Excise Inspector, Bobbili in Crime No.49 of 2006-07, is that A.1 is resident of Jathupali Village, Nanpada District of Orissa State. A.2 is resident of Pydiparthi Village of Mentada Mandal.
4) On 19.12.2006 at about 1-00 p.m., on a phone message received L.W.8-P. Suryanarayana, Prohibition & Excise Inspector, Bobbili, entered information in the General Diary left the station along with L.W.4-P. Krishna Rao, Prohibition & Excise Sub-Inspector; L.W.5-M.S. Pentayya, Prohibition & Excise Head Constable; L.W.6- K. Appala Raju, Prohibition & Excise Constable and L.W.7-T. Geeta Rani, Prohibition & Excise Constable and proceeded to Mandal Revenue Office, Bobbili. They made a requisition to Mandal Revenue Officer and in turn Mandal Revenue Officer deputed L.W.1-A.P.S. Gollapalli and L.W.2-V. Simhachalam Tayari, the revenue personnel to act as mediators. They left the office of Mandal Revenue Officer with mediators and reached rickshaw stand of Bobbili Bust Stand (Complex) at 2-00 p.m. They found A.1 carrying a big shoppy bag with his right hand along with A.2 discussing together. They came out from the bus stand to the rickshaw stand. L.W.8 in the presence of mediators detained A.1 and A.2. A.1 and A.2 disclosed their identity on questioning and confessed that they possessed ganja in the bag. Then L.W.8 issued a search notice to the accused informing the provisions of Section 50 of the NDPS Act. On taking willingness from A.1 and A.2 to be searched before a gazetted officer, a mediatornama was drafted there and both accused were taken to a nearest gazetted officer. They were taken to the Mandal Revenue Office, Bobbili. They produced A.1 and A.2 before Mandal Revenue Officer, Bobbili at 4-00 p.m. on 19.12.2006. The Mandal Revenue Officer, Bobbili in the presence of mediators searched the big shoppy bag and found ganja having leaves, tops, flowers and small stems. Then with the available measures, Mandal Revenue Officer, got measured the ganja bundle and found it as 6 kgs. Then L.W.8 took two samples i.e., 50 grams of each, packed them separately in the presence of mediators. The remaining ganja was packed and it is sealed in a bundle of ganja and two sample packets are also sealed with proper identity slips and with signatures of the mediators and officers. A mazarnama was drafted to that effect. L.W.8 in the presence of mediators arrested the accused informing the grounds of arrest. He along with the staff, accused and property returned to the station at 5-15 p.m., on 19.12.2006 and registered the mahazar as a case in Crime No.49 of 2006-07 under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and issued FIR. On 20.12.2006 property was produced before the Additional Judicial Magistrate of First Class, Bobbili for custody. On 20.12.2006 Inspector sent a detailed report regarding the arrest of the accused and seizure of ganja to the higher officials as contemplated under Section 50(6) of the NDPS Act. As per the orders of jurisdictional Magistrate, property was produced before the Court on 23.12.2006 and later it was forwarded to the chemical examiner. The chemical examiner examined the samples and opined that they are of ganja. Hence, the charge sheet.
5) The learned Special Judge took cognizance of the case under the above provisions of law and on appearance of the accused and after compliance of the provisions of Section 207 of Cr.P.C., the learned Special Judge framed the charge under Section 8(c) r/w 20(b(ii)(B) of N.D.P.S Act against the accused and explained to them, for which they pleaded not guilty and claimed to be tried.
6) In order to establish the guilt against both the accused, the prosecution examined P.W.1 to P.W.5 and got marked Ex.P.1 to Ex.P.10 and further M.O.1 to M.O.3. After closure of the evidence of prosecution, accused were examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which they denied the same. A.1 stated that when he was travelling in the bus, police called him and obtained his signature and filed a case. A.2 stated that when he was near RTC complex, police caught hold of them and filed a case.
7) The learned Special Judge, on hearing both sides and on considering the oral as well as documentary evidence, found A.1 guilty of the charge under Section 8(c) r/w 20(b(ii)(B) of N.D.P.S Act, convicted and sentenced him as above. The learned Special Judge acquitted A.2 mainly on the ground that no ganja was recovered from the possession of A.2 and the bag was found only in the possession of A.1 and except the so-called confession, they remained nothing to connect the offence in question with A.2. Felt aggrieved of the aforesaid conviction and sentence, the unsuccessful A.1 filed the present Criminal Appeal.
8) Now, in deciding this Criminal Appeal, in the light of the contentions advanced, the points for determination are as follows:
(1) Whether the compliance of mandatory provisions of Section 50 and 42 of the NDPS Act is necessary in this case and if so whether they are complied by the investigating officer?
(2) Whether the prosecution proved that A.1 was found in possession of 6 kgs. of ganja on 19.12.2006 at 2-00 p.m., at RTC Bus Stand, Bobbili, in the manner as alleged by the prosecution in violation of the provisions of NDPS Act?
(3) Whether the judgment, dated 11.03.2011 is sustainable under law and facts?
POINT NOS.1 TO 3:-
9) As seen from the evidence of P.W.1, he is the mahazar witness i.e., Village Revenue Officer. His evidence is that on 19.12.2006 at 1-30 p.m., he was at the office of the Mandal Revenue Officer, Bobbili. Excise police came to Mandal Revenue Officer Office. His Mandal Revenue Officer asked him and L.W.2-V. Simhachalam, Talayari, Pata Bobbili, to accompany the excise officials. They accompanied the excise officials to RTC Bus Stand, Bobbili at 1-50 p.m. They reached the parking place of rickshaw stand. They noticed two persons coming from the bus stand and out of them one was carrying hand bag. They perturbed on seeing the excise officials and excise officials took them into custody. L.W.8 questioned them about the contents of hand bag and they revealed that it contained ganja. The accused are the said two persons. A.1 was carrying the said bag. L.W.8 obtained consent from both the accused to be searched before a gazetted officer by issuing notices under Ex.P.1 and Ex.P.2. He and L.W.2 attested on Ex.P.1 and Ex.P.2. Both A.1 and A.2 also signed and put thumb impressions on Ex.P.1 and Ex.P.2. A mahazar was drafted to that effect. He, L.W.2, excise officials signed it. Ex.P.3 is the mediators report. Then they went to Mandal Revenue Officer Office, Bobbili along with two persons. At 4-00 p.m., Mandal Revenue Officer came there. Both the accused produced before him with hand bag. At the request of L.W.8, Mandal Revenue Officer searched hand bag of A.1 and found ganja. L.W.3 got weighed and it measured as 6 kgs. L.W.8 took two samples weighing about 50 grams each from the ganja for chemical analysis, wrapped in paper and sealed. He seized the remaining ganja after taking samples. He seized hand bag which contained ganja. A report was drafted which is Ex.P.4. Identity slips are pasted on the samples. He and L.W.2 signed it. Both the accused signed and put thumb impressions. M.O.1 is the hand bag. M.O.2 is the manure bag. M.O.3 is the two sample packets.
10) As seen from the evidence of P.W.2, he is the Mandal Revenue Officer, who supported the case of the prosecution. According to him, on 19.12.2006 at request of excise police, he deputed P.W.1 and L.W.2 to act as mediators under Ex.P.5 requisition. Later, at 3-30 p.m., Sub Inspector and Inspector came to his office and telephoned to him when he was at his house. Then he came to his office at 4-00 p.m. Then he found Sub Inspector, Inspector, P.W.1, L.W.2 and both the accused. L.W.8 requested him to search the hand bag of the accused as they suspected ganja. He gave a request to that effect which is Ex.P.6. He got opened the hand bag and found ganja in another bag. L.W.8 got weighed ganja and found it as 6 kgs. He drawn two samples from ganja which are wrapped with a paper and identity slips were affixed. He signed on identity slips. L.W.8 seized the remaining ganja in the hand bag. A mediators report was drafted. M.O.1 to M.O.3 are the said property seized by L.W.8.
11) P.W.3 is the Prohibition & Excise Sub Inspector, who participated in the raid and according to him he accompanied CI of Police to the office of Mandal Revenue Officer for securing mediators and secured P.W.1 and another through P.W.2. They reached Bobbili RTC Bus Stand at 2-00 p.m. and found the accused coming from inside complex. A.1 is holding a polythene bag. On suspicion Inspector of Police took them into custody and interrogated them and A.1 confessed that the bag contained ganja. Inspector issued notices to the accused under Ex.P.1 and Ex.P.2 and a separate report was drafted. Later, they all went to the office of the Mandal Revenue Officer along with accused. Accused did not raise any objection for bringing them before a gazetted officer. Mandal Revenue Officer came at 4-00 p.m. At request of Inspector with a requisition, P.W.2 searched the bag of A.1 and found ganja which is measured as 6 kgs. Inspector lifted samples and seized the rest of the ganja and wrapped the samples in a paper and they all signed the mahazar. Inspector arrested the accused and they returned back to the police station. M.O.3 is two sample packets.
12) P.W.4 is no other than the investigating officer. According to him, on 19.12.2006 at 1-00 p.m., he received message that ganja was being transported. He left station along with P.W.3 and his staff to the office of Mandal Revenue Officer, secured P.W.1 and L.W.2 by issuing a requisition. They left the office of Mandal Revenue Officer along with mahazar witnesses and others and reached rickshaw stand near RTC bus stand. They found two persons talking with each other and one person is holding a bag coming from inside the bus stand. On suspicion, they took them into excise station and interrogated them. The person who was holding bag disclosed that it contained ganja. A.1 and A.2 are the said two persons. A.1 was carrying bag. By issuing Ex.P.1 and Ex.P.2, he obtained the consent of them to be searched before a gazetted officer and a mahazar was drafted there. They all proceeded to the office of Mandal Revenue Officer along with accused and produced bag before Mandal Revenue Officer at 4-00 p.m. and at his request, Mandal Revenue Officer searched the bag and found ganja which is measured as 6 kgs. He lifted samples and affixed identity slips and that he seized the samples and rest of the ganja and that he arrested the accused and brought them to police station and sent them to remand after registration of FIR. He also informed to Prohibition & Excise Superintendent about the arrest of the accused vide covering letter under Ex.P.4. He sent samples to Magistrate at Bobbili along with remand report. On 20.12.2006 Magistrate returned the property with a direction to produce it before the Court at a later time. On 23.12.2006 property was produced before the Court with a covering letter. The samples were sent to the analyst through Court on 26.12.2006. As per the analyst report, the samples belong to cannabinace. He has the power to investigate the case vide Ex.P.9 certified copy of G.O.Ms.No.183, dated 14.02.1986. M.O.1 to M.O.3 are the samples.
13) The prosecution examined P.W.5, a chemical analyst, who deposed that he worked as Government Chemical Examiner, Prohibition Regional Laboratory, Visakhapatnam. On 04.01.2007 he received two sample packets from Prohibition & Excise Station, Bobbili through the Court pertaining to Crime No.49 of 2006-07 of Bobbili Prohibition & Excise Station. The seals are intact. He issued serial numbers and analysed the samples and found that they are of ganja. Ex.P.10 is the chemical analyst report.
14) Sri A.S.K.S. Bhargav, learned counsel, representing Sri P. Durga Prasad, learned counsel appearing for the appellant, would vehemently contend that there was utter violation of Sections 50 and 42 of the NDPS Act. There was no proper compliance of Section 50 of the NDPS Act. Though the investigating officer received information about the transportation of Ganja, he did not comply Section 42 of the NDPS Act. There was delay of 15 days in sending the samples to the Chemical Examiner and the prosecution did not prove the chain of custody of the contraband Ganja. The evidence of P.W.2 did not reveal that he was introduced with the accused as a Gazetted Officer. It is the manner in which Section 50 of the NDPS Act was violated. When the mandatory provisions of Sections 50 and 42 of the NDPS Act were in utter violation, accused is entitled for an acquittal. On account of the delay in sending the samples and on account of non-proving of the chain of custody of contraband Ganja, accused is entitled for an acquittal. P.W.1 was a witness who used to oblige the excise officials to give evidence and to act as a mediator whenever requested, as such, his evidence is to be appreciated with care and caution. A.1 was resident of Orissa and he had nothing to do with the transportation of Ganja and when he was in bus stand, police implicated him in a false case. The learned Special Judge having recorded an order of acquittal in favour of A.2, ought to have extended the same benefit in favour of the present appellant, as such, appeal is liable to allowed. He would further submit that the evidence of P.W.1 to P.W.4 is not at all convincing and their evidence cannot stands to the test of scrutiny, as such, accused is entitled for an acquittal.
15) The learned counsel for the appellant in support of his contentions, relied upon the decisions in (1) Matta Prasad v. State, represented by Prohibition Excise Circle Inspector[1], (2) State of Orissa v. Laxman Jena[2], (3) Bantapalli Durga Rao and others v. State of A.P., rep. by its Public Prosecutor[3] and (4) Kashif vs. Narcotics Control Bureau of High Court of Delhi[4].
16) Sri N. Sravan Kumar, learned counsel, representing the learned Public Prosecutor, would contend that there was no personal search of the accused. Absolutely, compliance of Section 50 of the NDPS Act was not at all necessary. However, the investigating officer with a bonafide impression that he had to comply Section 50 of the NDPS Act, obtained consent of accused on Ex.P.1 and Ex.P.2 to search them before a gazette officer and they gave their consent and they were taken to P.W.2 and before him, bag that was found in possession of A.1 was searched and it was found with Ganja. The search of bag of A.1 was before P.W.2 who was a gazette officer working in the Revenue Department and he was also having powers of an Executive Magistrate. Though there was no necessity to comply Section 50 of the NDPS Act, but the investigating officer complied it and the contention of the appellant deserves no merits. Insofar as Section 42 of the NDPS Act is concerned, he would contend that there was no search of any enclosed place, any house or any conveyance and there was search of a bag found in possession of A.1 and compliance of Section 42 of the NDPS Act would not arise. What all the citations relied upon by the learned counsel for the appellant cannot be made applicable to the present case on hand. With regard to delay in sending the samples, he would contend that along with the remand report, property was produced before the Magistrate, but the Magistrate returned it and later it was resubmitted and later it was forwarded and evidence on record would prove the chain of custody of the contraband Ganja and the delay of two weeks in sending samples cannot be taken as a serious one. With the above said submissions, he would contend that the evidence adduced by the prosecution fully convincing and the learned Special Judge rightly appreciated the evidence on record and rightly found A.1 guilty, as such, appeal is liable to be dismissed.
17) In the light of the above rival contentions, firstly, this Court would like to deal with as to whether it is mandatory on the part of investigating officer to comply Section 50 of the NDPS Act and if so whether it is complied or not.
18) For better appreciation, it is pertinent to refer here Section 50 of the NDPS Act. It runs as follows:
50. Conditions under which search of persons shall be conducted.—
(1) When any officer duly authorised under section 42 is about to search any person under the 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.]
19) A close perusal of Section 50 of the Act means that if the arrested person requires that he should be searched before a Gazetted Officer or a Magistrate, the empowering officer shall take him to the Gazetted Officer or Magistrate. The law is well settled with regard to Section 50 of the Act. It has no application when there is no personal search of the accused. At this juncture, this Court would like to refer here the well established legal precedents under Section 50 of the Act.
20) In Bodaband Sundar Singh vs. State of A.P.[5], there was a case where the investigating agency found contraband in possession of a box and zip bag of the accused. The trial court recorded conviction against the accused. Then, the matter went in appeal before the High Court of A.P., at Hyderabad. The High Court of A.P. referred various decisions and held that Section 50 of the N.D.P.S. Act would come into play only in the case of a search of a person as distinguished from search of any place etc. The High Court of A.P. in arriving at such a conclusion relied on a decision of the Hon’ble Supreme Court in Kaleme Thumba vs. State of Maharashtra[6] and further the Constitutional Bench decision of the Hon’ble Supreme Court in State of Punjab vs. Baladev Singh[7]. The High Court of A.P. by following the above said decisions held that the search of a person indicates search of the body of the person but not other belongings like hand bags, suitcases, etc., as such when there is search of a person, then only the procedure contemplated under Section 50 of the Act has to be resorted to.
21) In Saikou Jabbi vs. State of Maharashtra in Criminal Appeal No.103 of 2003[8], the Hon’ble Supreme Court dealing with Section 50 of the Act and also by relying upon the earlier decisions in Kaleme Thumba’s case (6 supra) and Baladev Singh (7 supra), held that language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises and is not applicable to other types of search.
22) The Hon’ble Supreme Court in State of Haryana v. Jarnail Singh and others[9] also by following earlier decisions reiterated that Section 50 of the N.D.P.S. Act did not apply when the search of a Tanker was conducted because it was not a personal search.
23) Apart from this, the Hon’ble Supreme Court in 2014(1) ALD (Crl.) 909 (SC) had an occasion to refer the Constitutional Bench decision in Baladev Singh’s case (7 supra) equivalent to AIR 49 SC 2278. The Hon’ble Supreme Court extracted the observations in Baladevi Singh’s case (7 supra) as follows:
(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 being taken to the neared Gazetted Officer or to the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a Gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazette officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazette officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.
24) Coming to the case on hand, absolutely, there was no personal search of A.1. The Ganja was alleged to be found in the bag which was in possession of A.1. It is a case virtually Section 50 of the NDPS Act has no application when there was no personal search. However, it appears that the investigating officer under a bonafide impression that he has to comply Section 50 of the NDPS Act issued Ex.P.1 and Ex.P.2 notices to A.1 and A.2 requiring their consent so as to search the bag in possession of A.1 before a gazette officer. It is to be noted that P.W.1 was no other than the Village Revenue Officer, who acted as mediator. P.W.2 was a revenue official, who had powers of Executive Magistrate. Their evidence is consistent with the evidence of P.W.4 and P.W.5, the excise personnel, regarding the manner in which P.W.2 was secured as a mahazar witness. The manner in which P.W.1 was secured as a mahazar witness was consistent throughout examination of P.W.1 to P.W.4.
25) Having regard to the above, I am of the considered view that absolutely there was no need for the investigating officer to comply Section 50 of the NDPS Act. However, he complied it by searching the bag of A.1 before a gazette officer i.e., P.W.2. Hence, the contention of the learned counsel for the appellant that the appellant (A.1) is entitled for an acquittal for violation of Section 50 of the NDPS Act deserves no merits.
26) Coming to the contention of the learned counsel for the appellant that there was no compliance of Section 42 of the NDPS Act, I would like to deal with the same now.
Section 42 of the Act runs as follows:
2[42. 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 including para-military forces or armed forces 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 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 persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act 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 drug 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; 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 this Act:
1[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further 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.
(2) 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 within seventy-two hours send a copy thereof to his immediate official superior.]
27) A close perusal of Section 42 of the Act means that if the empowered officer has any information out of his personal knowledge or information given by any person and taken down in writing about the storage of any narcotic drug or psychotropic substance in any house, enclosed place or in any conveyance, he may between sunrise and sunset enter into and search any building, conveyance or place and seize such contraband. The proviso of Section 42 reveals that such search can be conducted between sunset and sunrise. When Section 42(1) contemplates search during day time, the proviso contemplates search during night time. According to Section 42(2) of the Act 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 within 72 hours send a copy thereof to his immediate official superior.
28) Absolutely, it is not the case of the prosecution that the investigating officer received any information that Ganja was stored in any building or in any conveyance. So, absolutely, the case on hand does not attract the compliance of Section 42 of the NDPS Act.
29) It is to be noted that according to the evidence of P.W.4, the investigating officer, admittedly, he received information by phone that Ganja was being transported. It is not his case that A.1 was transported ganja in any conveyance. It is not his evidence that it was stored in any enclosed place or house. Therefore, it is sufficient on his part to make an entry in General Diary with regard to information he received. The question of compliance of Section 42 of the NDPS Act would arise if he had the information about the storage of any narcotic drug or substance in any enclosed place or in any vehicle or house.
30) Turning to the two decisions cited by the learned counsel for the appellant in Matta Prasad’s case (1 supra) and Laxman Jena’s case (2 supra) to contend that non-compliance of Section 42 of the NDPS Act would enure benefit of acquittal, this Court would like to make it clear that Matta Prasad’s Case (1 supra) is a case where there was search of a Scooter which was no other than a conveyance. When there was search of Scooter in utter violation of Section 42 of the NDPS Act, the Hon’ble Supreme Court held that non-compliance of Section 42 of the NDPS Act is a serious lacuna which entitles the accused to claim an acquittal.
31) Turning to Laxman Jena (2 supra), there was a search of house to recover the opium in violation of Section 42 of the NDPS Act. In the above two referred decisions, the search was in respect of a Scooter and a house, as such, the facts attracted Section 42 of the NDPS Act.
32) In the present case on hand, there was no search of any vehicle or enclosed place or house. Hence, the above said two decisions have nothing to do with the present facts and circumstances.
33) With regard to the delay in sending the samples, this Court would like to clear that the detection of the present case was on 19.12.2006. There was evidence of P.W.4 that along with the remand report itself, he presented property to the Court and the Court returned with a direction to produce at a later time and accordingly, on 23.12.2006 property was produced with a covering letter and samples were forwarded to the chemical analysis through the Court on 26.12.2006. As seen from the chemical analysis report by virtue of the evidence of P.W.5, who is no other than the Chemical Examiner, he received samples on 04.01.2007 from Prohibition and Excise Station, Bobbili through the Court and on analyzation it is revealed that the sample is nothing but Ganja. In my considered view, the evidence of P.W.4 and P.W.5 categorically established the chain of custody of the property. It was very promptly produced before the court and later at the directions of the Court, it was again reproduced and later it was forwarded to the chemical analysis.
34) In the decision relied upon by the learned counsel for the appellant in Bantapalli Durga Rao’s case (3 supra), the sample was collected on 25.10.1997 and it was forwarded for analysis on 01.04.1998. There was delay of about more than 5 months and there was no evidence on record to show that the sample was kept safely in the excise police station. Thus, in the aforesaid circumstances, benefit of doubt was extended to the accused. The facts in Bantapalli Durga Rao’s case (3 supra) cannot be made applicable to the case on hand and the present case is quietly distinguishable from the above said case. The present case is not one where the sample was forwarded to the analyst with an abnormal delay. The chain of custody of sample was proved by virtue of the evidence of P.W.4. Hence, there is no merit on the part of appellant to contend that the delay in sending the samples entitles him to claim an acquittal.
35) Turning to the decision in Kashif’s case (4 supra), it was a case that there is delay on the part of the investigating officer in moving the Magistrate for lifting the sample. The sample was lifted with an inordinate delay of 51 days. In the present case the accused and property was produced before the Executive Magistrate i.e., P.W.2 on the date of detection of the case itself and the samples were lifted then and there before the Executive Magistrate i.e., P.W.2. Hence, it cannot be held that there was delay in this case in lifting the sample in violation of Section 52(A) of the NDPS Act. Hence, the above four decisions relied upon by the learned counsel for the appellant does not enable the appellant to contend that he is entitled for acquittal.
36) Now, coming to factual analyzation of the evidence, P.W.1 and P.W.2, who were the revenue officials, were bound to assist the excise officials even in view of the provisions of NDPS Act in detection and investigation of the case. Absolutely, nothing could be elicited from the mouth of P.W.1 that he was a stock mediator. According to him, previously in one case he acted as a mediator and this is the second case. It is to be noted that P.W.1 was aged about 58 years as on the date of his evidence. Thus, in his entire career the present case is second one where he acted as a mediator. By any stretch of imagination, it cannot be held that he was a stock mediator. Apart from this, it is a statutory duty of P.W.2 to act as a gazetted officer and to assist in detection and investigation of the case. During the entire cross examination, there could be nothing elicited in support of the defence. He denied that excise officials did not come to him and the accused were not produced before him and that he did not search anything and no proceedings were taken place in his presence and that nothing was seized in his presence. The above said suggestion was quietly denied and it was nothing but baseless.
37) Turning to the evidence of P.W.3 and P.W.4, the excise officials, they cogently deposed about the manner in which the present case was detected. In the entire cross examination, there could be nothing found in favour of the defence of the accused. P.W.3 denied that the Inspector of Police did not follow the mandatory provisions of NDPS Act. P.W.4 denied that he implicated the case falsely. He denied that he did not follow the mandatory provisions of NDPS Act and he got filed the case for statistical purposes. There could be nothing during cross examination of P.W.3 and P.W.4 so as to disbelieve their testimony. Though there is no need or necessity to examine the chemical analyst i.e., P.W.5, the prosecution examined P.W.5 and his evidence discloses that the sample is of Ganja. The suggestion given to P.W.5 that Ex.P.10 analyst opinion is fabricated is nothing but baseless.
38) It is to be noted that A.1 was resident of Orissa. During Section 313 of Cr.P.C. examination, he disclosed that when he was travelling in a bus, police called him and obtained his signature and filed a case. As seen from cross examination part of P.W.4, absolutely, nothing was suggested to him that when A.1 was travelling in a bus, he was called to Police Station and he was implicated in a false case. It is rather improbable that P.W.4, who is the investigating officer, would choose to implicate a person who belongs to Orissa for statistical purposes. It is to be noted that A.1 was resident of Orissa and he did not put forth any probable reason about his presence at RTC bus stand. On the other hand, his contention was when he was travelling in a bus, he was caught hold and the above said defence is nothing but improbable. In my considered view, the evidence of P.W.1 to P.W.4 is fully consistent and it is convincing and it is believable.
39) Now, it is relevant to refer herein certain presumptions as contemplated under Section 35 of the NDPS Act. According to Section 35 of the Act, in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. The explanation of the above shows that ‘culpable mental state’ includes intention, motive knowledge of a fact and belief in, or reason to believe a fact. The Hon’ble Supreme Court in 2003 (11) ILD 491 SC held that once possession is established, then the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge.
40) According to Section 54 of the NDPS Act, it contemplates certain presumptions. According to the said section in trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused committed the offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance for the possession of which he fails to account satisfactorily.
41) It is no doubt true that the presumption under Section 54 of the NDPS Act and the presumption under Section 35 would arise after the prosecution discharged its burden to prove the recovery of the contraband from the accused. In my considered view, the prosecution discharged its burden about the recovery of contraband from the possession of the accused. In such circumstances, it is for the accused to prove the contrary. The accused had no semblance of say much less probable say to prove contrary.
42) Having regard to the facts and circumstances, this Court is of the considered view that the prosecution before the learned Special Judge categorically established beyond reasonable doubt about the recovery of 6 Kgs. of ganja from the possession of A.1. The evidence of P.W.5 coupled with Ex.P.10 runs that the sample that was tested by the Laboratory that was of Ganja. The prosecution established the link between M.O.3 with that of the Ganja which was found in the bag of A.1. Further the prosecution established the chain of custody of the sample. In my considered view, the learned Special Judge on factual aspects rightly appreciated the evidence on record and rightly found the accused guilty.
43) Apart from this, the learned Special Judge with regard to the legal angles made findings that though the compliance of Section 50 of the NDPS Act was not necessary, but the investigating officer complied it and further appropriate finding that Section 42 of the NDPS Act has no application to the case on hand.
44) Having regard to the above, I am of the considered view that absolutely, there are no grounds to interfere with the judgment of the learned Special Judge. The prosecution before the Court below categorically proved the charge against the accused beyond reasonable doubt. The accused failed to probabalize any contention how he can justify his action in possessing 6 Kgs. of Ganja. So, the act of the accused is nothing but contravening the provisions under the NDPS Act. Absolutely, there is clear bar under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act, 1985 for possession of Ganja by A.1.
45) Having regard to the above, this Court does not find any reason to interfere with the judgment of the learned Special Judge.
46) In the result, the Criminal Appeal is dismissed, as such, the judgment of the Special Sessions Judge for Trial of the Cases under the Narcotic Drugs and Psychotropic Substance Act, 1985-cum-I Additional Sessions Judge, Vizianagaram in NDPS S.C.No.1 of 2007, dated 11.03.2011 shall stand confirmed.
47) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 05.02.2024 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant and to report compliance to this Court.
48) The appellant/A.1 is directed to surrender before the Court below on or before 09.02.2024 and on such surrender the learned Special Judge shall take necessary steps to entrust the conviction warrant. If the accused fails to surrender on or before 05.02.2024, the learned Special Judge shall issue Non-Bailable Warrant and shall take necessary steps to carry out the sentence imposed against the accused.
49) The Registry is directed to forward the record along with copy of the judgment to the Court below as above without fail.
Consequently, miscellaneous applications pending, if any, shall stand closed.
[1] 2005 ALT 1472
[2] 2002 ALD CRI 2 567
[3] 2005 ALD 2 432
[4] 2023 SCC OnLine Del 2881
[5] 2001(2) ALD (Crl.) 928 (AP)
[6] AIR 2000 SC 402
[7] (1999) 6 SCC 172
[8] 2004 (14) ILD 271
[9] AIR 2004 Supreme Court 2491
Result of the case
The Criminal Appeal is allowed.
