Elbart Anal vs State of Manipur

S. Barman Roy, J.—Heard Mr. Nimaichand Singh, learned Counsel for the Petitioner and Mr. A. Jagatchandra Singh, learned Public Prosecutor.

This is an application u/s 439 Code of Criminal Procedure, for granting bail to accused Shri N.L. Angshung Anal. He has been arrested in connection with Sugnu Police Station Case No. 49(11)93 u/s 21 of the N.D.P.S. Acton 10.11.1993. He was arrested by the Army authority and from his custody some quantity of heroin powder was recovered and on the following day he was produced before the said police station. The seized heroin was also handed over to the Police. Thereafter the accused was produced before the learned Judicial Magistrate, 1st. Class, Thoubal and since then he is in custody,

Mr. Nimaichand Singh, learned Counsel for the Petitioner first drew my attention to Section 42 of the N.D.P.S. Act and submitted that except the officers mentioned therein, none has any authority whatsoever under the law to arrest the Petitioner or make any search or seizure under the provisions of the said Act. In this case the Petitioner heving been arrested by the Army authority and the of fending article having been recovered by the said authority, the arrest, search and seizure, as aforesaid, are clearly illegal and without authority of law and therefore Petitioner has to be released on bail.

Mr. Nimaichand Singh, learned Counsel, further drew my attention to Section 50 and submitted that Section 50, inter alia, requires that whenever a person is arrested and search and seizure is sought to be made, such person should be informed that if he so desires, he may be searched in presence of a Gazetted Officer of the departments mentioned in Section 42 of the Act or before the nearest Magistrate, The accused was never informed by the Army authority about his right as contemplated u/s 50 of the Act. Therefore, Mr. Nimaichand Singh submits that arrest/search/seizure having been made in clear contravention of Section 42 and 50 of the said Act, same are clearly illegal and without jurisdiction/authority and, therefore, the Petitioner has to be released on bail.

To buttress the aforesaid contentions, Mr. Nimaichand Singh referred to a decision of single Bench of Madhya Pradesh High Court in Mari Appa v. State of M.P. 1990 CRLJ. 1990. True this decision supports the contention of Mr. Nimaichand Singh. But for reasons stated below, I am unable to agree with the views expressed by the learned Single Judge in the aforesaid decision.

Admittedly, the offence said to have been committed by the Petitioner is a cognizable offence. Section 43 of the Code of Criminal Procedure provides that even a private person may arrest or cause to be arrested any person who in his presence commits a non boilable and cognizable offence or any proclaimed offender and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer or in the absence of a Police Officer, take such action and cause him to be taken in custody to the nearest Police Station. Admittedly the offence alleged against the accused is a cognizable and non boilable offence. That apart there are catena of decisions of the Supreme Lou.: trying down that those search and seizure may be illegal, yet it will not affect the validity of such search and seizure and further investigation. However, Supreme Court further observed that at the time of trial the evidence collected through such illegal search/seizure may be scrutinised more carefully and with greater caution. In Radhakishan Vs. State of U.P., it was observed in paragraph 5 as follows:

So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that, the search was illegal, the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165 of the Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequences ensues.

The Supreme Court in State of Maharashtra Vs. Natwarlal Damodardas Soni, also held the similar view and observed in paragraph 9 to 13 as follows:

Taking the first contention first, it may be, observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming argument that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.

In Radhakishan Vs. State of U.P., the Appellant was a postman. He and his father were living in the same house Certain undelivered postal articles were recovered from an almirah in the house, the key of which was produced by the father. The Appellant, Radhakishan was used and convicted of an offence u/s 52 of the Post Offices Act, for secreting Postal articles. One of the contentions raised on behalf of the Appellant was that the search and seizure was illegal inasmuch as it was in contravention of the provisions of Sections 103 and 165 of the Code of Criminal Procedure. Mudholkar, J. speaking for the Court, repelled this contention, thus: (SCR PP411-12).

So far as the alleged Illegality of the search (sic) is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Section 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.

These observations apply aptly to the instant case.

Again, in Shyam Lal Sharma, etc. Vs. State of Madhya Pradesh, Jagamohan Reddy delivering the opinion of the Bench, held that even if the search is illegal being in contravention with the requirements of Section 165, Criminal Procedure Code 1898, that provision cease to have any application to the subsequent steps in the investigation.

In State of Kerala and Others Vs. Alasserry Mohammed and Others, question arose, whether the failure on the part of the Food Inspector to comply strictly with the statutory provisions, would vitiate the trial and conviction of the Respondent?

This Court answered this question in the negative, and referred with approval to the decision, dated July 6, 1976. In W.T, Stone, Warden, 74-1055 v. Lloyd Charles Powell and Charles L. Wolff, 74-1222 v. David L. Rice wherein the Supreme Court of the United States of America made a clear departure from its; previous decision in the application of the exclusionary rule of evidence. The prosecution in those cases relied upon the evidence of search and seizure, which were said to be unconstitutional and unlawful, Mr. Justice Powell, who delivered the leading majority, judgment made these pertinent observations:

(See SCC P. 395 para 12).

Upon examination, we conclude, in light of the nature and purpose of the Fourth Amendment exclusionary rule, that this view is unjustified. We hold, therefore, that where the State has provided an opportunity for full and fair litigation of a fourth Amendment claim, the Constitution does not require that a State prisoner be granted federal Habeas Corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

In his concurring opinion. Chief Justice Burger highlighted the injustice that often resulted from application of the ''exclusionary rule''. Said the learned Chief Justice:

To vindicate the continued existence of this Judge-made rule, it is incumbent upon those who seek its retention - and surely its extension -to demonstrate that it serves its declared deterrent purpose and to show that the results out weigh the rules heavy costs to rational enforcement of the Criminal Law. See e.g. Willough V. United States. The burden rightly rests upon those who ask society to ignore trust worthy evidence of guilty, at the expense of setting obviously guilty criminals free to ply their trade.

What has been said above is more than enough to show that the first contention raised on behalf of the Respondent is devoid of merit.

Same view was reiterated by the Supreme Court again in Dr Partap Singh and Another Vs. Director of Enforcement, Foreign Exchange Regulation Act and Others, For the sake of gravity, I do not like to reproduce the relevant passages from this decision.

Recently, a Single pencil of Delhi High Court in Ompati v. State 1990 (2) Crimes 151 held similar views.

Therefore, in view of the aforesaid position of law, I am unable to accept the contentions of Mr. Nimaichand Singh that because there were same infraction of Section 42 and 50 of the N.D.P.S. Act while arrest/search/seizure etc. were made by the Army authority, the Petitioner has to be released on bail, However, at the time of trial, the trial Court may have to exercise greater caution and scrutiny in deciding whether or not to accept or act upon such evidence as regards arrest, search and seizure. Save this there is absolutely no further consequence.

Admittedly, the offence said to have, been committed by the accused is punishable for 5 years or more as it involves a possession of heroin and, therefore. Section 37 of the Act is clearly applicable in this case, Unless the conditions/limitations as contemplated u/s 37 of the Act ore fully satisfied, this Court has no jurisdiction/authority to grant bail to the accused at this stage,

For the reasons stated above, the petition is rejected.