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Judgment
M. Karpagavinayagam, J.—R. Rukmani (A3), R. Dayalan (A4) and Joseph Henry (A5) have filed separate appeals in C.A.Nos.893 of
1987, 31 of 1998 and 590 of 1987 respectively challenging the conviction imposed upon them for the offence u/s 8(c) read with 21 and 29 of the
Narcotic Drugs and Psychotropic Substances Act and sentence to undergo R.I. for 10 years and to pay a fine of Rs.1,000/-.
The short facts leading to the conviction could be summarised as follows:
(a) On the basis of the information, P.W.1 Vijayalakshmi and P.W.3 Ashok Raj along with other officers of the Narcotic Control Bureau, South
Zone, Chennai, went to the International Airport, Chennai and intercepted a lady by name Rukmani (A3) bound for Srilanka by flight. The Officers
examined her baggage in the presence of P.W.8 Anantha Padmanabhan and another. On examination of the green coloured bag, a prestige toaster
was noticed. On opening the same, it was found to contain four polythene bags and the same were recovered. Another bag which was in
possession of the said Rukmani was also searched. It was found to contain a kerosene pump stove. On opening the cylinder portion, a polythene
bag was noticed. On testing the brown coloured substance found in those polythene bags, it was noticed that the said powder was suspected to be
heroin. They were seized by observing the procedures required under law.
(b) On the basis of the statement of Rukmani(A3), Perinbanayagam alias Inbam(A1), Koneshwaran alias Siva and Dayalan (A4) were traced and
apprehended at the Airport Lounge itself. They were brought to the office and interrogated. On the basis of the information given by
Perinbanayagam alias Inbam(A1), his residential premises at Choolaimedu was searched and 1,000 grams of brown colour powder, which was
concealed in the sandwitch toaster and kerosene pump stove, was seized under mahazar.
(c) After getting statement from A1, the commercial premises of A5 Joseph Henry was located at Chennai on 22.7.1993 and search was
conducted in the said premises and account book was seized under mahazar Ex.P35 and a statement was obtained from A5 also. There,
Sriskandaraja alias Khalifa was apprehended. Thereafter, the search was conducted in the Khalifa''s house also and Ex.P42 series, the bills for the
purchase of the stove were recovered under the mahazar.
(d) According to the statements of A1 and A2, A2 gave Rs.65,000/- to A1 and A1 went to Delhi to procure 500 grams of heroin and
subsequently, exported illicitly to Srilanka through a woman by concealing it in a kerosene pump stove to one Thambi of Srilanka. On another
occasion, A1 went to Delhi and procured 2 kgs. Of heroin from Delhi. All these people were arrested on 23.7.1993 and remanded to judicial
custody. The samples were sent for chemical analysis through Court and the Analyst P.W.4 after analysis sent the report Ex.P40 wherein it is
stated as Di-acetyle morphine, which is heroin.
(e) Before filing the complaint, some of the accused persons were released on bail. Out of the persons released on bail, one Koneshwaran alias
Siva absconded. Therefore, the complaint was filed by P.W.3 only as against A1 to A5.
(f) During the course of trial, P.Ws.1 to 13 were examined, Exs.P1 to P42 were filed and M.Os.1 to 34 were marked on the side of prosecution.
On the side of defence, D.Ws.1 and 2 were examined and Exs.D1 to D4 were marked.
(g) When the accused were questioned u/s 313 Cr.P.C., they pleaded that they did not participate in the crime and that they were innocent.
(h) The trial Court after considering the materials available on record, convicted the appellants for the offences referred to above. On the date of
judgment, A1 and A2 were not present. Therefore, minimum sentence was imposed upon them and non-bailable warrant was issued against them.
Now, challenging the conviction, the appellants (A3, A4 and A5) have filed these appeals.
Mr. A. Ganesh, the counsel for the appellant Rukmani (A3) in C.A.No.893 of 1987 has strenuously contended that the appellant Rukmani is
liable to be acquitted on the reason that many of the mandatory provisions have been violated.
Mr. R.C. Paul Kanakaraj, the counsel appearing for the appellant Dayalan (A4) in C.A.No.31 of 1998 would submit that the evidence available
on record would not be sufficient to hold that A4 was a party to the conspiracy and therefore, he is liable to be acquitted.
Mr. K.S. Suresh, the counsel appearing for the appellant Joseph Henry (A5) in C.A.No.590 of 1997 would submit that except the material to
show that he had the knowledge about the activities of the other accused, he did not have any role to play with reference to the commission of the
offences.
Mr.P.N.Prakash, the learned Special Public Prosecutor, while refuting the submissions made by the counsel for the appellants, would contend
that the mandatory provisions have been complied with and the arguments advanced by the counsel for the appellants are not correct, as the
search and seizure which was effected by the competent officers is perfectly valid and the same is in accordance with law and as such, the
reasonings given by the trial Court while imposing conviction on the appellants are correct.
I have carefully considered the submissions made by the respective counsel.
Mr. A.Ganesh, the counsel for the appellant Rukmani(A3) would make the following contentions:
(1) Admittedly, the search was conducted by P.Ws.1 and 3 at the Airport after intercepting the appellant in pursuance of the information obtained
by them. Therefore, u/s 42(1) of the Act, the said information has to be recorded and the same shall be sent to the superior officer. The admission
made by P.Ws.1 and 3 to the effect that such an information was not recorded and the same was not sent to the superior officer would clearly
show that the mandatory provision of Section 42 of the Act has not been complied with and therefore, the conviction on the basis of the search
and seizure not valid in law has to be set aside.
(2) Section 50 of the Act has not been complied with, inasmuch as the right for the option to be searched in the presence of either before a
Gazetted Officer or before the Magistrate has not been conveyed to the appellant and furthermore, u/s 50(4), the appellant Rukmani should be
examined only by the lady officer which has not been done in this case and as such, Section 50, a mandatory in nature also has not been complied
with, which would vitiate the entire trial and conviction.
In respect of these points, it is submitted by Mr.P.N. Prakash, the learned Special Public Prosecutor appearing for the respondent would submit
that Sections 42 and 50 would not apply to the present facts of the case, since the officers P.Ws.1 and 3 went to the Airport being a public place
and seized the contraband from the bag carried by the accused and as such, it would attract only Section 43 and therefore, the information as
contemplated u/s 42 need not be recorded and consequently, the same need be sent to the superior officer.
The counsel for both would elaborately argue on these points by citing various authorities.
With reference to the first point, the learned counsel for the appellant would cite 2000 S.C.C.(Cri.) 496 (ABDUL RASHID IBRAHIM
MANSURI v. STATE OF GUJARAT), wherein it is held that Section 42, which is a mandatory, was not followed even though the search was
conducted from the person, who was travelling in an Autorickshaw, by stopping in the public road.
In the said decision, when an argument was advanced that the seizure was effected not u/s 42 of the Act, but it was u/s 43 as per which the
officer concerned was not obliged to take down the information, the Supreme Court would hold that the said argument cannot be accepted
because in that case, P.W.2 admitted that he proceeded on getting prior information from a Constable and the information was precisely one falling
within the purview of Section 42(1) of the Act.
So, on the basis of this decision, the learned counsel for the appellant would submit that when P.Ws.1 and 3 admitted that they went to the
spot only on getting the information, it is duty bound on their part to record that information by taking down in writing as contemplated u/s 42(1) of
the Act.
The above judgment, in my view, would not be applicable to the present case for two reasons. In the said case, the search was not conducted
in the public place. On the other hand, the search was conducted from the person, who was sitting in the Autorickshaw. Moreover, the specific
information obtained by the officer concerned in that case is that somebody was trying to transport a narcotic substance in the Autorickshaw.
Section 42(1) provides that any competent officer, if he has to reason to believe from personal knowledge or information given by any person
and taken down in writing that any narcotic drug, etc., in respect of which an offence punishable under Chapter IV has been committed or any
document or other article which may furnish evidence of commission of such offence is kept or concealed in any building, conveyance or enclosed
place may enter into any such building, conveyance or place and seize the same.
So, Section 42(1) would refer about the specific categories of places where the competent officer as provided u/s 42 would go and conduct
search. It refers building, conveyance or any enclosed place. In other words, it does not refer to any public place.
Therefore, on the basis of the said wordings contained in Section 42(1), the Supreme Court in 2000 S.C.C. (Cri.) 496 (supra) would hold that
the search was conducted on receipt of information that person was trying to transport the narcotic drug from one particular place to another
particular place in an Autorickshaw bearing the particular numbers. So, Autorickshaw being a conveyance is one of the things mentioned in Section
42(1). Therefore, the Supreme Court had an occasion to say that Section 42(1) will be applicable in respect of the facts in that case.
That is not the case here. Here is the case where P.Ws.1 and 3 along with other officers on information that a lady was coming to Airport to
go to Srilanka with a narcotic drug. The Airport cannot be considered to be the place as referred to in Section 42. On the other hand, it would
attract Section 43.
As per Section 43, any officer of any of the departments mentioned in Section 42 may seize, in any public place or in transit, any narcotic drug,
etc.,in respect of which he has reason to believe an offence punishable under Chapter IV has been committed.
The explanation given in Section 43 would provide thus:
For the purpose of this section, this expression ""public place"" includes any public conveyance, hotel, shop,or other place intended for use by, or
accessible to, the public.
Thus, it is clear that if the officers exercising the powers u/s 43 for making search and seizure from a person who is being intercepted at a
public place need not follow the conditions contained in Section 42(1).
Though it is contended by the counsel for the appellant that that is not the public place by referring to the evidence of P.W.3, I am not able to
accept this contention, since the said place is being permitted for the passengers to pass through. Therefore, there is no difficulty in holding that the
said area in the Airport can be considered as a public place.
This view of mine is fortified by the decision rendered by a Division Bench of the Delhi High Court in Utpal Mishra Vs. Nicelai Christensen, .
The observation made by the Delhi High Court is as follows:
The Airport or Custom area at the Airport or Custom counter or Luggage hold area or Immigration area or alike at the Airport would thus be a
public place. These areas are accessible to the public, may be with certain restriction or requirement of a permission for entry into these areas. No
doubt the provisions of Section 42 are mandatory but the said provisions are not applicable at International Airport which is clearly a ""public place
to which Section 43 would apply and not Section 42 of the Act.
At this juncture, it may be relevant to point out the decisions rendered by the Supreme Court in KOLUTTUMOTTIL RAZAK v. STATE OF
KERALA 2000 S.C.C. (Cri.) 829 State of Punjab Vs. Baldev Singh, etc. etc., and ABDUL RASHID IBRAHIM MANSURI v. STATE OF
GUJARAT 2000 S.C.C.(Cri.) 496.
In these decisions, it is held that non-compliance with the requirements of Section 42(1) and (2) would render the resultant search and seizure
suspect, though that by itself may not vitiate the proceedings.
It is true that for the non-compliance of Section 42(1), the Supreme Court in 2000 S.C.C (Cri.) 829 (supra) acquitted the accused. But in that
case, it was held that apart from the evidence of the police officers who searched and seized the contraband, there is absolutely no other evidence
to ensure that the search was in fact conducted by the officer concerned. On facts, it was held that the evidence of P.W.1, the police officer, did
not inspire confidence in the mind of the Supreme Court.
In the light of the above observation made by the Supreme Court, even assuming that Section 42 would be applicable to this case, at the most,
it can be stated that seizure can be viewed with a suspicion. But, it cannot be said that the entire evidence relating to seizure and the materials
subsequently collected shall be rejected, in view of the fact that in this case, on the basis of the information given by A3 subsequent to the seizure
of the contraband in other places, the search was conducted by the officer concerned and recovery of other contraband was made. Therefore, in
my view, in any angle, we cannot say that the search and seizure in respect of the contraband recovered from the bag which was carried by the
appellant Rukmani is illegal.
In regard to the second point, namely, the non-compliance of Section 50, several decisions have been cited by the counsel for the appellant
stating that the lady officer would not have searched the appellant, as the same is not mentioned in the mahazar Ex.P13 and the right to be
searched either before the Magistrate or before the Gazetted Officer had not been conveyed to the appellant.
On the other hand, the counsel for the respondent would submit that Section 50 would not apply to the present facts of the case, since the
seizure of the contraband was effected only from the bag and not from the person, as Section 50 would refer about the search of the body of the
person and not about the other materials like bag, which was carried by the accused/appellant.
The counsel for the appellant, at this stage, would point out the observation of the Supreme Court made in NAMDI FRANCIS NWAZOR v.
UNION OF INDIA AND ANOTHER 27 1997 CCR (SC) wherein it is held as follows:
We must hasten to clarify that if that person is carrying a hand bag or like and the incriminating article is found therefrom, it would still be a search
of the person of the accused requiring compliance with Section 50 of the Act.
On the basis of this observation, it is strenuously contended that even though the bag was searched, since the bag was carried by the accused, it
must be construed to mean that the search was conducted only on the person and therefore, Section 50 would apply.
On the other hand, the learned counsel for the respondent would submit that on the similar facts of the case,the Supreme Court would hold on
the strength of the dictum laid down by the Constitutional Bench that when a person was carrying a bag or some other article with him and narcotic
drug was found from it, it cannot be said that it was from his person and therefore, Section 50 would not apply.
The same has been confirmed by the Supreme Court in Birakishore Kar Vs. State of Orissa, It is seen from the said judgment that the search
on the plastic bag which belonged to the accused would not attract Section 50, as it cannot be construed to be the search on the person. Similarly,
it was held in KANHAIYA LAL V. STATE OF M.P., (2000) 10 SCC 380 that when a bag which was carried by the accused was searched and
1 kg. of opium was found from it, it is not a search on the person as contemplated u/s 50 of the Act.
At this stage, it was contended by the counsel for the appellant that these decisions were rendered by the two Judges Bench, whereas the
decision in 1997 CCR 27 (SC) (supra) was rendered by the Bench consisting of three Judges and therefore, even though the decision in 1997
CCR 27 (SC) is earlier to the other decisions, the judgment rendered by the three Judges Bench has to be given preference.
However, it is seen from the other judgments referred to above that the said observation made by the Supreme court was on the basis of the
observation made by the Constitutional Bench in State of Punjab Vs. Baldev Singh, etc. etc., . Therefore, it cannot be said that this Court has to
follow the decision rendered in 1997 CCR 27 (SC) in view of the fact that this Court is bound by the decision rendered by the Constitutional
Bench.
In this case, admittedly, the accused came with two bags and after interrogation, the two bags were searched and the same were found to
contain brown colour powder, which was found to be heroin. Under those circumstances, the aspect as to whether Section 50 has been complied
with or not need not be considered, in view of the fact that Section 50 would not at all apply to the present facts of the case. Therefore, I am
unable to accept any of the contentions raised by the counsel for the appellant, as, in my opinion, the officers concerned have observed the
required provisions of law and conducted the search and seizure validly by following the correct procedures and as such, it is to be held that the
conviction imposed upon the appellant Rukmani is correct and the same is liable to be confirmed and accordingly confirmed.
However, on the request of the counsel for the appellant Rukmani (A3), the sentence imposed upon her with reference to the default clause,
namely to suffer R.I. for one more year in case of non-payment of fine of Rs.1,00,000/- is modified to R.I. for one month. In other respects, the
sentence is confirmed in so far as she is concerned.
As regards the other appellants (A4 and A5), the only evidence available is the confessional statements Exs.P19 and P36 obtained from A4
and A5. Admittedly, there was no recovery from A4, but from A5, the account book was seized from his office. However, there is no reason as to
why the said account book had not been produced before the Court. But, the fact remains that from both of them no incriminating article was
recovered.
As stated above, the only available evidence as against them is the confession made by them. On a perusal of their confession, it is clear that
they had only knowledge about the activities of A1 and A2. The confession made by A5 would show that they allowed the other accused to go to
telephone booth to make STD calls. There is no material to show that A5 was a party to the offence by helping them by paying money. Similarly,
A4 on the instruction by A1 helped A3, while she was staying in a Lodge and went along with her to several places in Madras and lastly, she took
him to Airport in an Autorickshaw. Though he stated that he knew about the handing over of the articles containing the contraband to A3, he
would state that for helping her, he was given Rs.100/- or Rs.200/- on every occasion. Under those circumstances, I am unable to hold that A4
and A5 were parties to the main conspiracy merely on the basis of the confession given by them.
In such circumstances, the evidence available on record as against A4 and A5, in my opinion, is not sufficient to hold them guilty for the
offences referred to above. Hence, the conviction and sentence imposed upon A4 and A5 are set aside and they are acquitted and they are
directed to be released forthwith, unless they are required in some other case. Since it is reported that A4 is a Sri Lankan National, he must be
sent to Sri Lankan Camp as prescribed in the relevant rules.
With the above observations, the appeal in C.A.No.893 of 1997 is dismissed and the appeals in C.A.Nos.590 of 1997 and 31 of 1998 are
allowed.