Selvi @ Selvarani vs Assistant Commissioner of Police, Royapuram Range, Chennai

M. Karpagavinayagam, J.—Selvi @ Selvarani, the appellant herein, was convicted for the offence u/s 8(c) read with Section 21 N.D.P.S.

Act and sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for

one year. Challenging the said conviction and sentence, the appellant has filed this appeal.

The facts leading to the conviction could be summarised as follows:

On the basis of the information that the appellant Selvi @ Selvarani was indulged in selling heroin in Anna Nagar area, P.W.5 Assistant

Commissioner of Police directed P.W.1 Sub Inspector of Police to go to the spot and take further action. On receipt of the order, P.W.1 Sub

Inspector of Police accompanied with P.W.2 woman constable went to the spot and conducted a raid at about 8.00 p.m. on 19.2.1992. When

they were standing near Anna Nagar 18th Street junction, they saw the appellant moving in a suspicious manner and when they interrogated her,

the appellant was about to run away from the place and thereafter, she was caught. When she was informed that she would be searched in the

presence of the Assistant Commissioner of Police, she was willing to come with them. Accordingly, she was taken and produced before P.W.5

Assistant Commissioner of Police. When she was produced before P.W.5 Assistant Commissioner of Police, a search was conducted on her by

P.W.2 woman constable and 36 small paper packets of heroin weighing about 6.089 grams were found in a rexine bag which was kept in her

jacket and the same was recovered. As per the direction of P.W.5 case was registered by P.W.4 Inspector of Police. When the contraband and

the accused were produced before the court concerned, the contraband was sent for analysis and the appellant herein was remanded to judicial

custody. P.W.3 analyst after analysis, sent a report Ex.P3 stating that the contraband was Dy-acetyle morphine which is heroin. After the

completion of investigation, the charge sheet was filed against the appellant for offence u/s 8(c) read with Section 21 of the N.D.P.S. Act.

During the course of trial, P.Ws.1 to 6 were examined. Exs.P1 to P5 were marked. On the side of the defence, D.W.1 was examined. When

the appellant was questioned u/s 313 Cr.P.C. she stated that she was innocent and a false case had been foisted against her.

After considering the materials placed by the prosecution, the trial court found the appellant guilty for the offences referred to above and

convicted and sentenced as stated above.

Assailing the judgment impugned, learned counsel Mr. V.Sambamurthy appearing for the appellant would submit that the conviction imposed

upon the appellant is not legal inasmuch as mandatory provisions of the Act were not complied with by the respondent State.

I have heard the Additional Public Prosecutor Mr. E.Raja, appearing for the respondent State.

Though several grounds have been urged by the learned counsel for the appellant attacking the judgment impugned, I am of the view that the

judgment impugned has got to be set aside on a short ground namely, non-compliance of the provisions of Section 50 of the Act. According to the

prosecution, P.Ws. 1 and 2 found the accused in Anna Nagar junction moving in a suspicious manner and she was taken to P.W.5 Assistant

Commissioner of Police who is a gazetted officer. According to P.W.5 a search was conducted in his presence by P.W.2 woman constable. There

is no dispute with regard to the fact that the search was conducted on the person of the accused. It is the case of the prosecution that a rexine bag

containing 36 small paper packets was removed from the jacket of the appellant and the same was handed over to the searching officer. Under

those circumstances, provisions contemplated u/s 50 of the Act have to be complied with as it would very much apply to the facts of the present

case. As per Section 50 of the Act, when a search of a person is conducted, before such search, the person concerned shall be given option to be

searched either in the presence of the nearest gazetted officer or the nearest Magistrate. Admittedly, this option had not been given to the appellant

before the search was conducted in the presence of P.W.5 Assistant Commissioner of Police. Though it is stated by the prosecution that P.W.5

himself is a gazetted officer, it is clear from the evidence of P.W.5 that he did not give option to the appellant as provided u/s 50 of the Act. In this

context, the Supreme Court in the case of AHMED vs STATE OF GUJARAT 2000 (3) Cri 188 (SC) observed as follows:

... For the purpose of complying with the provisions of Section 50, no differenciation can be made on a plain reading of the language used in

Section 50, depending upon the officer who is going to search the person concerned. In our considered opinion, since the search is about to be

effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence

under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be

searched before another gazetted officer or the Magistrate and that right cannot be taken away, merely because the officer going to search

happens to be a gazetted officer, who has been empowered either by the Central Government or by the State Government by a general or special

order.

In view of the observations made by the Supreme Court as stated above, although the searching officer in the present case is the gazetted officer,

the search conducted in his presence cannot be construed to be in compliace of Section 50, especially when the right to be searched in the

presence of the gazetted officer or some other gazetted officer or before the Magistrate has not been conveyed to the appellant. There is no

dispute with regard to the fact that the provisions of Section 50 of the Act are mandatory as held by the Supreme Court in State of Punjab vs.

Balbir Singh 1994 (1) Cri 753 and State of Punjab Vs. Baldev Singh, . In view of the non-compliance of mandatory provisions as required u/s 50

of the Act by the respondent State, the conviction imposed upon the appellant is liable to be set aside and the same is accordingly set aside. The

appeal is allowed.