Vijay & others vs State of Uttarakhand

Sudhanshu Dhulia, J. (Oral)

The above two criminal jail appeals of the appellants arise out of the judgment dated 28.02.2014 passed by the Special Judge, N.D.P.S. Act, Haridwar

in Special Sessions Trial No. 18 of 2011, whereby the accused appellants have been convicted for the offence under Section 8/20 (b) (ii) (C) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (from hereinafter referred to as the “NDPS Actâ€) and sentenced both the appellants to

undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh Only) each and six months further

imprisonment in case of default in payment of fine.

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As per the first information report, the incident is of 09.07.2011 when Sub-Inspector Sri Rajesh Verma and Constable Sri Ved Prakash were on

duty near Ramdev Puliya, Haridwar. The informant passed on an information to them that in Haridwar two persons are standing at “Ramdev

Poliya†who were carrying four bags full of “cannabisâ€. On receiving this information, the police party reached the spot. The appellants were

apprehended and they were questioned about the contents of the bags. Both the accused confessed that the bags are full of cannabis. The first

information report further states that once it was known to the police party that it is now a case under the NDPS Act, both the appellants were

informed that in case they want their personal search to be conducted before a Magistrate or a Gazetted Officer, then the Magistrate or the Gazetted

Officer can be called on the spot. On this, both the appellants said that they are already embarrassed and they may be searched by the police party

itself.

Thereafter, the materials which were recovered from the appellants in four bags were weighed and the contents which were there in the four bags

were 15Kg, 11Kg, 10Kg 500gm and 14Kg 300 gm respectively of “ganja leavesâ€. The two appellants before this Court failed to show any licence

for carrying the said materials. The appellants were apprehended and their bags were sealed and samples were sent for examination. Thereafter, the

police filed the charge-sheet against the appellants. Consequently, charges were framed against the accused appellants by the Trial Court on

01.10.2011. In order to prove its case the prosecution examined as many as seven witnesses. Subsequently accused appellants were convicted by the

trial court under Section 8/20 (b) (ii) (C) of the NDPS Act vide judgment and order dated 28.02.2014. Hence, the present appeals before this Court.

Both the appellants are presently in jail.

A legal submission has been raised by the learned counsels for the appellants that procedure provided under the NDPS Act has not been followed

inasmuch as there has been a clear violation of Sections 42 and 50 of the NDPS Act. Section 42 of the NDPS Act reads as under:-

“Section 42. Power of entry, search, seizure and arrest without warrant or authorisation.â€"(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 personal

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,â€

(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:

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 thereunder, 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.â€​

As far as Section 42 of the NDPS Act is concerned, a mandatory provision is contained in sub-section (2) of Section 42 of the NDPS Act which

prescribes that whenever such an offence is committed under the NDPS Act, the officer who makes the arrest and seizes the contraband material

has to send a report to his superior officer within seventy-two hours of the incident. Learned counsels for the appellants have relied upon the

statement of PW1 Sri Rajesh Verma who had conducted the search. During his cross-examination, this witness had said that after the arrest was

made and the material was sent to the Malkhanna, he did not inform any gazetted officer nor did he inform his superior officer.

As far as the search is concerned, once the personal search is to be done, such cases shall be covered under Section 50 of the NDPS Act. Section

50 of the NDPS Act reads as under:-

“Section 50. Conditions under which search of persons shall be conducted.â€

(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.

(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.â€​

Evidently, the contraband material was found not from the person of the appellants but it was allegedly kept in four separate bags, but the fact

remains that personal search of each of the appellants was also conducted. In such a case, the provision of Section 50 of the NDPS Act would also

be applicable as is applicable in the case of a personal search. In case of State of Rajasthan v. Parmanand and Another, reported in (2014) 5 SCC

345, which involved similar facts as of the present appeals, the Hon’ble Apex Court in paragraph 15 has held as under:

“15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no

application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case,

Respondent 1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of

Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of

the NDPS Act will have application.â€​

Moreover, when the appellants were asked that they can be searched before a Magistrate or a Gazetted Officer, the same was never informed to

them in a meaningful manner. Firstly, such a disclosure was not made to each of the appellants separately. Secondly, it was not stated clearly to the

appellants that this is not a mere formality but under Section 50 of the NDPS Act, it is their legal right to be searched before a Magistrate or a

Gazetted Officer. It appears that only a formality has been completed which is a mere sham or an eyewash.

In view of the foregoing discussion, the criminal jail appeals are allowed. Impugned judgment and order dated 28.02.2014 passed by the Trial Court

is hereby set aside. Conviction and sentence imposed on the appellants are quashed. The appellants, if not required in connection with any other case,

shall be released forthwith.

Let a copy of this judgment, along with the lower court record, be sent to the court concerned for compliance.

Registrar General of this Court is hereby directed to communicate this order to the concerned Jail Authority for onward compliance.