ABDUL AZEEZ Vs. STATE OF KERALA

JUDGEMENT

(1.) IS there need for compliance with Sec. 42 (2) of the NDPS act in a case where the information that the seizing official gets is with regard to the availability of the contraband in a place other than a building, conveyance or enclosed place ? This is the main question that is raised in the present appeal. Of course, violation of Sec. 50 of the NDPS Act is also alleged by the appellant besides violation of Sec. 42. The appellant is armed with the decisions in Johnson v. State of Kerala (2001 (1) KLT SN 5 at page (4) and Salim v. State of Kerala (2001 (1) KLT SN 6 at page 5) with regard to his submissions on the former aspect.

(2.) FACTUAL details : According to the prosecution, at about 5. 45 p. m. on 15-8-1997 the Circle Inspector of police, Koduvally, got an information that brown sugar was brought by a person near Koduvally bridge. He recorded the same in the Station G. D. and conveyed the information to the Deputy Superintendent of Police, who is the official superior, and then proceeded to the place along with the police party. He found the accused standing on the western side of the Koduvally bridge on the road side. The accused was surprised to see the police party and tried to escape; but he was intercepted. After questioning him with regard to him option under sec. 50 of the NDPS Act, and on getting a negative reply which was recorded at the spot, body of the accused was about to be searched. The accused then took out a packet and handed it over to the Circle Inspector of Police which on opening was found to contain brown sugar, weight of which was ascertained as 18 grams at the spot. After necessary sampling and other legal formalities, the contraband and the arrested accused were removed to the Police Station and the matter proceeded with in accordance with law.

(3.) SEC. 42 (1) of the NDPS Act provides for entry, search, seizure and arrest without warrant or authorisation. According to this provision, where an empowered officer who 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 in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any 'building, conveyance or enclosed place', may, between sunrise and sunset enter into and search any such building, conveyance or place.