SURESH Vs. STATE

JUDGEMENT

(1.) THE prosecution case is that the Sub Inspector of kozhikode City Detective Crime Record Bureau found the accused near the bus stop of Pottammal possessing 3. 500 gins, of brown sugar in a packet kept inside a Wills cigarette packet kept in the girdle knot of his mind. THE Sub Inspector had received information at about 7. 40 p. m. on 31-10-1990 that brown sugar was being sold near the bus stop. In pursuance to that information, the Sub inspector went to the spot and saw the accused standing near the bus stop. THE article was seized, sample taken, a mahazar prepared and the accused arrested and taken to Medical College Police Station. THE contraband article and the accused were entrusted to the Station House Officer as per a report. Crime was registered under S. 17 of the Act. On the next day, the Circle Inspector of medical College Police Station took charge of the investigation and accused was produced before the Magistrate, Kunnamangalam with a remand report. THE contraband article was also forwarded to the court with a forwarding note. THE magistrate committed the case to the Court of Sessions, Kozhikode.

(2.) THE accused pleaded not guilty to the charge. Eight witnesses were examined on the side of the prosecution and Exts. P1 to P9 and mos. 1 to 3 were marked. THE Sessions Court after hear ng both sides and on a consideration of the evidence found the accused guilty, convicted him and awarded the sentence referred above. Hence the appeal.

(3.) IT has to be seen whether the police officer complied with the provisions contained in S. 50 of the Act, Considerable reliance was placed on the decision of the Supreme Court in State of Punjab v. Balbir Singh (AIR 1994 SC 1872) in support of the contention mat S. 50 of the Act is mandatory and it is obligatory on the part of the officer to inform the person to be searched about his right under S. 50 to be produced before a Gazetted officer or a Magistrate and failure to inform the person and failure to lake him to the Gazetted Officer or Magistrate if such person so required, would amount to non-compliance of S. 50 which is mandatory. The Supreme Court in sub-para. (5) of para. 26 of the judgment has made these observations in connection with the search of a person by an authorised officer or an empowered officer while acting under S. 41 (2) or S. 42 of the Act. The Supreme Court did not refer to the mandatory nature of S. 50 as far as seizure under S. 43 of the act is concerned. That being so, the principles laid down in Balbir Singh's case cannot be made applicable to a seizure under S. 43 of the Act. The result is that in the case of a seizure under S. 43 of the Act, the conditions prescribed in S. 50 cannot be said to be mandatory. The officer who conducts the search need produce the person before a Gazetted Officer or. a Magistrate only if a request comes from the person. Appellant had no case that such a request was made by him and PW. 1 had failed to comply with that request. Moreover, PW. 1 who apprehended the accused had asked him whether he required the presence of a magistrate or a Gazetted Officer. PW. 1 has spoken about this fact. He stated that the accused did not inform him that any such officer should be brought for conducting the search. In the circumstances, the pica that there is non-compliance of S. 50 of the Act is unsustainable. 6a. According to counsel, even in the case of a seizure under S. 43, the provision contained in S. 50 has to be complied with. Counsel has drawn attention to sub-para. (5) of para. 26 of the judgment in Balbir singh's case. The Supreme Court held that if a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrest of a person in the normal course of investigation into an offence or suspected offence and when such search is completed at that stage, S. 50 of the ndps Act would not be attracted. The question of complying with the requirement thereunder would not also arise. But if during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substances then the police officer who is not empowered should inform the empowered officer win)should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards he should carry out the investigation in accordance with the other provisions of the NDPS Act. The above observation of the Supreme Court is of no assistance to appellant since this is not a case of a search or a seizure by a police officer in the normal course of investigation into an offence or suspected offence as provided under the provisions of the Code of Criminal Procedure. The Sub inspector had gone to the spot on getting inebriation that brown sugar was sold near the bus stop. IT was in pursuance to such information that the Sub inspector had proceeded to the spot and seized the article. This is therefore a case of seizure of the. article under S. 43 of the Act and as observed earlier, the provisions of S. 50 cannot be said to be mandatory in the case of such seizure.