M SHEIK Vs. STATE

JUDGEMENT

(1.) THE appellants, three in number, who hereinafter will be referred to as A-1, A-2 and A-3 respectively, were tried before the learned Special Judge (NDPS Act), Chennai, constituted to try the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, the "Act"), on an allegation that A-1 handed over 2 kgs of heroin to A-2 and A-3 for them to take it to Tirunelveli and that therefore, they committed offences punishable under Secs.8 and 23 read with Secs.27-A, 28 and 29 of the Act.

(2.) THE facts necessary to dispose of the appeal as could be discerned from the oral and documentary evidence, can be briefly summarised as follows: P.W.8 was the Superintendent of Police serving in Narcotic Control Bureau (NCB) during the relevant period. On 5.1.1994, he received an information that in a bus bearing Regn.No.TN-07-A-3999, three persons were transporting heroin. On receipt of such information, he, accompanied by P.W.6 and other police officers went to Tambaram check-post and was waiting for the arrival of the bus. At about 8.00 p.m., when the bus reached the check-post, P.Ws.8 and 6 entered the bus after asking the other officers to guard the bus. On entering the bus, P.W.8 saw two persons standing and they gave their names as Jothi, P.W.10 and Asokan, P.W.7. P.W.8 introduced himself and other officers that they are from NCB and informed them that they intend searching some of the passengers. P.W.8 obtained the register from the conductor of the bus and then proceeded to the seats bearing numbers 15, 16 and 17 to search the persons, who were sitting in thee seats, in view of the information which was already received by them. P.W.8 questioned the persons occupying seat numbers 15, 16 and 17 in the presence of independent witnesses. After introducing himself as the Superintendent of NCB and informing them of the receipt of the information, the accused were apprised of their right under Sec. 50 of the Act that they can be searched either before a Magistrate or a Gazetted Officer. P.W.8 also told them that he is a Gazetted Officer. THE accused told P.W.8 that he can conduct the search. A-2 on being questioned, produced a blue colour zip bag and A-3 produced a black colour zip bag. When their bags were searched, it was found that both the bags had pouches concealed at the bottom. When the secret pouch was searched, which was in the possession of A-2, two bags each weighing 500 grams of heroin were found. Similarly, the search of the pouch, which was in the possession of A-3 yielded two bags each of them containing 500 grams of heroin. THEy were weighed and sealed in the presence of witnesses. THE signatures of the accused were also obtained on the seized articles. THE mahazar, Ex.P-16, was prepared and attested by the witnesses for seizure of the articles. A-1 was questioned by P.W.1 and his statement, Ex.P-1, was recorded by her. THE report under Sec. 57 of the Act given by P.W.6 and others were also obtained. P.W.8, in turn, sent his report under Sec. 57 of the Act to his superior which stands marked as Ex.P-25 in the case. THE material objects and the accused were brought to the police station and later, the accused were sent for remand. THE material objects were sent to the Court with a request to forward them for analysis. THE houses of the accused were searched, but nothing incriminating was seized. Ex.P-4 is the house search list in respect of A-1's house. He also searched the business premises of A-1 and the mahazar is Ex.P-5. After the receipt of the report of the chemical analyst, P.W.8 advised P.W.6 to lay a complaint and accordingly, a complaint was laid.

(3.) THE question is whether Sec.42 of the Act applies to the facts of this case. P.W.6 is, admittedly, a Gazetted Officer. THErefore, Sec.43 of the Act will not apply to the facts of this case. If the searching officer is the Gazetted Officer, then only Sec.41(2) of the Act gets attracted since it contemplates that any officer of gazetted rank of the departments of Central Excise, Narcotics Customs, Revenue, Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer 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 in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place.