MOHAMMED RIZWI AND AMEER SULTAN Vs. STATE

JUDGEMENT

(1.) THIS appeal arises from the conviction and sentence of the learned III Additional Session Special Judge, City Civil Court, Madras, in C.C.No.75 of 1992 dated 23.9.1993, for the offence under Section 8(c) read with Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985, (hereinafter to be referred to as Act) to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 1 lakh, in default to undergo further rigorous imprisonment for 2 years. The case of the prosecution is as follows: -

(2.) P .W.6 was the Inspector of Police from 14.8.91 to 16.1.93 in narcotics Intelligence Bureau, Madras. On 28.5.92 at about 2.30 p.m., he received a message that two persons by names Mohammed Rizwi and Ameer Sultan, staying in Room No.105, Dheenshaw Lodge, Purasawakam, Madras, were in possession of the narcotic substance, heroin. He immediately sent an intimation Ex.P -15 to his superior officer P.W.7, the Deputy Superintendent of Police of Narcotics Wing, informing the message and also his immediate departure to the place as he had no time to get the search warrant or the authorisation. He, along with the Sub -Inspectors of Police John Rose, Bhagyaraj, Kalidas and Ali Basha and Head Constables, altogether 7 persons, proceeded to Dheenshaw Lodge by about 04.15 p.m. and met the Supervisor of the hotel, P.W.I, informing his identity and the purpose for which he came there. P.W.I promised to cooperate with him and accompanied the police party along with another employee of the hotel, to Room No. 105. When the door was knocked by P.W.6, first accused opened the door and second accused was arranging certain things in M.O.I suitcase. On seeing them, both the accused tried to escape from the room, but there was no way for it. P.W.6 revealed his identity and informed them that as he wanted to make a search of the house, whether they wanted to be produced before any gazetted officer or Magistrate to search them. They said that they need not be taken to anywhere and the search could be conducted. Thereafter P.W.6 searched the room and the suitcase M.O.I was kept near the leg of the cot. P.W.6 opened the suit case and found inside a cardboard box M.O.2 intended for packing Usha Fan. Inside M.O.2 there were five polythene packets and certain polyester cloths. M.O.3 are the polyester cloths and M.O.4 is the polythene cover of the packets. P.W.6 opened the polythene cover and found inside M.O.5 a brown colour wrapper within which M.O.6 brown sugar or heroin, which is a narcotic substance, was kept. In the same suitcase, further below, there were ever silver plates M.O.7 series and beneath them some were more polyster cloths M.O.8, under which four packets covered by polythene cover, were found. Within the polythene cover M.O.10, the brown paper was was found within which M.O.11 brown sugar was kept. So, altogether there were 9 packets of brown sugar, each weighing 1 Kg. P.W.6 seized the suitcase and the contents therein under a Mahazar Ex.P -1, signed by P.W.I, the employee of the Lodge Azhagan and also these accused. P.W.6 took two samples weighing 5 grams each in all these 9 packets and these samples were packed and N.I.B. seal was affixed in the presence of the accused and P.W.I. The accused were informed that they were arrested for the possession of narcotic drug, viz. Heroin. In the contraband packets and also in the sample packets, the signature of the accused were obtained. The accused and the articles seized, were brought to the N.I.B. Police Station and P.W.6 immediately prepared a report under Section 57 of the Act mentioning about the seizure of the articles. The report, Ex.P -16, was sent to P.W.7, the Deputy Superintendent of Police. He also registered the crime and prepared the First Information Report Ex.P. -17. On receiving the report Ex.P -16, P.W.7 took up the investigation. He visited the room where the contraband was seized and prepared a plan Ex.P -19 and examined the witnesses. The articles seized were sent to the 14th Metropolitan Magistrate on 29.5.92. But as the Magistrate did not receive the articles for the reason that the Special Court has to investigate the case, the articles were handed over to the City Civil Court, Madras, with a request under Ex.P -7 to send the 9 sample packets for chemical analysis. The Special Judge sent the sample packets with a covering letter Ex.P -8, to the Forensic Laboratory for chemical analysis and P.W.4, the forensic expert, after examining all the samples, found that they contained the Di -Acetyl Morphine. Ex.P -9 is his report. On the confession of the first accused, his passport M.O.12 was seized from P.W.2, the travel agent. The investigation revealed that the first accused was previously staying in the lodge of P.W.5 on several days from November 1991 onwards. After completing the investigation, P.W.7 filed the charge -sheet against these appellants. The appellants were questioned under Section 313 Cr.P.C. for the incriminating circumstances found against them in the evidence of the prosecution witnesses. The appellants denied their complicity in the crime. The learned III Additional Session Judge, who analysed the evidence, has found that the guilt of the accused was proved for the offence under Section 8(c) read with Section 21 of the Act and dealt with them in the manner said above.

(3.) ACCORDING to the learned counsel, under Section 42 and 53 of the Act, the Central Government and the State Governments may invest the powers of search, seizure and investigation for the offences under this Act by notification and only such officers, who were invested with powers to search, seize and investigate alone, are entitled to take cognizance of the offence committed under this Act and on 28.5.92, the police officers, not below the rank of a Deputy Superintendent of Police, were not empowered to search, seize and investigate the offences under this Act and therefore P.W.6, the Inspector of Police had no powers to search the appellants and seize the contraband and the whole search and seizure was illegal. According to the learned counsel, only in October 1992, the notification was issued by the Government of India empowering the Inspectors of Police also to investigate the crimes under the Act and as this search was conducted in the month of May 1992, on which data there was no authorisation or power to P.W.6, the search was illegal. But, P.W.6 has deposed in his evidence that he was authorised by P.W.7 to conduct the search and on his authorisation, he proceeded to conduct the search in Dheenshaw Lodge. Ex.P -15 is the intimation sent by P.W.16, the Inspector of Police, to P.W.7, the Deputy Superintendent of Police, about the intimation he received and P.W.7 says that on the back of this intimation, he made an endorsement Ex.P -18 for action. According to the learned Public Prosecutor, this end statement by P.W.7 will amount to authorisation given by the Deputy Superintendent of Police, who is empowered to investigate under the Act, authorising his subordinate to conduct the search and therefore, there is nothing illegal in the search made by P.W.6. But there is nothing to show in the evidence that P.W.7 made endorsement Ex.P -18 directing for the action before the search was conducted by P.W.6. Ex.P -15 is not the letter of request to the Deputy Superintendent of Police for authorisation to conduct the search. On the other hand, Ex.P -15 reads that as Inspector of Police received the message about the possession of the contraband in the hotel and as he found no time either to get the search warrant from the Court or to get the authorisation, he was rushing to the place. Therefore, immediately despatching the message Ex.P -15 to his superior officer, P.W.6 proceeded to Purasawakkam to conduct the search. It is not the evidence of P.W.6 that he received Ex.P -18 direction from the Deputy Superintendent of Police before he conducted the search. Therefore, even before he received the direction from his superior officer, P.W.6 had conducted the search in Room No.105 in Dheenshaw Lodge.