PANDIAN Vs. STATE

JUDGEMENT

(1.) HEARD. It is seen that a quantity of 112. 500 kilograms of ganja was seized from the house of the petitioner on 14-8-1993 by the respondent and since it involves the offence one punishable under Section 8(c) read with 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, law was set in motion, petitioner was arrested and lodged to judicial custody and the case is consequently being investigated. This application is the second attempt made on behalf of the petitioner to enlarge him on bail and the first one was made in Crl. O.P. No. 1625 of 1994, in which, the same learned counsel Mr. A. Natarajan contended that the mandatory nature and directions in built in Sections 54A read with 2(c) and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 have not been complied with and after hearing both sides, this Court has dealt with the matter elaborately and after having canalised the same, dismissed the petition for bail on 4-3-1994.

(2.) IN this second attempt, learned counsel would rely upon the judgment rendered by the Supreme Court inState of Punjabv.Balbir Singh, for the position that Sections 50 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to be followed by the investigating agency are pronounced as clearly a mandatory one and that inasmuch as the said position has been laid down by the Supreme Court, the non-compliance of the same would clearly entitle the petitioner to be enlarged on bail. This position however was controverted very seriously by the learned Additional Public Prosecutor by stating that since permission had been obtained from the Superior Officer by the respondent in writing and visited the house of the petitioner, finding that the petitioner was actually engaged in weighing and packaging the contraband of 112. 500 kilograms of ganja and the process was going on, the respondent seized the same and arrested the petitioner and accordingly sent a special report on the same day itself and that therefore, there were no mandatory violations committed by the respondent herein. IN the context of the above rival position, it is identified that there was no violation of the mandatory nature or directions of any of the provisions of the Act. I am rather inclined to hold further that the same contention has been dealt with by this Court already in the previous Crl. O.P. above referred. But since the Bar has referred the judgment rendered by the Apex Court in the above citation, I have proposed to discuss the case on hand in the light of the legal ratio enuntiated by the Supreme Court, which has been clearly spelt out in paragraph 27 of the Judgment, which is extracted as follows :-"27. The question considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows :- (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who 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'.

(3.) TO this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. TO that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4A) If a Police Officer, even if he happens to be an empowered Officer while effecting an arrest or search during normal investigation into offence purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of Sections 100 and 165 Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity.(4B) If an empowered officer or an authorised officer under section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. P.C. namely Sections 100 and 165 Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would notper sebe illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. 5. On prior information, the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.