KANESHWAR SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The applicant has been apprehended in connection with Crime No. 22/95, registered at Police Station, Churhata (Rewa) under Section 20B of the N.D.P.S. Act.

(2.) According to the case diary, Head Constable Girja Prasad Pandey, No. 623, was deputed to make investigation in relation to a car accident. When the said officer reached the place of occurrence, he found that one man was lying in the car in injured condition, While making investigation, the Head Constable found that one gunny bag containing 18 kgs. of Ganja was lying in the said car. The Head Constable immediately thereafter made a seizure memo, brought the accused and the contraband to the Police Station and gave an application to the Town Inspector that the offence was under the provisions of the NDPS Act, which he could not investigate and as the accused was injured, the contraband and the accused were brought to the Police Station for further action. Shri Dutt submits that according to Section 42 of the NDPS Act, it is only the empowered officer who can investigate and in the absence of seizure and arrest by the empowered officer, the trial would be vitiated, therefore, the applicant be released on bail He also submits that immediately after finding that the offence under the provisions of NDPS Act has been committed, the Head Constable should have stayed his hands and proceedings and was obliged to call an empowered officer. On the other hand, Shri Ahluwalia submits that immediately after realising that 18 kgs. of Ganja was kept in the said vehicle, the Head Constable made seizure memo and immediately thereafter brought the accused to the Police Station and made a request to the empowered officer to proceed with the investigation. He submits that in a situationlike this, the observations of the Supreme Court made in the matter of State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : (1994 Cri LJ 3702) on which reliance is placed by Shri Dutt, would not be applicable.

(3.) Shri Dutt submits that the Supreme Court has clearly observed that when a police officer carrying on the investigation including search, seizure or arrest, empowered under the provisions of the Cr. P.C. comes across a person being in possession of the narcotic drugs or psychotropic substances, then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered, then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act.But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a gazetted officer and taking to a gazetted officer thus would not arise because by then the search would have been over. As laid down in Section 50, the steps contemplated thereunder, namely, informing and taking him to the gazetted officer should be done before the search. The Supreme Court has further observed that when the search is already over in the usual course of investigation under the provisions of Cr. P.C. then the question of complying with Section 50 would not arise. The Supreme Court has further observed that 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 chalice 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.