JAINULABDIN ALIAS NAHAMACHA Vs. STATE OF MANIPUR

JUDGEMENT

(1.) These three appeals viz. Criminal (Jail) Appeal No. 1 of 1990, Govt. Criminal Appeals Nos.4 and 5 of 1990 were heard together as the points involved are the same. By this common judgment and order we propose to dispose of the above three appeals.

(2.) Facts of Criminal (Jail) Appeal No. 1 of 1990 : -On 14-2-86 the Superintendent of Police, Boarder Affairs (P.W. 4) along with the Sub-Inspector of Police of the department (P.W. 5) were at Moreh for checking and handling of drug traffickers. They did so on getting reliable information. The party included also constable P.W.1 and P.W. 2, an Official of Narcotic Section of Manipur Police Department and on way they came accross with the accused Jainulabdin @ Nahamacha in a suspicious manner and after getting down from their vehicle the body of the accused was searched by P. W. 5, the Sub-Inspector of Police. A plastic packet suspected to be No. 4 heroin powder was found and on measurement by P.W. 3 a local Goldsmith, the weight was found to be of 15 grams. The heroin was seized by preparing a formal seizure list Ex. P/ 1 and P.Ws. 1, 2 and 3 were witnesses to the seizure. Thereafter accused along with the heroin powder was taken under arrest to the Inspection Bungalow, Moreh for interrogation. On instruction from the Superintendent of Police, Boarder Affairs (P.W. 4), the Sub-Inspector of Police (P.W. 5) lodged the F.I.R. Ex. P/2 and the accused was also handed over to the Officer-in-charge of Moreh Police Station. The plastic packet containing heroin was re-seized. Thereafter, police after investigation submitted charge-sheet. The learned Sessions Judge. Imphal accepted the prosecution story. The learned trial Court also took into consideration the report of the Chemical Examiner Ex. P/6 that the packet contained heroin. The learned Sessions Judge rejected the defence plea that both the Superintendent of Police (P.W. 4) and the Sub-Inspector of police (P.W. 5) had no power to seize the heroin under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, for short the Act, inasmuch as these officers were not authorised under provisions of Ss. 41, 42 and 53, holding, inter alia, that the Act is not a complete Code and when the provisions of the Act are not in-consistent to the provisions of Cr. P.C. seizure, search and arrest can be made under the provisions of Cr. P.C. The learned Sessions Judge also took into consideration S. 43 of the Act and came to the finding that these police officers had power to arrest the accused and search him under S. 43 of the Act.

(3.) Facts of Govt. Criminal Appeals Nos. 4 and 5 of 1990 : - According to prosecution the occurrence took place on the same day i.e. 14-2-86 and at the same place i.e. Moreh. Two accused persons in the above two Sessions Cases viz Sheivam Madraji and Sirajuddin were found moving in suspicious manner at 1 p.m. and 11-10 a.m. respectively and they were arrested by the same Sub-Inspector and after search of their body 30 grams of No. 4 heroin powder and 50 grams of No. 4 heroin powder in two plastic packets were recovered from the above two persons respectively. The said Sub-Inspector filed the FIR before the Officer-in-charge, Moreh Police Station and after investigation chargesheets were submitted u/ S. 21 of the Act. Both the cases were tried separately, but by the common judgment and order, learned Additional Sessions Judge No. 1, Imphal acquitted both the accused persons on technical ground. The learned trial Court held that the Sub-Inspector of Police was not a duly authorised police officer u/S. 42(1) of the Act, as the Notification by the State Govt. was issued subsequent to the date of occurrence and such notification with retrospective effect is not tenable in law. The learned trial Court also rejected the contention that u/ S. 42 of the Act officers mentioned in the said Section has power to arrest, search and seize in a public place u/S. 43 of the Act even if they are not duly authorised. In coming to the above conclusion the learned Court also took into account, the provisions of S. 50 of the Act. The further contention on behalf of the prosecution that under Cr. P.C. a Police Officer has power to arrest and search a person was also rejected in view of the provisions contained in the Act, which is a special law. In view of the above findings of the learned Sessions Judge on the provisions of the Act, both the accused persons were acquitted without entering into the merits of the two cases.