BHAWARLAL Vs. STATE

JUDGEMENT

(1.) THE appellants Bhanwar Lal and Anandi Lal filed this appeal against the judgment dated January 27, 2004 of Sessions Judge, Baran (Raj.) in Sessions Case No. 152 of 2001 convicting and sentencing them under section 8/15 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 10 years' RI and pay a fine of Rs. 1.00 lakh each and in default of payment of fine to further undergo Two years' RI.

(2.) BRIEF facts of the case are that on July 24, 2001 at 4.10 p.m. Incharge Police Chowki Balunda sent a wire less message to Police Station Mangrole that he has detained two suspects having Poppy husks. On this wireless message Ramprasad (PW.13) Incharge Police Station with police force Ramswarup (HC) Mohammed Ibrahim (FC) (PW.6 Kutubdin (FC) and Abdul Rauf, HC, in Police Jeep started for Police Chowki Balunda where Vijay Kumar (PW.3), Manoj Kumar (PW.4), Shivraj Singh (PW.5) HC Incharge Police Chowki,who were on duty detained two suspects having Poppy husks in two Gunny bags. Constable Richpal Singh vide Ex. P.5 requisition slip sent to Village Baluda to bring two witnesses. On this two witnesses Malkhan (PW.9) and Mangilal, came to Police Chowki Balunda. On reaching these two persons Incharge Police Station informed two suspects that they are to be searched whereupon both these suspects disclosed their names to be Anandilal son of Nandlal and Bhawar lal son of Tulsiram Dhakad resident of Baroda. Both these persons were informed that in Gunny Bags Poppy Husks is kept and the SHO wants to search them. They were asked whether they are ready to be searched by the SHO or before the Gazetted officer. The accused Bhanwar Lal vide Ex. P.16 and accused Andilal vide Ex. 17 made statements in writing that they are ready to be searched by the SHO. Over which both the accused agreed for search by Ram Prasad SHO. In the Gunny bag with Anandilal 5.500 Kgs. Poppy Husks was found and in his pocket Rs. 600/-, one watch, one ring of steel were also found. In the Gunny Bag with accused Bhanwar Lal 5.500 Kgs. Of Poppy Husks was found and in the pocket of Pent Rs. 435 were recovered. The recovery memo Ex. P.1 was prepared. The suspects were not having any licence to sell these Narcotic drugs with them. The suspects were arrested and arrest memos were prepared. As per norms from the recovered material some part of it was sealed separately and sent for chemical examination to the FSL. Accused were arrested vide Ex. P.6 and Ex. P7. FIR was registered at Police Station Mangrole and information about this under section 57 of the NDPS Act was sent to Sessions Judge Baran through Ex. P/14 and to SP Baran through Ex. P.15. Naksa Moka was prepared vide Ex. P.4. Statements of witnesses were recorded and the seized Narcotic Substance was sent to FSL over which receipt Ex. P./3 was given by the FSL and report of FSL was sent to police vide Ex. P.10.

(3.) SUB-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. SUB-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. SUB-section (3) lays down that when the person to be searched is brought before such a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct thatthe search be made. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect thecredibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropicsubstance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him 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. The Apex Court in Balbir Singhs case (1998 ) 2 SCC 724 after referring to a number of judgments, opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. What is the import of the expression if such person so requires he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ?