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1994 DIGILAW 487 (KER)

Suresh v. State

1994-12-21

K.P.BALANARAYANA MARAR

body1994
Judgment :- The accused in S.C.No.133 of 1991 before the Sessions Court, Kozhikode is the appellant. Therein he was found guilty of qic offence under S.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the act), convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for another period of one year. 2. The prosecution case is that the Sub Inspector of Kozhikode City Detective Crime Record Bureau found the accused near the bus stop of Pottammal possessing 3.500 gins, of brown sugar in a packet kept inside a Wills cigarette packet kept in the girdle knot of his mind. The Sub Inspector had received information at about 7.40 p.m. on 31-10-1990 that brown sugar was being sold near the bus stop. In pursuance to that information, the Sub Inspector went to the spot and saw the accused standing near the bus stop. The article was seized, sample taken, a mahazar prepared and the accused arrested and taken to Medical College Police Station. The contraband article and the accused were entrusted to the Station House Officer as per a report. Crime was registered under S.17 of the Act. On the next day, the Circle Inspector of Medical College Police Station took charge of the investigation and accused was produced before the Magistrate, Kunnamangalam with a remand report. The contraband article was also forwarded to the court with a forwarding note. The Magistrate committed the case to the Court of Sessions, Kozhikode. 3. The accused pleaded not guilty to the charge. Eight witnesses were examined on the side of the prosecution and Exts. P1 to P9 and MOs.1 to 3 were marked. The Sessions Court after hear ng both sides and on a consideration of the evidence found the accused guilty, convicted him and awarded the sentence referred above. Hence the appeal. 4. Heard counsel for appellant and Public Prosecutor. 5. The conviction and sentence arc assailed by the appellant on various grounds. Non-compliance of the mandatory provisions contained in Ss.42 and 50of the Act is one of the grounds on which the judgment is assailed. The question of compliance of S.42 does not arise since the seizure was from a public place in which case the seizure is one under S.43 of the Act. Non-compliance of the mandatory provisions contained in Ss.42 and 50of the Act is one of the grounds on which the judgment is assailed. The question of compliance of S.42 does not arise since the seizure was from a public place in which case the seizure is one under S.43 of the Act. That Section docs not contemplate recording of any information received by the police officer or sending of a copy thereof to the immediate official superior. Sec.43 enables any officer of any of the departments mentioned i n S.42 to seize any article i f he has reason to believe that an offence punishable under Chap. I V has been committed, The deleting officer, P.W.1 has spoken about information received by him about sale of narcotic drug from near the bus slop at Pottammal. On getting that information, he proceeded to the spot, seized the article from the possession of the accused, arrested him and look him to Medical College Police Station. The question of compliance of the mandatory provision contained in S.42 regarding recording of information does not therefore arise. 6. It has to be seen whether the police officer complied with the provisions contained in S.50 of the Act, Considerable reliance was placed on the decision of the Supreme Court in State of Punjab v. Balbir Singh (AIR 1994 SC 1872) in support of the contention mat S.50 of the Act is mandatory and it is obligatory on the part of the officer to inform the person to be searched about his right under S.50 to be produced before a Gazetted Officer or a Magistrate and failure to inform the person and failure to lake him to the Gazetted Officer or Magistrate if such person so required, would amount to non-compliance of S.50 which is mandatory. The Supreme Court in sub-para. (5) of para.26 of the judgment has made these observations in connection with the search of a person by an authorised officer or an empowered officer while acting under S.41(2) or S.42 of the Act. The Supreme Court did not refer to the mandatory nature of S.50 as far as seizure under S.43 of the Act is concerned. That being so, the principles laid down in Balbir Singh's case cannot be made applicable to a seizure under S.43 of the Act. The Supreme Court did not refer to the mandatory nature of S.50 as far as seizure under S.43 of the Act is concerned. That being so, the principles laid down in Balbir Singh's case cannot be made applicable to a seizure under S.43 of the Act. The result is that in the case of a seizure under S.43 of the Act, the conditions prescribed in S.50 cannot be said to be mandatory. The officer who conducts the search need produce the person before a Gazetted Officer or. a Magistrate only if a request comes from the person. Appellant had no case that such a request was made by him and PW.1 had failed to comply with that request. Moreover, PW.1 who apprehended the accused had asked him whether he required the presence of a Magistrate or a Gazetted Officer. PW.1 has spoken about this fact. He stated that the accused did not inform him that any such officer should be brought for conducting the search. In the circumstances, the pica that there is non-compliance of S.50 of the Act is unsustainable. 6A. According to counsel, even in the case of a seizure under S.43, the provision contained in S.50 has to be complied with. Counsel has drawn attention to sub-para.(5) of para.26 of the judgment in Balbir Singh's case. The Supreme Court held that if a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrest of a person in the normal course of investigation into an offence or suspected offence and when such search is completed at that stage, S.50 of the NDPS Act would not be attracted. The question of complying with the requirement thereunder would not also arise. But if during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substances then the police officer who is not empowered should inform the empowered officer win) 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. 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. The above observation of the Supreme Court is of no assistance to appellant since this is not a case of a search or a seizure by a police officer in the normal course of investigation into an offence or suspected offence as provided under the provisions of the Code of Criminal Procedure. The Sub Inspector had gone to the spot on getting inebriation that brown sugar was sold near the bus stop. It was in pursuance to such information that the Sub Inspector had proceeded to the spot and seized the article. This is therefore a case of seizure of the .article under S.43 of the Act and as observed earlier, the provisions of S.50 cannot be said to be mandatory in the case of such seizure. 7. It is then contended that the provisions contained in S.55 of the Act had not been complied with. The offence was not detected by an officer in charge of a police station but by the Sub Inspector attached to City Detective Crime Record Bureau. The article seized and the accused were produced before the Station House Officer of the Medical College Police Station. According to counsel, S.55 of the Act mandates that the seal of the officer in charge of the police station should be affixed on the samples and the requirements of that Section should be fulfilled. In order to appreciate the contention raised by counsel, it is only proper to read S.55 of the Act. S.55 reads:- "55. Police to take charge of articles seized and delivered.-An officer-in-charge of a police station shall lake charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station." 8. Section 55 directs that an officer in charge of a police station shall take charge of and keep in safe custody all articles seized under the Act within the local area of that police station and which may be delivered to Mm pending the orders of the Magistrate. The Section further says that an officer-in-charge of a police station shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix lust seal to such articles or to take samples of and from them and all samples so taken also be sealed with a seal of the officer-in-charge of the police station. The section does not insist that the articles seized by an authorised officer or an empowered officer other than an officer-in-charge of a police station should produce those articles before the officer-in-charge of the police station within the local area of which the offence was detected. It only directs the officer-in-charge of a police station to take charge of and keep in safe custody all the articles which may be delivered to him. The Section only means that it will be open to an authorised officer or an empowered officer other than an officer-in-charge of a police station cither to deliver the articles before an officer-in-charge of the police station or he may produce the articles in court or send the same direct for chemical analysis. In case the articles are delivered at the police station, the officer-in-charge has no alternative but to lake charge of the same and to keep in safe custody in which case he has to retain the same. The second part of the Section directs an officer-in-charge of the police station to allow any officer who may accompany such articles to affix his seal to such article. He should also afford all facilities to lake samples from the article seized. If the samples are taken from the police station and seal is affixed therefrom, the seal of the officer-in-charge of the police station shall also be put on the articles and the samples. Qn a careful reading of the Section, the purpose appears to be to enable any authorised officer or empowered officer to deliver the articles at the police station. Qn a careful reading of the Section, the purpose appears to be to enable any authorised officer or empowered officer to deliver the articles at the police station. In case the sampling and sealing were not done earlier, all facilities should be provided by the officer-in-charge of the police station in which case alone the seal of the officer-in-charge need be put on such samples. The contention of learned counsel for appellant that the article should have been produced before the police station and seal should have been affixed from the police station after taking samples cannot be sustained. 9. In this connection counsel has drawn attention to the decision of the Delhi High Court reported in Sunil Kumar v. State (1990 Crl.L.J. 414), The spirit underlying S.55 of the Act, according to the decision, seems to be that the officer-in-charge of the police station must ensure that the case property and the sample extracted therefrom by the investigating officer arc not tampered with in any manner whatsoever. It was held that the section enjoins that the officer-in-charge of the police station should not deposit the in the Malkhana without affixing his own seal impression in addition to the seal of the investigating officer. In that case sample was taken by the investigating officer after seizure of the contraband article and sealed on the spot and then it was brought to the police station for affixing the seal of the police officer in charge of the police station. It was held that there was no violation of S.55 of the Act. 10. On a careful reading of S.55 it would appear that affixing of a seal by the officer-in-charge of the police station is insisted only if samples are taken from the police station and the seal is affixed by the investigating officer from the police station. In case samples had been taken and seal affixed by the investigating officer before the article is delivered to the police station, the question of the seal of the officer-in-charge of the station being affixed to the sample does not arise. That is clear from the latter part of S.55 which directs the Station House Officer to allow any officer who had accompanied the articles to affix his seal to such articles and to take samples from them. That is clear from the latter part of S.55 which directs the Station House Officer to allow any officer who had accompanied the articles to affix his seal to such articles and to take samples from them. Only samples so taken shall be sealed with the seal of the officer-in-charge of the police station. Since S.55 is clear on this aspect, I respectfully disagree with the views expressed in the decision of the Delhi High Court aforementioned. The contention of learned counsel for appellant that S.55 is mandatory and that the seal of the officer-in-charge of the police station should have been affixed on the samples is therefore without merit and has to be rejected. 11. The contraband article was handed over to the Head Constable of Medical College Police Station. While examined as PW.7, he stated that PW.1 produced the accused and the contraband article before him at 9.40 p.m. on 31-10-1990. The delivery of the article, according to counsel for appellant, was not before the officer-in-charge of the police station. As per the definition in S.2(o) of the Code of Criminal Procedure, "officer-in-charge of a police station" includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer. PW.7 has stated that a crime was registered under S.17 of the Act and the FIR sent to the court and copies sent to the higher authorities. In cross-examination he stated that the accused and the contraband article were produced before him in his capacity as the Head Constable. He had not affixed seal on the samples. It is contended that PW.7 has not spoken about the absence of Sub Inspector from the police station or that the Sub Inspector was unable from illness or other cause to perform his duties, in which case alone P.W.7 could have exercised the functions of an officer-in-charge of the police station. But no question is seen asked in cross-examination as to whether the Sub Inspector was present in the police station at the time when the accused and the contraband article were produced in the police station. But no question is seen asked in cross-examination as to whether the Sub Inspector was present in the police station at the time when the accused and the contraband article were produced in the police station. PW.7 has spoken about the preparation of the FIR and sending of the original to the court and copies to the higher authorities. In the absence of any cross-examination on these aspects, it has only to be inferred that PW.7 was in charge of the police station at the time when the accused and the contraband article were produced in the police station and he was exercising the functions of an officer-in-charge of the police station. He was therefore competent to take charge of the article and the accused. 12. The detection of the offence has not been witnessed by independent witnesses according to counsel for appellant and the seizure has not been satisfactorily proved. It is also his contention that a false case was foisted on the appellant in view of the hostility between the accused and some of the police officers, especially PW.2. It is pointed out that the witnesses are persons of distant places and there was no possibility of these witnesses being present near the bus stop from where the article was seized from the. possession of the accused. These contentions did not appeal to the Sessions Judge who had carefully analysed the evidence adduced on the side of the prosecution. Apart from the police officers PWs.1 and 2, there is the testimony of PWs.4 and 5 who are witnesses to the seizure mahazar. PW.4 admitted his signature in the mahazar Ext. P1 but stated that he did not see the search or the seizure. According to him, the accused was seen there. But he did not see the police taking any article from the possession of the accused. In cross-examination he admitted that he had given evidence in another case under the N.D.P.S. Act. He also stated that he had given evidence in two brown sugar cases. He denied having any acquaintance with the accused. He resides at Nallalam, 6 Kms. away from Kozhikode. The other witness to the mahazar is PW.5. He would even deny the signature in Ext. P1 as well as witnessing of the seizure, arrest and preparation of mahazar. In cross-examination he admitted that he was a witness in another case against one Sasi. He resides at Nallalam, 6 Kms. away from Kozhikode. The other witness to the mahazar is PW.5. He would even deny the signature in Ext. P1 as well as witnessing of the seizure, arrest and preparation of mahazar. In cross-examination he admitted that he was a witness in another case against one Sasi. He resides 8 Kms. away from Kozhikode. 13. It is strenuously contended by learned counsel for appellant that the actual seizure of the contraband article has not been proved. True, P.Ws.4 and 5 had turned hostile to the prosecution. But PW.4 has admitted his signature in the mahazar as well as the presence of the accused at the spot. If that be so, he would have been present there at the time when the search was conducted and the article seized from the accused. This part of the evidence taken along with the testimony of the police officers PWs.1 and 2 would establish the case of the prosecution that the accused was searched near the bus stop at Pottammal and the contraband article was seized from his possession. In this connection Public Prosecutor has drawn attention to the decision of the Supreme Court in Modem Singh v. State of Rajasthan (1979 SCC (Crl.) 56) where it was held that if the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. 14. The non-examination of the adjacent shop-keepers and persons of that area is commented upon by counsel for appellant. It is in evidence that there are a few shops near the bus stop. But none of the shop-keepers was called as a witness to the search and seizure. PW.1 would not have called any of the shop-keepers for the reason that the search was conducted from a bus stop and persons who are waiting there can be called as witnesses. PWs.4 and 5 are stated to be persons present at the bus stop. True they had turned hostile. But PW.4 had seen the accused at the spot and he had also subscribed signature to the mahazar. Even though he had turned hostile, there is reason to believe that he had occasion to witness the search and seizure and had turned hostile only to support the accused. True they had turned hostile. But PW.4 had seen the accused at the spot and he had also subscribed signature to the mahazar. Even though he had turned hostile, there is reason to believe that he had occasion to witness the search and seizure and had turned hostile only to support the accused. The non-examination of any of the shop-keepers is therefore not material in the circumstances. 15. The specific case of the accused was that a false case was foisted on Mm on account of the hostility between him and some policemen including PW2. It was contended that PW2 and another constable by name Vijay an used to purchase cigarettes and plantains from his shop and kept amounts in arrears. When the amount was demanded, they threatened the accused that he would be taught a lesson. While he was waiting in the bus stop he was forcibly taken in an autorickshaw by PW1 and others and a case was foisted on him. This plea of the accused could have been appreciated, " provided it was suggested to PW2 that he had purchased cigarettes and plantains from' the shop of the accused and amounts were due to the accused. No such suggestion is seen to have been put to PW2. Moreover, it is also not seen suggested to PW2 that the accused was having a petty shop in front of the K.S.R.T.C. bus stand from where cigarettes and plantains were purchased without making payments. The only suggestion to PW. 2 in cross-examination as pointed out by the Sessions Judge is that PW 2 is deposing falsehood as directed by PW 1. The failure on the part of the accused to put these suggestions in cross-examination of PW. 2 cuts at the root of the defence that a false case was foisted at the instance of PW. 2 and another constable by name Vijayan. The Sessions Judge had carefully analysed the testimony of the witnesses and has correctly found that the accused was seen at the bus stop on that day at 8 p.m. and that brown sugar was seized from his possession by PW. 1. 16. What remains to be considered is whether the article seized has been proved to be brown sugar. On this aspect there is the report of the analyst Ext. 1. 16. What remains to be considered is whether the article seized has been proved to be brown sugar. On this aspect there is the report of the analyst Ext. P5 which shows that on analysis the material in the packet was found to contain diacetylmorphine (heroin). He further certified mat i more heroin is commercially known as brown sugar. Regarding the seizure and sampling there is the testimony of PW 1 which in the circumstances has to be accepted. PW. 8 Circle Inspector of Police has spoken about sending of the material objects to the court and the forwarding note for purposes of sending the same to the analyst. There is thus satisfactory evidence on record to show the seizure, sampling of the article and sending of the article to the analyst who has found the article to be brown sugar. The ingredients of S.21 of the Act had therefore been established. The Sessions Judge was therefore right in finding the accused guilty of the offence under S.21 of the Act and in convicting him thereunder. Regarding sentence also there is no reason to interfere. 17. For the aforesaid reasons, the conviction and sentence against the appellant are sustained and the appeal is dismissed.