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1997 DIGILAW 341 (CAL)

MUNNA NAI v. STATE

1997-09-02

SUDHENDU NATH MALLICK, SURYA KUMAR TIWARI

body1997
SURYA KUMAR TIWARI, J. ( 1 ) THIS appeal arises out of conviction and sentence recorded by Shri D. K. Chakraborty, Sessions Judge, Howrah, in S. T. case No. IV (April, 1991 ). ( 2 ) THE Excise Department of the State Government filed a report under s. 21 of the Narcotic Drugs and Psychotropic Substances Act (for short N. D. P. S.), alleging that on 7-11-1989, H. Chakraborty, Sub-Inspector, Excise Department, Howrah, along with staff was on duty at platform No. 2 of Howrah Railway Station. At 12 O'clock the appellant Munna Nai was apprehended by P. W. 4 Bhola Prosad, Constable, out of suspicion and brought to P. W. 1, H. Chakraborty. The appellant was carrying a gunney bag which was searched in presence of witnesses. Two polythene packets containing some powder suspected to be brown sugar were found inside the gunney bag. The two packets were seized and duly weighed on the spot. The weight of one packet was 400 Gms. and that of the other packet was 235 Gms. P. W. 1, H. Chakraborty prepared two sample packets. Mr. Chakraborty took out samples from the contents of each of the packets. The appellant was arrested and kept in the G. R. P. lockup. The two samples taken out of the seized packets were sent for chemical examination to drug laboratory. The laboratory reported that the powder taken out of material Exhibit-4 contained heroin while the other sample was not found to be a contraband. ( 3 ) REPORT was filed in the Court. The ld. Sessions Court framed charge under S. 21 of the NDPS Act. The appellant pleaded not guilty. The ld. court found charges proved. The appellant was convicted. The ld. trial court awarded rigorous imprisonment for 15 years and also imposed a fine of Rs. 1,00,000/- or in default to suffer rigorous imprisonment for three years. Hence this appeal. ( 4 ) THE first point for consideration is whether the search and seizure was lawful ? P. W. 1, H. Chakraborty, the Excise Sub-Inspector, had deposed that at about 12 Noon P. W. 4 Bhola Prasad caught the appellant and brought him to the place where he was standing at platform No. 2. From the conduct of the appellant it appeared that he was carrying some contraband. He searched the gunney bag which appellant was carrying. P. W. 1, H. Chakraborty, the Excise Sub-Inspector, had deposed that at about 12 Noon P. W. 4 Bhola Prasad caught the appellant and brought him to the place where he was standing at platform No. 2. From the conduct of the appellant it appeared that he was carrying some contraband. He searched the gunney bag which appellant was carrying. In his cross-examination, the witness admits that he did not request any Gazetted Officer of Howrah Station or any Deputy Commissioner to remain present at the time of search. Section 50 of the NDPS Act provides that any officer authorised under S. 42 of the Act to conduct a search of a person, shall if such person so requires take him to the nearest Gazetted Officer of any department. I take judicial notice of the fact that the Court of Railway Station itself and the Excise Inspector should have taken the accused to the ld. Magistrate. There was no death of Gazetted Officers of the railway department even on the platform. The Apex Court in case of State of Punjab v. Balbir Singh (1994) 3 SCC 299 : (1994 Cri LJ 3702) has laid down that the words "if the person to be searched so desires are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search could be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and credit-worthiness to the proceedings while equally providing an important safeguard to the accused. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and credit-worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be award of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right". ( 5 ) THE learned Additional Public Prosecutor has relied on the case of State of Himachal Pradesh v. Prithi Chand, AIR 1996 SC 977 : (1996 Cri LJ 1354), which lays down that even if a search is made in utter violation of the provisions of Section 50 ibid, the seizure memo would not be rendered inadmissible in evidence. In the said case the learned trial Court had discharged the accused and, therefore, the said observations. They have no application to the present case. ( 6 ) FROM the statement of P. W. 1, H. Chakraborty, it also appears that he took out the sample without complying with the provisions of Section 52-A of the said Act. In the said case the learned trial Court had discharged the accused and, therefore, the said observations. They have no application to the present case. ( 6 ) FROM the statement of P. W. 1, H. Chakraborty, it also appears that he took out the sample without complying with the provisions of Section 52-A of the said Act. Section 52-A of the Act runs thus :-" (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the Officer-in-Charge of the nearest police station or to the officer empowered under Section 63, the officer REFERRED TO in Sub-Section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, number of such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer REFERRED TO in Sub-Section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of - (A) certifying the correctness of the inventory so prepared; or (B) taking, in the presence of such Magistrate photographs of such drugs or substances and certifying such photographs as true; or (C) allowing to draw representative samples of such drugs or substances, in the presence of Magistrate and certifying the correctness of a list of samples so drawn. (3) Where an application is made under Sub-Section (2), the Magistrate shall, as soon as may be, allow the application. " ( 7 ) FROM clause (c) of Sub-Section (2) ibid, it is clear that the sample to be sent for analysis has to be taken out in presence of the Magistrate and it is required to be duly certified by him. This new provision was inserted by Central Act No. 2 of 1989, which came into force from 29th May, 1989. The incident of the present case took place on 7th November, 1989. Hence this amended provisions was very much in force on the date of incident. ( 8 ) IT is also pertinent to note that none of the independent seizure witness could be traced out at the time of trial. The incident of the present case took place on 7th November, 1989. Hence this amended provisions was very much in force on the date of incident. ( 8 ) IT is also pertinent to note that none of the independent seizure witness could be traced out at the time of trial. It is strange that on Howrah platform No. 2 the Excise Sub-Inspector was unable to procure two railway employees to become witness while conducting search. ( 9 ) IT, therefore, follows that not only the search and seizure were vitiated but the taking up sample also was illegal and hence prosecution case must fail. ( 10 ) WE, therefore, allow the appeal and acquit the appellant of the charge under Section 21 of the N. D. P. S. Act. He be set at liberty forthwith. ( 11 ) S. N. MALLICK, J. : -. I agree. Appeal allowed.