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2000 DIGILAW 769 (AP)

J. Gopi v. State of Tamil Nadu

2000-10-11

FAKKIR MOHAMED IBRAHIM KALIFULLA

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JUDGMENT F .M. Ibrahim Kalifulla. J. - The accused is the appellant. This appeal is preferred against the judgment and conviction made in Calendar Case No. 56 of 1995 dated 8-1-1996. 2. The course of events which led to the prosecution of the appellant under the Narcotic Drugs and Psychotropic Substances Act (hereinafter called the Act) was that on 4-8-1994 at about 14.15 hours, when the complainant along with his constables was hecking the vehicles plying in the bye-pass road at the point where it was proceeding to G.M. Nagar on the Shulter bridge around 14.20 hours the scooter bearing registration No. TDC 4206, which was proceeding in the said bye-pass road from west to east, was stopped that in the pillion seat, a gunny bag was found tied with a yellow rope, that on enquiring from the rider of the scooter it was ascertained that he was the appellant; that he also informed the complainant that having carrying Ganja in the said gunny bag, that thereafter when the complainant asked the appellant as to whether he would like to get himself searched in the presence of a Gazetted Officer he stated that he could be searched by the complainant himself on the spot that thereafter he was arrested at 14.30 hours and searched in the presence of PW 1 Vanjeeswaran and one other person Thiru C. Mani, that the gunny bag weighed 29 kgs. that when the gunny bag was searched, it contained Ganja plants covered in a polythene fertilizer bag and that after carrying out the formalities the prosecution was laid against the appellant. The Trial Court on consideration of the materials placed before it by judgment dated 8-1-1996, convicted the appellant under Section 20(b)(l) of the Narcotic Drugs and Psychotropic Substances Act and imposed punishment of two years rigorous imprisonment apart from fine of Rs. 15.000/ -and in default of payment of the fine to undergo further rigorous imprisonment of six months. 3. The Trial Court on consideration of the materials placed before it by judgment dated 8-1-1996, convicted the appellant under Section 20(b)(l) of the Narcotic Drugs and Psychotropic Substances Act and imposed punishment of two years rigorous imprisonment apart from fine of Rs. 15.000/ -and in default of payment of the fine to undergo further rigorous imprisonment of six months. 3. The learned Counsel for the appellant contended that though as per the provisions of the Act in the case of detection of contraband stuff from the bag of the accused it should be presumed that the accused was in possession of the said contraband stuff and therefore the burden was upon the accused to rebut the presumption, in view of certain vital discrepancies found ill the evidence of the prosecution, the very presumption itself cannot be stated to be available to the prosecution. According to the learned Counsel, the evidence of PW 1, who is stated to be the independent witness to the occurrence cannot be relied upon. The learned Counsel states that admittedly PW 1 was a mechanic attending to the repairs of the vehicles belonging to the police officers, that he was also magazar witness in another Calendar Case No. 858 of 1994, that ,admittedly at the time of search he was standing about 10 to 15 feet away from the place of search and. therefore, This version cannot be believed. The learned Counsel submits that if once the evidence of PW 1 is eschewed from consideration, then there would be no acceptable material on record to show that the appellant was in possession of the contraband article. I am unable to accept the submission of the learned Counsel. In the first place merely because the magazar witness was known to the police officers by virtue of his acquaintance earlier cannot by itself be a ground to outright reject the. version of that witness. Merely going by the said fact alone. I am afraid that the evidence of PW 1 could be doubted. There was no other vitiating circumstances pointed out to show that PW 1 was under compulsion to act as a magazar witness in respect of the occurrence relating to the accused. Similarly. version of that witness. Merely going by the said fact alone. I am afraid that the evidence of PW 1 could be doubted. There was no other vitiating circumstances pointed out to show that PW 1 was under compulsion to act as a magazar witness in respect of the occurrence relating to the accused. Similarly. for the very same reason the other ground raised by the learned Counsel for the appellant namely that PW 1 acted as magazar-witness in some other cases would vitiate or make the evidence of PW 1 unbelievable. A reading of the evidence of PW 1 disclosed that there was nothing to suggest any contradiction or an unreliable statement made thereunder. I am of the view that on the alleged ground that PW 1 was also a mechanic attending to the vehicles of the police officers and that he was also a magazar witness in some other cases would hardly be a ground to reject his evidence in toto. As far as the other contention namely that PW 1 was standing 10 to 15 feet away from the place where the search was made and. therefore his version about the detection of Ganja from the gunny bag kept by the appellant cannot be believed as already pointed out admittedly the Garya found in the gunny bag weighed about 29 kgs. Therefore it cannot be said that a person with normal vision could not have noticed the contents of that much quantity of Garya found in a gunny bag from a distance of 10 to 15 feet. In such circumstances the said ground stated by the learned Counsel for the appellant is also not acceptable. Therefore taking into consideration the evidence of the independent witness. PW 1 it could be safely concluded that the initial presumption contemplated under the provisions of the Act is duly complied with and. consequently the burden has shifted upon the appellant to rebut the said presumption. On a perusal of the evidence available on record. nothing was pointed out to show that the said presumption was rebutted by the appellant. 4. What then remains to be considered is as whether the other legal submissions made on half of the appellant namely that in the case on hand the mandatory provision as contained under Section 50 of the Act was fully complied with. The learned Counsel after referring to Ex. P1 magazar Ex. 4. What then remains to be considered is as whether the other legal submissions made on half of the appellant namely that in the case on hand the mandatory provision as contained under Section 50 of the Act was fully complied with. The learned Counsel after referring to Ex. P1 magazar Ex. P3 FIR. Ex. P4 report made in compliance with Section 57 of the Act, and also the evidence of PWs 1 and 2 stated that the complainant at the time of search offered to the appellant as to whether he would like to get himself searched in the presence of a Gazetted Officer and that no offer was made to the appellant get himself searched in the presence of a Magistrate. The learned Counsel therefore submitted that it was a partial compliance and in such cases it should be construed that Section 50 the Act was not fully complied with. It was therefore contended that by reason of the various pronouncements the case of the prosecution should be held to be not established. The learned Counsel relied upon the following rulings in support of his above stated submissions: (1) Netrananda Pradhan v. State of Orissa1. (2) Chet Ram v. The State of Haryana2 and (3) Mukesh v. The State (Delhi Administration3. It is true that in all the above quoted judgments it has been held that where only part of the offer is made to the accused the compliance of Section 50 of the Act cannot be held to have satisfied and on that ground the concerned accused in those cases were acquitted. All the three cases were rendered by learned Single Judges of the respective Courts. 5. The learned Counsel also relied upon the judgment of the Honourable Supreme Court in Nambi Francis Nwazor v. Union of India and Another4. And contended that even a search of hand bag kept along with the accused person should also be construed as a search on the person and therefore the compliance of Section 50 of the Act was mandatory even in respect of search made on the gunny bag stated to have been held by the appellant in the scooter. 1. 1995 AIHC 3750. 2. 1996 AIHC 2323. 3. IV (1994) CCR 2705. 4. 1998 (8) SCC 534 . 6. As. 1. 1995 AIHC 3750. 2. 1996 AIHC 2323. 3. IV (1994) CCR 2705. 4. 1998 (8) SCC 534 . 6. As. against the above submission of the learned Counsel for the appellant, the learned Public Prosecutor in his submission referred to the deposition of PW 1, PW 2 as well as the contents of Ex. P3 FIR and contended that in the case on hand. Section 50 of the Act itself was not attracted. The learned Public Prosecutor would say that in the case on hand the search was not first made on the body of the person namely the accused and, therefore, it was not a search made on the person so as to attract the mandatory compliance of Section 50 of the Act. The learned Public Prosecutor also contended that on t4e date of occurrence, the complainant was making a routine patrol of the vehicles plying in the bye-pass road suspecting commission of offences, and in the course of such an inspection, when a search was made on the appellant, a gunny bag contained 29 kgs. of Ganja was found in his vehicle. The learned Public Prosecutor contended that by virtue of the dictum of the Honourable Supreme Court in State of Punjab v. Baldev Singh5, the case on hand would fall within the exceptions provided under Section 50 of the Act and, therefore, the noncompliance or the partial compliance of Section 50 of the Act would not vitiate the case of the prosecution. The learned Public Prosecutor also relied upon Kalema Twnba v. State of Maharashtra & Another6, a judgment rendered by a Bench of two Judges in support of his contention that a search which is contemplated under Section 50 of the Act is only in respect of search being made on the body of a person and not the search of a baggage of a person. While stating the above said proposition, Their Lordships 5. 1999 SCC Cri. 1080. 6. JT 1999 (8) SC 293. also referred to the Five Judges Bench judgment of the Honourable Supreme Court reported in State of Punjab v. Baldev Singh (supra). 7. While stating the above said proposition, Their Lordships 5. 1999 SCC Cri. 1080. 6. JT 1999 (8) SC 293. also referred to the Five Judges Bench judgment of the Honourable Supreme Court reported in State of Punjab v. Baldev Singh (supra). 7. In the judgment reported in Kalema Tumba v. State of Maharashtra & Another (supra), the contraband article was found in the baggage identified by the accused in that case, who was travelling in the flight Zaire National and who arrived at the Sagar Airport, Bombay by Ethiopian Airlines on 22-11-1990. At this juncture the learned Counsel for the appellant drew my attention to the judgment cited by him in Nambi Francis Nwazor v. Union of India and Another (supra), wherein Their Lordships were pleased to hold that when the person of the accused was being searched, the law required that if that person happened to be a female, the search should be carried out only by a female, that such a restriction would not be necessary for searching the goods of a female which were lying at a distant place at the time of search. The relevant portion of the judgment stated in para 3 reads as under: "This would, in effect, mean that when the person of the accused is being searched, the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. We must hasten to clarify that if that person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom, it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case it is difficult to hold that Section 50 stood attracted and non compliance with that provision was fatal to the prosecution case." (Underlining is mine) 8. The learned Counsel also pointed out that the judgment reported in Nambi Francis Nwazor v. Union of India and Another (supra), having been rendered by three Judges Bench of the Honourable Supreme Court the same should be preferred as against the judgment in Kalema Tumba v. State of Maharashtra & Another (supra), Which was rendered by two Judges Bench of the Honourable Supreme Court. The learned Counsel also contended that according to the version of PW 2, he came to know about the content in the gunny bag namely. Ganja leaves only after the said fact was stated to have been informed by the appellant and therefore, it should be construed that the complainant acted based on the information given to him and in such circumstances, it would be a case falling under Section 42 of the Act. The learned Counsel, therefore, submitted that applying the principle set out by the Honourable Supreme Court in para 12 of the judgment reported in State of Punjab v. Baldev Singh (supra), it cannot be held that the compliance under Section 50 of the Act would not get attracted. I am unable to countenance the said submission made on behalf of the appellant. In my opinion, the learned Counsel has only attempted to make hairsplitting argument by making such submission. It is on record that the complainant was on a routine checking of the vehicles plying in the bye-pass road at the relevant point of time. It was in the course of the said checking he 3tumbled upon the vehicle of the accused. In my opinion, the learned Counsel has only attempted to make hairsplitting argument by making such submission. It is on record that the complainant was on a routine checking of the vehicles plying in the bye-pass road at the relevant point of time. It was in the course of the said checking he 3tumbled upon the vehicle of the accused. According to PW 2, when the vehicle of the appellant was stopped by him and when he was enquired about the contents in the gunny bag tied with a yellow rope on the pillion seat the appellant was trembling and that he was making contradictory statements. He has also stated that on enquiry about the contents of the gunny bag the appellant on his own gave the information that the said bag contained Ganja leaves. The information referred to in Section 42 of the Act is a prior information from altogether independent source based on which if any search is made then compliance with the other formalities and also the compliance of the other provisions of the Act including Section 50 of the Act would get attracted. In my view, the so-called revealing of the fact by the appellant himself that the gunny bag carried by the appellant contained Ganja leaves in question possessed by the appellant on the date of occurrence cannot be construed as prior information gathered by the complainant so as to bring it within the provisions of Section 42 of the Act consequently attracting compliance of Section 50 of the Act. I, therefore, hold that in the case on hand, it was a routine patrol carried by the complainant of the vehicles plying on bye-mass road, that on a simple question put to the appellant, he revealed about the contents of Ganja in the gunny bag carried by him in the scooter and that, therefore, there was no legal necessity or requirement for the complainant to comply with Section 42 of the Act. When once, I come to the said conclusion then it is immaterial whether the complainant offered the appellant as to whether he would like to get himself searched in the presence of a Gazetted Officer alone and that the other option of having the search made in the presence of a Magistrate was not offered. When once, I come to the said conclusion then it is immaterial whether the complainant offered the appellant as to whether he would like to get himself searched in the presence of a Gazetted Officer alone and that the other option of having the search made in the presence of a Magistrate was not offered. In this context, it would be relevant to refer to para 12 of the judgment of the Honourable Supreme Court reported in State of Punjab v. Baldev4 Singh (supra), which reads as under: "The ratio of the said judgment is to the effect that Section 50 of the Act would come into play only in the case of a search of a person as distinguished from search of any premises, etc." 9. The said judgment makes it very clear that except in the cases where a search or an arrest of a person is to be made based on any prior information, as contemplated under Section 42 of the Act, in all other cases where in the course of normal investigation into an offence or any suspected offence in the course of such search, on investigation, any contraband under the Act is recovered, the requirement of Section 50 of the Act is not attracted. In the case on hand, as stated earlier, the complainant was on his routine patrolling of the vehicles on the bye-pass road suspecting commission of some offence which may even be any violation of any traffic rules or any other offence falling under any other penal provisions. Certainly, there is no material on record to show that the complainant was carrying out a search with particular reference to trafficking any contraband covered by the provisions of Narcotic Drugs and Psychotropic Substances Act. When such is the factual position, by applying principles set out in para 5 of the judgment of Apex Court, it can be safely concluded that in case on hand. Section 50 of the Act was not attracted and, therefore, the noncompliance of section 50 of the Act cannot be a ground to interfere with the case of the prosecution and with the ultimate conviction. Section 50 of the Act was not attracted and, therefore, the noncompliance of section 50 of the Act cannot be a ground to interfere with the case of the prosecution and with the ultimate conviction. As far as the judgment reported in Nambi Francis Nwazor v. Union of India and Another (supra), is concerned, we will have to bear in mind that Their Lordships were considering a case of a foreigner, who was about to leave India by Air India flight. That apart from out of two hand bags he had booked one bag which was already checked in, and was loaded in Aircraft by which he was supposed to travel on suspicion, and after finding out that nothing incriminating was carried by the said person, the bag which was loaded in the Aircraft was called to the customs counter for examination and thereafter it was found that it contained 153 cartons of contraband article. While dealing with the said situation. Their Lordships were pleased to make a distinction as to a hand-bag carried by a person to that of an unaccompanied baggage. While dealing with such a situation. Their Lordships were pleased to observe that if any contraband, on search, was found in the hand bag carried by the concerned person then that search should be construed as one on the person himself, in contra distinction to a search that was carried out of an unaccompanied baggage. In fact on the facts of that case on finding that the contraband seized was based on a search carried on an unaccompanied baggage of the accused, Their Lordships were pleased to hold that Section 50 of the Act did not get attracted and non-compliance with that provision was not fatal to the prosecution case. Therefore, it is difficult to accept the contention of the learned Counsel for the appellant that the ratio propounded in State of Punjab v. Baldev Singh (supra) stood diluted by virtue of the proposition laid in Nambi Francis Nwazor v. Union of India and Another (supra). On a detailed study of both the judgments, I am of the view that by applying the ratio of both the judgments it could be safely held that the search made on the gunny bag stated to have been carried out by the appellant in his scooter cannot be construed as a search on the appellant himself. On a detailed study of both the judgments, I am of the view that by applying the ratio of both the judgments it could be safely held that the search made on the gunny bag stated to have been carried out by the appellant in his scooter cannot be construed as a search on the appellant himself. Consequently, the search being not one on the person of the appellant, I hold that Section 50 of the Act is not attracted. 10. The learned Counsel then submitted that immediately after the arrest of the appellant, and before the disposal of the case by the Trial Court, the appellant underwent imprisonment for a period of four and half months and that after the judgment of the Trial Court till bail was obtained during the pendency of this appeal, he underwent a further imprisonment of two more months and altogether, the appellant had undergone six and a half months of rigorous imprisonment, that the appellant has also paid a fine amount of Rs. 15,000/- imposed by the Trial Court and having regard to the fact that the appellant was the first offender and that he was hardly eighteen, years old at the time of commission of the offence, some leniency should be shown to the appellant in the matter of punishment. The appellant had been convicted under Section 20(b)(1) of the Act which provides for punishment of imprisonment which may extend to five years and also a liability to pay a fine that can extend upto Rs. 50,000/-. It is also stated by the learned Counsel for the appellant that after the present conviction, the appellant had not indulged in any other criminal activities. 11. Considering the above factors and also taking into account that the appellant had already suffered imprisonment for a period of six and a half months and the tender age of the appellant, with the view, that he might have by this time realised the seriousness of the offence committed by him attracting severe punishment in the Court of Law, I feel that the punishment of imprisonment could be limited to the period already undergone by the appellant while simultaneously enhancing the fine amount from Rs. 15,000/- to Rs. 35,000/-, the appellant should pay the remaining amount of Rs. 20.000/-. The further fine amount of Rs. 15,000/- to Rs. 35,000/-, the appellant should pay the remaining amount of Rs. 20.000/-. The further fine amount of Rs. 20,000/- should be paid by the appellant within six weeks from the date of receipt of copy of this order. The appellant is also directed to file an affidavit furnishing his present permanent address with an undertaking that he will not indulge in any criminal activities in future. The said affidavit should also be filed within six weeks from the date of receipt of the copy of this order. In the event of the appellant failing to pay the additional fine imposed, he should undergo the remaining period of imprisonment ordered by the Trial Court. Appeal allowed accordingly.