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Andhra High Court · body

2001 DIGILAW 1117 (AP)

Bodaband Sundar Singh v. State Of A. P.

2001-09-26

D.S.R.VERMA

body2001
D. S. R. VARMA, J. ( 1 ) THIS appeal is filed by the accused against the order of conviction recorded against the accused for the offence punishable under section 8 read with Section 20 (b) (i) of narcotic Drugs and Psychotropic Substances act, 1985, (for brevity hereinafter referred to as "the Act") and sentencing him to suffer rigorous imprisonment for five years. ( 2 ) THE case of the prosecution, in brief, is that on 06-01-1995 the Excise Inspector, vizianagaram (P. W. 2), Excise Sub-Inspector, gajapathinagaram (P. W. 3) and the Excise superintendent (P. W. 4) were conducting route watch. When they reached R. T. C. Complex at Gajapathinagaram, the accused was coming holding a zip bag (M. O. 3) and one card board (M. O. I) and upon seeing p. Ws. 2,3 and 4 the accused/appellantherein attempted to run away. P. W. 3 and his staff surrounded the accused, held him and upon questioning by P. W. 3 in Telugu, the accused gave reply in Hindi. Since P. W. 2 was conversant with Hindi, he questioned the accused in Hindi and he gave his name and address. On suspicion P. W. 3 opened m. Os. 1 and 3 and found M. Os. 2 and 4 respectively which are ganja. P. W. 3 arrested the accused and seized M. Os. 1 to 4 and took samples M. Os. 5 and 6 from M. Os. 2 and 4 respectively. P. W. 2 scribed Ex. P-1 (mediators report) for the arrest of the accused and for seizure of M. Os. 1 to 4 and for taking samples m. Os. 5 and 6. P. W. 3 took the accused and m. Os. to the police station and basing on ex. P-1 the crime was registered and the property seized was sent to the analyst for his report. The report of the analyst was that m. Os. 5 and 6 are ganja belonging to the family of cannabinaceae. ( 3 ) IN support of its case the prosecution examined P. Ws. 1 to 4 and marked Exs. P-1 to p-4 and M. Os. 1 to 6. Ex. C-1 was marked by the Court with consent. ( 4 ) MR. Gudapati Venkateswara Rao, learned Counsel for the accused/appellant herein mainly contended that the procedure contemplated under Section 50 of the NDPS act, which is mandatory, was not strictly followed. 1 to 4 and marked Exs. P-1 to p-4 and M. Os. 1 to 6. Ex. C-1 was marked by the Court with consent. ( 4 ) MR. Gudapati Venkateswara Rao, learned Counsel for the accused/appellant herein mainly contended that the procedure contemplated under Section 50 of the NDPS act, which is mandatory, was not strictly followed. Elaborating his submission on this point he argues that as contemplated in section 57 of the Act the superior officer was not informed about the arrest of the accused and the seizure of M. Os. He further submits that when the search of the accused was made he was found in possession of a zip bag (M. O. 3) and one card board box (M. O. 1) containing M. Os. 2 and 4, which are ganja substances. Therefore, when he was holding those articles the search on the person of the accused was not made as held by this Court in Purushothama Das v. State of A. P. , which judgment was deliveredby me relying upon the judgment of the Supreme Court in Namdz francis Nwazor v. Union of India and another. Therefore, since the contraband was though found in a zip bag and card board box in the possession of the accused it has to be treated as a search on the person of the accused and hence the statutory requirements of the sections 50 and 57 of the Act have got to be strictly complied with. But in this case according to the learned Counsel for the accused the Excise Inspector (P. W. 2) asked the accused about the particulars but he did not inform the accused about his statutory right of being searchedby a Gazetted Officer or amagistrate. His further contention is that though the superior officer i. e. , P. W. 4 was present at the spot any instant information from P. W. 4 cannot be treated as an information furnished to the superior officer as contemplated under Section 57 of the Act. In other words his contention was that p. W. 4 was a party to the route watch. Any information furnished to him by the superior officer shall not be regarded as information i. e. , the information supposed to be furnished to the superior. In other words his contention was that p. W. 4 was a party to the route watch. Any information furnished to him by the superior officer shall not be regarded as information i. e. , the information supposed to be furnished to the superior. ( 5 ) ON the other hand the learned Public prosecutor relies upon the judgment of tha constitutional Bench of the Supreme Court in State of Punjab v. Baldev Singh and also the judgment rendered by the Supreme Court in kaleme Thumba v. State of Maharashtra. ( 6 ) BEFORE discussing about the above judgments cited by both the parties, it is necessary to examine the evidence on record. ( 7 ) P. W. 1, who was a mediator, deposes that when he was returning from his thrashing floor along with other person he found the Excise Officials conducting route watch. He saw the accused / appellant coming from R. T. C. complex along withacardboard box and a zipbag. On seeing the accused, one of the Excise Officials i. e. , P. W. 3 stopped the accused and questioned abouthis particulars. When the accused was giving answers in hindi, P. W. 3 who was conversant with Hindi questioned the accused in Hindi. After the accused gave his name and particulars p. W. 3 opened M. Os. 1 and 3 and found m. Os. 2 and 4, which are ganja kept in a polythine bag. It is important to note from his deposition that the Excise Superintendent (P. W. 4) informed the accused that he was a gazetted Officer. Thereupon P. W. 3 arrested the accused and seized M. Os. 1 to 4 and took samples from the seized articles. P. W. 2 scribed Ex. P-1, mediators report, for the arrest of the accused and for the seizure of M. Os. ( 8 ) THE only thing elicited from the cross- examination of P. W. 1 was that Ex. P-1, mediators report, it was not mentioned that the Excise Superintendent (P. W. 4) informed the accused that he was a Gazetted Officer and that P. W. 4 and the Excise Officials did not inform the accused that he would be taken to the Magistrate or a Gazetted Officer if he so required. P-1, mediators report, it was not mentioned that the Excise Superintendent (P. W. 4) informed the accused that he was a Gazetted Officer and that P. W. 4 and the Excise Officials did not inform the accused that he would be taken to the Magistrate or a Gazetted Officer if he so required. ( 9 ) P. W. 2, the Inspector of Police, vizianagaram, deposes that while conducting route watch the accused was found near the R. T. C. complex and was in possession of M. Os. 1 and 2. On seeing them the accused /appellantherein was perturbed and his staff surrounded the accused and caughthim. They found M. Os. 1 and 3 which contain M. Os. 2 and 4. He specifically deposes that he informed the accused that P. W. 4 was a Gazetted Officer and if he so requires he would be taken to a Magistrate or a Gazetted officer, for which the accused stated that he need not be taken to any Gazetted Officer or a Magistrate. Upon opening M. Os. 1 and 3 they found M. Os. 2 and 4 respectively, which are ganja. ( 10 ) P. W. 3, the Excise Sub-Inspector, gajapathinagaram, also deposes in the same lines as that of P. W. 2 and also categorically stated that P. W. 2 informed the accused that p. W. 4 was a Gazetted Officer and the accused stated that no Gazetted Officer is required. Therefore, nothing is elicited from the evidence of P. W. 3. ( 11 ) P. W. 4, the Excise Superintendent, also deposes almost in the same lines as was spoken to by P. Ws. 1, 2 and 3. He further specifically stated that the accused was informed that he was a Gazetted Officer. He admitted in his evidence that in Ex. P-1, mediators report, it was not stated that the accused was informed that he was a Gazetted officer and the accused has stated that no gazetted Officer was required. ( 12 ) FROM the above evidence the following facts are on record:- the accused was found near the R. T. C. complex when the route check was being conducted by the Excise Officials who are the authorised officers under the NDPS Act. When the accused was trying to escape on seeing the Excise Officials, P. W. 3 and his staff surrounded him and held him and m. Os. When the accused was trying to escape on seeing the Excise Officials, P. W. 3 and his staff surrounded him and held him and m. Os. 1 and 3, were found in his possession and upon opening M. Os. 1 and 3, they found m. Os. 2 and 4 namely the ganja. As the accused did not know Telugu, P. W. 3, the excise Inspector, asked him in Hindi for which answers were given in Hindi and upon furnishing the information by the accused the arrest and seizure were made in the presence of P. W. 1, the mediator, under a cover of Ex. P-1, mediators report. ( 13 ) THE evidence on record further reveals that P. W. 2 informed the accused that P. W. 4, the Excise Superintendent, was a Gazetted officer and he advised the accused if he requires he would be taken to a Magistrate or a Gazetted Officer but the accused was alleged to have declined to be taken to a gazetted Officer or a Magistrate. P. W. 4 also informed the accused that he was a Gazetted officer. ( 14 ) LEARNED Counsel for the accused/ appellant herein while commenting upon the evidence on record submitted that as per the evidence of P. W. 1 it was not stated in ex. P-1, mediators report, that either P. W. 2 or P. W. 4 informed the accused that a gazetted Officer is required for his search. Therefore, he submits that the provisions of section 50 of the Act have not been scrupulously followed and therefore the search, arrest and seizure are totally invalid and hence the conviction is also invalid. He further contended that even assuming that if the Excise Superintendent (P. W. 4) and the inspector of Police (P. W. 2) have informed the accused about the presence of a Gazetted officer (P. W. 4), that cannot be treated as compliance of Section 50 of the Act inasmuch as the Excise Superintendent (P. W. 4) though a superior officer and a Gazetted Officer since he being a party to the route watch he shall not be treated as a superior and a gazetted Officer under those prevailing circumstances. This argument cannot be accepted for the reason that though P. W. 4 was also a party to the route watch, there is no active participation from his side in the check and seizure of M. Os. from the accused. Further, I am of the view that mere presence of P. W. 4 at the time of route check and seizure does not take away his status of a gazetted and superior officer. The entire role of checking was played by P. Ws. 2,3 and the other staff of excise, who surrounded the accused and checked the belonging of the accused. The only role played by P. W. 4 was that he informed the accused that he was a gazetted Officer and if he requires he would be taken to a Gazetted Officer or a Magistrate and attested Ex. P-1, mediators report. More over as held by the Constitutional Bench of the Supreme Court in State of Punjab v. Baldev Singh (3 supra), wherein it as held as under: "when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not be necessary in writing. (Emphasis supplied by me) ( 15 ) IT was further observed by the constitutional Bench of the Supreme Court as under:"it is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some independent and respectable person witnessing the arrest and search, the prosecution must however at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of a Magistrate or a Gazetted Officer at the time of intended search. From the above ratio and the observations made by the Constitutional Bench of the supreme Court in Baldev Singh s case (2 supra), it is enough if the prosecution establishes that the accused was informed about this right of being searched by a Gazetted Officer or a Magistrate". From the above ratio and the observations made by the Constitutional Bench of the supreme Court in Baldev Singh s case (2 supra), it is enough if the prosecution establishes that the accused was informed about this right of being searched by a Gazetted Officer or a Magistrate". ( 16 ) IN the instance case the evidence of p. W. 1, though not in clear terms, reveals that p. W. 4 had informed the accused that he was a Gazetted Officer. P. W. 4, the Excise superintendent, who was also accompanying the route check party also states in his deposition that he also informed the accused that he was a Gazetted Officer. Therefore, the evidence of P. W. 4 is corroborated by the evidence of P. W. 1, the mediator. ( 17 ) THE further evidence of P. W. 1 in his chief-examination was that this fact was not corroborated by the information in Ex. P-1, mediators report. I am of the considered view that mere non-mentioning of this fact in Ex. P-1, mediators report, does not by itself vitiate the whole exercise of search and seizure on the ground that the same amounts to non-compliance of Section 50 of the Act. The evidence of P. Ws. 1 and 4 with regard to the information to the accused by P. W. 4 was also corroborated by the evidence of P. Ws. 2 and 3. As already pointed by the constitutional Bench of the Supreme Court, it is enough if the information about the right of accused/appellant herein to be searched before a Gazetted Officer is based on oral information but need not be put into writing. Therefore, I am of the view that the prosecution has established that the procedure contemplated under Section 50 of the Act has been strictly complied with. ( 18 ) IN that regard I am fortified with the observations made by the Supreme Court in o. K. Basu v. State of West Bengal, which are as under:"we are conscious of the fact that the police in India ha ve to perform a difficult and delicate task, particularly in view of the deteriorating law and other situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hardcore criminals like extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genume and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so. in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot. however. be worst than the disease itself". (Emphasis supplied) ( 19 ) THE above observations were also taken into consideration by the Constitutional bench of the Supreme Court. ( 20 ) THEREFORE, in my opinion it is not necessary to lay too much stress on the procedure to be adopted as contemplated by the statute and it is enough if the action of the authorities is palpably just, and not prejudicial. That apart from the evidence on record the only irresistible conclusion that can be arrived at is that the authorised officials have successfully established the strict compliance of procedure under Section 50 of the Act by informing the accused about his right of being searched before a Gazetted officer. ( 21 ) THE other incidentalbut vital question that arises for consideration is, in the facts and circumstances of the present case, whether really the procedure under Sec. 50 of the Act has to be strictly followed. ( 21 ) THE other incidentalbut vital question that arises for consideration is, in the facts and circumstances of the present case, whether really the procedure under Sec. 50 of the Act has to be strictly followed. ( 22 ) IN this context, while discussing the effect of Section 50 of the Act, keeping in view the language incorporated under section 51 of the Act, it was held by the constitutional Bench of the Supreme Court at para 12 as under:"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 Sec. 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 Sec. 50 of the Act are not attracted. " ( 23 ) IN the instant case, from the evidence on record, it is clear that while the empowered officer along with others was on route check found the accused in a doubtful circumstances, stopped him and conducted search, but it is nowhere on record that the search and seizure were effected on prior information only. In the course of routine check by the excise officials the accused was found in doubtful circumstances and upon search of the person of the accused the contraband was found and the same was seized. ( 24 ) IN Purushotham Das v. State of A. P. (1 supra), this Court following various judgments of the Supreme Court held that procedure contemplated under Section 50 of the Act as mandatory. The Honourable supreme Court in the case of Namdi Francis nwazor v. Union of India (2 supra), held as under:"we must hasten to clarify that if that person is carrying hand bag or 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. " ( 25 ) FROM the above observations of the honourable Supreme Court it is clear that even if a person is carrying a hand bag or like and the incriminating article is found therefrom, it amounts to search of the person as postulated under Section 50 of the Act. Similar view was taken in another judgment of the Supreme Court in State of Punjab v. Jasbir Singh. ( 26 ) IN the decision reported in Kalema tumba v. State of Maharashtra (4 supra), the honourable Supreme Court observed as under:". . . . . . . . . . . . . IT was submitted by her that the appellant was not told before the search by the officers of the Narcotic Control bureau that he had a right to be searched in the presence of a Gazetted Officer or a magistrate. This contention deserves to be rejected because only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a gazetted Officer or a Magistrate. As rightly pointed out by the High Court, search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh (1999) 6 SCC 172 ) this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when the person of the accused is to be searched. In State of Punjab v. Baldev Singh (1999) 6 SCC 172 ) this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when the person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir singh ( (1996) SCC 288) wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in Baldev singh s case (1999) 6 SCC 172 ) If a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it. it cannot be said that it was found from his "person". In this case hereoin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in the presence of a gazetted Officer or a Magistrate. " (Emphasis supplied by me) ( 27 ) FROM the above observations it is clear that if a person is carrying a bag or some other article, which contain narcotic substance, it cannot be said that it was found from his person. The facts of the above case reveal that hereoin was found from a bag belonging to the appellant and not from his person and, therefore, it was held not necessary to make a search as contemplated under Section 50 of the Act. The said decision of Kalema Tumba v. State of Maharashtra (4 supra) was rendered subsequent to the decision of Namdi Francis Nwazor v. Union of india (2 supra) particularly. following the judgment of the Constitutional Bench of the honourable Supreme Court in State of Punjab v. Baldev Singh (3 supra ). It appears that namdi Francis s case (cited 2 supra) had not fallen for consideration before the constitutional Bench. However, there is a visible drastic change in the legal position consequent upon the judgment of the constitutional Bench of the Supreme Court in Baldev Singh s case. Therefore, the law laid down in Kalema Tumba v. State of Maharashtra (4 supra) alone has to be applied in the present set of facts. However, there is a visible drastic change in the legal position consequent upon the judgment of the constitutional Bench of the Supreme Court in Baldev Singh s case. Therefore, the law laid down in Kalema Tumba v. State of Maharashtra (4 supra) alone has to be applied in the present set of facts. ( 28 ) FROM the law laid down by the honourable Supreme Court it is clear that the search of a person indicates search of the body of the person only, but not the other belongings like hand bags, suit cases etc. In other words, the search of a person cannot be equated to the search of the bags etc. , belonging to the accused. Therefore, only when there is search of a person, then only the procedure contemplated under section 50 of the Act has to be resorted to. ( 29 ) IN the present case the accused was found carrying M. Os. 1 and 3, which contain narcotic substance. Though a card board box and a zip bag, M. Os. 1 and 3 respectively, were found in the possession of the accused, the search of those card board box and zip bag cannot be treated as a search on the person of the accused. In such case, as observed by the Honourable Supreme Court, section 50 has no application. ( 30 ) FROM the evidence on record it is clear that the accused was apprehended along with M. Os. 1 and 3, which contain narcotic substance and the same were seized in the presence of mediators under Ex. P-1, mediators report, and as per the evidence of p. W. 4, Excise Superintendent, the information with regard to seizure and arrest had been passed on to the higher officials. Therefore, in such circumstances, it has to be held that the search was not on the person of the accused. However, the narcotic substance was seized from the card board box and the zip bag, M. Os. 1 and 3 respectively, which belong to and are in possession of the accused. In these circumstances, as held by the honourable Supreme Court in Kalema tumba s case (4 supra), Sec. 50 of the Act is not attracted and does not come into operation, inasmuch as the search of the suit cases and hand bags does not amount to search of the accused. In these circumstances, as held by the honourable Supreme Court in Kalema tumba s case (4 supra), Sec. 50 of the Act is not attracted and does not come into operation, inasmuch as the search of the suit cases and hand bags does not amount to search of the accused. ( 31 ) THEREFORE, for the foregoing reasons, I do not find any illegality in the impugned judgment. The reasoning given by the Court below while convicting the accused, is just and proper and as such I do not find any reason to interfere with the same. ( 32 ) ACCORDINGLY the Criminal Appeal is dismissed.