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2001 DIGILAW 278 (CAL)

Fatima Bibi @ Fatema Bibi v. State

2001-05-14

BASUDEVA PANIGRAHI, MALAY KUMAR BASU

body2001
JUDGMENT Panigrahi, J. 1. This appeal has assailed the judgment and order dated 30th September, 1999 passed by the learned Additional Sessions Judge, Hooghly convicting the appellant under Section 21 of the Narcotic Drug and Psychotropic Substance Act, 1985 in N.D.P.S. Case No. 5/98 and sentencing her to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer R.I. for a further period of 2 years. 2. The factual matrix leading to the filing of this appeal is as follows :- That on 11th May, 1998 after receiving secret information the Intelligence Officer, Narcotic Control Bureau along with other Officers including a lady Sepoy cordoned the appellant's house at 14, Bazar Road, Rishra, Hooghly at 17 hrs. The Officers knocked at the door, the appellant is said to have come out of her house. When she was questioned about her identity the appellant disclosed her name as Fatima Bibi. The Officers also stated their identity as N.C.B. Officers and expressed their intention to search the premises including the appellant's person on having secret intelligency report that she was dealing with Heroin. The appellant was given an option whether she liked to be searched by the raiding party before a Magistrate or a Gazetted Officer. But, she desired that the search may be conducted by the raiding party in presence of a Gazetted Officer who all along was present with them. The search was conducted by the lady Sepoy. From the house of the appellant, the lady Sepoy took out a polythene packet containing brown colour powder believed to be Heroin from the appellant as it was kept inside her blouse. The lady Sepoy handed over the polythene packet to the Seizing Officer from which a small quantity was taken out for the purpose of holding a test by thest kit. The recovered brown colour powder was duly weighed and it was found to be 20 grams in presence of two independent witnesses and the appellant. The seizure was effected under Section 42 of the N.D.P.S. Act. The respective sample in duplicate of 5 grams each was also drawn in presence of the witnesses who had signed not only in the Seizure List but also on the sealed packet. The appellant also put her L.T. I. on the Seizure List as well as on the sample packet. The respective sample in duplicate of 5 grams each was also drawn in presence of the witnesses who had signed not only in the Seizure List but also on the sealed packet. The appellant also put her L.T. I. on the Seizure List as well as on the sample packet. A copy of notice was given under Section 67 of the Act to her. On the basis of such complaint a case was initiated against the appellant under Section 21 of the N.D.P.S. Act. The charges have been framed after recording the statements of the witnesses who were, subsequently, cross-examined by the accused/appellant. The learned Additional Sessions Judge-cum-Special Judge on considering the evidence on record bad, however, inclined to record an order of conviction and passed sentence as stated above. 3. Mr. Chatterjee, learned Advocate appearing for the appellant has brought to our notice that the judgment is unsustainable and unsupportable in law inasmuch as there was failure of compliance of the mandatory requirement of Section 42 of the N.D.P.S. Act. It has also been submitted that the prosecution had significantly failed to observe the requirement as required under Section 50(4) of the N.D.P.S. Act. 4. The evidence of the prosecution witnesses according to Mr. Chatterjee, is also interested since only all the official witnesses have been examined. Even though two independent witnesses were allegedly present at the time of seizure but the prosecution, it is not known why chose to leave out for being examined in Court. The time of seizure as indicated in the First Information Report and that of the evidence is quite discrepant and, therefore, no reliance could be placed upon the prosecution witnesses. It has been further stressed by the appellant that even though the lady Sepoy was said to have accompanied the raiding party, yet she did not offer herself to be searched either by the accused or by the Intelligence Officer who was conducting the search. Therefore, on this ground also the prosecution case should have been discarded by the learned Court below. 5. Mr. Moitra, learned Advocate appearing for the prosecution has brought to our notice that the appellant was asked whether she liked to be searched in presence of a Gazetted Officer or a Magistrate when she agreed to be searched in presence of the Intelligence Officer and also a Gazetted Officer who was present in the raiding party. 5. Mr. Moitra, learned Advocate appearing for the prosecution has brought to our notice that the appellant was asked whether she liked to be searched in presence of a Gazetted Officer or a Magistrate when she agreed to be searched in presence of the Intelligence Officer and also a Gazetted Officer who was present in the raiding party. There was a search conducted by a female constable and polythene packet consisting 20 grams of Heroin was recovered. There has been no case made out by the appellant that a false case by planting 20 grams of Heroin had been initiated against her. In this background, the learned Special Judge took all the pains to scrutinise the evidence and recorded a conviction against the appellant. 6. It has been strongly urged that before conducting raid either to the appellant's premises or search to her person, law does not mandate that such secret information should be recorded in writing under Section 42 of the N.D.P.S Act. Such requirement being only directory in nature, the appellant, unless and until has proved prejudice, the search and seizure on such ground cannot be said to be illegal. The time of search and seizure although has appeared to be little discrepant but by mathematical precision it cannot be judged. 7. While appreciating the contention of both the parties, we have had an occasion to go through the evidence. P.W. 1 Sushil Kumar Das, who was the Intelligence Officer, has deposed that on 10.5.98 on receiving secret information from source he along with other raiding party with a lady Sepoy held a raid to the appellant's residence and a physical search to her person was conducted by lady Sepoy inside the room. At that time they were waiting outside at the entrance door. It is true that P.W. 1 has deposed that before conducting search the appellant was asked whether she desired to be searched in presence of a Gazetted Officer or a Magistrate to which she agreed to be searched in presence of the Gazetted Officer. Since no contention has been raised as regards failure to comply with the provision of Section 50(1) of the N.D.P.S. Act, we are, therefore, not called upon to answer the question. Since no contention has been raised as regards failure to comply with the provision of Section 50(1) of the N.D.P.S. Act, we are, therefore, not called upon to answer the question. From the testimony of P.W. 1 in cross-examination we gather that he, admittedly, did not reduce the secret information in writing but he claimed to have informed the intelligence orally. We are afraid that such is not the spirit of the law enshrined under Section 42 of the Act. In this context, we desire to refer to a judgment reported in (1) 2000 C Cr LR (SC) 239 in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, where it has been held as follows :- "In this, case P.W. 2 admitted that he proceeded to the spot only on getting information that somebody was trying to Transport Narcotic Substance. When he was asked in cross-examination whether he had taken down the information in writing he had answered in negative. Nor did he even apprise his Superior Officer of any such information either then or later, much less sending a copy of the information to the Superior Officer. However, learned Counsel for the respondent-State of Gujarat contended that the action was taken by him not under Section 42 of the Act but it was under Section 43 as per which he was not obliged to take down the information. We are unable to appreciate the argument because, in this case, P.W. 2 admitted that he proceeded on getting prior information from a constable and the information was precisely one falling within the purview of Section 42(1) of the Act. Hence, P.W. 2 cannot wriggle out of the conditions stipulated in the said sub-section. We, therefore, unhesitatingly hold that there was non-compliance with Section 42 of the Act……….. When the same decision considered the impact of non-compliance of Section 50, it was held that "it would affect the prosecution case and vitiate the trial". But, Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Baldev Singh (supra), the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding non-compliance of Section 42 also. But, Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Baldev Singh (supra), the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding non-compliance of Section 42 also. If that be so, the position must be the following : If the Officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the Officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the Officer, who claims to have exercised it on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused." 8. Mr. Moitra, learned Additional Public Prosecutor has brought to our attention to (2) Baldev Singh's judgment reported in 1999 (6) SCC page 172. While appreciating to the aforesaid judgment, we found the Constitution Bench has not answered about the requirement to comply Section 42 of the Act When an empowered Officer conducted search under Section 42 would it be obligatory on his part to comply Section 42(1)? That search should be conducted under the provisions of Sections 100 and 165 of the Code of Criminal Procedure. If the search is not complied within strict compliance with the Cr. P. C., then such search would not per se be illegal and could not vitiate the trial. The effect of such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and circumstances of the case. Baldev Singh's judgment was again considered in the above noted case being Abdul Rashid Ibrahim v. State of Gujarat (supra), and the Supreme Court 3 Judges' forum has taken a view that although non-compliance of Section 42 shall not invalidate the search and seizure, yet such noncompliance would cause severe prejudice to the accused. There is every scope for the prosecution even to cook up a false case against the accused. There is every scope for the prosecution even to cook up a false case against the accused. It is, therefore, to rule out such possibility the legislature has provided inbuilt procedure before conducting search and seizure. Undisputedly, the Intelligence Officer has not recorded about the secret information before conducting such search. We, therefore, have no option but to hold that non-compliance of Section 42 has resulted in grave injustice and prejudice to the appellant. 9. P.W. 1 in the complaint and seizure had described that such seizure took place at 17 hrs. on 11.5.98 but it was elicited in cross, examination at about 3 O'clock they started from their office to work out the secret information. From the testimony of P.W. 3, it has appeared that the search was conducted inside the appellant's room and they were waiting outside. Two witnesses were called and they had also seen the recovery. But, it is unfortunate that none of them has been examined by the prosecution nor any explanation was offered for their non-examination. It has further transpired from P.W. 3's evidence that the lady constable produced a polythene packet containing 20 grams of Heroin said to have been recovered from the appellant. She also made over the same to P.W. 1. In the cross-examination, it was further elicited that they had set out for conducting the search. It was, therefore, doubtful about the time of actual search which was said to have been effected in the house of the appellant. P. W. 4 who was Superintendent of N.C.B. corroborated the testimony of P. Ws. 1 and 3 that lady Sepoy went inside the appellant's room and they stayed at the entrance door. The searching person, i.e., the lady Sepoy recovered a polythene packet containing 20 grams of Heroin from the blouse of the accused/appellant. Therefore, from the evidence of P.W. 1, P.W. 3 and P.W. 4, we have gathered that one of them has seen the actual recovery of the Heroin from the appellant's possession. 10. P.W. 5, lady Sepoy who claimed to have accompanied with the raiding party, she, admittedly, conducted search of the appellant inside the room while Officers and the independent witnesses were waiting at the entrance door. Before conducting raid, P.W. 5 ought to have offered herself to be searched by the accused. 10. P.W. 5, lady Sepoy who claimed to have accompanied with the raiding party, she, admittedly, conducted search of the appellant inside the room while Officers and the independent witnesses were waiting at the entrance door. Before conducting raid, P.W. 5 ought to have offered herself to be searched by the accused. But, to our utter dismay she made a clean breast admission that she did not provide a chance to the accused for searching her body prior to actual search. Therefore, in this background, the possibility of planting a case against the appellant cannot be ruled out. 11. In order to appreciate the contention of the appellant, we deemed it appropriate to quote Section 42 of the N.D.P.S. Act which reads as follovvs: "42. Therefore, in this background, the possibility of planting a case against the appellant cannot be ruled out. 11. In order to appreciate the contention of the appellant, we deemed it appropriate to quote Section 42 of the N.D.P.S. Act which reads as follovvs: "42. Power of entry, search, seizure and arrest without warrant or authorisation: (1) Any such Officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such Officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset- (a) enter into and search any such building, conveyance of place ; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such 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. (2) Where an Officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior." 12. It consists of two parts-(1) if an Authorised Officer has reason to believe from his personal knowledge or information given by any person and taken down in writing that any Narcotic Drug and Psychotropic Substance in respect of which an offence punishable under Chapter IV has been committed. Therefore, it envisages that before proceeding to conduct a raid, the Authorised Officer has to keep such thing in writing and (2) after such raid is conducted and any person dealing with the traffic of Narcotic Drug is arrested, then such information shall be sent forthwith to the immediate Superior Officer. 13. Mr. Moitra, learned Advocate appearing for the State is very critical about the compliance of Section 42. In his opinion, he has cmphasised that in case any raid is conducted by an official of the Narcotic Bureau, no compliance need be made under Section 42. In order to substantiate the submission, he has relied upon a judgment reported in (3) AIR 1999 Supreme Court 3343 in the case of Mohd. Hussain Farah v. Union of India and Another. We have an occasion to carefully read the judgment of the Hon'ble Supreme Court. In the aforesaid case, the Hon'ble Supreme Court has never settled the position of law that Section 42 is not to be observed if a search is conducted by an Officer of the Narcotic Bureau. In that case since a Superior Officer was accompanying the raid, therefore, the Hon'ble Court was of the view that it was no longer necessary to send a copy of the information to such Superior Officer. It does not speak that an Officer before conducting raid is not required to mention in the record. More so, in Abdul Rashid Ibrahim's case, the Hon'ble Supreme Court in a larger Bench expressed their view that requirement under Section 42(1) is mandatory and non-compliance of the same would render the trial be vitiated and the accused might be prejudiced. Paragraph 15 of the aforesaid case reads as follows :- "15. In this case, P.W. 2 admitted that he proceeded to the spot only on getting the information that somebody was trying to transport narcotic substance. Paragraph 15 of the aforesaid case reads as follows :- "15. In this case, P.W. 2 admitted that he proceeded to the spot only on getting the information that somebody was trying to transport narcotic substance. When he was asked in cross-examination whether he had taken down the information in writing he had answered in negative. Nor did he even apprise his Superior Officer of any such information either then or later, much less sending a copy of the information to the Superior Officer. However, learned Counsel for the respondent-State of Gujarat contended that the action was taken by him not under Section 42 of the Act but it was under Section 43 as per which he was not obliged to take down the information. We are unable to appreciate the argument because, in this case, P.W. 2 admitted that he proceeded on getting prior information from a constable and the information was precisely one falling within the purview of Section of 2(1) of the Act. Hence, P.W. 2 cannot wriggle out of the conditions stipulated in the said sub-section. We, therefore, unhesitatingly hold that there was non-compliance with Section 42 of the Act." 14. Mr. Moitra, learned Advocate for the State has then relied upon Section 35 of the Act and contended that presumption shall arise out of the statement said to have been made by the appellant to the Officer conducting raid. We are, however, not able to appreciate such contentions inasmuch as the appellant was an illiterate lady. It is true, that burden of proof which cast on the accused under Section 35 can be discharged through different modes. He/she can rely on the material available on the prosecution evidence. Next, the accused can elicit answer from the prosecution witness to dispel any such doubt. In this case on the basis of the evidence we have already arrived that P.Ws. 1, 2 and 3 had not seen the actual recovery from the appellant. P.W. 5 was not also subjected herself for search of her person before conducting search of the appellant. 15. Mr. In this case on the basis of the evidence we have already arrived that P.Ws. 1, 2 and 3 had not seen the actual recovery from the appellant. P.W. 5 was not also subjected herself for search of her person before conducting search of the appellant. 15. Mr. Chatterjee, learned Advocate appearing for the appellant has relied upon a judgment reported in (4) 2001 SCC (Cr) 42 in the case of Roy V. D. v. State of Kerala, and contended that since a lady Sepoy, P.W. 5 not being empowered under Section 41 of the N.D.P.S. Act, it would, therefore, be presumed that such recovery to be illegal. Accordingly, the appellant should be acquitted. In this particular case indisputably P.W.1 was empowered to conduct the search under Section 42(1) of the N.D.P.S. Act. But, since the appellant was female, therefore, in order to comply with the provisions of Section 50(4) of the N.D.P.S. Act, he took the assistance of P.W. 4 who was a female Sepoy. Thus, in the aforesaid premises now it has to be considered whether the physical search of the appellant was carried out inconformity with the provisions of Section 50(4) of the Act. Great reliance has been placed by Mr. Chatterjee that a female Officer only would be competent to carry out the search and recovery from the possession of the appellant since she was a female. Lady Sepoy was not authorised under Section 41 or 42 of the N.D.P.S. Act, it would, therefore, be held that such recovery is illegal and invalid in law. Reliance was placed under Section 50(1) of the N.D.P.S. Act. In this case such question obviously does not arise since there are plenty of evidence to establish that P.W. 1 had asked the appellant about the search to be carried out by him. Since it was carried under Section 50(4) as the appellant being a female, whether it is further necessary that such search shall be carried out by only a "female Officer" or by simply a female. In order to appreciate in the contention of Mr. Chatterjee, it is necessary to quote Section 50(4) of the Act here which reads as follows : 50. “Conditions under which search of persons shall be conducted ........... In order to appreciate in the contention of Mr. Chatterjee, it is necessary to quote Section 50(4) of the Act here which reads as follows : 50. “Conditions under which search of persons shall be conducted ........... 50(1) When any Officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. 50(4). No female shall be searched by anyone excepting a female." 16. On a careful reading of the provision we could not, however, find that such search is necessary to be carried out by a female Officer. It is mentioned that any female can conduct such search. In this case, P.W. 5 had not independently searched out the person of the appellant, but she did it at the instance of P.W. 1. Therefore, in our humble view that the Legislature has not passed any mandate upon the Searching Officer to engage another female Officer to carry out the search and seizure on a female accused. Our observation is also buttressed from a judgment reported in (5) 1994 (1) EFR in the case of Chameli Devi v. State. In the aforesaid judgment such search was also conducted by a Head Lady Constable and the learned Single Judge of Delhi High Court held that there was no violation of provision of Section 54 of the N.D.P.S. Act. Thus, while following the said judgment, we also observe that the Legislature did not intend to take the assistance of a female Officer. What all it has been stated is that a female accused should be searched by another female. We do not, therefore, find that there was any violation of the provision of Section 50 Clause 4 of the Act. 17. In the above conspectus of the case we, therefore, hold that the recovery of Heroin had not been proved by the prosecution as besides P.W. 4 none had claimed to have witnessed the recovery from the person of the appellant and P.W. 5 had never subjected herself for physical search before seizure of the alleged Heroin. 17. In the above conspectus of the case we, therefore, hold that the recovery of Heroin had not been proved by the prosecution as besides P.W. 4 none had claimed to have witnessed the recovery from the person of the appellant and P.W. 5 had never subjected herself for physical search before seizure of the alleged Heroin. Accordingly, we hereby set aside the judgment and order of the learned Additional Sessions Judge, Hooghly and acquit the accused of the charge under Section 21 of the N.D.P.S. Act and she shall be set at liberty forthwith. The seized articles be destroyed in accordance with the provisions of the Act. Basu, J. : I agree.