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2001 DIGILAW 484 (KER)

Sulaiman Pillai v. State of Kerala

2001-09-06

M.R.HARIHARAN NAIR

body2001
Judgment :- M.R. Hariharan Nair, J. The challenge in the appeal is with regard to the conviction entered against the appellant, who was accused in S.C. No. 53 of 1998 of the Special Court for trial of N.D.P.S. Cases, Trivandrum for offence under S.20(b)(i) of the N.D.P.S. Act and the sentence of RI. for three years and fine of Rs. 10,000/- (in default to R.I. for six months) imposed therefor. 2. The prosecution alleged that the patrol party led by PW.3, who was the Circle Inspector of Excise, found the accused at about 5.50 p.m. near the junction where the market road and Manja road meet at Nedumangad and on finding the accused perplexed he was stopped and his body searched. which revealed that he was holding two packets of ganja in his right hand. besides another 18 packets kept underneath the underwear worn by him, the total weight of which was 55 grams. The evidence adduced by the prosecution found acceptance by the trial court 3. Learned counsel for the appellant submitted that the conviction cannot stand as the search and seizure were held in violation of the mandatory provisions in S.500f the N.D.P.S. Act. . 4. On the arguments advanced in the case, the points for decision are: 1) Whether there was violation of S.50 of the N.D.P.S. Act in the matter of search and seizure? and 2) Whether the accused is entitled to get an acquittal as sought for. 5. Point No.1: PW.3 deposed that on seeing the patrol party the accused tried to slip away towards the market stall and that he was stopped while he was in front of the transformer available there and two packets were found in his hand which when opened was found to be ganja. He therefore conducted body search of the accused further and 16 cylindrical packets were seized from underneath the underwear worn by the accused. PW.3 has no case that he made the accused aware of his right under S.50 of the N.D.P.S. Act in the matter of search and seizure or that any effort was made to have the search conducted in the presence of a Gazetted Officer or Magistrate. 6. S.50 of the N.D.P.S. Act reads as follows: "50. PW.3 has no case that he made the accused aware of his right under S.50 of the N.D.P.S. Act in the matter of search and seizure or that any effort was made to have the search conducted in the presence of a Gazetted Officer or Magistrate. 6. S.50 of the N.D.P.S. Act reads as follows: "50. Conditions under which search of persons shall be conducted: (1) When any officer duly authorised under S.42 is about 10 search any person under the provisions of S.41. S.42 or S.43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mention in S.42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred 10 in sub-so (I). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female." The scope and ambit of the aforesaid section came up for consideration before the Apex Court in Stale of Punjab v. Balbir Singh (AIR 1994 SC: 1872). The court found that the right to be searched in the presence of a Gazetted Officer or Magistrate if the person to be searched so desires is a valuable right given to him; that such search would impart much more authenticity and credit worthiness to the proceedings while equally providing an 'important safeguard to the accused and that the language used in S.50 makes it clear that it is obligatory on the part of the authorised officer to inform the person to be searched of his right under S.50. It was also held that it is an imperative requirement on the part of the officer intending to search a person to inform him that if he so chooses he will be searched in the presence of a Gazetted Officer or Magistrate and that the provision is mandatory. The position in a case where the search is not based on any prior information as contemplated in S.41 of the Act was also considered in the decision. The position in a case where the search is not based on any prior information as contemplated in S.41 of the Act was also considered in the decision. It was found that if an officer without any prior information makes a search or arrests a person in normal course of investigation into an offence or suspected offence and when search is completed at that stage S.50 of the N.D.P.S. Act would not be attracted and the question of complying with the requirement thereunder would not arise. But if during such search there is a chance recovery of any narcotic drug or psychotropic substance. then the police officer who is not empowered should inform the empowered officer. who should thereafter proceed in accordance with the provisions of the -N.D.P.S. 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 provisions of the N.D.P.S. Act. In the instant case even when the two packets which were held by the accused in his hand were opened. PW3 who is an empowered officer became aware that the packets contained ganja. His decision to make a body search was clearly to find out whether more ganja was available on his body. In fact even before asking the accused to open the packet PW.3 should have doubted about the contents and even at the stage the requirement of conveying the right of the accused under S.50 to him had arisen. It was violating the mandate in S.50 that the packets were seized and opened and further the body search was held. Obviously. there is clear violation of the requirement of S.50 of the N.D.P.S. Act and the consequences of such violation specified in Balbir Singh's case cited supra is that the search. seizure and trial are all vitiated and the accused would be entitled to an acquittal. 7. Point No.2% In view of my finding in Point No.1 the accused is entitled to get an acquittal. Accordingly the appeal is allowed: The impugned judgment is set aside and the accused is acquitted. The bail bond executed by the appellant shall be cancelled and he will be set at liberty forthwith.. The appeal is allowed as above.