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2002 DIGILAW 381 (GAU)

Kamal Ch. Bhowmik v. State of Assam

2002-09-05

D.BISWAS

body2002
D. BISWAS, J.— The learned Special Judge, Sonitpur on conclusion of trial in CR Case No. 6/98 convicted the appellant under Section 20(b)(i) of the Narcotic Drugs and Pshychotropic Substances Act, 1985 and sentenced him to undergo Rigorous Imprisonment for five years and to pay a fine of Rs. 10,0007- in default thereof, to further Rigorous Imprisonment for three months. 2. I have heard Mr. BK Bhattacharjee, learned counsel for the appellant and also Ms. B Rajkhowa, learned Public Prosecutor, Assam. 3. The prosecution case in brief is that on 23.1.97 a Maruti Van with registration No. NL-04-1173 was intercepted and checked in usual and routine frisking of vehicles near Kaliabhomora Bridge over the river Brahmaputra. During the course of search, one of the occupants of the vehicle made an attempt to run away with the vehicle and the other two occupants also made attempts to escape. The two persons who ran away towards the river bank were apprehended. The vehicle was found in an abandoned condition and seized. After search, 75 packets of cannabis (Ganja) were recovered. Seizure memo was prepared and after completion of investigation, chargesheet was submitted. The learned Special Judge after evaluation of the evidence of the prosecution as well as the defence convicted the appellant as aforesaid. 4. Mr. Bhattacharjee, learned counsel submitted that the conviction of the appellant in the instant case cannot be sustained as the investigating officer belonging to the State police was not empowered under the Act to search and seize the cannabis (Ganja) and investigate the case. Section 49 deals with the power to stop and search conveyance. It reads as follows ; "49. Power to stop and search conveyance. - Any officer authorised under Section 42, may if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, in respect of which he suspects that any provisions of this Act has been, or is being, or is about to be contravened at any time, stop such animal or conveyance, or in the case of an aircraft, compel it to land and. - (a) rummage and search the conveyance or part thereof; (b) examine and search any goods on the animal of in the conveyance; (c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means to stopping it, and where such means fail the animal or the conveyance may be fired upon." 5. It would appear that an officer authorised under Section 42, may at any time, stop and search the conveyance, if he has reason to suspect that the said conveyance is about to be used for the transport of any narcotic drug or psychotropic substance. The powers under Section 49 are available to the officers mentioned in Section 42 only. Any officer of the State as specified may exercise the powers of Section 49 only when he is empowered in this behalf by a general or special order of the State Govt. *as per provisions of Section 42. The learned Public Prosecutor was asked to furnish copy of the notification, if any, issued under Section 42. But she failed to produce any such notification. 6. In Roy V.D. appellant -versus- State of Kerala, respondent, 2000 AIR SCW 4005, the Supreme Court in para 16 and 17 held as follows : " 16. Now, it is plain that no officer than an empowered officer can resort to Section 41(2) or exercise powers under Section 41 (1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of the Section 36-A of the NDPS Act. It follows that any collection of material , detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial. 17. 17. To the same effect in the view expressed by the Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299 : 1994 AIR SCW 1802 : AIR 1994 SC 1872 : 1994 Crl.L.J 3702.) In para 13 Jaychandra Reddy, J, speaking for the Court observed thus (para 14 of the AIR): "Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by an officer not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial." 7. In State of Punjab, Appellant -versus-Baldev Singh, respondent, (1999) 6 SCC 172 , in para 14, the Constitution Bench held that if the investigating officer not being an empowered officer, comes across a person being in possession of the narcotic drug or psychotropic substance, he must inform the empowered officer under the NDPS Act, who should thereafter, proceed from that stage in accordance with the provisions of the Act. 8. In the instant case, two police officers chased and apprehended the appellant and seized the vehicle. During the course of search of the vehicle, they came across with the contraband. It was, therefore, obligatory on their part to inform the empowered officer in order to enable him to proceed with the investigation in compliance of the provisions of the Act. Obviously, they have not done so. Seizure of the contraband is illegal per se and cannot from the sole basis for conviction of the appellant under the Act. The ratio available in the judgments referred to above is clear. The learned Special Judge committed a grave error in this regard and, therefore, the conviction and sentence cannot be sustained in law. 9. Hence, the appeal is allowed and the impugned judgment dated 10.1.2001 passed in CR Case No. 6/98 is hereby set aside. The appellant Sri Kamal Chandra Bhowmik is acquitted.