Research › Search › Judgment

Kerala High Court · body

2002 DIGILAW 456 (KER)

Nabeesa beevi v. State of Kerala

2002-07-11

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Niar, J. The question that arises in this case is whether the mere presence of a Gazetted Officer, who had accompanied the seizing official with regard to the detention of an offence under the NDPS Act, would amount to sufficient compliance with Sec.50 of the NDPS Act in the matter of search and seizure? 2. The present appeal is from the judgment of the Sessions Court, Kollam, (Special court for trial of the NDPS Act, Cases), convicting the appellants herein, who are wife and husband, of the offence under sec. 20(b)(i) of the NDPS Act, on the ground that on 17-11-1997 at abut 7.15 p.m. they were found in possession of 20 grams and 28 grams respectively of ganja when approached by P.W.11, who was the Sub Inspector of Police of Punalur Police Station. 3. The learned counsel for the appellants submitted that there is violation of Sec. 50 of the NDPS Act and that the appellants are therefore entitled to get an acquittal. 4. On the arguments advanced in the case, the points that arise for decision are: 1. Whether the search and seizure made in the case are vitiated for non-compliance with Sec. 50 of the NDPS Act? 2. Reliefs: 5. Point No. 1: The evidence of PW11 is to the effect that at about 6.45 p.m. when he reached near the T.B. Junction, Punalur, in the course of patrol, he got information that the accused were engaged in the sale of ganja at the western side of their house. After summoning a Woman Police Constable, he reached near the residence of the accused at about 7.15 p.m. After apprehensive the accused, who tried to run away and after questioning them, he summoned P.W. 6, who was the Civil Surgeon of the Government Hospital and in his presence, proceeded to make the body search. He also stated that in the course of search, the 1st accused bit at the index finger of the right hand of P.W. 7 - woman Police constable and also on the right hands of P.Ws. 4 and 5, who went in aid of P.W.7. In the subsequent body search, 6 packets containing ganja were seized from the waist fold of the dhoti worn by the 1st accused. 4 and 5, who went in aid of P.W.7. In the subsequent body search, 6 packets containing ganja were seized from the waist fold of the dhoti worn by the 1st accused. The 1st accused, in the course of the searching process, snatched away 2 of the said packets; chewed the contents and subsequently spit it out to the near by river. The remaining 4 packets were got weighed and its weight was ascertained as 20 grams. Likewise, in the body search of the 2nd accused, 8 small packets were found at his waist and the weight thereof was ascertained as 28 grams. 6. I have perused the copy of the mahazar made available during hearing. What is mentioned therein is that P.W.11 had decided that the presence of a Gazetted Officer was going to be necessary to make the search and therefore the presence of P.W. 6 was secured by him even before he reached the scene of occurrence. Neither in the oral evidence of P.W.11 nor in the contemporaneous records, there is any mention that the accused were made aware of their rights under Sec. 50 of the NDPS Act or were given any option as to the search to be conducted i.e., whether it should be had in the presence of a Gazetted Officer or a Magistrate. On the other hand, the decision to bring P.W 6 was that of P.W.11 alone. The question arises whether such a procedure followed by a seizing official can be taken as Proper and sufficient for the purpose of compliance with Sec. 50 of the NDPS Act? 7. A Constitution Bench of the Apex Court in State of Punjab v. Baldev Singh ((1999)6 SCC 172) went into the requirements of compliance with Sec.50 of the NDPS Act and found as follows: "25. To be searched before a gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit article under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Sec. 50. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Sec. 50. No presumption under Sec. 54 of the Act can be raised against an accused unless the prosecution establishes it to the satisfaction of the court, that the requirements of Sec. 50 were duly complied with." In para 57 of the said judgment, the Apex Court reiterated that when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Sec. 50 of the NDPS Act being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search and that failure to inform the person concerned about the existence of his right to be a searched before a Gazetted Officer or Magistrate for search, and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate might not vitiate the trial’ but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person, during the search conducted in violation of the provisions of Sec. 50 of the NDPS Act. 8. In the present case, it is clear from the deposition of P.W. 11 that he had proceeded to the scene of occurrence after getting the information with regard to the availability of the accused in possession of the ganja. The procedure followed by P.W.11 clearly violates the mandates prescribed by the Apex Court in the aforesaid decision. The mere fact that P.W.6 was a Gazetted officer is not at all sufficient to cure the defect, especially when P.W. 6 was not one of the officers of any of the Departments mentioned in Sec. 42 which is an essential requirement under Sec. 50 of the NDPS Act. I am therefore of the view that there is clear violation of the requirements of Sec.50 of the NDPS Act in the present case and that the effect thereof is the accrual of a right to the accused to get an acquittal. 9. I am therefore of the view that there is clear violation of the requirements of Sec.50 of the NDPS Act in the present case and that the effect thereof is the accrual of a right to the accused to get an acquittal. 9. Point No.2:- In view of my findings under Point No.1, the impugned judgment is set aside and the accused are acquitted of the offence under Sec. 20 (b) (i) of the NDPS Act. 10. As regards the offence under Sec. 32 of the IPC, the sentence imposed on the 1st accused is simple imprisonment for two months. As far as the said sentence is concerned, the learned counsel for the appellants points out that the sentence is liable to be adjusted against the period of detention and imprisonment already undergone in the case which comes to 59 days. In the circumstances of the case, the said period is sufficient as the period of sentence. It is therefore directed that as far s the 1st accused is concerned, the period of detention and imprisonment already undergone by her are sufficient as the period as the period of sentence. In the result, the appeal is disposed of confirming the conviction for the offence under Sec. 332 of the IPC as against the 1st accused and allowing the period already undergone as sufficient period of sentence and setting aside the conviction and sentence imposed on both the accused for the offence under Sec. 20 (b)(i) of the NDPS Act. Bail bonds executed by them are cancelled and they are set at liberty.