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2005 DIGILAW 460 (MAD)

Intelligence Officer v. G. Sugumaran

2005-03-16

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- This appeal is filed by the complainant, viz., Intelligence Officer, Narcotics Control Bureau, T.Nagar, Madras-17, against the acquittal of the accused, as per the judgment dated 14.2.1996 and made in C.C.No.168 of 1994 on the file of the Special Court for NDPS Cases, Madras/Chengalpattu at Madras. 2. The Criminal Case in C.C.No.168 of 1994 was filed against the respondent/accused under Section 8(c) read with Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"). In the complaint it is stated that during the search made by the party headed by the Superintendent of Narcotics Control Bureau, a Gazetted Officer, on 13.7.1994 in the Southern Railway Temporary Canteen located in the Basin Bridge Platform, run by the accused, the accused was found in possession of 6 kilos of Ganja without any licence or permit and it is punishable under Section 20(b)(i) of the NDPS Act. 3. The Special Court for NDPS Cases, Madras/Chengalpattu at Madras framed charge under Section 8(c) read with Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 against the accused. 4. The complainant in proving the case against the accused, examined P.Ws.1 to 5 and marked Exs.P-1 to P-15. M.Os.1 to 7 were also produced on the side of the complainant. The trial Court though found that there have been no violation of Section 41(2) of the NDPS Act, however recorded finding that the procedures contemplated under Sections 42(1), 42(2) and 52(1) of the NDPS Act have not been followed. Further, the Special Court found that there is no supporting evidence to show that the accused was in possession of the steel box containing the Ganja and as such, the question whether the procedure contemplated under Section 50(1) of the NDPS Act was followed, does not arise. Further, the Special Court found that there is no supporting evidence to show that the accused was in possession of the steel box containing the Ganja and as such, the question whether the procedure contemplated under Section 50(1) of the NDPS Act was followed, does not arise. The Special Court, ultimately, in recording finding that the charge under Section 8(c) read with Section 20(b)(i) of the NDPS Act, has not been proved beyond reasonable doubt that the accused was in possession of 6 kilos of Ganja without any licence or permit in the Southern Railway Temporary Canteen located in Basin Bridge Platform run by him and in any event the complainant has not followed the procedures contemplated under Sections 42(1), 42(2) and 52(1) of the NDPS Act, which affected the case of the complainant and in that view, acquitted the accused from the charges levelled against him. Therefore, the complainant has filed this appeal against such judgment of acquittal. 5. The learned Special Public Prosecutor appearing for the appellant argued that there have been no violation of Section 42(1) and 42(2) of the NDPS Act, in view of the fact, the search was headed by the Gazetted Officer and Superintendent of NCB, P.W.1, inasmuch as the Gazetted Officer is empowered under Section 41(2) of the NDPS Act to enter any premises and conduct search at any point of time. The learned Special Public Prosecutor further argued that only if a person, who conducted search, is a Non-Gazetted Officer above the rank of Peon/Sepoy/Constable and without authorisation on a specific information, then only he is to give information to the immediate superior official with regard to search to be conducted within a meaning of Section 42(2) of the NDPS Act. The learned Special Public Prosecutor also submitted that as per telephone call made by anonymous caller, P.W.4 on taking down the message conveyed by the said caller submitted the report to P.W.1 and as such, there have been no violation of Section 42 of the NDPS Act. In this regard, the learned Special Public Prosecutor also submitted that on the basis of the information conveyed to P.W.4 which was received by him over phone, P.W.1 himself chosen to lead the raiding party for conducting search. In this regard, the learned Special Public Prosecutor also submitted that on the basis of the information conveyed to P.W.4 which was received by him over phone, P.W.1 himself chosen to lead the raiding party for conducting search. As regards the case of the defence that the Temporary Railway Canteen located in Basin Bridge Platform is a private premises, it is argued by the learned Special Public Prosecutor that the canteen is deemed to be a public place within the meaning of Section 43 of the NDPS Act. Inasmuch as the Officers entered the canteen at 6.00 p.m. and completed the entire search by 6.30 p.m. and thereafter mahazar was written and completed at 7.00 p.m., there have been no violation of Section 42(2) of the NDPS Act. It is also argued by the learned Special Public Prosecutor that merely because P.W.2, who is a Gazetted Officer (Divisional Mechanical Engineer) and Head of the Department in-charge of the Basin Bridge Railway Yard and who associated in the search made by P.W.1, took disciplinary action against the accused previously, cannot discredit the evidence of P.W.2. The accused, who was in occupation of the Temporary Railway Canteen at the time of search, admitted the conscious possession of Ganja at the time of recovery and also in his voluntary confession statement and despite the same the burden has not been discharged by the accused that he has not been in possession of Ganja at the time of search. It is also contended by the learned Special Public Prosecutor that there is no violation of Section 52(1) of the NDPS Act and even there is a violation that could not affect the case of the complainant. Since it is the evidence of P.W.2 that the place, viz., the private canteen, from where the contraband is recovered, is not accessible to all, but only to the persons, who are in the management of the canteen and inasmuch as the accused was also found in possession of Ganja and the burden was also not discharged by the accused that under what circumstances, he came into possession of the Ganja, the acquittal of the accused by Special Court for NDPS Cases, is not proper. In support of such contentions, the learned Special Public Prosecutor relied on the following decisions:- (1) Kalema Tumba – vs. - State of Maharashtra and another reported in 1999(4) Crimes 352(SC), in which, the Hon'ble Supreme Court held thus:- "Only when a person of an accused is to be searched then he is required to be informed about his right to be examined in presence of a Gazetted Officer or a Magistrate. Search of baggage of a person is not the same thing as search of the person himself. If a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his 'person'." "Where heroin was found from a bag belonging to the appellant and not from his person, it was held that it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate." (2) Narayanaswamy Ravishankar – vs. - Assistant Director, Directorate of Revenue Intelligence reported in (2002)8 Supreme Court Cases 7, in which the Hon'ble Supreme Court has ruled in paragraphs 5 to 7 thus:- "5. In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant ...... 6. It was also contended by the learned Senior Counsel that the ground on which the appellant was arrested was not communicated to him. We find no merit in this because the arrest memo clearly indicates the offence stated to have been committed by the appellant under the NDPS Act. Further, the record also shows that copy of the arrest memo Ext.P-20 was received by the appellant. 7. We find no merit in this because the arrest memo clearly indicates the offence stated to have been committed by the appellant under the NDPS Act. Further, the record also shows that copy of the arrest memo Ext.P-20 was received by the appellant. 7. In the instant case, no search or seizure was conducted on the person of the accused and, therefore, the provisions of Section 50 of the NDPS Act were not attracted." (3) A.K.Mehaboob – vs. - Intelligence Officer, Narcotics Control Bureau, reported in 2002 Supreme Court Cases (Crl) 1035, in which the Hon'ble Supreme Court held that there have been no violation of Sections 42 and 57 of the NDPS Act, where the case is on the basis of the statement made by the accused before the Intelligence Officer of the Narcotics Control Bureau under Section 67 and that there is no evidence to indicate that the statement had been elicited by any coercion, threat or force. (4) Saikou Jabbi – vs. - State of Maharashtra reported in 2003(8) Supreme 582 , in which, the Hon'ble Supreme Court has ruled, following the earlier judgment of the Hon'ble Supreme Court in Madan Lal and another – vs. - State of Himachal Pradesh reported in 2003(6) Supreme 382 , that Section 50 of the NDPS Act applies only in case of personal search of a person and does not extend to search of a bag, vehicle, container or premises. (5) This Court had an occasion to consider the applicability of Sections 41(2) and 42(1) and (2) of the NDPS Act in The Assistant Director, Directorate of Revenue Intelligence, Madras – vs. - Narayanaswamy Ravishankar reported in (2003) M.L.J.(Crl.) 242 and held thus:- "The main difference between Section 41(2) and Section 42(1) and (2) is that the superior officials like Gazetted Officers under Section 41(2) even without sending the information in writing to their superior officers could go to the spot at any time and search any place, whereas the non-Gazetted Officers under Section 42 cannot go to the specified places mentioned in the said Section without writing the information and without sending the same to the superior officers. It is clear that P.W.1, a Gazetted Officer who has been conferred with the special powers under Section 41(2), went to the spot on intelligence information and conducted a search and recovered the contraband from the suitcase which the accused brought to the Airport. Since P.W.1, Deputy Collector of Customs being the senior Gazetted Officer need not send the information under Section 42 to his superior officer, the admission of P.W.1 that he did not record the information would not affect his powers of going to the spot on information for the purpose of searching the place and arresting a person concerned. Therefore, non-observance of Section 42 of the Act could not be complained. When the empowered officer being a Gazetted Officer as provided in Section 41(2), goes to the Airport on getting the information, he need not take down the said information in writing and send it to the superior officer, as Section 42 would not apply to the said officer, moreso, when the search was conducted in a public place as provided in Section 43 of the Act." (6) M.Prabhulal – vs. - The Assistant Director, Directorate of Revenue Intelligence reported in 2003(7) Supreme 61 , in which the Hon'ble Supreme Court held thus:- "It is clear from the language of sub-section (2) of Section 42 that it applies to officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by sub-section (2) of Section 41, when such Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc., and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed on him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in presence of a Gazetted Officer ....... A Gazetted Officer has been differently dealt with and more trust has been reposed on him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in presence of a Gazetted Officer ....... "Since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42." 6. Learned counsel for the respondent/accused argued that since the procedures as contemplated under Section 42(1) and 42(2) and Section 52(1) of the NDPS Act have not been followed, the trial Court acquitted the accused from the charges levelled against him. The learned counsel further submitted that after the amendment of the Narcotic Drugs and Psychotropic Substances Act, 1985, as per the Act 9 of 2001 with effect from 27.9.2001 in respect of Ganja upto 1000 gram is the small quantity and upto 20 kg is the commercial quantity will not attract the offence under the NDPS Act even otherwise, the accused is entitled for acquittal. 7. The case of the complainant is that on the information of P.W.4 received over phone from an anonymous caller, P.W.1, the Superintendent of Narcotic Control Bureau and Gazetted Officer headed the search party and accordingly raid was made on 13.7.1994 at 6.00 p.m. and during the search in Southern Railway Temporary Canteen located in the Basin Bridge Platform, the accused was found in possession of 6 kg of Ganja (M.O.4) and the same was seized under mahazar Ex.P-2 in the presence of P.W.2, who is also a Gazetted Officer (Divisional Mechanical Engineer) and Head of Department in-charge of the Basin Bridge Railway Yard. The accused also admitted the fact in the confession statement, Ex.P-3 recorded in the presence of P.W.2. On examination, it was confirmed that the seizure is Ganja. Since the search and seizure was completed between 6.00 p.m. and 7.00 p.m., there is no violation of Section 42(2) of the NDPS Act, as rightly argued by the learned Special Public Prosecutor. There is also very much force in the argument advanced by the learned Special Public Prosecutor that the Temporary Railway Canteen located in the Basin Bridge Platform and run by the accused is a public place within the meaning of Section 43 of the NDPS Act. There is also very much force in the argument advanced by the learned Special Public Prosecutor that the Temporary Railway Canteen located in the Basin Bridge Platform and run by the accused is a public place within the meaning of Section 43 of the NDPS Act. As also rightly argued by the learned Special Public Prosecutor, the Temporary Railway Canteen run by the accused is not accessible to all and only persons who are in the management of the canteen alone can reach there, and therefore, it cannot be said that somebody has kept the Ganja M.O.4 seized from the place of the accused under mahazar Ex.P-2 and the burden is also not discharged by the accused as to how he came into possession of M.O.4. 8. As per Section 41(2) of the NDPS Act, the Gazetted Officer empowered to enter any premises and to conduct search at any point of time and P.W.1, Superintendent of NCB and Gazetted Officer has rightly searched the premises of the accused, viz., Temporary Railway Canteen situated in the Basin Bridge Platform run by the accused, during which time he seized 6 kilos of Ganja kept by the accused in a trunk box, M.O.1. Therefore, it is clear that there have been no violation of Section 42(1) and 42(2) of the NDPS Act and also there is no violation of Section 52(1) of the NDPS ACT. 6 Kilo of Ganja (M.O.4) was kept in M.O.1 steel box which could have been only by the accused, since the steel box(M.O.1) was kept in the Temporary Railway Canteen run by the accused. It follows, it is only the accused who could have kept the 6 kilos of Ganja (M.O.4) in the steel box (M.O.1). Therefore, there is no necessity for P.W.1, Superintendent of NCB and Gazetted Officer to offer for search of the premises of the accused, viz., the Temporary Railway Canteen run by the accused in the Basin Bridge Platform as held by the Hon'ble Supreme Court in 1999(4) Crimes 352(SC)(cited supra). 9. Therefore, there is no necessity for P.W.1, Superintendent of NCB and Gazetted Officer to offer for search of the premises of the accused, viz., the Temporary Railway Canteen run by the accused in the Basin Bridge Platform as held by the Hon'ble Supreme Court in 1999(4) Crimes 352(SC)(cited supra). 9. The Temporary Railway Canteen was run by the accused in the Basin Bridge Platform being a public place, it cannot be said that Section 50 of the NDPS Act has not been followed in seizing the Ganja M.O.4 under mahazar Ex.P-2 as held by the Hon'ble Supreme Court in 2002(8) Supreme Court Cases 7(cited supra) and as also held in 2003(8) Supreme 582 (cited supra. 10. Further, the accused also made confession statement Ex.P-3 recorded by P.W.1, Superintendent of NCB and Gazetted Officer in the presence of P.W.2 Gazetted Officer (Divisional Mechanical Engineer) and Head of Department in-charge of the Basin Bridge Railway Yard, under Section 67 of the NDPS Act and as there is nothing to show that such a statement had been obtained under coercion, threat and force, there have been no violation of Sections 42 and 57 of the NDPS Act as held by the Hon'ble Supreme Court in 2002 Supreme Court Cases(Crl.) 1035 (cited supra). 11. Inasmuch as the search was made headed by P.W.1, Superintendent of NCB and Gazetted Officer, there is no necessity to send information under Section 42 of the NDPS Act to the superior officials as held by this court in 2003 M.L.J. (Crl.) 242 (cited supra) and also held by the Supreme Court in 2003(7) Supreme 61 (cited supra). 12. Therefore, the findings of the trial Court in acquitting the accused that the complainant has not followed the procedures contemplated under Sections 42(1), 42(2) and 52(1) of the NDPS Act, cannot be said to be proper. 13. 12. Therefore, the findings of the trial Court in acquitting the accused that the complainant has not followed the procedures contemplated under Sections 42(1), 42(2) and 52(1) of the NDPS Act, cannot be said to be proper. 13. The appellant/complainant has proved the case in respect of the charges levelled against the accused that during the search made by P.W.1, Superintendent of NCB and Gazetted Officer on 13.7.1994 at 6.00 p.m. in the Temporary Railway Canteen, run by the accused in the Basin Bridge Railway Platform, the accused was in possession of 6 kilo of Ganja (M.O.4) kept in the steel box M.O.1 without any licence or permit and therefore, it was seized under mahazar Ex.P-2 in the presence of P.W.2, Gazetted Officer (Divisional Mechanical Engineer) and Head of Department in-charge of the Basin Bridge Railway Yard and the accused also gave confession statement Ex.P-3 admitting such possession of Ganja written by his own handwriting. The accused was arrested after serving the copy of arrest memo Ex.P-4 containing information for his arrest. P.W.4 also gave Special Report Ex.P-5 under Section 57 of the NDPS Act to the Superintendent, Narcotics Control Bureau, South Zone, Madras (P.W.1). P.W.1 also sent Special Report Ex.P-6 under Section 57 of the NDPS Act to the Assistant Director, Narcotics Control Bureau, South Zone, Madras. Search itself was made by P.W.2, Gazetted Officer (Divisional Mechanical Engineer) and Head of Department in-charge of the Basin Bridge Railway Yard after informing the accused, to which the accused gave his consent. P.W.3, Chemist Assistant, Grade-I in the Madras Customs Laboratory after examining the articles seized from the accused gave analyst report Ex.P-8 that it was Ganja. 14. In the confession statement Ex.P-3, the accused has stated that he found the Ganja (M.O.4) seized from him from the Sarkar Express Train which came to Chennai Central Railway Station on 13.7.1994 wrapped in an white cloth and he took the same and kept in a steel box (M.O.1). 15. The complainant, clearly established the charges levelled against the accused beyond reasonable doubt as per the evidence let in through P.Ws.1 to 5, Exs.P-1 to P-15 and M.Os.1 to 7. Therefore, the accused is guilty under Section 8(c) read with Section 20(b)(i) of the NDPS Act. 15. The complainant, clearly established the charges levelled against the accused beyond reasonable doubt as per the evidence let in through P.Ws.1 to 5, Exs.P-1 to P-15 and M.Os.1 to 7. Therefore, the accused is guilty under Section 8(c) read with Section 20(b)(i) of the NDPS Act. However, considering the facts that the accused was found in possession of 6 kilos of Ganja, which is now lesser quantity as prescribed under commercial quantity as per NDPS Amended Act, amended under the Act 9 of 2001 and the said Ganja being more than the small quantity of thousand grams as prescribed under the NDPS Act, this Court intends to award lesser punishment. The accused had been in jail during the pendency of C.C.No.168 of 1994, i.e., from 14.7.1994 to 14.2.1996 (one year and 7 months). 16. In the result, the appeal is allowed, setting aside the judgment dated 14.2.1996 made in C.C.No.168 of 1994 by the Special Court for NDPS Cases, Madras/Chengalpattu at Madras. The accused is found guilty under Section 8(c) read with 20(b)(i) of the NDPS Act. The period of imprisonment undergone by the accused during the pendency of C.C.No.168 of 1994 from 14.7.1994 to 14.2.1996 (one year and seven months) shall be treated as sentence therefor and no separate sentence is awarded.