1. F.I.R. has been registered against the petitioners and others for the offences punishable under sections 20B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act") in Cr.No.69/2016.
2. The petitioners have sought for quashing the F.I.R. mainly on two grounds. First, the respondent '' "Police have not followed the mandatory provisions prescribed in the NDPS Act. Second, the details of the seized material have not been disclosed and hence, the initiation of the proceedings is bad in law.
3. I have heard learned counsel for the petitioners and the learned Addl. S.P.P.
4. In support of his argument, learned counsel for the petitioners has placed reliance on the decisions rendered by this Court in Crl.P.No.8089/2016, Crl.P.No.8159/2016, Crl.P.No.8659/2016, Crl.P.No.8193/2016, Crl.P.No.8191/2016, Crl.P.No.8192/2016, Crl.P.No.9319/2016 and Crl.P.No.628/2017 and also the decision rendered by the Hon''ble Supreme Court of India in the case of State of Rajastan v. Jag Raj Singh alias Hansa (Crl.A. No.1233/2006) disposed of on 29.06.2016 (Reported in AIR 2016 SC 3041).
5. Learned Addl. S.P.P. in support of his arguments has referred to the following decisions namely:-
1.(2001) 6 SCC 181: (AIR 2001 SC 2637) -T. T. Anothony v. State of Kerala.
2. Division Bench judgment in Crl.A. No.367/2013 dated 16.12.2016
3. Emperor v. Kwaja Nazir Ahmed (AIR 1954 PC 18)
4. Apren Joseph alias Current Kunjukunju & others v. The State of Kerala- (1973) 3 SCC 114
5. Hon''ble Apex Court ruling dated 25.11.2016 in Anjandas Gupta v. State of West Bengal
6. (2014) 2 SCC 1 : (AIR 2014 SC 187)-Lalitha Kumari v. State of Uttar Pradesh
7. (2011) 11 SCC 559 : (2011 AIR SCW 6651)-State of Rajasthan v. Tarasingh.
8. (2011) 3 SCC 521 : (AIR 2011 SC 964)-Jarnail Singh v. State of Punjab
9. Judgment of Rajastan High Court dated 23.1.2017
10. 2008 Criminal Law Journal 1131-Bombay High Court.
6. On consideration of the law laid down in the above decisions and the material collected by the Investigating Agency as evidenced in the charge-sheet, in my opinion, both the contentions urged by the petitioners for quashing the proceedings are liable to be rejected.
7. Insofar as the compliance of the safeguards provided in sections 42, 43 and 50 of the NDPS Act are concerned, the legal position is now well settled. Under section 41(1) of the NDPS Act, only the empowered Magistrate can issue warrant for the arrest or for the search in respect of the offences punishable under Chapter IV of the Act. Under section 41(2), the empowered officer can give the authorization to his sub-ordinate officer to carry out the arrest of a person or search as mentioned therein. As held in the case of State of Punjab v. Balbir Singh, reported in (1994) 3 SCC 299 : (AIR 1994 SC 1872), if there is a contravention in the compliance of section 41(1) and 41(2) that would affect the prosecution case and vitiates conviction. Further under section 42(1), the empowered officer if he has a prior information given by any person that an offence punishable under the Act has been committed, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. It is held in the above decision that to this extent, these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
8. Under section 42(2), the empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision, the same affects prosecution case. To that extent, it is held to be mandatory. It is also held in the above decision, if there is delay whether it was undue or whether same has been explained or not, will be a question of fact in each case. Further enunciation of law laid down in the above decision which is material for the purpose of this case reads as follows:-
(4-A) If a police officer, even if he happens to be an '' empowered'' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165, Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Sections 100 and 165, Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial.
9. In the case in hand, F.I.R. has been registered against the petitioners on 21.4.2016. It is stated in the F.I.R., that on 21.4.2016 at about 4.00 p.m., the complainant received credible information that four persons are involved in selling ganja at Kalasipalya bus stop. The complainant entered the information in the register and obtained the written permission from the A.C.P. and in the presence of the panchas, apprehended the petitioners and two others near the entrance of the Kalasipalya bus stop. The complainant secured the A.C.P. to the spot and the A.C.P. issued written notice to the petitioners and they were subjected to search and one card board box containing four bundles were recovered from the accused No.1 containing 50 gms. of ganja in each bundle. One card board box containing three bundles were recovered from the accused No.2 containing 50 gms. of ganja in each bundle. One white colour plastic bag containing three bundles were recovered from accused No.3 containing 50 gms. of ganja in each bundle. One mobile phone was recovered from accused No.4.
10. The above facts go to show that all the requirements of sections 41, 42 and 43 of the NDPS Act were duly complied. Even with regard to the search conducted by the authorised officer, I do not find any illegality or infraction of section 50 of the Act as contended by the petitioners. It is borne on record that the petitioners were not subjected to any personal search. The seizure mahazar reveals that after informing the petitioners of their right to get searched in the presence of a Gazetted officer or a Magistrate, the bags held by the petitioners were produced by them and on opening, ganja was found therein. It is held in State of H.P. v. Pavan Kumar, 2005 (4) SCC 350 : (AIR 2005 SC 2265) that Section 50 would not apply to any search or seizure where the article was not being carried on the person of the accused. Admittedly, in the present case, the ganja was carried by the petitioners in carry bags. The petitioners were not subjected to personal search. Therefore, the provision of Section 50 is not applicable. Hence, the first contention raised by the petitioners is liable to be rejected.
11. The second contention urged by the petitioners is that the seized substances do not conform to the description of '' ganja'' as defined under the Act. In order to examine this contention, it is necessary to refer to Section 2(iii) of the Act. It reads as under:-
(iii) ''Cannabis (hemp)'' means
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;
12. In the instant case, the properties seized from the possession of the petitioners are described as (Vernacular matter omitted... Ed.). A plain reading of the above definition manifests that seeds and leaves are excluded from the definition of ganja when they are not accompanied by flowering or fruiting tops. The definition does not exclude the leaves when they are accompanied by the flowering or fruiting tops of cannabis plant. In the instant case, the seized substance is ''ganja'' which squarely falls within the above definition. Therefore, even the second contention urged by the petitioners does not make out a case for quashing the proceedings.
13. The decisions relied on by the petitioners are rendered on the premise that the seized substance did not fall within the definition of ''ganja'' and in that background and for non-compliance of the mandatory requirements of sections 41, 42, 43 and 50 of the NDPS Act, the proceedings therein were quashed by this Court. But in the instant case the factual matrix is entirely different. Hence, the principles applied in those cases do not enure to the benefit of the petitioners. As the proceedings initiated against the petitioners are prima facie found to be in accordance with the provisions of the Act and no circumstances vitiating the trial having been pointed out, the proceedings cannot be quashed. Hence, the petition is dismissed. Petition dismissed.
