Pon Adithan Vs Deputy Director, Narcotics Control Bureau (South Zone), T. Nagar, Madras 17

Karpagavinayagam, J.@mdashIn Sessions Case No. 91 of 1988, on the file of Fourth Additional Sessions Judge, Madras, the appellant Pon Adithan was tried and convicted for an offence under S. 8(c) read with S. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''Act'') and sentenced to undergo R.I. for ten years and to pay a fine of Rs. l lakh, in default to undergo RI for two years, by judgment dated 16.6.1986.

2. The gravamen of the allegation against the appellant is that on 13.4.1988 at about 6.00 p.m., near route No. 18 bus stop in Parrys Corner, Madras, the appellant was found in possession of 250 grams of heroin in polythene bag without valid permit and thereby he committed the abovesaid offence.

3. The short facts leading to the conviction are as follows:-

P.W. 1, Clatis Lilly, is an investigating Officer in Narcotic Bureau, Madras. On 13.4.1988, at about 6.00 p.m., on prior information, P.W.I, along with her officials went to Parrys Comer, Madras and near route 18 bus stop the appellant was standing with M.O. I Yellow bag, carrying in his hand. The same was searched by P.W.I in the presence of P.W. 4 Muthu. The bag M.O. 1 was found to contain M.O. 2 polythene bag. When the same was opened, they found MO. 3 powder kept inside. On interrogation, the appellant admitted that the brown powder was heroin. Then P.W.1, recovered M.Os. 1 to 3 under Ex.P.1 mahazar attested by P.W. 4 and another. In Ex. PI mahazar P.W. 1 obtained the signature from the appellant also. Thereafter, the appellant/accused and MOs. were taken to the office of P.W. 1.

4. At 8.00 p.m., on 13.4.1988, at the office of P.W.I, the appellant gave a statement Ex.P.3 written in his own handwriting, confessing the crime. The copy of the said statement was given to the appellant and signature also was obtained for the same. He stated in Ex.P3 that he came to Madras along with his friends for sightseeing and that he purchased 250 grams of heroin (M.03) for Rs. 15,000/- from one Rafeek. At 10.00 p.m. P.W.I arrested the accused, after recording the same in the records.

5. On 14.4.1988, the next day, the appellant, was brought and produced before Court for remand along with M.Os.Ex.P4-Athatchi is the list of M.Os., produced before court. On 15.4.1988. P.W.I filed a requisition Ex.P5 in Court, for sending all these M.Os. for chemical analysis. On the orders of Court on 15.4.1988, sample was taken from M.O.3 and sent to Forensic Laboratory for analysis. Ex.P.6 is the acknowledgment of the analyst.

6. P.W.2, Lakshmanasamy, the analyst, on receipt of the sample with the Court Seal, along with the requisition letter of the Magistrate Ex.Ps., analysed and found the same to be heroin or morphine. He issued Ex.P7 certificate dated 5.5.1988 and sent the same through P.W.I on 31.5.1988, P.W.2 sent back the remaining unused powder to Court, which is M.O.4. On this basis, the Deputy Director of Narcotic Intelligence Bureau, filed a complaint before Court against the appellant for an offence under S.8(c) read with S.21 of the Act.

7. P.W.3, Govindan is a court clerk. P.W.4 Muthu, the mahazar witness turned hostile. Thus, prosecution has examined P.Ws.1 to 4, filed Exs. P.1 to P.8 and marked M.Os. 1 to 4.

8. After the evidence on the side of the prosecution was over, the appellant was questioned under S. 313, Crl. P.C. He chose to deny the complicity in the crime. The appellant further added that no article was recovered from him, but he was arrested on the evening of 13.4.1988 by P.W.I and that he was not informed by P.W.I, the reason for such arrest and that he was innocent. However, no defence witness was examined on his side. Ex.Dl was marked on the side of defence.

9. On termination of trial, the court below on appraisal of the evidence, oral and documentary adduced by the respective parties found the appellant guilty and sentenced him as stated earlier. Aggrieved with this, the present appeal has been filed before this Court by the appellant.

10. Mr. Shanmughasundaram, representing Mr. E.J. Ayyappan, learned counsel for the appellant, took me through the entire evidence and contended that the prosecution cannot stand in view of the non- compliance of the mandatory provisions contained in the Act. In short, his submissions are three fold. The first being that under S. 50 of the Act, the investigating officer should take the accused person to the nearest Gazetted Officer or the Magistrate and search him only in his presence. In this case, this was not done. So, a mandatory provision of S. 50 of the Act was not complied with. The Second submission being that u/s 57 of the Act, when the person is arrested by an Officer in respect of the offence under this Act, a full report of the arrest and seizure should be sent to the immediate superior officer within 48 hours. This is not done in this case. As such the provisions of Section 57 of the Act, has also not been complied with. Thirdly, P.W.I cannot be relied upon, since there is no corroboration from P.W.4 mahazar witness who turned hostile.

11. To substantiate his submissions, learned counsel for the appellant, would refer to several decisions of the Apex Court, this Court and other High Courts, which I shall discuss later.

12. Mr. Prakash, representing Mr. P. Rajamanickam, learned Public Prosecutor of Central Government, Cases, contended that S. 50 of the Act does not apply to the cases, where recovery was made from the bag of the accused and that only when the body of the person is searched, S. 50 of the Act would apply. He also submits that the provisions of S.57 of the Act has been complied with, and even assuming that there was non-compliance of S.57 of the Act, it is only directory and not mandatory as per the rulings of the Apex Court. He also cited several authorities in support of his above submissions.

13. At the outset, I must say that the submission made by Mr. Prakash, learned counsel appearing on behalf of the respondent, that Section 50 of the Act does not apply for the recovery of narcotic drugs from the bag of a person cannot hold good, in view of the direct authority given by the Apex Court. Of course, Mr. Prakash learned counsel for the respondent cited two decisions in support of his first submission:

14. In S. Rajan Vs. State Asst. Collector of Customs (Intelligence) Madurai, , Rengasamy, J., of this Court, has made the following observations:-

The learned counsel for the appellant referring to S. 50 of the Act would contend that before he commenced the search of this appellant on person, and also his bag, MO. 1, P.W. 1 should have informed the appellant about his right for being searched either before a Magistrate or a Gazetted officer and only after ascertaining his choice, he should have searched the appellant and as this was not complied with, the prosecution of the appellant is illegal. S. 50 of the Act is applicable only for the search of person, that is the body of the accused. In this case, even though the body of the accused was examined, nothing was received from his body but the heroin was found only in M.O.I bag, which this appellant was keeping in his hand. Even though, the learned counsel for the appellant would contend that the search of the M.O. 1 bag, which was alleged to have been in the hand of appellant will also amount to search of a person, as the bag was in the personal custody of the appellant, the law laid on this subject by the Supreme Court is against the contention of the learned counsel for the appellant. In Sunder Singh Vs. State of Uttar Pradesh, while referring to Section 103, Code of Criminal Procedure of 1898, the Supreme Court has observed that the Section 108 of the Old Code was applicable only for a search to be made in a place but not to the search of a person and the seizure of the pair of shoes worn by the accused person will not amount to the search either of place or of a person. In the view of the Supreme Court, the ''person'' refers to the body of an individual and therefore the shoes worn by him cannot be the ''person'' and therefore the law relating to the search of a person and place is not applicable to the search of the shoes, though worn by a person. Applying this parameter as laid down by the Supreme Court, the bag in the hands of the appellant cannot be treated either as a place or a person and therefore S. 50 of the Act, which is specifically applicable for the search of person, cannot be applied to the search of M.O. 1 bag. Therefore, the allegations of non-compliance of S. 50 of the Act also loses its value.

15. In Ramji Duda Makwana Vs. The State of Maharashtra, , a Division Bench of Bombay High Court has held as follows :-

To our mind, this controversy on facts is totally inconsequential because a careful consideration of the provisions of Section 50 of the NDPS Act will indicate that a broad and definite line will have to be drawn between the cases where the contraband is recovered from spots other than on the person of the accused and cases where the contraband is alleged to have been concealed on the person. The present case falls in the former category where admittedly the accused was holding a polythene bag in his hand and it was from that bag that the contraband was recovered. Nothing was recovered from his person on the basis of which he is sought to be implicated. The applicability of Section 50 therefore would not arise in the present case in so far as Section 50 is in law and in spirit confined to that category of cases where the authorities are required to carry out a body search.

16. There is no dispute that S. 50 of the Act is mandatory and the failure to comply with the said provision will be fatal to the prosecution as laid down in State of Punjab v. Balbir Singh (1994 l L.W.(Crl.) 292). But the only contention by the learned counsel for the respondent is that this Section would not be applicable to this case, where the search was not made from the body.

17. Section 50 of the Act provides:-

"(1) When any officer duly authorised under S. 42 is about to 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 mentioned in S.42 or to the nearest Magistrate.

18. Learned Counsel for the appellant submits that the search of the person as contemplated in S. 50 of the Act would include, search of any container or bag carrying by the accused. On similar facts, in Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, , the Supreme Court has held that S. 50 of the Act is applicable when the accused in that case was sitting with the bag in the railway station and the bag was searched and as the said mandatory provision was not complied with, the conviction of the accused was hold to be vitiated.

19. Following this decision, in Amarjit Singh and another v. State (1995 (1) Cri 777), a Division Bench of the Delhi High Court has observed as hereunder:-

The word ''personal search'' appearing in S. 50 of the Act would, in our view, mean that if accused is in possession of the drug, may be on his body or may be on a particular vehicle in which he is found to be in possession or may be having the contraband in his bags which he may be carrying of which he was in physical possession at the relevant time, the provisions of S. 50 of the Act have to be complied with, if there is prior information with the authorities with regard to possibility of a suspect being in possession of contraband drugs.

20. In Daniel Odemenam Vs. R. Ramesh and another, , Division Bench of the Bombay High Court, has held that the requirement of the compliance of S. 50 of the Act is not restricted to the physical search of the suspected person, but extended to baggage and belongings and the failure to comply the same vitiated the trial. The said Division Bench, while passing the abovesaid Judgment followed the decisions of the Supreme Court, reported in Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, .

21. In view of the above position, the contention raised by Mr. Prakash, learned counsel for the respondent cannot be accepted. So, in this case, this Court has to accept the contention of the learned counsel for the appellant with regard to the necessity of complying with the provisions of S. 50 of the Act, while searching the bag carried by the person accused. In the light of the above situation, this Court has to see, whether S. 50 of the Act has been complied with or not?

22. Learned counsel for the respondent brought to my notice the evidence of P.W. 1 in her examination, regarding the compliance of the provisions of S. 50 of the Act. The relevant portion of the evidence as spoken to by P. W. 1 is as follows:-

Of course, P.W.I, admits that the same has not been recorded in the records.

23. Learned counsel for the appellant submits that in the absence of the recording of this fact, the evidence relating to the compliance of the provisions of Section 50 of the Act, as spoken to by P.W.I, cannot be believed. In this regard, learned counsel cited the following decisions.

24. The Supreme Court in State of Punjab v. Jasbir Singh (1996 SCC (Cri.) 1), has expressed a similar view, while disposing an appeal against acquittal preferred before the Supreme Court, where the trial court rejected the evidence of Police Officer, on ground that he did not take in writing from the accused, that they had no objection to a search by the Police Officer and they were informed about the right and waived their right to search in the presence of the Gazetted Officer and so, the Supreme Court held that the view of the High Court for acquitting the accused is not warranted in the facts of that case. In that case, the trial court was not inclined to accept the prosecution case, in the absence of anything in writing, because it was the matter of appreciation of evidence and having considered the totality of evidence and circumstances of the case. This decision of the Supreme Court would not apply to this case, because that view was taken by the trial court, which was confirmed by the Apex Court in the matter of appreciation of evidence of the Police Officer. It does not lay down an universal rule, that wherever the writing with regard to the compliance of the provisions of S. 50 of the Act is not done, the evidence of the witnesses should not be relied upon.

25. Yet another decision of the Supreme Court in T.P. Razak v. State of Kerala (1996 SCC (Crl.) 57) has been cited, in which the Supreme Court has not believed the evidence of P.W.4 relating to the compliance of the provisions of S. 50 of the Act. The observation of the Court in that decision is as follows:-

It is obligatory on the part of such Officer to inform the person to be searched. Failure to inform the person to be searched and if such person so required, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of S. 50 which is mandatory and thus it would effect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would he a question of fact.

26. So, even as per the observation of the Supreme Court, this aspect is a question of fact, which has been considered by the lower court also. I am of the view, that in this case, there is evidence of P.W.I about the information having given to the accused/appellant regarding his right to be searched before the Gazetted Officer or the Magistrate and as such these decisions referred to above are distinguishable on facts.

27. Merely because, P.W.I being an officer of Narcotic Bureau, who is not a police officer, has not written about the compliance of the provisions of S. 50 of the Act in some records, I do not propose to reject her evidence. P.W.I who has no axe to grind against the accused, need not speak falsehood and nothing has been elicited in her cross-examination to discredit her testimony. Since, I believe her testimony, I am of the considered opinion that S. 50 of the Act has been complied with.

28. In yet another decision cited by the learned counsel for the appellant in Saiyad Mohd. Saiyad Umar Saiyad and Others Vs. State of Gujarat, , the Apex Court, rejecting the view of the High Court, that it is the duty of the Court to raise a presumption, when the Officer concerned has not deposed that he had followed the procedure mandated by Section 50 of the Act observed that when the Officer concerned has not deposed that he had followed the procedure mandated by S. 50 of the Act, the Court is duty-bound to conclude that the accused had not had the benefit of the protection that S. 50 of the Act affords, and as such the presumption of regularity of official Act as contemplated under S.114(I)(e), of the Evidence Act, cannot be relied upon. As referred on by the Apex Court in this case, it cannot be said that in the cases under Narcotic Drugs and Psychotropic Substances Act, 1985, it is the duty of the Court, to raise presumption, when the officer concerned has not deposed that he had followed the procedure mandated by S. 50 of the Act. But in the instant case, as referred to earlier, P.W.I, categorically deposed that she informed about the right of the appellant being searched in the presence of the Magistrate or the Gazetted Officer. On this factual aspect, the above referred decision will not be applicable to the present case.

29. Learned counsel for the appellant also referred to Sivakumar alias Kumar alias Sugumar, in Re (1989 L.W.(Crl.) 65), wherein Arunachalam, J., of this Court has held that compliance of the provisions of S. 50 of the Act is mandatory. There is no dispute on this principle, since as referred to earlier, it has been laid down in Balbir Singh''s case, by the Supreme Court, as reported in 1994 (1) L.W. (Crl.) 292.

30. Mr. P.N. Prakash, learned counsel appearing for the respondent, cited a Judgment of the Supreme Court in Surajmal Kania Lal Soni Vs. State of Gujarat, , in which it has been held that merely because, the police Inspector did not reduce the information into writing, it cannot be said that the mandatory provisions of Section 50 of the Act has been violated. The relevant observation made by the Supreme Court reads thus:-

The only other important submission made was that there is no proof that Section 50 of the Act has been complied with. According to the learned counsel, the Police Officer who searched did not say that he informed the accused that he has got a right to be taken to a Gazetted Officer for conducting the search. This court in State of Punjab v. V. Balbir Singh, has pointed out that whether there was compliance or not, would be a question of fact. No foundation has been laid in the cross-examination of the Police Inspector as to whether the Police Officer informed the accused as required under S. 50 of the Act....

We see no merits in this appeal. It is accordingly dismissed.

31. On the strength of this Judgment, it is contended by learned counsel appearing for the respondent that the instant case stands still more in a strong footing, in the sense, there is material available from the evidence of P.W.I the searching officer, to the effect that she informed the accused that he has got a right to be searched in the presence of the Gazetted Officer or the Magistrate.

32. In State of Himachal Pradesh Vs. Shri Pirthi Chand and another, , it has been held that the Officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazetted Officer or a Magistrate and that if no evidence to that effect is given, the Court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit articles was not established. It is also observed that it is to be seen whether the accused has been afforded such a right and whether the authorised officer has violated the mandatory requirement as a question of fact, has to be proved at the trial. As such, since this aspect being question of fact, which has been accepted by the trial court in the instant case, I am of the considered opinion, that the prosecution has established the compliance of S. 50 of the Act through P.W.I, the searching officer, who deposed that she had informed the accused about his right to demand, to be searched in the presence of Gazetted Officer or the Magistrate.

33. Regarding the contention that the evidence of P.W.I was not corroborated by the mahazar witness, P.W.4, who turned hostile, learned counsel for the respondent cited the following decisions (i) Hazari Lal Vs. State (Delhi Administration), , for the proposition that the evidence of searching officer alone can be acted upon, without corroboration, when the evidence of official witnesses are reliable and that the testimony of the official witness need not be doubted or discarded, merely because he happens to be an official.

34. Regarding the submission made by the learned counsel for the appellant, about the non-compliance of S.57 of the Act, as rightly pointed out by learned counsel for the respondent, and there is evidence as spoken to by P.W.I, that she has sent the report to her Superior Officer, as per S.57 of the Act. The relevant portion of evidence of P.W.I, to that effect is as follows

It has been contended by learned counsel for the respondent that the Supreme Court in Balbir Singh''s case held that S.57 of the Act is not mandatory. However, when there is evidence in this case in regard to the compliance of the provisions of S.57 of the Act, I need not go into the question, whether S.57 of the Act is mandatory in the facts and circumstances of the case.

35. To reiterate, regarding the compliance of the provisions of S. 50 of the Act, the Court has to carefully and cautiously see, whether there is any acceptable material to show that the prosecuting agency has complied with the provisions of S. 50 of the Act.

36. The organised traffic in contraband generates deleterious effect on the national economy affecting the vitals of the economic life of the community. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind.

37. As laid down in Jasbir Singh''s case, each case must be considered on its own background. If the evidence of P.W.I is not believed, then the entire case of the prosecution falls down, not only on the aspect of non-compliance of the provisions of S. 50 of the Act, but also on various factual aspects. But here is the case, where the evidence of P.W.I inspires confidence of the trial court, as well as this Court. There is no reason to reject the testimony of P.W.I merely because, she has not written in her records about the information being given to the accused, regarding his right to be searched before the Gazetted Officer or the Magistrate.

38. In view of the above discussion, I am of the clear opinion that the evidence of P.W.I can be believed in toto, though P.W.4, the mahazar witness turned hostile, for the reasons best known to him. In the facts and circumstances of the case, since I place reliance of the evidence of P.W.I, I feel that the prosecution has established its case beyond doubt against the appellant.

39. The appeal, which has no merit is liable to be dismissed and the same is accordingly dismissed.