JUDGMENT
M.R. Hariharan Nair, J.
1. The appellant is the first accused in S.C. 3/1998 tried by the Special Judge for trial of the N.D.P.S. Act cases, Vadakara. He challenges the conviction entered against him for the offence under S.21 of the NDPS Act and sentence of rigorous imprisonment for 10 years and fine of Rs.1,00,000/- (in default simple imprisonment for six months) imposed therefor.
2. The prosecution alleged that at about 3.30 p.m. on 17.3.1997 the appellant and the second accused involved in the aforesaid case, who was acquitted by the trial court, were found entering a latrine situated on the western side of the old State Bank building at Koduvally. They closed the door behind them. Feeling suspicious of their movements, some persons of the locality peeped in through the door and found that the accused were engaged in treating something in a steel vessel and also drawing out something out of it through a syringe. Some article like cigar lighter, lead papers, plastic bottles and scissor were also found around the accused besides a candle, which was burning.The two accused were nabbed by the people and taken to the office of the Circle Inspector of Police. On being convinced that the accused were engaged in processing brown sugar and after recording the statement of PW3, who was one of the persons, who had caught the accused red handed and taken them to the police station, the articles produced by the said persons were seized. Thereafter, the Circle Inspector of Police appraised the accused of their right under S.50 of the N.D.P.S.Act and on getting a negative reply from the accused, proceeded to search their body. Though nothing could be found on the body of the second accused, two packets were found in the pocket of the underwear worn by the first accused. One of them weighing 1.38 gms was found to contain brown sugar, the weight of which was ascertained as 550 mgms. The accused were arrested, taken to the police station, case registered investigation proceeded with and ultimately charge sheeted.
3. The trial court accepted the prosecution evidence and found that the first accused was guilty of the offence. The conviction and sentence followed. The Court, however, acquitted the 2nd accused as nothing was seized from him during the body search made by PW4.
4. Sri. James Mathew, who appeared for the appellants as State Brief, submitted that the conviction and sentence are unjustified in so far as there is violation of the mandatory provisions in the N.D.P.S.Act. According to him, the persons who nabbed the accused were incompetent to do so under the provisions of the N.D.P.S.Act. In the absence of any arrest made at the spot by an empowered officer, the accused is entitled to get an acquittal. It is also pointed out that in any event, atleast from the stage at which the accused was produced before the Circle Inspector of Police, he should have proceeded under the provisions of N.D.P.S. Act and that his failure to record the information and to forward the same to the immediate superior as contemplated under S.42(2) of the N.D.P.S. Act is fatal.
5. On the arguments advanced the points that arise for decision are:-
i) Whether there is violation of law in the matter of apprehending the accused and in producing them before the Circle Inspector of Police?
ii) Whether there is violation of S.42(2) of the N.D.P.S. Act and if so, what is the consequence?
iii) Whether the appellant is entitled to get an acquittal?
6.Point No.1: The learned Public Prosecutor placed reliance on Ss.43 and 46 of the Code of Criminal Procedure to contend that the apprehension of the accused by PW3 and other persons of the locality was fully justified. The aforesaid provisions are quoted herein.
“43. Arrest by private person and procedure on such arrest. (1) Any private person may arrest or cause to be arrested any person who in his presence commits a non- bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such persons comes under the provisions of S.41, a police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under provisions of S.42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
xxx xxx xxx xxx
46. Arrest how made:-
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police office or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life”.
7. It is well settled by now that the provisions of N.D.P.S. Act are only supplemental to the provisions in the Cr.P.C. and not derogatory to them. Under the said S.43 even private persons can arrest a person, if he is found engaged in commission of non-bailable and cognizable offence. Under the same provision, the person making the arrest is also entitled to make over the persons so arrested to a Police Officer. In view of the aforesaid provision, the action taken by PW-3 in apprehending the accused, who were apparently found engaged in the preparation of brown sugar to injectable form is certainly justified.
8. Point Nos.2 and 3 :- According to the learned counsel for the appellant, the Circle Inspector erred in not reducing the information that he had obtained which lead to the subsequent body search to writing and in not sending the same to the Official Superior. This aspect may be considered. Karnail Singh v. State of Rajasthan (2000 (6) Supreme 414) is the authority for the proposition that S.42 will have application only if the officer, before exercise of his rights under the N.D.P.S.Act, had reason to believe from personal knowledge or information regarding the movement of Narcotic Drugs or Psychotropic Substance and that if the action is taken not upon any personal knowledge or information, the requirement S.42 would not be applicable.
9. State of Punjab v. Balbir Singh, (1994 (3) SCC 299) has considered the applicability of S.42 where the proceedings commenced pursuant to the application of the provisions in the Code of Criminal Procedure and not under the N.D.P.S. Act. It was held that when the Police, while acting under the provisions of Cr. P.C. carries out arrest or search they would be acting under the provisions of Cr.P.C. only. At that stage, if there is any non-compliance of the provisions of S.100 or 165 of the Cr.P.C. that by itself would not be a ground to reject the prosecution case. The effect of the such non-compliance will have a bearing on the appreciation of the evidence of the official witness and other material depending upon the facts and circumstances of each case. In carrying out such search, if he comes across any substance covered by the N.D.P.S. Act, the question of complying with the provisions of the N.D.P.S.Act including S.50 at that stage would not arise. When the contraband seized during such arrest or search attracts the provisions of N.D.P.S. Act, then from that stage the remaining relevant provisions of N.D.P.S. Act would be attracted and further steps have to be taken in accordance with the provisions of the said Act.
10. In the instant case, as already mentioned, the arrest of the accused was made by private persons and not by the Police. The Police did not have any information about the occurrence spoken to by PW3, until the arrested accused was produced before the Circle Inspector of Police. It is seen from his evidence that he seized the articles and thereafter informed the accused of his rights under S.50 of the N.D.P.S.Act and on getting a negative reply, immediately proceeded to make body search. The body search was conducted without getting any formal information from any person regarding the possibility of the contraband being available in the pocket of the underwear worn by the accused. Even assuming that the suspicion caused to the Circle Inspector amounts to his personal information, even then the non-recording of the information and forwarding of the same to the superior officer, in the circumstances of this case, does not justify an acquittal. As already mentioned, the effect of such non-compliance may only have a bearing on the appreciation of the evidence of the Circle Inspector and other material and non compliance by itself would not be sufficient justification for acquittal of the accused.
11. The trial court, which had the benefit of watching the performance of the witnesses, found the evidence of PWs. 3 and 4 quite convincing. On a perusal of their evidence, I do not find any justification for coming to a contrary view. It is also pertinent in this regard that when questioned under S.313 of the Cr.P.C., the first accused, in answer to question No.2 where the evidence of PW-3 regarding his availability inside the latrine, was pointed out, stated that he had gone near the latrine; but did not enter into it and that he had been apprehended by PW-3 and taken to the Circle Inspector of Police.
12. In the circumstances I am of the view that the Court below was right in concluding that there was sufficient evidence to find that the accused/appellant was in possession of 550 milligrams of brown sugar (MO3) when his body was searched by PW-4 on 17.3.1997. The fact that article seized is brown sugar itself is evident from the Chemical Examiner’s report produced in the case (Ext.P15).
13. In the circumstances, the Court below was right in finding the accused/ appellant guilty of the offence under S.21 of the N.D.P.S. Act. As far as the sentence in concerned, what is imposed is only the minimum that is allowed by law.
14. In the circumstances the appeal is found to be without merit and it is accordingly dismissed.