Posted On by &filed under High Court, Kerala High Court.


Kerala High Court
Abdulla Koya vs State Of Kerala on 3 October, 2000
Equivalent citations: 2001 (76) ECC 323
Author: K Joseph
Bench: K Joseph


JUDGMENT

Kurian Joseph, J.

1. Two questions of general importance arise for consideration: (1) What is the effect of a special law vis-a-vis the Code of Criminal Procedure and the Indian Penal Code; and (2) Whether compliance with the procedure Under Section 50 of the N.D.RS. Act is necessary in the case of a seizure of a narcotic drug of psychotropic substance in a public place, as provided Under Section 43 of the N.D.P.S. Act.

2. The appellant who was the accused in S.C. No. 192 of 1995 on the files of the Second Additional Sessions Court, Kozhikode, was convicted under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment of three years and to pay a fine of Rs. 25,000 and in default to undergo rigorous imprisonment for another one year. He was allowed set off Under Section 428 of the Code of Criminal Procedure.

3. According to PW 1 on 1.3.1995 at about 9 a.m. while he was on duty, he received an information that ganja was being sold at Panicker Road, a public place. After intimating his superior officer the Circle Inspector of Police, and upon instruction from him, he proceeded to the scene along with two other police constables including PW. 2. They found the accused near an electric post. They also found him in a confused state of mind (apparently having consumed ganja?) and he was keeping a packet with him and was engaged in selling ganja. On seeing the police, the accused tried to escape but was detained. Learning that he was in possession of ganja, the accused was informed by PW. 1. that he was going to be searched and in case he required, he had a right to be searched in the presence of a Magistrate or a Gazetted Officer. Thereafter, the accused was searched and a packet containing 120 gms. of ganja was seized from him. The material object, on chemical examination later, was found to be ganja.

4. The Sessions Court, on the basis of the evidence adduced by the prosecution, entered a finding that the accused was guilty of the offence punishable Under Section 20(b)(i) of the N.D.P.S. Act. At para 12 of the judgment, the learned Sessions Judge held that since the seizure fell Under Section 43 of the N.D.P.S. Act (seizure and arrest in public places), “the provisions of Section 50 cannot be said to be mandatory in the case of such seizure”.

5. The main ground of attack in appeal is also against the said finding. A bare reading of Section 50(1) of the N.D.P.S. Act would clearly show that the compliance with the procedure contemplated under the said Section took in the cases covered by Section 43 also, Section 50(1) reads as follows:

When any officer duly authorised Under Section 42 is about to search any person under the provisions of S. 41. Section 42 or Section 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 Section 42 or to the nearest Magistrate.

Section 43 of the N.D.P.S. Act reads thus:–

43 Power of seizure and arrest in public places.– Any Officer of any of the departments mentioned in Section 42 may–

(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under his Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation:– For the purpose of this Section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public.

6. Need for compliance with the procedure contemplated Under Section 50 of the N.D.P.S. Act is a position no more res integra. There is a catena of decisions on this point by the Apex Court including the decision by the Constitution Bench in State of Punjab v. Baldev Singh . (See also the decisions of the Apex Court in State of Punjab v. Balbir Singh T; Hamza v. State of Kerala . and Koluttumottil Razak v. State of Kerala . The Constitution Bench in Baldev Singh’s case, at para. 28, has in fact given the reasons for such a mandatory procedure, which reads thus:–

28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right “that if he requires” to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose-to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view that growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may-result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order of acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably comprising the administration of justice. That cannot be permitted.

It is in the background of the severely punitive and stringent provisions of the N.D.P.S. Act, one has to see whether even for search of a person in a public place it is necessary to comply with the provisions regarding search Under Section 50 of the N.D.P.S. Act.

7. Incidentally another question also arises whether in the absence of express provisions regarding the mandatory compliance with the provisions of the N.D.P.S. Act, is it not sufficient for an empowered officer to comply with the general provisions under the Code of Criminal Procedure regarding search and seizure. In other words, what is the effect of a special law vis-a-vis the Code of Criminal Procedure and the Indian Penal Code. Sections 4 and 5 of the Code of Criminal Procedure read as follows:

4 Trial of offences under the Indian Penal Code and other laws:– (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or, otherwise dealing with such offences.

5. Saving:– Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

Thus it can be seen that all offences under the Indian Penal Code are to be investigated and tried according to the provisions of the Code of Criminal Procedure. However, offences under any other law are to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment regulating the manner of investigation, inquiry, trial etc. The saving clause Under Section 5 further makes it clear that nothing contained in the Code of Criminal Procedure shall affect any special or local law or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law. Thus it is evident that if a special law provides for a different procedure regarding the inquiry, investigation etc. and for that matter if a special jurisdiction or power is conferred by any special law, such law shall prevail over the general law, the Code of Criminal Procedure. There is a similar provision under the India Penal Code also. Section 5 of the said Code reads as follows:

5. Certain laws not to be affected by this Act:–Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law.

Thus the position is crystal clear that when a special law provides for jurisdiction or a procedure, notwithstanding anything contained in the Indian Penal Code or in the Code of Criminal Procedure, the special law will prevail over the Code of Criminal Procedure and the Indian Penal Code. The N.D.P.S. Act being a special law, it is not enough that an empowered officer conducts the search and seizure of a narcotic drug or psychotropic substance in accordance with the provisions of the Code of Criminal Procedure. He is bound to follow the procedure prescribed under the N.D.P.S. Act and that is why it is specifically provided Under Section 51 of the N.D.P.S. Act that the provisions of the Code of Criminal Procedure shall apply only in so far as they are not inconsistent with the provisions of the N.D.P.S. Act, in the matter of arrest, search and seizure.

8. Regarding compliance with the procedure Under Section 50, it has also to be seen that Under Section 54 of the N.D.P.S. Act the mere possession of any narcotic drug or psychotropic substance leads to a presumption regarding the commission of an offence under Chapter IV of the N.D.P.S. Act. And that is why it had been held in Baldev Singh’s case that “an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. “Under Section 43 of the N.D.P.S. Act also it has to be noted that it is the case of search and seizure when an empowered officer “has reason to believe that an offence punishable under Chapter IV has been committed”. As it is now settled law that failure to comply with the procedure Under Section 50 of the N.D.P.S. Act causes prejudice to the accused and renders the recovery of the illicit article suspect thus vitiating the conviction and sentence of an accused, it has to be held that the procedure Under Section 50 has to be followed even for search of a person and seizure of the narcotic drug or psyshotropic substance and arrest of a person in a public place. As observed in Balblr Singh’s case, such scrupulous observance of the procedure is “to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers”.

9. However, as stated in Balblr Singh’s case, in the case of a chance recovery, there is a little difference. It is fruitful to refer to para 25 of the said decision in this context:

25. The questions considered above arise frequently before the trial Courts, Therefore we find it necessary to set out our conclusions which are as follows:

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr PC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

Thus it is clear that from the point of chance recovery of an illicit article contemplated under the N.D.P.S. Act the detecting officer is to follow the procedure under the N.D.P.S. Act.

10. What is the consequence of the lapses in such procedures is also to be examined. That aspect is no more res integra. Paragraph 14 of the Constitution Bench judgment in Baldev Singh’s case reads thus:

14. The provisions of Sections 100 and 165, Cr. PC are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substances, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the Investigating Officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singh’ case (supra) after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr. PC. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the Courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the Courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view.

11. Whether prejudice has resulted to the accused has to be ascertained from the circumstances of each case. If basic safeguards designed to ensure the authenticity of the material based on which a conviction is made are violated, that will certainly be prejudice in law. Regarding the information received by the Investigating Officer, in the instant case, the learned Sessions Judge has found that the officer was not told the exact place of sale of ganja and that the information was vague. And it was in that context, the information was not reduced to writing. In such circumstances, sending of a report regarding the information does not arise. It is not in dispute that immediately after the seizure the crime was registered and F.I.R. was sent to the Court.

12. It has also to be noted that PW. 1 in his evidence has very specifically stated that on observing the possession of ganja by the accused, he was informed that he was going to be searched and he had a right to be searched in the presence of a Gazetted Officer, which was declined by the accused. This version is corroborated by PW-2. Moreover, in the contemporaneous record Ext. PI seizure mahazar PW. 1 has stated that he had informed the accused of his right to be searched in the presence of a Gazetted Officer and that search was conducted by him only because the accused declined the offer.

13. It is profitable in this context to order to a recent decision of the Apex Court in Joseph Fernandez v. State of Goa . In that case the Apex Court observed that in case the accused was told that if he wished he could be searched in the presence of the Gazetted Officer or a Magistrate, the said offer is a communication of the information that the accused had a right to be searched so and that amounted to substantial compliance with the requirement of Section 50. But in this case it has to be noted that the offer-of PW. 1 for the search in the presence of a Gazetted Officer or Magistrate was corroborated by PW. 2 and a reference in that regard also is seen in Ext. P1 seizure mahazar. The procedures Under Sections 100,102 and 165 of Code of Criminal Procedure are also followed. In the background of such evidence, it has to be found that there had been compliance with the provisions contained in Section 50 of the N.D.P.S. Act.

In that view of the matter, I do not find any ground to interfere with the conviction and sentence in the instant case. The same is confirmed and the appeal stands dismissed.


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