IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30/01/2002
CORAM
THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM
CRIMINAL APPEAL NO.590 OF 1998 and CRIMINAL APPEAL NO.893 of 1997
and
CRIMINAL APPEAL NO.31 of 1998
Joseph Henry ..Appellaant in C.A.No.590/97
Rukmani ..Appellant in C.A.NO.893/97
R. Dayalan ..Appellant in
C.A.No.31/98
Vs.
The Intelligence Officer,
Narcotic Control Bureau,
South Zone, Chennai. ..Respondent in
all the C.As.
Criminal Appeals against the judgment dated 30.6.1997 in C.C.No.236 of
1993 on the file of the Special Judge, (N.D.P.S.Act),Chennai.
!For Appellant in
C.A.No.590/1997 : Mr. K.S. Suresh
For Appellant in
C.A.No.893/1997 : Mr. A. Ganesh
For Appellant in
C.A.No.31/1998 : Mr. R.C. Paul Kanakaraj
^For Respondent : Mr. P.N. Prakash, Spl. P.P.
:C O M M O N J U D G M E N T
R. Rukmani (A3), R. Dayalan (A4) and Joseph Henry (A5) have filed
separate appeals in C.A.Nos.893 of 1987, 31 of 1998 and 590 of 1987
respectively challenging the conviction imposed upon them for the offence
under Section 8(c) read with 21 and 29 of the Narcotic Drugs and Psychotropic
Substances Act and sentence to undergo R.I. for 10 years and to pay a fine of
Rs.1,000/-.
2. The short facts leading to the conviction could be summarised as
follows:
“(a) On the basis of the information, P.W.1 Vijayalakshmi and P.W.3
Ashok Raj along with other officers of the Narcotic Control Bureau, South
Zone, Chennai, went to the International Airport, Chennai and intercepted a
lady by name Rukmani (A3) bound for Srilanka by flight. The Officers examined
her baggage in the presence of P.W.8 Anantha Padmanabhan and another. On
examination of the green coloured bag, a prestige toaster was noticed. On
opening the same, it was found to contain four polythene bags and the same
were recovered. Another bag which was in possession of the said Rukmani was
also searched. It was found to contain a kerosene pump stove. On opening the
cylinder portion, a polythene bag was noticed. On testing the brown coloured
substance found in those polythene bags, it was noticed that the said powder
was suspected to be heroin. They were seized by observing the procedures
required under law.
(b) On the basis of the statement of Rukmani(A3), Perinbanayagam alias
Inbam(A1), Koneshwaran alias Siva and Dayalan (A4) were traced and apprehended
at the Airport Lounge itself. They were brought to the office and
interrogated. On the basis of the information given by Perinbanayagam alias
Inbam(A1), his residential premises at Choolaimedu was searched and 1,000
grams of brown colour powder, which was concealed in the sandwitch toaster and
kerosene pump stove, was seized under mahazar.
(c) After getting statement from A1, the commercial premises of A5
Joseph Henry was located at Chennai on 22.7.1993 and search was conducted in
the said premises and account book was seized under mahazar Ex.P35 and a
statement was obtained from A5 also. There, Sriskandaraja alias Khalifa was
apprehended. Thereafter, the search was conducted in the Khalifa’s house also
and Ex.P42 series, the bills for the purchase of the stove were recovered
under the mahazar.
(d) According to the statements of A1 and A2, A2 gave Rs.65,000/- to
A1 and A1 went to Delhi to procure 500 grams of heroin and subsequently,
exported illicitly to Srilanka through a woman by concealing it in a kerosene
pump stove to one Thambi of Srilanka. On another occasion, A1 went to Delhi
and procured 2 kgs. Of heroin from Delhi. All these people were arrested on
23.7.1993 and remanded to judicial custody. The samples were sent for
chemical analysis through Court and the Analyst P.W.4 after analysis sent the
report Ex.P40 wherein it is stated as Di-acetyle morphine, which is heroin.
(e) Before filing the complaint, some of the accused persons were
released on bail. Out of the persons released on bail, one Koneshwaran alias
Siva absconded. Therefore, the complaint was filed by P.W.3 only as against
A1 to A5.
(f) During the course of trial, P.Ws.1 to 13 were examined, Exs.P1 to
P42 were filed and M.Os.1 to 34 were marked on the side of prosecution. On
the side of defence, D.Ws.1 and 2 were examined and Exs.D1 to D4 were marked.
(g) When the accused were questioned under Section 313 Cr.P.C., they
pleaded that they did not participate in the crime and that they were
innocent.
(h) The trial Court after considering the materials available on
record, convicted the appellants for the offences referred to above. On the
date of judgment, A1 and A2 were not present. Therefore, minimum sentence was
imposed upon them and non-bailable warrant was issued against them. Now,
challenging the conviction, the appellants (A3, A4 and A5) have filed these
appeals.”
3. Mr. A. Ganesh, the counsel for the appellant Rukmani (A3) in
C.A.No.893 of 1987 has strenuously contended that the appellant Rukmani is
liable to be acquitted on the reason that many of the mandatory provisions
have been violated.
4. Mr. R.C. Paul Kanakaraj, the counsel appearing for the appellant
Dayalan (A4) in C.A.No.31 of 1998 would submit that the evidence available on
record would not be sufficient to hold that A4 was a party to the conspiracy
and therefore, he is liable to be acquitted.
5. Mr. K.S. Suresh, the counsel appearing for the appellant Joseph
Henry (A5) in C.A.No.590 of 1997 would submit that except the material to show
that he had the knowledge about the activities of the other accused, he did
not have any role to play with reference to the commission of the offences.
6. Mr.P.N.Prakash, the learned Special Public Prosecutor, while
refuting the submissions made by the counsel for the appellants, would contend
that the mandatory provisions have been complied with and the arguments
advanced by the counsel for the appellants are not correct, as the search and
seizure which was effected by the competent officers is perfectly valid and
the same is in accordance with law and as such, the reasonings given by the
trial Court while imposing conviction on the appellants are correct.
7. I have carefully considered the submissions made by the respective
counsel.
8. Mr. A.Ganesh, the counsel for the appellant Rukmani(A3) would
make the following contentions:
(1) Admittedly, the search was conducted by P.Ws.1 and 3 at the
Airport after intercepting the appellant in pursuance of the information
obtained by them. Therefore, under Section 42(1) of the Act, the said
information has to be recorded and the same shall be sent to the superior
officer. The admission made by P.Ws.1 and 3 to the effect that such an
information was not recorded and the same was not sent to the superior officer
would clearly show that the mandatory provision of Section 42 of the Act has
not been complied with and therefore, the conviction on the basis of the
search and seizure not valid in law has to be set aside.
(2) Section 50 of the Act has not been complied with, inasmuch as the
right for the option to be searched in the presence of either before a
Gazetted Officer or before the Magistrate has not been conveyed to the
appellant and furthermore, under Section 50(4), the appellant Rukmani should
be examined only by the lady officer which has not been done in this case and
as such, Section 50, a mandatory in nature also has not been complied with,
which would vitiate the entire trial and conviction.
9. In respect of these points, it is submitted by Mr.P.N. Prakash,
the learned Special Public Prosecutor appearing for the respondent would
submit that Sections 42 and 50 would not apply to the present facts of the
case, since the officers P.Ws.1 and 3 went to the Airport being a public place
and seized the contraband from the bag carried by the accused and as such, it
would attract only Section 43 and therefore, the information as contemplated
under Section 42 need not be recorded and consequently, the same need be sent
to the superior officer.
10. The counsel for both would elaborately argue on these points by
citing various authorities.
11. With reference to the first point, the learned counsel for the
appellant would cite 2000 S.C.C.(Cri.) 496 (ABDUL RASHID IBRAHIM MANSURI v.
STATE OF GUJARAT), wherein it is held that Section 42, which is a mandatory,
was not followed even though the search was conducted from the person, who was
travelling in an Autorickshaw, by stopping in the public road.
12. In the said decision, when an argument was advanced that the
seizure was effected not under Section 42 of the Act, but it was under Section
43 as per which the officer concerned was not obliged to take down the
information, the Supreme Court would hold that the said argument cannot be
accepted because in that case, P.W.2 admitted that he proceeded on getting
prior information from a Constable and the information was precisely one
falling within the purview of Section 42(1) of the Act.
13. So, on the basis of this decision, the learned counsel for the
appellant would submit that when P.Ws.1 and 3 admitted that they went to the
spot only on getting the information, it is duty bound on their part to record
that information by taking down in writing as contemplated under Section 42(1)
of the Act.
14. The above judgment, in my view, would not be applicable to the
present case for two reasons. In the said case, the search was not conducted
in the public place. On the other hand, the search was conducted from the
person, who was sitting in the Autorickshaw. Moreover, the specific
information obtained by the officer concerned in that case is that somebody
was trying to transport a narcotic substance in the Autorickshaw.
15. Section 42(1) provides that any competent officer, if he has to
reason to believe from personal knowledge or information given by any person
and taken down in writing that any narcotic drug, etc., in respect of which an
offence punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of commission of such offence is kept
or concealed in any building, conveyance or enclosed place may enter into any
such building, conveyance or place and seize the same.
16. So, Section 42(1) would refer about the specific categories of
places where the competent officer as provided under Section 42 would go and
conduct search. It refers building, conveyance or any enclosed place. In
other words, it does not refer to any public place.
17. Therefore, on the basis of the said wordings contained in Section
42(1), the Supreme Court in 2000 S.C.C. (Cri.) 496 (supra), would hold that
the search was conducted on receipt of information that person was trying to
transport the narcotic drug from one particular place to another particular
place in an Autorickshaw bearing the particular numbers. So, Autorickshaw
being a conveyance is one of the things mentioned in Section 42(1).
Therefore, the Supreme Court had an occasion to say that Section 42(1) will be
applicable in respect of the facts in that case.
18. That is not the case here. Here is the case where P.Ws.1 and 3
along with other officers on information that a lady was coming to Airport to
go to Srilanka with a narcotic drug. The Airport cannot be considered to be
the place as referred to in Section 42. On the other hand, it would attract
Section 43.
19. As per Section 43, any officer of any of the departments
mentioned in Section 42 may seize, in any public place or in transit, any
narcotic drug, etc.,in respect of which he has reason to believe an offence
punishable under Chapter IV has been committed.
20. The explanation given in Section 43 would provide thus:
“For the purpose of this section, this expression “public place”
includes any public conveyance, hotel, shop,or other place intended for use
by, or accessible to, the public.”
21. Thus, it is clear that if the officers exercising the powers
under Section 43 for making search and seizure from a person who is being
intercepted at a public place need not follow the conditions contained in
Section 42(1).
22. Though it is contended by the counsel for the appellant that that
is not the public place by referring to the evidence of P.W.3, I am not able
to accept this contention, since the said place is being permitted for the
passengers to pass through. Therefore, there is no difficulty in holding that
the said area in the Airport can be considered as a public place.
23. This view of mine is fortified by the decision rendered by a
Division Bench of the Delhi High Court in UTPAL MISHRA v. NICELAI CHRISTENSEN
(1997 CRI.L.J.4475). The observation made by the Delhi High Court is as
follows:
“The Airport or Custom area at the Airport or Custom counter or
Luggage hold area or Immigration area or alike at the Airport would thus be a
public place. These areas are accessible to the public, may be with certain
restriction or requirement of a permission for entry into these areas. No
doubt the provisions of Section 42 are mandatory but the said provisions are
not applicable at International Airport which is clearly a “public place” to
which Section 43 would apply and not Section 42 of the Act.”
24. At this juncture, it may be relevant to point out the decisions
rendered by the Supreme Court in KOLUTTUMOTTIL RAZAK v. STATE OF KERALA (2000
S.C.C. (Cri.) 829),STATE OF PUNJAB v. BALDEV SINGH (A.I.R.1999 S.C.2378) and
ABDUL RASHID IBRAHIM MANSURI v. STATE OF GUJARAT (2000 S.C.C.(Cri.) 496).
25. In these decisions, it is held that non-compliance with the
requirements of Section 42(1) and (2) would render the resultant search and
seizure suspect, though that by itself may not vitiate the proceedings.
26. It is true that for the non-compliance of Section 42(1), the
Supreme Court in 2000 S.C.C (Cri.)829 (supra) acquitted the accused. But in
that case, it was held that apart from the evidence of the police officers who
searched and seized the contraband, there is absolutely no other evidence to
ensure that the search was in fact conducted by the officer concerned. On
facts, it was held that the evidence of P.W.1, the police officer, did not
inspire confidence in the mind of the Supreme Court.
27. In the light of the above observation made by the Supreme Court,
even assuming that Section 42 would be applicable to this case, at the most,
it can be stated that seizure can be viewed with a suspicion. But, it cannot
be said that the entire evidence relating to seizure and the materials
subsequently collected shall be rejected, in view of the fact that in this
case, on the basis of the information given by A3 subsequent to the seizure of
the contraband in other places, the search was conducted by the officer
concerned and recovery of other contraband was made. Therefore, in my view,
in any angle, we cannot say that the search and seizure in respect of the
contraband recovered from the bag which was carried by the appellant Rukmani
is illegal.
28. In regard to the second point, namely, the non-compliance of
Section 50, several decisions have been cited by the counsel for the appellant
stating that the lady officer would not have searched the appellant, as the
same is not mentioned in the mahazar Ex.P13 and the right to be searched
either before the Magistrate or before the Gazetted Officer had not been
conveyed to the appellant.
29. On the other hand, the counsel for the respondent would submit
that Section 50 would not apply to the present facts of the case, since the
seizure of the contraband was effected only from the bag and not from the
person, as Section 50 would refer about the search of the body of the person
and not about the other materials like bag, which was carried by the
accused/appellant.
30. The counsel for the appellant, at this stage, would point out the
observation of the Supreme Court made in NAMDI FRANCIS NWAZOR v. UNION OF
INDIA AND ANOTHER (1997 CCR 27 (SC) ), wherein it is held as follows:
“We must hasten to clarify that if that person is carrying a hand bag
or like and the incriminating article is found therefrom, it would still be a
search of the person of the accused requiring compliance with Section 50 of
the Act.”
On the basis of this observation, it is strenuously contended that even though
the bag was searched, since the bag was carried by the accused, it must be
construed to mean that the search was conducted only on the person and
therefore, Section 50 would apply.
31. On the other hand, the learned counsel for the respondent would
submit that on the similar facts of the case,the Supreme Court would hold on
the strength of the dictum laid down by the Constitutional Bench that when a
person was carrying a bag or some other article with him and narcotic drug was
found from it, it cannot be said that it was from his person and therefore,
Section 50 would not apply.
32. The same has been confirmed by the Supreme Court in BIRAKISHORE
KAR v. STATE OF ORISSA (2000(9) S.C.C.541). It is seen from the said
judgment that the search on the plastic bag which belonged to the accused
would not attract Section 50, as it cannot be construed to be the search on
the person. Similarly, it was held in KANHAIYA LAL v. STATE OF M.P. (2000
(10) S.C.C.380) that when a bag which was carried by the accused was searched
and 1 kg. of opium was found from it, it is not a search on the person as
contemplated under Section 50 of the Act.
33. At this stage, it was contended by the counsel for the appellant
that these decisions were rendered by the two Judges Bench, whereas the
decision in 1997 CCR 27 (SC)(supra) was rendered by the Bench consisting of
three Judges and therefore, even though the decision in 1997 CCR 27 (SC) is
earlier to the other decisions, the judgment rendered by the three Judges
Bench has to be given preference.
34. However, it is seen from the other judgments referred to above
that the said observation made by the Supreme court was on the basis of the
observation made by the Constitutional Bench in STATE OF PUNJAB v. BALDEV
SINGH (A.I.R.1999 S.C.2378). Therefore, it cannot be said that this Court has
to follow the decision rendered in 1997 CCR 27 (SC), in view of the fact that
this Court is bound by the decision rendered by the Constitutional Bench.
35. In this case, admittedly, the accused came with two bags and
after interrogation, the two bags were searched and the same were found to
contain brown colour powder, which was found to be heroin. Under those
circumstances, the aspect as to whether Section 50 has been complied with or
not need not be considered, in view of the fact that Section 50 would not at
all apply to the present facts of the case. Therefore, I am unable to accept
any of the contentions raised by the counsel for the appellant, as, in my
opinion, the officers concerned have observed the required provisions of law
and conducted the search and seizure validly by following the correct
procedures and as such, it is to be held that the conviction imposed upon the
appellant Rukmani is correct and the same is liable to be confirmed and
accordingly confirmed.
36. However, on the request of the counsel for the appellant Rukmani
(A3), the sentence imposed upon her with reference to the default clause,
namely to suffer R.I. for one more year in case of non-payment of fine of
Rs.1,00,000/- is modified to R.I. for one month. In other respects, the
sentence is confirmed in so far as she is concerned.
37. As regards the other appellants (A4 and A5), the only evidence
available is the confessional statements Exs.P19 and P36 obtained from A4 and
A5. Admittedly, there was no recovery from A4, but from A5, the account book
was seized from his office. However, there is no reason as to why the said
account book had not been produced before the Court. But, the fact remains
that from both of them no incriminating article was recovered.
38. As stated above, the only available evidence as against them is
the confession made by them. On a perusal of their confession, it is clear
that they had only knowledge about the activities of A1 and A2 . The
confession made by A5 would show that they allowed the other accused to go to
telephone booth to make STD calls. There is no material to show that A5 was a
party to the offence by helping them by paying money. Similarly, A4 on the
instruction by A1 helped A3, while she was staying in a Lodge and went along
with her to several places in Madras and lastly, she took him to Airport in an
Autorickshaw. Though he stated that he knew about the handing over of the
articles containing the contraband to A3, he would state that for helping her,
he was given Rs.100/- or Rs.200/- on every occasion. Under those
circumstances, I am unable to hold that A4 and A5 were parties to the main
conspiracy merely on the basis of the confession given by them.
39. In such circumstances, the evidence available on record as
against A4 and A5, in my opinion, is not sufficient to hold them guilty for
the offences referred to above. Hence, the conviction and sentence imposed
upon A4 and A5 are set aside and they are acquitted and they are directed to
be released forthwith, unless they are required in some other case. Since
it is reported that A4 is a Sri Lankan National, he must be sent to Sri Lankan
Camp as prescribed in the relevant rules.
40. With the above observations, the appeal in C.A.No.893 of 1997 is
dismissed and the appeals in C.A.Nos.590 of 1997 and 31 of 1998 are allowed.
30-01-2002
Index: Yes(I)
mam
Sd/-
Assistant Registrar.
/True Copy/
Sub Asst. Registrar(Stat)
To
1) The Special Judge (NDPS Act), Chennai.
2) The Superintendent, Central Prison, Vellore.
3) The Superintendent, (Special Prison for Women),Vellore.
4) The Special Public Prosecutor, High Court, Chennai.
M. KARPAGAVINAYAGAM, J.
Judgment in Crl.A.Nos.590 and 893 of 1997 and 31 of 1998.
