In the High Court of Judicature at Madras
Date: 1.2.2002
Coram
The Honourable Mr Justice M.KARPAGAVINAYAGAM
Criminal Appeal No.809 of 1998
Selvi @ Selvarani ..Appellant
versus
Assistant Commissioner of Police,
Royapuram Range,
Chennai-13. .. Respondent
Appeal against the judgment dated 2.9.1998 passed in CC No.206 of
19 93 by the Special Judge, Special Court, NDPS Act, Chennai, convicting
the accused Selvi @ Selvarani and sentenced to undergo R.I.for 10 years
and a fine of Rs.1 lakh in default to undergo one year S.I.
*****
! for appellant : Mr V.Sambamurthy
^ for respondent: Mr E.Raja
Addl. Public Prosecutor
: JUDGMENT
Selvi @ Selvarani, the appellant herein, was convicted for the
offence under Section 8(c) read with Section 21 N.D.P.S. Act and
sentenced to undergo rigorous imprisonment for 10 years and a fine of
Rs.1,00,000/- and in default, to undergo simple imprisonment for one
year. Challenging the said conviction and sentence, the appellant has
filed this appeal.
2. The facts leading to the conviction could be summarised as
follows:
On the basis of the information that the appellant Selvi @
Selvarani was indulged in selling heroin in Anna Nagar area, P.W.5
Assistant Commissioner of Police directed P.W.1 Sub Inspector of Police
to go to the spot and take further action. On receipt of the order,
P.W.1 Sub Inspector of Police accompanied with P.W.2 woman constable went
to the spot and conducted a raid at about 8.00 p.m. on 19.2.1992. When
they were standing near Anna Nagar 18th Street junction, they saw the
appellant moving in a suspicious manner and when they interrogated her,
the appellant was about to run away from the place and thereafter, she
was caught. When she was informed that she would be searched in the
presence of the Assistant Commissioner of Police, she was willing to come
with them. Accordingly, she was taken and produced before P.W.5
Assistant Commissioner of Police. When she was produced before P.W.5
Assistant Commissioner of Police, a search was conducted on her by P.W.2
woman constable and 36 small paper packets of heroin weighing about 6.089
grams were found in a rexine bag which was kept in her jacket and the
same was recovered. As per the direction of P.W.5 case was registered by
P.W.4 Inspector of Police. When the contraband and the accused were
produced before the court concerned, the contraband was sent for analysis
and the appellant herein was remanded to judicial custody. P.W.3 analyst
after analysis, sent a report Ex. P3 stating that the contraband was
Dy-acetyle morphine which is heroin. After the completion of
investigation, the charge sheet was filed against the appellant for
offence under Section 8(c) read with Section 21 of the N.D.P.S. Act.
3. During the course of trial, P.Ws.1 to 6 were examined.
Exs.P1 to P5 were marked. On the side of the defence, D.W.1 was
examined. When the appellant was questioned under Section 313 Cr.P.C.she
stated that she was innocent and a false case had been foisted against
her.
4. After considering the materials placed by the prosecution,
the trial court found the appellant guilty for the offences referred to
above and convicted and sentenced as stated above.
5. Assailing the judgment impugned, learned counsel Mr V.
Sambamurthy appearing for the appellant would submit that the conviction
imposed upon the appellant is not legal inasmuch as mandatory provisions
of the Act were not complied with by the respondent State.
6. I have heard the Additional Public Prosecutor Mr E.Raja,
appearing for the respondent State.
7. Though several grounds have been urged by the learned counsel
for the appellant attacking the judgment impugned, I am of the view that
the judgment impugned has got to be set aside on a short ground namely,
non-compliance of the provisions of Section 50 of the Act. According to
the prosecution, P.Ws. 1 and 2 found the accused in Anna Nagar junction
moving in a suspicious manner and she was taken to P.W.5 Assistant
Commissioner of Police who is a gazetted officer. According to P.W.5 a
search was conducted in his presence by P.W.2 woman constable. There is
no dispute with regard to the fact that the search was conducted on the
person of the accused. It is the case of the prosecution that a rexine
bag containing 36 small paper packets was removed from the jacket of the
appellant and the same was handed over to the searching officer. Under
those circumstances, provisions contemplated under Section 50 of the Act
have to be complied with as it would very much apply to the facts of the
present case. As per Section 50 of the Act, when a search of a person is
conducted, before such search, the person concerned shall be given option
to be searched either in the presence of the nearest gazetted officer or
the nearest Magistrate. Admittedly, this option had not been given to
the appellant before the search was conducted in the presence of P.W.5
Assistant Commissioner of Police. Though it is stated by the prosecution
that P.W.5 himself is a gazetted officer, it is clear from the evidence
of P.W.5 that he did not give option to the appellant as provided under
Section 50 of the Act. In this context, the Supreme Court in the case of
AHMED vs STATE OF GUJARAT (2000(3) Crimes 188(SC) observed as follows:
” … For the purpose of complying with the provisions of Section 50, no
differenciation can be made on a plain reading of the language used in
Section 50, depending upon the officer who is going to search the person
concerned. In our considered opinion, since the search is about to be
effected on the basis of any prior information or personal knowledge,
which the person going to search has the reasons to believe that an
offence under the Act is being committed, then for the sanctity of the
search itself, the person to be searched has been afforded the minimum
right to be searched before another gazetted officer or the Magistrate
and that right cannot be taken away, merely because the officer going to
search happens to be a gazetted officer, who has been empowered either by
the Central Government or by the State Government by a general or special
order.”
In view of the observations made by the Supreme Court as stated above,
although the searching officer in the present case is the gazetted
officer, the search conducted in his presence cannot be construed to be
in compliace of Section 50, especially when the right tobe searched in
the presence of the gazetted officer or some other gazetted officer or
before the Magistrate has not been conveyed to the appellant. There is
no dispute with regard to the fact that the provisions of Section 50 of
the Act are mandatory as held by the Supreme Court in State of Punjab vs.
Balbir Singh (1994 (1) Crimes 753) and State of Punjab vs. Baldev Singh
(1999(6) SCC 172). In view of the noncompliance of mandatory provisions
as required under Section 50 of the Act by the respondent State, the
conviction imposed upon the appellant is liable to be set aside and the
same is accordingly set aside. The appeal is allowed.
1.2.2002.
Index:Yes.
Internet:Yes.
Vu
vu
M. KARPAGAVINAYAGAM,J.
To
1. The Special Judge,
Special Court (NDPS Act)
Chennai (with records)
2. The Addl. Public Prosecutor,
Madras.
Crl.Appeal No.809 of 1998
1.2.2002.