{"id":210296,"date":"2002-10-29T00:00:00","date_gmt":"2002-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-bhagwanjibhai-vs-state-of-gujarat-on-29-october-2002"},"modified":"2017-11-25T23:44:19","modified_gmt":"2017-11-25T18:14:19","slug":"bharatbhai-bhagwanjibhai-vs-state-of-gujarat-on-29-october-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-bhagwanjibhai-vs-state-of-gujarat-on-29-october-2002","title":{"rendered":"Bharatbhai Bhagwanjibhai vs State Of Gujarat on 29 October, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bharatbhai Bhagwanjibhai vs State Of Gujarat on 29 October, 2002<\/div>\n
Author: Banerjee<\/div>\n
Bench: Umesh C. Banerjee, B.N. Agrawal.<\/div>\n
           CASE NO.:\nAppeal (crl.)  312 of 2002\n\nPETITIONER:\nBharatbhai Bhagwanjibhai\n\nRESPONDENT:\nState of Gujarat\n\nDATE OF JUDGMENT: 29\/10\/2002\n\nBENCH:\nUmesh C. Banerjee & B.N. Agrawal.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
BANERJEE, J<\/p>\n
\tThe Statement of Objects and Reasons of the Narcotic Drugs
\nand Psychotropic Substances Act, 1985 (hereinafter referred to as
\nthe “NDPS Act”) categorically records the inadequacy of the
\nexisting legislation to combat illicit drug traffic and drug abuse,
\nboth at the national and international levels and it is by reason of
\nsuch deficiencies in the existing laws, the legislature thought it
\nprudent to consolidate the same and bring about a comprehensive
\nlegislation so as to meet the exigencies of the situation.    A plain
\nlook at the provisions of the Act read with the Statement of Objects
\nand the Preamble would depict the intent of legislature as regards
\nthe offences under the said consolidated legislation, which stands
\nexpressed in rather explicit language as one of the most heinous
\nones in nature.\t This Court, however,  in consonance with criminal
\njurisprudence of the country has been insisting on strict
\ncompliance of the safe-guards provided under the Statute so as to
\nbe in tune therewith.\n<\/p>\n
\tAt this juncture, however, it would be convenient  to advert
\nto  the contextual facts briefly : The factual score records that on
\n23rd January, 2000, Inspector Mr. Katara along with two Head
\nConstables and four Constables was on patrolling duty and whilst
\non duty at the bus stand at Chowk in Upleta at about 3.00 p.m. it
\nwas noticed that the accused on seeing the police started running.
\nThis undue movement however  aroused the curiosity and as such
\naccused was intercepted and upon having the presence of two
\nPanchas was  searched which however led to the disclosure of
\nsmall size plastic bag containing Charas of about 12 gms. in
\nweight.\t  The inspector lodged a complaint at about 1630 hours and
\nnecessary entries were made in the records.   The substance found
\nin the plastic bag was forwarded to the Forensic Science
\nLaboratory for opinion and all necessary formalities thereafter
\nwere complied with culminating into the filing of the charge-sheet.
\nThe learned Sessions Judge framed the charge against the accused
\nwho pleaded ‘not guilty’ and as a matter of fact in his statement
\nunder Section 313 Cr.P. Code, the appellant has stated that the
\nevidence stands created, as he was not aware of any such incident
\nas noticed above.   The learned Sessions Judge, however, on the
\nbasis of available records convicted the accused person and
\nsentenced as noticed earlier. The High Court, however, confirmed
\nthe conviction as well as  sentenced the  accused to suffer rigorous
\nimprisonment for 10 years and a fine of Rs.1.00 lakh with a default
\nclause as well.\n<\/p>\n
\tThe principal contention raised that since the deterrent
\npunishments are prescribed under the NDPS\tAct, the legislature
\nhas taken care to incorporate several provisions in Chapter V of the
\nAct and as interpreted by this Court, the provisions are mandatory
\nin nature and non-compliance therewith would completely vitiate
\nthe trial.   It is on this score it has been contended in support of the
\nappeal that by reason of the factum of ascertainment of the wishes
\nand desires of the accused as regards the search and seizure and
\nthat being a mandatory requirement and there being admitted  non-
\ncompliance therewith, question of either maintaining the guilt of
\nthe accused person by the Additional Sessions Judge or
\nconfirmation thereof by the High Court would not arise.\t In this
\ncontext Section 50 has been very strongly emphasised, which we
\nfeel it convenient to set out along with Sections 51 and 57 on
\nwhich the appellant also laid strong emphasis.\t The said provisions
\nread  as below :\n<\/p>\n
“50.\t Conditions under which search of persons
\nshall be conducted  (1) When any officer duly
\nauthorised under Section 42 is about to search any
\nperson under the provisions of Section 41, Section 42 or
\nSection 43,  he shall, if such person so requires, take
\nsuch person without unnecessary delay to the nearest
\nGazetted Officer of any the departments mentioned in
\nSection 42 or to the nearest Magistrate.\n<\/p>\n
\t(2) If such requisition is made, the officer may
\ndetain the person until he can bring him before the
\nGazetted Officer or the Magistrate referred to in sub-
\nsection (1).\n<\/p>\n
(3)\tThe Gazetted Officer or the Magistrate
\nbefore whom any such person is brought shall, if he
\nsees no reasonable ground for search forthwith
\ndischarge the person but otherwise shall direct that
\nsearch be made.\n<\/p>\n
(4)\t No female shall be searched by anyone
\nexcepting a female.\n<\/p>\n
(5)\tWhen an officer duly authorised under
\nSection 42 has reason to believe that it is not possible to
\ntake the person to be searched to the nearest Gazetted
\nOfficer or Magistrate without the possibility of the
\nperson to be searched  parting with possession of any
\nnarcotic drug or psychotropic substance, or controlled
\nsubstance or article or document, he may, instead of
\ntaking such person to the nearest Gazetted Officer or
\nMagistrate, proceed to search the person as provided
\nunder Section 100 of the Code of Criminal Procedure,
\n1973 (2 of 1974).\n<\/p>\n
(6)\t After a search is conducted under sub-\n<\/p>\n
section (5), the officer shall record the reasons for such
\nbelief which necessitated such search and within
\nseventy-two hours send a copy thereof to his immediate
\nofficial superior.”\n<\/p>\n
“51.\t Provisions of the Code of Criminal
\nProcedure, 1973 to apply to warrants, arrests,
\nsearches and seizures –\t  The provisions of the Code of
\nCriminal Procedure, 1973 (2 of 1974) shall apply,
\ninsofar as they are not inconsistent with the provisions
\nof this Act, to all warrants issued and arrests, searches
\nand seizures made under this Act.”\n<\/p>\n
“57.\t   Report of arrest and seizure
\nWhenever any person makes any arrest or seizure under
\nthis Act, he shall, within forty-eight hours next after
\nsuch arrest or seizure, make a full report of all the
\nparticulars of such arrest or seizure to his immediate
\nofficial superior.”\n<\/p>\n
Turning attention to the requirement of Section 50, it is now
\nwell settled that the same is mandatory in nature and thus there
\nexists an obligation to comply with the provisions and non-
\ncompliance thereof would entail an order of acquittal in a
\nproceeding under the NDPS Act.\t This Court consistently and
\nwithout even sounding a contra note followed the same and as such
\nwe need not dilate thereon any further.\n<\/p>\n
 Incidentally, Section 51 of the Act is an enabling provision
\nunder which the provisions of Code of Criminal Procedure have
\nbeen made applicable to warrants, searches, arrests and seizures
\nunder the Act provided further the same be not inconsistent with
\nthe provisions of the special statute being the Act of 1985.  It is in
\nthis context that Section 4 of the Code of Criminal Procedure, 1973
\nought to be noticed which provides for trial of offences under the
\nIndian Penal Code and other laws since sub-section (2) thereof
\nexpressly records that all offences under any other law shall be
\ninvestigated, inquired into, tried and otherwise dealt with
\naccording to the same provisions, but subject to any enactment for
\nthe time being in force regulating the manner or place of
\ninvestigation and other incidentals noticed above.
\nOn a reading of the aforesaid provisions thus, it appears that
\nSection 51 of the Narcotics Act permits introduction of Section 4
\nof the Criminal Procedure Code even in the matter of investigation,
\nsearches, seizures, etc.
\nAs regards the provisions of Section 57, we do not find any
\ninfraction thereof.   As such no question can be raised as regards
\nthe intimation of arrest and seizure and a report to that effect.
\nTurning attention to the contextual facts once again,
\nadmittedly, the search was not in accordance with the requirement
\nof Section 50 and it is on this score that learned Advocate was
\nrather vocal and emphatic as regards the factum of the learned
\nAdditional Sessions Judge being subjected to a very serious error
\nand the High Court also by reason of its concurrence has been in a
\nmanifest error.\t The issue, however, is slightly different in the
\ncontextual facts.   Section 50 categorically lays down that if the
\nsearch is to be conducted by an officer duly authorised under
\nSection 42 and the search is about to be conducted under the
\nprovisions of Sections 41, 42 or 43, the concerned officer does owe
\na duty to intimate the person to be searched that if the latter so
\nrequires, he would be taken to the nearest Gazetted Officer or to
\nthe nearest Magistrate for the purpose of having the search in their
\npresence.   But in the event of a situation otherwise, as in the
\ncontextual facts, viz., the accused person on seeing the patrolling
\npolice party started running, which created a suspicion in the mind
\nof the concerned officer, who thereafter intercepted him and then
\nin the presence of Panchas effected a search, question of
\ncompliance with the safeguards as prescribed under Section 50 of
\nthe Act would not arise.   In Balbir Singh (State of Punjab v. Balbir
\nSingh<\/a>  1994 (3) SCC 299) this Court in the similar vein\t answered
\nthe question in the negative in the manner following :
\n” It thus emerges that when the police,
\nwhile acting under the provisions of Cr.P.C. as
\nempowered therein and while exercising surveillance or
\ninvestigating into other offences, had to carry out the
\narrests or searches they would be acting under the
\nprovisions of Cr.P.C.\tAt this stage if there is any non-
\ncompliance of the provisions of Section 100 or Section
\n165 Cr.P.C. that by itself cannot be a ground to reject
\nthe prosecution case outright.\t The effect of such non-
\ncompliance will have a bearing on the appreciation of
\nevidence of the official witness and other material
\ndepending upon the facts and circumstances of each
\ncase.\tIn carrying out such searches if they come across
\nany substance covered by the NDPS Act the question of
\ncomplying with the provisions of the said Act including
\nSection 50 at that stage would not arise.   When the
\ncontraband seized during such arrests or searches
\nattracts the provisions of NDPS Act then from that
\nstage the remaining relevant provisions of NDPS Act
\nwould be attracted and the further steps have to be
\ntaken in accordance with the provisions of the said
\nAct.”\n<\/p>\n
Admittedly, on perusal of the evidence as is available on the
\nrecords, it is clear that there was no prior information to the police
\nofficer that the accused is likely to come with a narcotic substance,
\nneither the inspector had any reason to believe from his personal
\nknowledge or information that the accused is likely to be in the
\narea from where he was found with the contraband item.\t As a
\nmatter of fact, even at the time of effecting search, there was no
\nknowing that an offence under Chapter IV of NDPS Act has been
\ncommitted by the accused.    The Inspector merely suspected the
\ncommission of an offence by reason of the fact that the accused
\nstarted running on seeing the patrolling party.\t  The evidence on
\nthis score is clear and categorical to the effect as discussed
\nhereinbefore.\tThough the Panchas have given a slightly different
\nversion of the search and seizure, but that does not by itself take
\naway the primary evidence as regards the search and subsequent
\ndiscovery of Charas in the possession of the accused and the
\nresultant seizure thereof.   The contextual facts thus depict a
\nsituation not covered within the purview of Section 50.\t  In this
\ncontext, the observation of the Constitution Bench of this Court in
\nState of Punjab v. Baldev Singh<\/a>\t (1999 (6) SCC 172) also lends
\ncredence to the above statement of law.\t  In paragraph 12 of the
\nReport, this Court stated as below :\n<\/p>\n
“12.\tOn its plain reading, Section 50 would come
\ninto play only in the case of a search of a person as
\ndistinguished from search of any premises etc.
\nHowever, if the empowered officer, without any prior
\ninformation as contemplated by Section 42 of the Act
\nmakes a search or causes arrest of a person during the
\nnormal course of investigation into an offence or
\nsuspected offence and on completion of that search, a
\ncontraband under the NDPS Act is also recovered, the
\nrequirements of Section 50 of the Act are not attracted.”\n<\/p>\n
The learned Advocate in support of the appeal further
\ncontended that the decision of this Court in Ahmed v. State of
\nGujarat<\/a> (2000 (7) SCC 477), upon reference to both Balbir and
\nBaldev (supra) came to a conclusion of the applicability of Section
\n50 in all cases of NDPS.  Unfortunately, however, the reliance on
\nAhmed (supra) is totally misplaced by reason of the fact that this
\nCourt in Ahmed was considering the issue of empowered officer or
\na duly authorised officer.   This Court went on to record that to
\nensure fairness in the search itself and for compliance with Section
\n50 of the Act, no differentiation can be made whether the search is
\nbeing made by the empowered officer, who obviously is an officer
\nof a gazetted rank or the authorised officer, who may be a
\nsubordinate officer to whom the empowered officer authorises.
\nThis Court went on to observe that a combined reading of the
\nprovisions of Sections 42 and 50 would make it crystal clear that
\nwherever a search of a person is about to be made on the basis of
\npersonal knowledge or information received in that behalf, then if
\nthe person to be searched requires to be taken to a gazetted officer
\nor the nearest Magistrate, the same must be complied with and
\nfailure to comply with the same would constitute an infraction of
\nthe requirements of the provisions of Section 50, which would
\nultimately vitiate the conviction and it is on this score this Court
\nrelied upon the plain and categorical language used by the
\nlegislature in Section 50.   The decision in Ahmed (supra) does not
\nlend any credence to the submissions in support of the appeal.
\nThe High Court in fact recorded a categorical satisfaction as
\nregards the acceptance of evidence as credible and trustworthy and
\nwe also do not find any reason to record a different opinion in
\nregard thereto.\n<\/p>\n
On the wake of the aforesaid,  we are not inclined to interfere
\nwith the order of the High Court.    As such this appeal fails and is
\ndismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bharatbhai Bhagwanjibhai vs State Of Gujarat on 29 October, 2002 Author: Banerjee Bench: Umesh C. Banerjee, B.N. Agrawal. CASE NO.: Appeal (crl.) 312 of 2002 PETITIONER: Bharatbhai Bhagwanjibhai RESPONDENT: State of Gujarat DATE OF JUDGMENT: 29\/10\/2002 BENCH: Umesh C. Banerjee & B.N. Agrawal. JUDGMENT: J U D G M E N […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-210296","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBharatbhai Bhagwanjibhai vs State Of Gujarat on 29 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bharatbhai-bhagwanjibhai-vs-state-of-gujarat-on-29-october-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bharatbhai Bhagwanjibhai vs State Of Gujarat on 29 October, 2002 - 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