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                                        REPORTABLE                 IN THE SUPREME COURT OF INDIA

               CRIMINAL APPELLATE JURISDICTION

               CRIMINAL APPEAL NO. 827 OF 2005

K. Chithhayan                                ...Appellant

                          Versus

State of Tamil Nadu                          ...Respondent

                        JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.   Challenge in this appeal is to the judgment of a learned

Single Judge of the Madras High Court upholding the

conviction of the appellant for offence punishable under

Section 8 (c) read with Section 22 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (in short the ‘Act’) and

sentence of 10 years rigorous imprisonment and a fine of

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Rs.1,00,000/- as was imposed by learned Special Judge,

Salem.

2.      Background facts in a nutshell are as follows:

       Veerannan (PW-1), Sub Inspector of Police, attached to

N.I.B. C.I.D., Salem on 16.12.1999 at about 9.00 A.M. along

with Vellingiri (PW-4), Head Constable No.910 and other Police

party      on    secret    information      were   patrolling      at

Pethanayakkampalaym Bus Stop. They found activities of the

appellant/accused, who stood near the bus stop with a yellow

colour bag on his right hand, at about 12.00 noon, to be

suspicious. P.W.1 after introducing himself, conveyed to him

that he is entitled for the conduct of the search before a

Gazetted Officer or a Judicial Magistrate. The accused gave

consent to be searched by the official himself. Accordingly,

P.W.1     searched   his   bag   in   the   presence   of   the   two

independent witnesses namely Duraisamy (PW-2), Village

Administrative Assistant and Duraisamy Assistant (PW-3) and

P.W.4 Head Constable and found 2 Kilograms of Diazepam.

P.W.1 seized the same under Ex.P2 mahazar in the presence

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of the said witnesses. He took two samples of 25 grams each

marked as M.0.2 and affixed the seal and the rest of the

contraband was sealed, which is marked as M.0.1.The

appellant/accused was arrested under Ex.P3 arrest memo, a

copy of which was served on him. The accused was brought to

the Office, and a case was registered in Crime No. 91/99

under Sec. 20(b) (1) of the Act. Ex.P4 printed F.I.R. was

prepared. The accused was taken to the concerned Court

along with the F.I.R and the material objects. A detailed report

under Ex.P5 under Sec.57 of’-the Act was prepared and sent

to the higher officials. Sankarapandian (PW-6), Inspector of

police, NIB CID, Salem took up further investigation after

obtaining Ex.P5 and other relevant records from PW-1. He

proceeded to the site of occurrence and also to the house of

the accused, made a search in front of the witnesses, prepared

Ex.P7 search memo, examined PWs 1 to 4 and recorded their

statements. The investigating officer (PW-6) made a request

under Ex.P8 to the Court for sending M.O.2 for chemical

analysis.   Accordingly,   the       sample   was   analysed   by

Arulanandam (PW-5) Scientific Assistant attached to the

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Forensic Laboratory, who found that the sample under M.O.2

is diazepam. PW-5 sent Ex.P6 report to the Court. On

19.1.2002 PW-6 examined PW-5 and recorded his statement.

On completion of the investigation, PW-6 filed a charge sheet

against the accused under Section 22 of the Act.

    Since the accused pleaded innocence the trial was held.

Six witnesses were examined and several exhibits and

material objects were brought on record. In his examination

under Section 313 of the Code of Criminal Procedure, 1973 (in

short the ‘Code’) the accused-appellant flatly denied the

accusations. He examined his wife as PW-1. The trial Court

found that the prosecution has been able to establish its

accusations. Two grounds were taken before the High Court

relating to the alleged non compliance of the mandatory

provisions of Sections 42(2) and the other 50 of the Act. The

High Court did not find any substance. Accordingly, the

appeal was dismissed.

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3.   In support of the appeal, learned counsel for the

appellant submitted that even if the prosecution case is

accepted   in toto there    is clear material to show the

contravention of the requirements of Sections 42(2) and 50 of

the Act.

4.   Learned counsel for the respondent-State supported the

judgments of the trial Court and the High Court.

5.   Sections 42(2) and 43 of the Act are as under:

          "42(2)-Where an officer takes down any            information in writing under sub-section (1) or            records grounds for his belief under the            proviso thereto, he shall within seventy-two            hours send a copy thereof to his immediate            official superior.

          43. Power of seizure and arrest in public            place.-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 or            controlled substance in respect of which he            has reason to believe an offence punishable            under this Act has been committed, and, along            with such drug or substance, any animal or            conveyance or article liable to confiscation

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         under this Act, any document or other article           which he has reason to believe may furnish           evidence of the commission of an offence           punishable under this Act or any document or           other article which may furnish evidence of           holding any illegally acquired property which           is liable for seizure or freezing or forfeiture           under Chapter VA of this Act;

         (b) detain and search any person whom he has           reason to believe to have committed an offence           punishable under this Act, and if such person           has any narcotic drug or psychotropic           substance or controlled 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 purposes 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.   So far as Section 42(2) is concerned it is to be noted that

search was made in public place and not in a building and as

such what was applicable was Section 43 and not Section 42

(2) of the Act. The decision of this Court in State of Punjab vs.

Baldev Singh (1999 (6) SCC 172) is clearly applicable to the

facts of the present case. The view in Baldev Singh’s case

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(supra) was re-iterated in State of Haryana v. Jarnail Singh

and Ors. (2004 (5) SCC 188).

7.   So far as the applicability of Section 50 of the Act is

concerned, it is to be noted that there was search of the bag

carried by the appellant and there was no personal search. It

has been held in State of H.P. v. Pawan Kumar (2005 (4) SCC

350) that when there is no personal search and the search is

effected in relation to a bag, Section 50 of the Act has no

application.

8.   Above being the position, we find no infirmity in the

judgment of the High Court to warrant interference.                 The

appeal is without merit and is dismissed accordingly.

                                   ..................................J.                                     (Dr. ARIJIT PASAYAT)

                                   ..................................J.                                     (P. SATHASIVAM)

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New Delhi, May 15, 2008

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