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CASE NO.: Appeal (crl.)  1048 of 1997

PETITIONER: Narcotics Control Bureau, Jodhpur

RESPONDENT: Murlidhar Soni & Ors.

DATE OF JUDGMENT: 29/04/2004

BENCH: N Santosh Hegde & B P Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       The Narcotic Control Bureau, Jodhpur has preferred this  appeal against the judgment of the High Court of Judicature for  Rajasthan at Jodhpur by which judgment the High Court allowed  the appeal of the respondent and his father filed against the  judgment of the Special Judge, Narcotic Drugs and Psychotropic  Substances Court, Jodhpur in Sessions Case No.155/94 whereby  the trial court had convicted the appellant and his father of an  offence punishable under section 21 of the Narcotic Drugs and  Psychotropic Substances Act, 1985 (the NDPS Act) and  sentenced them to undergo 10 years’ RI and to pay a fine of Rs.1  lakh. Brief facts necessary for the disposal of this appeal are as  follows :         On the basis of certain confidential information received by  the officers of the department on 23.9.1994 a raiding party was  organised under the supervision of the Assistant Director of the  Bureau who incidentally was a Gazetted Officer. Said team saw  the respondent and his father Murlidhar Soni at about 9 p.m. on  that day standing near the Manthan Cinema at Pali at which point  of time the accused Murlidhar Soni (since dead) was carrying a  cloth bundle. The raiding party then went to these 2 accused  persons and identified themselves and expressed their desire to  search the bag carried by Murlidhar Soni. The two accused  persons were told that they have the right to be searched in front  of a Gazetted Officer or a Magistrate. Thereupon the said persons  expressed their desire to be searched by a Gazetted Officer and  the Assistant Director, Narcotics Control Bureau being a  Gazetted Officer conducted the search of the cloth bag from  which 2.41 kg. of heroin was recovered. After taking the  necessary samples the contraband goods were seized in front of  witnesses and sealed and the said 2 persons were arrested. During  the course of investigation it came to the knowledge of the  investigating authority that there were 3 other persons involved in  the purchase and sale of narcotics from the respondent herein and  his father hence they were also arrested and charged for the  offences as stated above.         The trial court came to the conclusion that the prosecution  had established its charges against the respondent and his father  Murlidhar Soni and convicted them accordingly while it found  the prosecution has failed to establish charges against other  accused persons hence acquitted them.         Said convicted accused persons as stated above preferred an  appeal before the High Court which came to be decided by the  impugned judgment, allowing the said appeal and setting aside

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the conviction and sentence imposed on the appellants therein.           Very many questions involving the application of sections  42, 43, 50 and 57 of the NDPS Act were urged before the High  Court and the High Court in the course of the judgment held on  the facts of the case section 43 of the Act was applicable since the  recovery in question was made in a public place. It also came to  the conclusion there has been violation of various provisions of  the Act like non-recording of the information received in  advance, non-compliance of section 57 of the NDPS Act in not  reporting the arrest of the accused persons. It also came to the  conclusion though the accused persons were informed of their  legal right of being searched by a Gazetted Officer or a  Magistrate as per their desire they ought to have been taken to the  nearest Gazetted Officer to be searched and the search made by  the Assistant Director who himself was a Gazetted Officer was  contrary to the provisions of section 50 of the Act since he was a  member of the raiding party. After recording its finding in regard  to the non-compliance of the statutory provisions of the NDPS  Act the High Court also came to the conclusion that there was  material on record to show that the statements of these accused  were obtained under coercion and bodily injury which itself  creates serious doubt as to the prosecution case.         Mr. P.P.Malhotra, learned senior counsel appearing on  behalf of the appellant contended that the finding of courts below  that there has been violation of sections 42, 43, 50 and 57 of the  Act is wholly erroneous and contrary to the decisions of this  Court. He pointed out that though on the basis of a prior  information a raiding party was constituted still provisions of  section 42 did not apply to the facts of the case since the search  and seizure was made in an open place and not in a place as  contemplated under section 42 of the Act. In this regard he  pointed out from the impugned judgment of the High Court itself  that the High Court had held that a search and seizure in this case  actually falls under section 43 of the Act but it still applied the  requirement of section 42 to the facts of the case. He also pointed  out that as per the law laid down by this Court,  when a recovery  and seizure is made not from the person of the accused but from a  bag, suitcase or a container, the provisions of section 50 did not  apply because that section operates only in cases where a search  of a person (body) is conducted. He further submitted that the  High Court seriously erred in coming to the conclusion that a  Gazetted Officer who is a member of the raiding party cannot be  a Gazetted Officer empowered to search under section 50. In  support of his contention learned counsel relied on the judgments  of this Court in Ganga Bahadur Thapa v. State of Goa (2000 (10)  SCC 312), Narayanaswamy Ravishankar v. Asstt. Director,  Directorate of Revenue Intelligence (2002 (8) SCC 7), Rajendra  and Anr. V. State of M.P. (2004 (1) SCC 432), Kalema Tumba v.  State of Maharashtra and Anr. (1999 (8) SCC 257), Sarjudas and  Anr. v. State of Gujarat (1999 (8) SCC 508), Gurbax Singh v.  State of Haryana (2001 (3) SCC 28), State of Punjab v. Balbir  Singh (1994 (3) SCC 299); and M. Prabhulal v. Assistant  Director, Directorate of Revenue Intelligence (2003 (8) SCC  449).

       Mr. Kailash Vasdev, learned senior counsel for the  respondents contended that assuming for argument’s sake that the  finding of the High Court in regard to the statutory provisions of  law is wrongly decided even then the respondent now before the  court cannot be held guilty of the offence as charged for factual  reasons. He pointed out that even according to the prosecution the  bag in question was being carried by respondent’s father and  there is no material to show that this respondent had any  knowledge as to the contents of the said bag. In such situation,  the possession of the narcotics by his father could ever be

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construed as conscious possession of this respondent also. He  also submitted that the High Court has come to the conclusion  that the accused persons were subjected to bodily injury and the  so-called statements recorded under section 67 of the Act were in  fact made to be given by the accused because of such bodily  injury. This finding of the court by itself is sufficient to uphold  the impugned judgment of the High Court.

         Having heard learned counsel for the parties and perused  the records we are of the opinion that it is not necessary for us to  go into the legal arguments addressed by the learned counsel as to  the applicability of the various provisions of the Act since we  think this appeal can be disposed of on the factual finding arrived  at by the High Court with which we are in agreement. Therefore  we do not express any opinion on the findings of the High Court  on the applicability of section 42, 43, 50 and 57 of the Act and  proceed to examine the facts which justify the dismissal of the  appeal. The High Court in the course of its judgment has  observed that the alleged statements of these accused persons  purportedly made under section 67 of the Act were obtained  under duress.            We are in agreement with this finding of the High Court. It  is to be noted that even though these accused persons were  arrested on 24.9.1994, they were produced before the court only  on 27.9.1994 on which date both the accused submitted before  the court that they had suffered injuries at the hands of the  investigating agency and it is under such physical threat their  statements were recorded under section 67 of the Act. The said  court had directed a medical examination of these accused on that  day itself. The medical report and the evidence of DWs.1 and 2,  the doctors who examined them, clearly shows that these   accused had suffered injuries and Murlidhar Soni had actually  suffered a fracture of the 10th left rib. The defence of the  prosecution that these injuries might have been suffered by an  accidental fall of the accused, cannot be accepted, thus, we are in  agreement with the finding of the High Court that the statements  of these accused persons have been obtained by the prosecuting  agency under duress. It is also to be noted that even according to  the prosecution case so far as this respondent is concerned, his  only role in regard to the contraband was to take his father on his  scooter to the place where they were allegedly arrested. The  bundle in question which contained the contraband was carried  by Murlidhar Soni and there is no material whatsoever to show  that the present respondent had the knowledge that the bundle  contained any contraband. In our opinion since the prosecution  has not placed any material to show the conscious possession of  the contraband by the respondent herein and since Murlidhar Soni  is dead, we think the contentions advanced on behalf of the  respondent as to the possession of the contraband by the  respondent has to be accepted.          For the reasons stated above this appeal fails and the same  is dismissed.