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CASE NO.: Appeal (crl.)  633 of 2003

PETITIONER: Rajendra and Anr.                                                

RESPONDENT: State of Madhya Pradesh                                  

DATE OF JUDGMENT: 17/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.           Appellants faced trial for alleged commission of offences  punishable under Section 8 read with Section 20 (B)(1) of the Narcotic  Drugs and Psychotropic Substances Act, 1985 (in short ’the Act’). Each  was found guilty and sentenced to undergo imprisonment for 3 years and  to pay a fine of Rs.2,000/- with default stipulation by the learned  Special Judge (NDPS) Bhopal. The conviction and sentence were maintained  by the High Court of Madhya Pradesh at Jabalpur by the impugned  judgment.

       Background facts as projected by the prosecution during trial are  as follows:   

       On 31.3.2001, while Inspector Ajay Singh Bisen (PW-10) was on duty  at G.R.P. Police Station, Bhopal, he received an information that two  persons had got down from Madhya Pradesh Express and were waiting at  platform No.2 for Coolie with suitcases and bags in which they were  carrying contraband article (Ganja). This information was recorded by  him (Ex.P-25) and thereafter, he proceeded with his staff to the place  as per the information received by him. He found the appellants standing  with the suitcases and bags. On search of the suitcase of appellant no.1  Rajendra, he found 23 kilograms of "Ganja" therein, which was seized.  Likewise, on the search of the bag of appellant no.2 Kalicharan he found  17 kilograms of "Ganja" therein, which was also seized. PW-10 prepared  the seizure memos (Exh.P-5 and P-8 respectively). He took samples of 25  grams each and sealed the same. The sample Panchnama is Exh.P-7. The  seized articles were kept in sealed condition in the Malkhana. PW-10 had  sent the sealed samples with specimen of seal to the Forensic Science  Laboratory, Sagar vide Exh. P-23 on 12.4.2001 and the report of the  laboratory is Exh.P-29.  PW-10 sent the full report of the search and  seizure to the senior railway police as per Exh. P-28, dated 1.4.2001.   K. Barsaiya (PW-3) was posted as Malkhana Moharrir in the Police  Station, Government Railway Police, Bhopal and on 31.3.2001, the seized  "Ganja" and the sample packets along with the suitcase and bag which  were seized from the appellants were deposited by him in the Malkhana in  a sealed condition.

       Placing reliance on the evidence adduced, the trial Court recorded  conviction and imposed sentence as noted supra.  Appeal before the High  Court did not bring any relief.           In support of the appeal, learned counsel for the appellants  submitted that there was violation of Sections 42 and 50 of the Act.  There was no proof of endorsement to the superior officer as mandated in  Section 42(2) of the Act.  Before the search was made the accused  persons were not intimated of their right to be searched in the presence

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of prescribed authority. There was also non-compliance with the  requirements of Sections 55 and 57.

       Learned counsel for the State on the other hand submitted that  both the trial Court and High Court have analysed the factual and legal  position in detail. There is no infraction as alleged and the impugned  judgment suffers from no infirmity.  

       The requirements vis-‘-vis Sections 42 and 50 have been dealt with  in many cases, more particularly by a Constitution Bench in State of  Punjab v. Baldev Singh     (1999 (6) SCC 172). In para 17 the  conclusions in an earlier judgment State of Punjab v. Balbir Singh (1994  (3) SCC 299 at para 25) were quoted and approved. We are concerned with  conclusions  (2-C) and (3) which read as follows: "(2-C) Under Section 42(1) the empowered officer if  has a prior information given by any persons, that  should necessarily be taken down in writing. But if  he has reason to believe from personal knowledge that  offences under Chapter IV have been committed or  materials which may furnish evidence of commission of  such offences are concealed in any building etc. he  may carry out the arrest or search without a warrant  between sunrise and sunset and this provision does  not mandate that he should record his reasons of  belief. But under the proviso to Section 42(1) if  such officer has to carry out such search between  sunset and sunrise, he must record the grounds of his  belief.   (3) Under Section 42(2) such empowered officer who  takes down any information in writing or records the  grounds under proviso to Section 42(1) should  forthwith send a copy thereof to his immediate  official superior. If there is total non-compliance  of this provision the same affects the prosecutions  case. To that extent it is mandatory. But if there is  delay whether it was undue or whether the same has  been explained or not, will be a question of fact in  each case."           Section 42 deals with power of entry, search, seizure and arrest  without of authorization. The provision reads as follows:  "42.    Power of entry, search, seizure and arrest  without warrant or authorisation. - (1) Any such  officer (being an officer superior in rank to a peon,  sepoy or constable) of the Departments of Central  Excise, Narcotics, Customs, Revenue Intelligence or  any other department of the Central Government or of  the Border Security Force as is empowered in this  behalf by general or special order by the Central  Government, or any such officer (being an officer  superior in rank to a peon, sepoy or constable) of  the Revenue, Drugs Control, Excise, Police or any  other department of a State Government as is  empowered in this behalf by general or special order  of the State Government, if he has reason to believe  from personal knowledge or information given by any  person and taken down in writing, that any narcotic  drug, or psychotropic substance, in respect of which  an offence punishable under Chapter IV has been  committed or any document or other article which may  furnish evidence of the commission of such offence is  kept or concealed in any building, conveyance or  enclosed place, may, between sunrise and sunset, -  (a) enter into and search any such building,  conveyance or place;

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(b) in case of resistance, break open any door and  remove any obstacle to such entry;  (c) such drug or substance and all materials used in  the manufacture thereof and any other article and any  animal or conveyance which he has reason to believe  to be liable to confiscation under this Act and any  document or other article which he has reason to  believe may furnish evidence of the commission of any  offence punishable under Chapter IV relating to such  drug or substance; and  (d) detain and search, and, if he thinks proper,  arrest any person whom he has reason to believe to  have committed any offence punishable under Chapter  IV relating to such drug or substance :  Provided that if such officer has reason to believe  that a search warrant or authorisation cannot be  obtained without affording opportunity for the  concealment of evidence or facility for the escape of  an offender, he may enter and search such building,  conveyance or enclosed place at any time between  sunset and sunrise after recording the grounds of his  belief.  (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  forthwith send a copy thereof to his immediate  official superior."

       Section 42 enables certain officers duly empowered in this behalf  by the Central or State Government, as the case may be, to enter into  and search any building, conveyance or enclosed place for the purpose  mentioned therein without any warrant or authorization. Section 42 deal  with "building, conveyance or enclosed place" whereas Section 43 deals  with power of seizure and arrest in public place.  Under sub-section (1)  of Section 42 the method to be adopted and the procedure to be followed  have been laid down. If the concerned officer has reason to believe from  personal knowledge, or information given by any person and has taken  down in writing, that any narcotic drugs or substance in respect of  which an offence punishable under Chapter IV of the Act has been  committed or any other articles which may furnish evidence of the  commission of such offence is kept or concealed in any "building or  conveyance or enclosed place" he may between sunrise and sunset, do the  acts enumerated in clauses (a), (b), (c) and (d) of sub-section (1).                   The proviso came into operation if such officer has reason to  believe that search warrant or authorization cannot be obtained without  affording opportunity for the concealment of evidence or facility for  the escaped offender, he may enter and search such building, conveyance  or enclosed place any time between sunrise and sunset after recording  grounds of his belief.  Section 42 comprises of two components. One  relates to the basis of information i.e. (i) from personal knowledge  (ii) information given by person and taken down in writing. The second  is that the information must relate to commission of offence punishable  under Chapter IV and/or keeping or concealment of document or article in  any building, conveyance or enclosed place which may furnish evidence of  commission of such offence.  Unless both the components exist Section 42  has no application. Sub-section (2) mandates as was noted in Baldev  Singh’s case (supra) that 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 forthwith send a copy thereof to his  immediate official superior. Therefore, sub-section (2) only comes into  operation where the officer concerned does the enumerated acts, in case  any offence under Chapter IV has been committed or documents etc. are  concealed in any building, conveyance or enclosed place. Therefore, the  commission of the act or concealment of document etc. must be in any  building, conveyance or enclosed place.

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       The trial Court and the High Court after analyzing the evidence  have come to hold that there was compliance of Section 42(2) in the  sense that requisite documents were sent to the superior officer, though  per se Section 42 had no application to the facts of the case. Though  learned counsel for the appellant tried to submit that there was no  definite evidence about sending copies of the requisite documents to the  superior officers, yet in view of the analysis of evidence done by the  trial Court and also by the High Court, we do not find any substance in  the plea that there was violation of Section 42(2).

So far as non-compliance of Section 50 is concerned, the said  provision reads as follows: "50. Conditions under which search of persons shall  be conducted. -  (1) When any officer duly authorised under Section 42  is about to search any person under the provisions of  Section 41, Section 42 or Section 43, he shall, if  such person so requires, take such person without  unnecessary delay to the nearest gazetted officer of  any of the departments mentioned in Section 42 or to  the nearest Magistrate.  (2) If such requisition is made, the officer may  detain the person until he can bring him before the  gazetted officer or the Magistrate referred to in  sub-section (1).  (3) The gazetted officer or the Magistrate before  whom any such person is brought shall, if he sees no  reasonable ground for search, forthwith discharge the  person but otherwise shall direct that search be  made.  (4) No female shall be searched by anyone excepting a  female."  

As in the instant case the search was of the bags and not of the  persons, Section 50 has no application and the High Court was right in  its conclusions.  

A bare reading of Section 50 shows that it only applies in case of  personal search of a person. It does not extend to search of a vehicle  or a container or a bag, or premises. (See Kalema Tumba v. State of  Maharashtra and Anr. (JT 1999 (8) SC 293), Baldev Singh’s case (supra),  Gurbax Singh v. State of Haryana (2001(3) SCC 28). The language of  Section 50 is implicitly clear that the search has to be in relation to  a person as contrasted to search of premises, vehicles or articles.   This position was settled beyond doubt by the Constitution Bench in  Baldev Singh’s case (supra).  Above being the position, the contention  regarding non-compliance of Section 50 of the Act is also without any  substance.  

A similar question was examined in Madan Lal and Anr. v. State of  Himahal Pradesh (2003 (6) Supreme 382).   

Coming to the question of alleged non-compliance of the  requirement of Sections 55 and 57, we find the trial Court has referred  to the evidence of the witnesses and held that articles were kept in  Malkhana in safe custody and were sent for chemical examination after  necessary orders by the Magistrate and, therefore, the requirement of  Section 55 were complied with.  Section 57 relates to reporting of  arrest and seizure to immediate superior officer.  The evidence shows  that same has been done. We find no infirmity in the conclusions of the  trial Court and the High Court regarding compliance of Sections 55 and  57 to warrant interference.

Learned counsel for the appellant residually submitted that the

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accused have suffered about 2 years and 9 months of custodial sentence,  and, therefore, sentence should be altered to the sentence undergone. We  find no substance in the plea looking to the gravity of the offence  committed and large quantity of contraband articles seized. The appeal  is without any merit and is dismissed.