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CASE NO.: Appeal (crl.)  103 of 2003

PETITIONER: Saikou Jabbi                                             

RESPONDENT: State of Maharashtra                                             

DATE OF JUDGMENT: 03/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

       The appellant, a Gambian national, was apprehended around mid- night of 17.9.1993 at the Sahara Airport Bombay for carrying heroin in  his baggage in ET Flight No. 661.  Ashok Thaker, (PW-1) an intelligence  officer attached to the Narcotic Bureau screened the baggage and seizure  was made of the heroine weighing about 1 kg. which was concealed in a  suitcase. After recording the statement accused was taken for alleged  contravention of various provisions of the Narcotic Drugs and  Psychotropic Substances Act, 1985 (for short the ’Act’) and also under  the Customs Act, 1962 (in short the ’Customs Act’). He was charged for  offence punishable under Sections 21, 23, 28 and 29 of the Act and also  Sections 135(1)(a)(ii) of the Customs Act.  Accused pleaded innocence.   He was tried in the Court of Special Judge for Greater Bombay who found  that there was non-compliance with the requirement of Section 50 of the  Act as he was not made aware of his right to be searched before a  gazetted officer or a Magistrate before the search was conducted. It was  also held that the requirement of Section 42(2) to submit the gist of  information to higher officer immediately was also not established. The  accused was acquitted of all the charges.  The prosecuting agency filed  an appeal before the Bombay High Court which by the impugned judgment  held the accused guilty for offences punishable under Section 8(c) read  with Section 21 of the Act for which custodial sentence of 10 years  imprisonment and fine of Rs.1 lakh for default stipulation was awarded.  Further for offence relatable to Sections 28 read with Section 23 of the  Act a similar sentence was awarded.  Though he was convicted under  Section 135(1)(a)(ii) of the Customs Act, but no separate sentence was  awarded.  The High Court held that Section 50 was not attracted to the  facts of the case.  Similarly, it was held that there was compliance of  requirements of Section 42(2) of the Act.   

Said judgment of the High Court is under challenge in this appeal.

In support of the appeal, learned counsel appearing for the  appellant submitted that the trial Court was justified in holding that  the accusations were not established against the appellant.   Unfortunately, the High Court had on an erroneous reading of Sections 42  and 50 came to hold that there was compliance with the requirements of  the said provisions.  The seized articles were sent for chemical  examination on 23.9.1993. This was in violation of Section 55 of the  Act.

Learned counsel for the respondent-State submitted that the High  Court was justified in its conclusion and correct interpretation of the  relevant provisions of the Act have been made.  Further, the plea that  there was any prejudice to the accused on account of delayed dispatch  was not taken before the courts below.  In any event, the investigating

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officer categorically stated that the seized articles were kept in safe  custody.  There was not even any material brought on record to doubt the  statement.                          

       Before dealing with rival submissions, it is appropriate to take  note of the factual background noticed by the trial Court and the High  Court.   

       During the night between 17.9.1993 and 18.9.1993 PW-1 attached to  Narcotic Control Bureau (in short ’NCB’) Office, received information  that the accused, a Gambian national, was likely to smuggle heroin in  his baggage by ET flight 661, scheduled to arrive at 0645 hours that  night.  He received the information when he was at the airport.  He  reduced the same to writing (Exh. 16-A) and placed it before his  immediate superior Assistant Director, Mr. S.C. Rohatgi, who was present  at the Airport.  Mr. Rohatgi perused it and put his signature and asked  the officer to act upon the said information.  At the Airport, he called  two panchas and kept a watch at the X-ray machine counter.  One Mr.  Karanjla, who was a security officer, was Screen Machine Operator at the  relevant time. When the accused placed three baggages for screening, the  security officer gave signal to PW-1.  On the monitor of the screening  machine PW-1 noticed green dense patches/spot when a blue coloured  caravan make zipper suitcase was put.  All the 3 baggages of the accused  were placed on the screening machine. PW-1 as well as the security  officer suspected concealment of contraband in blue coloured suitcase.   The three baggages of the accused were therefore, kept separately near  the counter. PW-1 the intelligence officer, who was also an empowered  officer disclosed his identity to the accused and his intention to  search his baggages.  This officer along with the accused, panchas and 3  baggages of the accused went to the Air Traffic Room of Air India for  the purpose of search of those baggages. In that room PW-1 took charge  of the travel document of the accused consisting of his passport, ticket  etc. Accused opened blue coloured suitcase with his keys.  The same was  filled with old and new garments and one bed sheet. Two polythene bags  containing brown powder were found in the folds of bed sheet.  Small  quantity of the brown powder was taken out for the purpose of testing  which, when tested on testing kit, answered positive for heroin.  Both  the polythene bags were emptied in one big polythene bag.  The total  quantity of powder found in the said bags weighed 990 grams.  Three  samples were drawn in separate small polythene bags.  Those bags were  sealed by heating and were put in separate paper bags which were closed.   All these samples packets were sealed with office seal bearing No.03-NCB  in the presence of panchas whose signatures were obtained after putting  particulars and marked S-1, S-2 and S-3. Sample packets were also signed  by PW-1 as well as the accused.  The remaining quantity of powder was  separately sealed with the seal of N.C.B. and the signatures of the  panchas and the accused were taken on the labels.  The seizure panchnama  (Exh. 17) was prepared.  The panchnama was singed by both the panchas as  well as PW-1. One copy of the said panchnama was handed over to the  accused which he acknowledged by putting his signature on the seizure  panchnama. The blue suitcase, the contraband and the bed sheet were  seized. Other two suitcases were returned to the accused.  The travel  documents and foreign currency worth 201 US $ and 700 Francs recovered  in personal search of the accused were also seized under the panchnama.

       Thereafter, the accused along with the contraband and samples was  brought to the N.C.B. Office. A note about the interception, search and  seizure was prepared by the officer, (Exh. 17-A). The same was placed  before his superior officer Mr. S.C. Rohatgi along with seizure  panchnama and the muddemal property.  Summons were served to the accused  under Section 67 of the Act and his statement was recorded by PW.1 on  18.9.1993 in which the accused admitted the recovery of 990 grams of  heroin from his suit case. The same was marked as (Exh.18). His further  statement was recorded on 19.9.1993 as per (Exh.19). The accused was  arrested on 19.9.1993.

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       On 23.9.1993, sample packet marked as S-1 was handed over to the  Dy. Chief of the Laboratory and Chemical Analyst’s Report from the  Laboratory dated 26.10.1993 was received (as per Exh.21), according to  which the sample was of heroin (diacetylmorphine). After the  investigation was completed complaint was filed.  The Special Judge  framed charges against the accused under Section 8(c) read with Sections  21, 23, 28 and 29 of the Act and under Section 135(1)(a)(ii) of the  Customs Act. Separate charge under Section 8(c) of the Act read with  Section 21 of the Act was also framed against the accused.  As the  accused pleaded not guilty, prosecution led evidence of two witnesses.   PW-1,  as noted above Ashok Thaker, who had received the information,  conducted the search and also investigated the case.  The other witness  examined was panch PW-2 Ankush Yerunkar, who was panch to the search and  seizure of the contraband from the accused. He fully supported the  prosecution case. The prosecution has also produced on record the  relevant documents like copy of the information reduced to writing,  Seizure panchnama, Chemical Analyst’s Report etc.                                          

The first aspect which needs to be considered is whether there was  any non-compliance of Sections 42 and 50 of the Act as pleaded. So far  as these two provisions are concerned, they read as follows:

"Section 42: Power of entry, search, seizure and  arrest without warrant or authorization:

(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 including para-military forces or  armed forces 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 persons knowledge or  information given by any person and taken down in  writing that any narcotic drug, or psychotropic  substance, or controlled substance in respect of  which an offence punishable under this Act has been  committed or any document or other article which may  furnish evidence of the commission of such offence or  any illegally acquired property 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 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;

       (b)     in case of resistance, break open any  door and remove any obstacle to such entry;

       (c)     seize 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

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of the commission of any offence punishable under  this Act or furnish evidence of holding any illegally  acquired property which is liable for seizure or  freezing or forfeiture under Chapter VA of this Act;  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 this Act.

       Provided that if such officer has reason to  believe that a search warrant or authorization cannot  be obtained without affording opportunity for the  concealment or 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 within  seventy-two hours send a copy thereof to his  immediate official superior.  

Section 50: Conditions under which search of persons  shall be conducted-

(1) When any officer duly authorized 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.

(5)     When an officer duly authorized under section  42 has reason to believe that it is not possible to  take the person to be searched to the nearest  Gazetted Officer or Magistrate without the  possibility of the person to be searched parting with  possession of any narcotic drug or psychotropic  substance, or controlled substance or article or  document, he may, instead of taking such person to  the nearest Gazetted Officer or Magistrate, proceed  to search the person as provided under section 100 of  the Code of Criminal Procedure, 1973(2 of 1974).  (6)     After a search is conducted under sub-section  (5), the officer shall record the reasons for such  belief which necessitated such search and within

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seventy-two hours send a copy thereof to his  immediate official superior."           

Now comes the question whether there was non-compliance of Section  50 of the Act.  

       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), The State of Punjab v. Baldev  Singh (JT 1999 (4) SC 595), 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.  

       In the case at hand the contraband articles were suspected to be  hidden in the blue suitcase of the accused, and was not in his physical  possession. The suitcase was put on the screening machine.  This cannot  be equated to be a recovery made from the person of the accused by a  personal search.

       In   Birakishore Kar v. State of Orissa (2001 (9) SCC 541) it was  held that when there was a recovery from a plastic bag belonging to the  accused on which he was found sitting on railway compartment, Section 50  was not applicable.  Baldev’s case (supra) was referred to hold that  Section 50 in case of search comes into play only in case of search by a  person as distinguished from search from any premises etc.  The position  was also highlighted recently in Madan LaL & Anr. v. State of Himachal  Pradesh (2003 AIR SCW 3969). Above being the position the High Court was  justified in holding that Section 50 had no application.  

So far as compliance with Section 42(2) is concerned, the  statement of PW-1 to the effect that he had informed his superior  remained unshaken and there was even no cross-examination to point out  any falsity in the said statement. The note of intelligence information  was placed on record vide Exh. 16-A to substantiate the testimony of PW- 1.  That being so the High Court was justified in holding that the  provisions of Section 42(2) had been complied with.  

       Coming to the plea regarding non-compliance of Section 55 of the  Act, as rightly submitted by learned counsel for the respondent-State,  there was not even any argument advanced on that score before the trial  Court and the High Court. Even otherwise also the evidence of the  investigating officer about safe custody of the contraband articles have  not been challenged or shaken in the cross-examination.  That being the  position we are not inclined to accept the plea that there was non- compliance with the requirements of Section 55 of the Act.

       Looked at from any angle, the appeal is sans merit, deserves  dismissal, which we direct.