2004 JTR(SC) 267
2004 17 AIC 264 ; 2004 AIR(SC) 3061 ; 2004 AIR(SCW) 1419 ; 2004 1 ALD(Cri)(SC) 773 ; 2004 AllMR(Cri)(SC) 2246 ; 2004 2 ApexCJ(SC) 623 ; 2004 2 CCR(SC) 59 ; 2004 4 CriCC 513 ; 2004 CriLR(Cal) 608 ; 2004 CrLJ 5018 ; 2004 2 CurLJ 214 ; 2004 2 EastCrC(SC) 184 ; 2004 1 JCC 617 ; 2004 3 JT 360 ; 2004 3 RCR(Cri) 1 ; 2004 2 Scale 778 ; 2004 3 SCC 453 ; 2004 SCC(Cri) 830 ; 2004 2 WLC 216 ; 2004 KHC 499 ; 2004 1 KLT(Online) 1365 ; 2004 2 Supreme 497
2004(2) Supreme 497
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
K.G. Balakrishnan & B.N. Srikrishna, JJ.
State of Punjab -Appellant
versus
Makhan Chand -Respondent
Criminal Appeal No. 714 of 1997
Decided on 27-2-2004
Counsel for the Parties :
For the Appellant : Arun K. Sinha, Rakesh Singh, Advocates for Bimal Roy Jad, Advocate.
For the Respondent : S.B. Sanyal, Sr. Advocate and S.K. Sabharwal, Advocate.
IMPORTANT POINT
Section 50 NDPS Act would not apply to a situation where search undertaken is not of the person of accused but of something carried in his hand.
Act Referred :NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.21, S.52(a), S.50, S.18, S.52(a)(1)
(A) The Narcotic Drugs and Psychotropic Substances Act, 1985, sections 18, 21, 50, 52(a), 52(a)(1), and 52A govern offences related to narcotic drugs, search and seizure procedures, and disposal of seized substances. Section 18 criminalizes certain offences, read with section 21, while section 50 mandates safeguards when searching a person, including an offer to search in the presence of a Gazetted Officer or Magistrate. Section 52A addresses disposal of seized drugs, and section 42 empowers officers to make searches and arrests during investigation. In this case, the accused was apprehended during a routine patrol and searched after declining an offer to be searched in the presence of a Gazetted Officer, with narcotics recovered, triggering the application of these provisions to determine the validity of the conviction under section 18 read with section 21.
(B) Key principles include that section 50 applies only to searches of a person and not to searches of items carried by a person; non-compliance with section 50 does not automatically invalidate seizure if the search arises from a lawful arrest under Cr.P.C.; and the offer and refusal of a search safeguard under section 50 must be corroborated by independent witnesses only when the search is of the person under the Act. The disposal provisions under section 52A do not govern the method of search or seizure. The presence of independent witnesses is not always mandatory, particularly in public places where the presence of witnesses cannot be reasonably demanded.
Facts of the case:
The respondent-accused was apprehended during a night patrol by police officers including the SHO near a bus stand. Upon alighting from a bus while carrying a tin box, the accused aroused suspicion. The officers informed him of the suspicion of an offence under the NDPS Act and offered to conduct a search in the presence of a Gazetted Officer or Magistrate, which he declined. A search was then conducted, recovering 37,000 tablets identified as containing morphine and meconic acid. The accused was charged under sections 18 and 21 of the Act. The Addl. Sessions Judge convicted him, but the High Court set aside the conviction on the ground of non-compliance with section 50, specifically the lack of independent witnesses for the offer to search. The State has appealed.
Findings of Court:
The Supreme Court held that section 50 does not apply to searches of items carried by a person, only to searches of the person. The offer to search the accused and his refusal, without independent witnesses, does not attract section 50 where the search arises from a lawful police action in a public place during an investigation. The Court observed that when contraband is recovered during an arrest or search under Cr.P.C., the requirements of the NDPS Act, including section 50, are not attracted at that stage. The High Court's reliance on the absence of independent witnesses was erroneous, as the provisions do not mandate such corroboration in this context. The Court also rejected the reliance on standing orders under section 52A, noting that they govern disposal of seized substances and not the search process.
Issues:
Whether section 50 of the NDPS Act applies to a search of an item carried by an accused person after a lawful arrest in a public place. Whether the non-availability of independent witnesses to the offer made under section 50 vitiates the entire proceeding. Whether the procedure prescribed under section 52A for disposal of seized narcotics impacts the validity of the trial.
Ratio Decidendi:
Section 50 of the NDPS Act applies only to searches of a person and not to searches of objects carried by a person. In cases where a search is incidental to a lawful arrest or during a patrolling investigation, the safeguards under section 50 are not attracted, and the lack of independent witnesses does not invalidate the seizure or conviction. The disposal provisions under section 52A are procedural and do not affect the admissibility of evidence or the trial's validity.
Result:
The appeal is allowed, the High Court's acquittal is set aside, and the conviction by the Addl. Sessions Judge is affirmed. The accused is to be apprehended and serve the sentence imposed.
(A) The Narcotic Drugs and Psychotropic Substances Act, 1985, sections 18, 21, 50, 52(a), 52(a)(1), and 52A govern offences related to narcotic drugs, search and seizure procedures, and disposal of seized substances. Section 18 criminalizes certain offences, read with section 21, while section 50 mandates safeguards when searching a person, including an offer to search in the presence of a Gazetted Officer or Magistrate. Section 52A addresses disposal of seized drugs, and section 42 empowers officers to make searches and arrests during investigation. In this case, the accused was apprehended during a routine patrol and searched after declining an offer to be searched in the presence of a Gazetted Officer, with narcotics recovered, triggering the application of these provisions to determine the validity of the conviction under section 18 read with section 21.
(B) Key principles include that section 50 applies only to searches of a person and not to searches of items carried by a person; non-compliance with section 50 does not automatically invalidate seizure if the search arises from a lawful arrest under Cr.P.C.; and the offer and refusal of a search safeguard under section 50 must be corroborated by independent witnesses only when the search is of the person under the Act. The disposal provisions under section 52A do not govern the method of search or seizure. The presence of independent witnesses is not always mandatory, particularly in public places where the presence of witnesses cannot be reasonably demanded.
Facts of the case:
The respondent-accused was apprehended during a night patrol by police officers including the SHO near a bus stand. Upon alighting from a bus while carrying a tin box, the accused aroused suspicion. The officers informed him of the suspicion of an offence under the NDPS Act and offered to conduct a search in the presence of a Gazetted Officer or Magistrate, which he declined. A search was then conducted, recovering 37,000 tablets identified as containing morphine and meconic acid. The accused was charged under sections 18 and 21 of the Act. The Addl. Sessions Judge convicted him, but the High Court set aside the conviction on the ground of non-compliance with section 50, specifically the lack of independent witnesses for the offer to search. The State has appealed.
Findings of Court:
The Supreme Court held that section 50 does not apply to searches of items carried by a person, only to searches of the person. The offer to search the accused and his refusal, without independent witnesses, does not attract section 50 where the search arises from a lawful police action in a public place during an investigation. The Court observed that when contraband is recovered during an arrest or search under Cr.P.C., the requirements of the NDPS Act, including section 50, are not attracted at that stage. The High Court's reliance on the absence of independent witnesses was erroneous, as the provisions do not mandate such corroboration in this context. The Court also rejected the reliance on standing orders under section 52A, noting that they govern disposal of seized substances and not the search process.
Issues:
Whether section 50 of the NDPS Act applies to a search of an item carried by an accused person after a lawful arrest in a public place. Whether the non-availability of independent witnesses to the offer made under section 50 vitiates the entire proceeding. Whether the procedure prescribed under section 52A for disposal of seized narcotics impacts the validity of the trial.
Ratio Decidendi:
Section 50 of the NDPS Act applies only to searches of a person and not to searches of objects carried by a person. In cases where a search is incidental to a lawful arrest or during a patrolling investigation, the safeguards under section 50 are not attracted, and the lack of independent witnesses does not invalidate the seizure or conviction. The disposal provisions under section 52A are procedural and do not affect the admissibility of evidence or the trial's validity.
Result:
The appeal is allowed, the High Court's acquittal is set aside, and the conviction by the Addl. Sessions Judge is affirmed. The accused is to be apprehended and serve the sentence imposed.
Tampering - Referred to in the context of an argument about tampering of seals, but the Court found no evidence of tampering in the present case.
Section 50 - A Constitution Bench judgment relied upon to establish that Section 50 of the NDPS Act applies only to the search of a person and not to searches conducted during normal investigation or of articles carried by the accused.
Section 50 - Followed the principle in Baldev Singh to clarify that the obligation under Section 50 does not arise when apprehension follows a chase by police.
Investigation - Cited to support the view that the NDPS Act provisions, including Section 50, do not apply to searches conducted during investigation of other offences under the Cr.P.C.
Section 50 - Referred to for the proposition that Section 50 does not apply to searches of items carried by a person, rather than the person's body.
Section 50 - Referred to in support of the holding that Section 50 is inapplicable to searches of baggage or articles carried by the accused.
Standing Orders - Cited to hold that standing orders under Section 52A are not mandatory rules and may be deviated from in situations like chance recoveries.
JUDGMENT
Srikrishna, J.-This appeal by the State of Punjab is directed against a judgment of the High Court of Punjab & Haryana acquitting the respondent of the charge framed against him under Section 18 r/w Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ).
2. The relevant facts necessary for disposal of this appeal are as under:-
On 28th July 1993, S.I. Karam Chand (PW-2), who was working as the Station House Officer, Police Station Kotwali, Barnala along with A.S.I. Bhupinder Singh, Head Constable Nishan Singh and some other police officers was carrying out patrolling near the bus stand, Barnala. When the police party came near the bye-pass of the Chowk Bajakhana, they saw the respondent-accused alighting from a bus with a tin box in his hand. The movements of the accused aroused the suspicion of the police party who then apprehended the respondent-accused. They told him that they suspected him of committing an offence under the Act and told him that if he so desired, the search would be carried out in the presence of a Gazetted Officer or Magistrate. The respondent-accused, however, declined the offer, as a result of which, the tin box carried by him was searched by the police party. The search yielded a plastic envelope containing brown coloured tablets and one plastic box containing some inscriptions. In all, there were 37,000 such tablets recovered. Two samples of 500 tablets each, were separated and sealed according to the procedure. The remaining bulk of 36,000 tablets along with the plastic box were also sealed by following the due procedure. The sample tablets were forwarded to the Office of the Chemical Examiner, Chandigarh, who opined that the tablets contained Meconic Acid and Morphine to the extent of 1.08%. The respondent-accused was charged with the contravention of Sections 18 and 21 of the Act was put up for trial. The Addl. Sessions Judge, Barnala convicted him of the charges levelled against him.
3. The respondent-accused carried an appeal to the High Court against his conviction. The first question urged before the High Court was whether there was a contravention of Section 50 of the Act inasmuch as the offer made to the accused for searching his person in the presence of a Magistrate or a Gazetted Officer and his declining the offer of the same, was not corroborated by any independent witnesses. The High Court was of the view that, since the respondent-accused was apprehended in a public place, there was no dearth of witness as available at the time and place where the search was made. It is an admitted fact that no independent witnesses were joined in this case and also that there was nothing in the statements of PW-1 and PW-2 suggesting that there was any difficulty in joining independent witnesses. Hence, the High Court came to the conclusion that non-joining of independent witnesses would indicate a contravention of Section 50. On this reasoning, the High Court set aside the judgment of the Addl. Sessions Judge and acquitted the respondent. Being aggrieved, the State is in appeal.
4. It appears to us that, the only question which appealed to the High Court, has been wrongly decided. As to the circumstances when the provisions of Section 50 of the Act would apply, the issue is no longer res integra. A Constitution Bench of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 at p. 190 [para 12] says this:-
"12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."
5. Following this judgment, another Bench of this Court in Bharatbhai Bhagwanjibhai v. State of Gujarat, (2002) 8 SCC 327, took the view that Section 50 categorically lays down that if the search is to be conducted by an officer duly authorised under Section 42 and the search is about to be conducted under the provisions of Section 41, 42 or 43, the officer concerned does owe a duty to intimate the person to be searched that, he has the option to be taken to the nearest Gazetted Officer/Magistrate for the purpose of carrying out the search. But in the event of a situation otherwise, there is no such obligation. It was pointed out that, if an accused person, on seeing a patrolling police party, starts running, which excites the suspicion of the police party, as a result of which, he is apprehended and searched, the question of compliance of the safeguards prescribed under Section 50 of the Act would not arise.
6. In State of Punjab v. Balbir Singh, (1994) 3 SCC 299, this Court had the following to say about such a situation at pp. 310-311 [para 7]:-
"It thus emerges that when the police, while acting under the provisions of Cr.P.C. as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of Cr.P.C. At this stage if there is any non-compliance of the provisions of Section 100 or Section 165 Cr.P.C. that by itself cannot be a ground to reject the prosecution case outright. The effect of such non-compliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case. In carrying out such searches if they come across any substance covered by the NDPS Act the question of complying with the provisions of the said Act including Section 50 at that stage would not arise. When the contraband seized during such arrests or searches attracts the provisions of the NDPS Act then from that stage the remaining relevant provisions of the NDPS Act would be attracted and the further steps have to be taken in accordance with the provisions of the said Act."
7. Apart from the aforesaid question, we are also of the view that Section 50 of the Act would not apply to a situation where the search undertaken is not of the person of the accused but of something carried in his hand. See in this connection, the observations of the Constitution Bench of this Court in Baldev Singh s case (supra), the judgment of this Court in Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 at pp. 30-32 [para 4 to 8] and in Kalema Tumba v. State of Maharashtra, (1999) 8 SCC 257.
8. In the present case, for both the reasons discussed earlier, we are of the view that Section 50 does not apply at all. The mere fact that the officer concerned offered to have the search of the respondent-accused taken before a Gazetted Officer/Magistrate, or that there were no independent witnesses to evidence this offer, hardly makes any difference to the situation. In our view, therefore, the High Court erred in holding that the action of the police officers was contrary to Section 51 of the Act and giving the benefit of doubt to the respondent-accused when there was no scope for raising such a doubt at all.
9. Learned counsel for the respondent-accused relied on certain standing orders and standing instructions issued by the Central Government under Section 52A(1) which require a particular procedure to be followed for drawing of samples and contended that since this procedure had not been followed the entire trial was vitiated.
10. This contention too has no substance for two reasons. Firstly, Section 52A, as the marginal note indicates, deals with "disposal of seized narcotic drugs and psychotropic substances". Under sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) & (3). If the procedure prescribed in sub-sections (2) & (3) of Section 52A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances.
11. Secondly, when the very same standing orders came up for consideration in Khet Singh v. Union of India, (2002) 4 SCC 380, this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the Officer-in-Charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention.
12. The respondent-accused also relied on a judgment of this Court in Valsala v. State of Kerala, 1993 Supp. (3) SCC 665. Considering the evidence on record, no case of tampering of the seals was made out nor has the High Court made any finding in this regard in favour of the accused. The only contention which appealed to the High Court was with regard to the violation of Section 50 of the Act. This is no longer relevant since we are in disagreement therewith.
13. In the result, we set aside the judgment of the High Court and affirm the correctness of the judgment of the learned Addl. Sessions Judge, Barnala.
14. The respondent-accused has been rightly convicted and sentenced by the trial court and, therefore, the learned Addl. Sessions Judge, Barnala shall promptly take steps to apprehend the respondent-accused so that he may serve out the sentence imposed on him.
Appeal allowed.
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