R. Ramanujam, J.
1. Criminal Petition No. 710 of 2001 is filed by A.1 in Sessions Case No. 430 of 2000, pending on the file of the Metropolitan Sessions Judge, Hyderabad, seeking to quash the proceedings in the said Sessions Case in so far as they relate to him.
2. In the said Sessions case, the petitioner and 8 others were charged for the offence punishable under Sections 8(c), 22, 25, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') on the basis of the Charge sheet filed by the Inspector of Police, Narcotic Cell, C.I.D., Hyderabad, in Crime No. 253 of 2000 of Bowenpally Police Station.
3. Criminal Petition No. 1093 of 2001 is filed by A.1 and A.2 in the aforementioned Sessions Case seeking bail. Hence, they are being disposed of by this common order.
4. The case of the prosecution, as set forth in the charge sheet, in brief, is that:
5. A.1 and A.2 hail from Uttar Pradesh. A.2 is the follower of A.1. A.4 also hails from Uttar Pradesh and she is a close associate of A.1, A.3, A.5 and A.6. A.3, A.6, A.7, A.8 and A.9 are residents of Mumbai. A.6 is the brother of A.3. A.7 is a friend and relative of A.3 and A.6. A.8 and A.9 are the supporters of A.3. A.5, Dy. Superintendent of Police, Grey Hounds, is an associate of A.3, A.4 and A.6. A.3, A.6, A.7 and A.8 are regular Narcotic drug traffickers of overseas and involved in preparation and transportation of Narcotic drugs.
6. On 23-9-2000 at 8 A.M., the Inspector of Police, Task Force, West Zone, Hyderabad (LW.3) received credible information that A.1 and A.2 were in possession of Narcotic drug and stored it in the house bearing No. 8-7-27/A, Raja Rajeswari Nagar, Old Bowenpally, Secunderabad. Then the Additional D.C.P., (West and South Zones), Task Force, formed a team headed by the Inspector of Police, East Zone, Task Force (LW.1) to conduct a raid. Then LW.1 along with other staff and mediators visited the said house. At that time A.1 and A.2 were present there. Then LW.1 intimated them about the information received by them and informed about their right to be searched in the presence of a nearest Magistrate or a Gazetted Officer and served a notice to that effect on them. On the willingness given A.1 and A.2 to get searched before a Gazetted Officer, he searched their person in the presence of a Gazetted Officer (Mandal Revenue Officer, Tirumalagiri-LW.6). After recording their confessional panchanama, both A.1 and A.2 lead the Police, Panch witnesses and the M.R.O. (LW.6) to the said house, and have shown 70 white polythene bags containing Narcotic drug material weighing about 1,981.2 kgs., and 8 cartons of Mandrax tablets, prepared out of the said material, weighing about 164.9 Kgs. LW.1 then seized the same and the other materials, arrested A.1 and A.2 and produced them before the Station House Officer, Bowenpally Police Station. On the basis of the same, the Inspector of Police, Bowenpally Police Station (L.W.9) registered a case in Crime No. 253 of 2000 for the aforesaid offences.
7. During the course of investigation, A.1 confessed before LW.9 that on the advise and active support of A.4 he took the aforementioned house on rent and indulging in manufacture of Narcotic drugs clandestinely by getting the said material from A.3 from Mumbai. Immediately, on the message given by the Commissioner of Police, Hyderabad to the Dy. Commissioner of Police (Crimes), Mumbai, A.3 was arrested at Mumbai and brought over here and remanded to judicial custody.
8. On the confessional statements of A.1 and A.2 and on some credible information received by L.W.9, he along with his staff and mediators proceeded to Dream Valley, Gandipet, and found A.4 going in a Maruthi Car. He stopped the said car and searched the same in the presence of mediators and the Mandal Revenue Officer of Shamshabad Mandal and found an Ash coloured suitcase containing gray coloured tablets weighing about 5.1/2 kgs. On conducting a spot test, the said tablets found positive to be Methaqualone (Mandrax), which is a Narcotic drug. Immediately he collected samples from it, seized the same and other incriminating material in the presence of mediators and arrested A.4.
9. On the confession made by A.4 on 27-9-2000, A.5, D.S.P., Grey Hounds, was arrested at his residence at 8.05 A.M. On interrogation, A.5 admitted the offence by lending his services to the co-accused in getting the raw narcotic drug material to Hyderabad from Mumbai, manufacturing Mandrax tablets and exporting the same to Johannes Berg, South Africa. Subsequently, the investigation of the case was transferred to C.I.D., Narcotic Cell, Hyderabad and LW.48 took up the investigation. He recorded the confessional statement of A.3 in the presence of mediators, wherein he is alleged to have confessed that he is manufacturing Narcotic Drug at Hyderabad with the assistance of the other accused for exporting the same to Johannes Berg, South Africa, that his brother A.6, staying with A.4, is supervising the same, that they have secured the aforementioned house for doing their business, that he (A.3) along with A.7 and A.9 came over to Hyderabad and rested in Ambassador Hotel, that A.7 secured 40 bags of Narcotic drug raw material, which was sent by him from Mumbai through Ome Sai Carriers to Hyderabad, that A.1 and A.5 received the same at Hyderabad and A.9 brought tablet punches to Hyderabad. Pursuant to the confessional statement of A.3, LW.48 seized 26 punches of Mandrax tablets weighing about 15.5 Kgs., from Flat No. B.202, Mount Banjara Apartments, Road No. 12, Banjara Hills, Hyderabad, in the presence of mediators and sent the samples for analysis.
10. LW.43, the Analyst who examined the samples, which were seized from the accused, gave a report opining that the samples contain Methaqualone - a Psychotropic substance - under the Act. After investigation, LW.48 laid the charge sheet against the accused for the aforesaid offences.
11. A.1 to A.6 were apprehended and they are now in judicial custody. A.7 to A.9 are still at large.
12. The trial Court has taken cognizance of the case for the aforementioned offences and the matter is ripe for trial. At that stage, the present petitions are filed.
13. Appearing for the petitioner-A.1, Sri Md. Quasim, learned counsel, contended that: (1) the information received from an unknown person is not admissible in evidence under Section 60 of the Evidence Act, hence, the entire follow up action taken by Sri L. Chandrasekhar, Inspector, West Zone, Task Force, Hyderabad (LW.3) is vitiated and cannot be the basis for prosecuting the petitioner-A.1, (2) Sri T.V.S. Suryanarayana, Inspector, East Zone, Task Force, Hyderabad (LW.1) is not an authorized officer under Section 42 of the Act and, therefore, the consequential criminal proceedings are vitiated, and (3) the Officer who has conducted the search (LW.1) has not followed the mandatory provisions under Section 50 of Act and, therefore, the entire investigation is vitiated and cannot be the basis for prosecuting the petitioner-A.1.
14. The learned Public Prosecutor disputed each one of the aforesaid contentions.
15. Elaborating his first contention, the learned counsel for the petitioner submitted that LW.3 has acted on the information received by him from an unknown person. Information received from an unknown person is not admissible in evidence under Section 60 of the Evidence Act and, therefore, the entire follow up action, i.e., search and seizure of the contraband, is vitiated. In support of this contention, he relied upon a decision of the Supreme Court in BHUGDOMAL GANGARAM V. STATE OF GUJARAT, : 1983CriLJ1276 .
16. Having given my anxious consideration, I am constrained to observe that this contention is wholly misconceived and untenable.
17. The case of the prosecution, as already noted, is that on 23-9-2000 at 8.00 A.M., LW.3 received credible information that A.1 and A.2 were in possession of Narcotic Drug and stored it in the house bearing No. 8-7-28/A, Raja Rajeswari Nagar, Old Bowenpally, Secunderabad. On receipt of the said information LW.3 put it in writing and forwarded a copy thereof to Additional D.C.P. (West and South Zones), Task Force, who is his immediate superior officer, and thus complied with the provisions of Section 42(1) and (2) of the Act.
18. Section 42(1) of the Act, inter alia, provides that if an officer authorized there under, has reason to believe from personal knowledge or information given by any person, which is 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, act in the manner provided under sub-Section 1(a) to (d).
19. Sub-Section (2) of Section 42 mandates 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 superior official.
20. As already noted, LW.3, who has received the information, has recorded it in writing and forwarded a copy thereof to the Additional D.C.P., West and South Zones, Task Force, Hyderabad, who is his superior officer. He thus fulfilled the requirement of sub-Section (2). The fact that information received by LW.3 was from an unknown person cannot, therefore, be a vitiating factor inasmuch as there is no requirement of recording the name of the person who has given such information. From the Scheme of the Act it appears that there is no need to record the name of the informant, who has passed on the information relating to the serious offence under the Act. Be that as it may, the question whether the evidence of LW.3, insofar as it relates to receiving credible information from an unknown person, is admissible in evidence or not does not arise for consideration now at the very threshold of the proceedings. The facts of the case in BHUGDOMAL GANGARAM (1 supra), which was relied upon by the learned counsel for the petitioner, are entirely different. That is not a case arising under Section 482 Cr.P.C. That was an appeal arising out of conviction for the offence under Section 65(a) read with Section 81 of the Bombay Prohibition Act, 1949 (25 of 1949). In that case when the informant, who has informed PW.12 (Police Officer), was not examined as a witness, the Supreme Court observed thus:
'But since the informant has not been examined as a witness the evidence of PW.12 that he was informed that accused Nos. 3 and 4 would be coming behind the truck in a taxi is not admissible'.
21. In my considered view, this decision will not render any help to the proposition canvassed by the petitioner. Likewise, Section 60 of the Evidence Act, which is relied upon by the counsel for the petitioner cannot be of any relevance here. In any event, to what extent the evidence of LW.3 is admissible or not is a question which has to be decided at the time of trial or thereafter. But this can never be a ground, in my considered view, to quash the proceedings at the very threshold.
22. Elaborating his second contention, the learned counsel for the petitioner submitted that LW.1, who has conducted the raid is an Inspector of Task Force, East Zone, and Task Force is not a Police Station within the meaning of the term under Section 2(s) Cr.P.C., and, hence, LW.1 is not an authorized officer to conduct the search and seizure under Section 42 of the Act, and that, therefore, the entire proceedings are vitiated. In support of this contention, he relied upon the recent decision of the Supreme Court in ROY V.D. V. STATE OF KERALA, : 2001CriLJ165 .
23. The learned Public Prosecutor on the other hand contended that the Government of A.P., issued an order in G.O.Ms. No. 329, Home (Police.D) Department, dated 30-8-1996 declaring that 'with effect on and from 30-8-1996, the Office of the Commissioner, Task Force, under the Commissioner of Police, Hyderabad City Police shall be a Police Station which include all the areas included in the Hyderabad City Police limits and under Clause (o) of Section 2 of the said code directs that the officers in-charge of the said office shall be the officers in-charge of the police station so declared'. He has placed a copy of the said G.O. before this Court. The learned Public Prosecutor further contended that by the order in G.O.Ms. No. 184, Revenue (E) Department, dated 14-2-1986, the State Government, in exercise of its powers under sub-Section (1) of Section 42 of the Act, empowered the Officers of the State Excise Department, including Enforcement Wing, not below the rank of Sub-Inspectors and all the Officers of Police Department not below the rank of Sub-Inspector to exercise the powers under the said sub-Section. He also placed a copy of the relevant Gazette, where under that G.O., has been published, before this Court. The learned Public Prosecutor contended that in view of that specific authorization read with G.O.Ms. No. 329 dated 30-8-1996, LW.1, who has conducted the search and seized the material, has been fully authorized to act under Section 42 of the Act.
24. In ROY V.D. (2 supra), the Supreme Court has quashed the proceedings since it was found that the Officer, who had conducted the search and seizure, was not an authorized officer. Dealing with that question the Supreme Court held thus:
'16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of Section 36A of the NDPS Act. It follows that any collection of materials, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorized officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial.
17. To the same effect is the view expressed by this Court in State of Punjab V. Balbir Singh - : 1994CriLJ3702 . In para 13 Jayachandra Reddy, J. speaking for the Court observed thus: (SCC p.313)
'13. Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorized, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial'.
18. It is well settled that the power under Section 482 Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the Court; in such a case not quashing the proceedings would perpetuate abuse of the process of the Court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 Cr.P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice'.
25. In the said case, undisputedly, by the time the search was conducted, there was no notification by the State Government authorizing the concerned Officer. Such is not the case here. As already noted, in this case LW.1, who has conducted the search and seized the contraband, has been specifically empowered by the State Government under G.O.Ms. No. 329 dated 30-8-1996 read with G.O.Ms. No. 184 dated 14-2-1986 to exercise the powers under sub-Section (1) of Section 42 of the Act. In this view of the matter, the aforesaid decision of the Apex Court cannot be of any assistance to the petitioner.
26. Elaborating his third contention, the learned counsel for the petitioner submitted that Section 50 of the Act clearly mandates that the person about to be searched should be first informed about his right to be searched before a Gazetted Officer and should be asked about his option to be searched before a Gazetted Officer. According to the learned counsel for the petitioner, LW.1, who has conducted the search, has not followed the mandatory procedure and informed the petitioner-A.1 about his right to be searched before a Gazetted Officer, therefore, this vitiates the entire search and seizure, and on the basis of such a vitiated search and seizure the petitioner-A.1 cannot be prosecuted. In support of his contention, he relied upon a decision of the Supreme Court in STATE OF PUNJAB V. BALBIR SINGH, : 1994CriLJ3702 .
27. I do not find any merit in this contention also. Section 50 of the Act reads as under:
'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'.
28. Considering the scope of this provision, the Supreme Court in BALBIR SINGH (3 supra) held thus:-
'(5) On prior information the empowered officer or authorized officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact'.
29. The question whether it is imperative for the Investigating Officer to inform the suspect orally or in writing about his right to be searched before a Gazetted Officer or a Magistrate, has again came up for consideration before a Constitutional Bench of the Supreme Court in STATE OF PUNJAB V. BALDEV SINGH, : (1999)6SCC172 .
30. Without expressing any opinion whether the provisions of Section 50 of the Act are mandatory or directory, the Constitutional Bench held (at paras 32 and 33 of the Report) thus:
'32. However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a Gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible - it cannot be disregarded by the prosecution except at its own peril.
33.The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial'.
31. From the aforesaid authoritative pronouncement of the Apex Court, it is clear that the question whether the safeguards provided under Section 50 of the Act were complied with or not can only be decided on the basis of the evidence let in at the trial, but that can never be a ground to quash the criminal proceedings at the very threshold.
32. Coming to the facts of the present case, the charge sheet itself clearly indicates that LW.1 had informed A.1 and A.2 about their right to be searched in the presence of a nearest Magistrate or a Gazetted Officer and served a notice to that effect on them, on their willingness to get searched in the presence of a Gazetted Officer, LW.1 contacted the Mandal Revenue Officer, Tirumalgiri Mandal (LW.6) and requested him to come to the said place immediately. On LW.6 reaching the spot and on A.1 and A.2 expressing their willingness, they were interrogated and their confessional statements were recorded in the presence of LWs.4 to 6. Thus, prima facie, it can be seen that the safeguard provided under Section 50 of the Act has been complied with.
33. Counsel for the petitioner, however, submits that the notice said to have been issued to the petitioner, is a mere proforma notice and in the acknowledgment portion of that notice either of the words 'willing/not willing' are not scored off and that shows that A.1 and A.2 have not really given their option.
34. I am unable to agree with the aforesaid submission. As already noted, A.1and A.2 have expressed their willingness to be searched in the presence of LW.6. Be that as it may, as already noted, whether the safeguard provided under Section 50 of the Act has been complied with or not is a question that has to be decided after trial, but not at the very threshold, as held by the Constitutional Bench of the Supreme Court in BALDEV SINGH (4 supra).
35. Further more, in the search that was conducted on the person of A.1 no contraband was found but he was found in possession of a cell phone (No. 98480-03631 98480-03631 ), an identity card, electricity bill and other articles. The contraband was, however, found in the house in which they are staying.
36. Dealing with a similar situation, in KANHAIYA LAL V. STATE OF M.P., : (2000)10SCC380 , where the contraband (opium) was recovered not from the person of the accused but from a bag he was carrying, the Supreme Court held that the non-compliance of the requirements of Section 50 of the Act would not vitiate his conviction.
37. Counsel for the petitioner, then contended that all articles alleged to have been seized during the search were not sealed and samples were not drawn by LW.1 as provided for under Section 55 of the Act.
38. I do not find any merit even in this submission. There is a clear indication at page 3 para 2 of the charge sheet that the requirements of Section 55 of the Act were complied with. The relevant portion in the charge sheet is as under:
'There are as many as 70 white polythene bags are found and with the help of digital weighing machine brought from Fantacy Food Pvt. Ltd., H. No. 7-21/10, Bowenpally, each bag was sealed and after noting the weight of each bag it was found total weight of the bags is 1,981.2 Kgs and each bag was marked as P.1 to P.70 and there are 8 cartons, after weighing each carton, the total weight is found 164.9 Kgs and they are marked as T.1 to T.8. From each bag 20 grams of powder was collected towards samples and samples were marked as S.1, S.2 & S.3 from P.1 to P.70. Similarly, samples S.1 to S.3 were collected from the cartons T.1 to T.8'.
39. This clearly shows that the contraband, that was seized, was not only sealed but samples were also drawn from it. Further more, the requirements of Section 55 of the Act were complied with or not is a matter for evidence and that cannot be decided at this juncture.
40. For all the aforementioned reasons, I do not see any justification to quash the proceedings against the petitioner (A.1). Criminal Petition No. 710 of 2001, therefore, fails and it is accordingly dismissed.
41. At this juncture, counsel for the petitioner submits that a direction be issued to the Sessions Court to conduct the trial on day-to-day basis. I am not inclined to give any such direction. But, I am sure that the learned Sessions Judge will certainly proceed with the case and dispose it of as expeditiously as possible.
42. Criminal Petition No. 1093 of 2001 is filed by A.1 and A.2 in the said Sessions Case seeking their release on bail.
43. Section 37(1)(b) of the Act mandates that no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
44. In this case, the petitioners are charged with the serious offences punishable under Sections 8(c), 22, 25, 28 and 29 of the Act, which are punishable with imprisonment for a term of more than five years. From the facts and circumstances of the case, I am not satisfied that there are reasonable grounds for believing that the petitioners are not guilty of the alleged offences and they are not likely to commit the offence while on bail. I, therefore, see no justification to enlarge the petitioners (A.1 and A.2) on bail.
45. Criminal Petition No. 1093 of 2001 is, therefore, dismissed.