T.T. Haneefa Vs. State of Kerala

T.T. Haneefa vs State of Kerala

Type Court Judgment Court Supreme Court of India Decided Apr 21, 2004

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Citation: sooperkanoon.com/659658
Court: Supreme Court of India
Judge: K.G. Balakrishnan and; B.N. Srikrishna, JJ.
Decided On: Apr 21, 2004
Case Number: Criminal Appeal No. 1336 of 2002
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

Criminal - Narcotic Drugs and Psychotropic Substances Act - Sections 21, 41, 42, 43 and 50 - Mandatory provisions of Section 50 - Non compliance of - Recovery of 3,700 grams of brown sugar from possession of appellant - Conviction by Trial Court and High Court - Appeal against conviction - Contention of appellant th...

Key legal issue: Criminal
Acts & sections: Narcotic Drugs and Psychotropic Substances Act - Sections 21, 41, 42, 43 and 50

Parties & Advocates

Appellant / Petitioner

T.T. Haneefa

Advocate T.N. Singh,; Shiam Narain Singh,; Asha Gopalan Nair,;

Respondent

State of Kerala

Advocate K.R. Sasiprabhu, ; Ramesh Babu M.R., ; Sushma Suri, ;

Legal References

Acts: Narcotic Drugs and Psychotropic Substances Act - Sections 21, 41, 42, 43 and 50
Cases Referred: Beckodan Abdul Rahiman v. State of Kerala
Reported In: 2004CriLJ2853; 2004(94)ECC199; JT2004(5)SC383; 2004(2)KLT1022(SC); 2004(5)SCALE754; (2004)5SCC128

Court's Analysis

Prior History: From the Judgment and Order dated 7.6.2001 of the Kerala High Court in Crl. A. No. 231/1998

Excerpt

.....29 uses the expression, voluntary retirement under these regulations. for the purposes of the scheme, it has to be understood to mean with necessary changes in points of details section 23 of the contract act, 1872 has no application to the present fact situation. it cannot be accepted that vrs 2000 did not envisage grant of pension benefits under regulation 29(5) to the optees of 20 years service along with payment of ex-gratia. indian evidence act, 1872 section 115; [d.k. jain & r.m. lodha, jj] estoppel - held, bank employees who had taken retirement under the voluntary retirement scheme, 2000 (vrs 2000) and claimed benefit of additional qualifying service under employees pension regulations, 1995, were not resiling from vrs 2000, rather were enforcing the scheme. question of estoppel therefore does not arise. - 3. the appellant had contended before the special judge as well as the high court that there was violation of section 50 of ndps act. 5. the counsel for the appellant submits that under section 50 of ndps act, accused should have been told that he has got a right to be searched in the presence of gazetted officer or a magistrate and this option was not given to the appellant and it was argued that in the instant case, the appellant was asked only whether he would like the presence of a magistrate and in that way there was violation of section 50 of ndps act. 1 mahazar shows that before the search the appellant was asked whether he would like the presence of a magistrate, he declined to avail that privilege and thereafter the search was conducted and drug was recovered from his possession. it is pertinent to note that the nature or option given to the accused by the searching officer and the facts show that in that case the inquiry was made by the searching officer as to whether the accused would like to meet any higher officer or a gazetted officer and the accused replied in negative. in the instant case, we do not think there is any violation..........the officer can choose any one of them depending upon the availability of gazetted officer or the magistrate. in this case the appellant was given an option to be searched in the presence of magistrate, he did not exercise that right. the counsel for the appellant drew our attention to the decision of this court in beckodan abdul rahiman v. state of kerala,, wherein this court held that there was violation of section 50 of ndps act. it is pertinent to note that the nature or option given to the accused by the searching officer and the facts show that in that case the inquiry was made by the searching officer as to whether the accused would like to meet any higher officer or a gazetted officer and the accused replied in negative. these words used by the searching officer was certainly not in compliance of section 50 of ndps act. it was in that background this court set aside the conviction on the ground that there was violation of section 50 of ndps act. in the instant case, we do not think there is any violation of section 50 of ndps act, as the accused was given the right to be searched in the presence of a magistrate as he failed to opt for that we do not think that there was any procedural illegality.8. the appellant was in possession of narcotic drug and evidence of the prosecution proved that the offence was committed. there is no merit in the appeal and appeal is dismissed accordingly.9. the appellant was granted bail by this court on 13-10-2003. the appellant is directed to surrender to his bail bonds within a period of two weeks failing which the special judge to take appropriate steps to arrest the appellant to undergo remaining part of the sentence.

Full Judgment

ORDER

1. The appellant was found guilty by the Special Judge, Vadakara for the offense punishable under Section 21 of NDPS Act and was sentenced to undergo rigorous imprisonment for a period of 10 years and a fine of Rs. 1 lakh, in default R.1; for one year. He challenged his conviction and sentence and this appeal was rejected by the High Court. Aggrieved by the same the present appeal.

2. The prosecution case was that on 24.1.1997 P.W.1, who is Circle Inspector of Police, Nadakkavu, found the appellant on a public road on the western side of Beach Hospital. PW-1 Circle Inspector had prior information about the sale of brown sugar by some persons in the Beach road and he recorded that statement and went to that place. Pws.2 and 3 were also present along with PW-1. When this police party went there, the appellant was standing on a foot path and PW-1 questioned him and told that he suspected that the appellant must have been carrying some narcotic drug. PW-1 told the appellant that he has got right to demand the presence of a Magistrate when his body being searched. The appellant replied there is no such necessity of the presence of the Magistrate. PW-1 recorded that statement in Ext.P-1 seizure mahazar and in the presence of two witnesses the appellant was searched and 3.700 grams of brown sugar was recovered from the left shirt sleeve of the appellant. The sample taken from the seized article was sent for chemical analysis and it was proved to be brown sugar.

3. The appellant had contended before the special Judge as well as the High Court that there was violation of Section 50 of NDPS Act. This plea was rejected and the appellant was accordingly convicted for the offence charged.

4. We heard learned counsel for the appellant and learned counsel for the State.

5. The counsel for the appellant submits that under Section 50 of NDPS Act, accused should have been told that he has got a right to be searched in the presence of gazetted officer or a Magistrate and this option was not given to the appellant and it was argued that in the instant case, the appellant was asked only whether he would like the presence of a Magistrate and in that way there was violation of Section 50 of NDPS Act. We are unable to agree with the plea raised by the appellant. Ext.P.1 mahazar shows that before the search the appellant was asked whether he would like the presence of a Magistrate, he declined to avail that privilege and thereafter the search was conducted and drug was recovered from his possession.

6. The plain reading of Section 50 of NDPS Act does not show that the accused has got a right to option either a gazetted officer or the Magistrate, rather the option is for the officer who conducts the search. Section 50 of NDPS Act relevant portion reads as follows:

'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'.

7. If the accused says that search shall be in the presence of gazetted officer or Magistrate, the officer can choose any one of them depending upon the availability of gazetted officer or the Magistrate. In this case the appellant was given an option to be searched in the presence of Magistrate, he did not exercise that right. The counsel for the appellant drew our attention to the decision of this Court in Beckodan Abdul Rahiman v. State of Kerala,, wherein this Court held that there was violation of Section 50 of NDPS Act. It is pertinent to note that the nature or option given to the accused by the searching officer and the facts show that in that case the inquiry was made by the searching officer as to whether the accused would like to meet any higher officer or a gazetted officer and the accused replied in negative. These words used by the searching officer was certainly not in compliance of Section 50 of NDPS Act. It was in that background this Court set aside the conviction on the ground that there was violation of Section 50 of NDPS Act. In the instant case, we do not think there is any violation of Section 50 of NDPS Act, as the accused was given the right to be searched in the presence of a Magistrate as he failed to opt for that we do not think that there was any procedural illegality.

8. The appellant was in possession of narcotic drug and evidence of the prosecution proved that the offence was committed. There is no merit in the appeal and appeal is dismissed accordingly.

9. The appellant was granted bail by this Court on 13-10-2003. The appellant is directed to surrender to his bail bonds within a period of two weeks failing which the special Judge to take appropriate steps to arrest the appellant to undergo remaining part of the sentence.

Same Court & Year Supreme Court of India · 2004 Same Parties T.T. Haneefa vs State of Kerala Same Subject Criminal Same Judge K.G. Balakrishnan and; B.N. Srikrishna, JJ. Acts & Sections Narcotic Drugs and Psychotropic Substances Act - Sections 21,...

Criminal