Full Judgment
M.R. Hariharan Nair, J.
1. The appellant, who is presently undergoing sentence as per the judgment of theAdditional Sessions Judge, Alappuzha, acting as a Special Court for the trial of the NDPS Act cases passed on 28.6.2001, challenges the legality of the aforesaid judgmentwhereby he, as the 2nd accused in S.C. No. 147/98, was convicted for the offenceunder Section 20(b)(i) of the NDPS Act and sentenced to undergo rigorous imprisonmentfor one year and to pay fine of Rs. 10,000 (in default, simple imprisonment for sixmonths) on the allegation that at about 11.45 am on 28.8.1997 he was found by PW6Assistant Sub Inspector of Alleppey North Police Station to be in possession of ganjacontained in 12 small packets in the company of the 1st accused who, in turn, washaving 8 such packets with him. The total weight of the ganja contained in the 20packets was alleged to be 16.5 grams.
2. As the counsel, who filed the appeal was not available for arguing the case,Smt. T.K. Sreekala was appointed on State Brief to represent the appellant. Shesubmitted that the procedure followed by PW6 is violative of the safeguards enshrinedin Section 50 of the NDPS Act; that the manner in which the sample was prepared is alsoagainst the requirements of law and that in the circumstances, the accused is entitledto an acquittal.
3. On the arguments advance in this case, the points that arise for decisions are:
(1) Whether there has been violation of Section 50 of the NDPS Act?
(2) Whether PW6, who made the search and seizure, was incompetent to do so?
(3) Whether there was impropriety in the procedure followed by PW6 in the matter ofpreparing samples?
(4) Reliefs.
4. Points Nos. 1 and 2: These are considered together for the sake ofconvenience. The version of PW6, who was admittedly as Assistant Sub Inspectorof Police as on the date of occurrence in the case, was that while on law and orderduty on the relevant date and while travelling in the police jeep with other police men,a person signalled the jeep to be stopped and when stopped, conveyed the informationto him that two persons were envisaged in the sale of ganja behind the closed shopavailable in the Co-operative Hospital compound. He informed the matter to theCircle Inspector of Police and proceeded to the spot; found the accused standingthere and proceeded to inspect what was available in the packets held by them. Healso deposed that on such search, it was found that 12 small packets held by theappellant contained ganja. An amount of Rs. 50 was also found inside the larger packwherein the said 12 small packets were found.
5. According to PW6, on finding that the accused was holding ganja in his hand,he proceeded to arrest the accused at 11.45 a.m. and decided that a body search ofthe accused was also necessary. For that purpose, he informed the accused of hisrights to have the body search in the presence of a Gazetted Officer and thereaftergot down PW7 Circle Inspector of Police by contacting him over the wireless system.The Circle Inspector of Police reached the spot at 12.30 noon and conducted the bodysearch of the accused; but other than a sum of Rs. 500/- kept by the accused, no othercontraband was found. According to PW.6, he mixed the contents of the packets heldby the two accused together and the total weight was found to be 16.5 grams. Healso prepared two samples out of the said mixture each weighing 5 grams and got Ext.P1 mahazar prepared. After recourse to other procedural formalities, the accusedand the contraband were taken to the Police Station and proceeded with further.
6. I find considerable force in the contention of the learned counsel for theappellant that the procedure followed by PW6 was defective and against the provisionsof law. First of all, he was an unempowered officer for the purpose of detection underthe NDPS Act. As per G.O.(Ms) No. 146/90/TD dated 22.10.1990 the officers ofpolice of and above the rank of Sub Inspector of Police, alone are empowered to actunder Section 42 of the NDPS Act. PW6 being an Assistant Sub Inspector of Police,obviously, does not come in that category and he did not have the power to makesearches and detections under the NDPS Act. The entire proceedings on his part arevitiated.
7. State of Punjab v. Baldev Singh ((1999) 6 SCC 172) decided by a ConstitutionBench went into the procedural safeguards available to the accused and the course ofaction expected in such matters. It was held as follows:
'If the investigation officer is not an empowered officer then it is expected of him that hemust inform the empowered officer under the NDPS Act, who should thereafter proceed fromthat stage in accordance with the provisions of the NDPS Act.'
8. It is clear from the deposition of PW6 that even at 11.30 a.m. he had learntfrom the person who got the jeep stopped, and thus got the information that the twoaccused were engaged in the sale of ganja. Being an unempowered officer, he wasduty bound to proceed from that stage in accordance with the provisions of the NDPSAct and to get all further matters done by an empowered officer. Of course, he hasthe right to detain the suspect until the empowered officer arrived; but that is not whatPW6 actually did. Without informing PW7 about the finding of the accused at the spotaforementioned, he proceeded to find out the contents of the packets allegedly held bythe two accused. He has no case that the ganja was in exposed condition or that theaccused, without any direction from PW6, proceeded to expose contents of the packet.On the other hand, the specific case is that he wanted the accused to reveal thecontents of what was found in their hands. At this point of time itself PW6 hasviolated the requirements under the Act and proceeded to do things for which he didnot have jurisdiction.
9. The contention that no body search was, in fact, done at that stage and that itwas done only after the arrival of the Circle Inspector of Police does not improve thesituation in any manner in so far as no contraband was seized by the empoweredofficer PW.7 Circle Inspector of Police after he arrived. That apart, the version of PW6 is that he himself informed the accused that his body would be searched by theGazetted Officer and thereafter contacted by PW7, who according to him, was aGazetted Officer of the Police Department. Here again, it was for the officer, whowanted to proceed with the body search, to inform the accused to his rightsunder Section 50 of the NDPS Act and to ask him for his option.
10. In fact, in the present case, there was no communication of the rights to theaccused by PW6; nor was any proper right of option given to the accused. If PW6 isto be believed, he only stated that the body searched would be held by a GazettedOfficer or a Magistrate and thereafter asked PW7 to reach the spot. In thesecircumstances, I have no doubt at all in my mind that there has been serious violationof the requirements of Section 50 of the NDPS Act and that the search and seizure arevitiated. The accused is entitled to the benefit flowing from this situation.
11. Point No. 3: In the matter of preparing the sample also there has beenserious violation. What PW6 did was to mix up the contents of the packets allegedlyseized from the two accused and then to prepare the samples. In fact no sample wascollected exclusively from the packets held by the appellant herein. The weightascertained was also of the total quantity so mixed up and not separately, with theresult that there is nothing to show what exactly was the weight of the ganja seizedfrom the appellant herein. In fact, a situation has been brought about by PW6 wherebyit was left to each of the accused to contend that the packet seized from him did notcontain ganja and that the ganja was in the packets held by the other. In the nature ofthe case, it was incumbent upon the empowered officer who makes the search andseizure to weigh the contents of the packet allegedly held by each of the accused separately and to prepare samples from each set. In the circumstances, I find that thepreparation of the samples and weighment of the ganja was also done in an improperand illegal manner.
12. Point No. 4: Violation of Section 50 of the NDPS Act which is proved in the casecertainly entitles the accused to get acquittal. Consequently the appeal is allowed andthe impugned judgment, as far as the appellant (2nd accused)is concerned is setaside. The accused is found not guilty and acquitted. He will be set at liberty forthwithunless his continued detention is warranted in connection with some other case. Fine,if any, paid by him will be refunded.