Sangadan Subrahmanyam and ors. Vs. State of A.P. - Court Judgment

D.S.R. Varma, J.

1. This appeal is directed against the conviction and sentence of five years' rigorous imprisonment inflicted upon the appellants for the offence punishable under Section 8(c) read with Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, by the learned I Additional Sessions Judge, Rajahmundry in NDPS SC No. 7 of 1995 on 28-9-1995.

2. The case of the prosecution, in brief is as under :

A-1, A-2 and A-3 are close associates involved in Ganja business. On 1-9-1994 at about 4-00 p.m. the SI of Police (P.W. 4) along with his staff and mediators, P.W. 1 and another, while proceeding on bye-pass road atTuni noticed the accused, who are in possession of two suit-cases and a hand bag, standing near Sri Lakshmi Hotel of R. Bangara Babu (P.W. 3). On seeing the police party, the accused tried to escape from that place along with their belongings. P.W. 4 with the help of his staff arrested them on suspicion and brought them to the Hotel and found one cement colour suit-case in the possession of A-1; one challenger suit-case in the possession of A-2 and one sky-blue colour hand bag in possession of A-3. A-1 voluntarily informed that Ganja is there in the suit-cases and the hand bag. The said quantity of ganja was recovered from the possession of the accused and got weighed. On weighment, the first suit-case was found containing 8.500 grams, the second suit-case was containing 7 Kgs. and the hand bag was found containing 2 Kgs. of Ganja respectively. P.W. 4 then drawn 100 grams of ganja from each suit-case and the bag separately for the purpose of chemical analysis and informed about the registration of the case to the concerned Senior Officers. The Chemical Examiner, who conducted analysis of the sample opined that the samples contained Ganja, which is a narcotic substance. Accordingly a charge-sheet was filed under Section 8(c) read with 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'the Act').

3. In support of its case, the prosecution examined P.Ws. 1 to 5, got marked Exs. P-1 to P-6 and MOs. 1 to 6.

4. The learned Counsel for the appellants, Mr. Lakshmana Sharma, submits that the Investigating Officer has not followed the mandatory provisions of Sections 50 and 57 of the Act, the accused is entitled for acquittal. On the contrary, the learned Public Prosecutor submits that the seizure was only from the bags but not from the person of the accused. Therefore, the appellants are not entitled for the benefits as provided for under Sections 50 and 57 of the Act. Therefore, it is just and necessary to scan the evidence on record.

5. P.W. 1 is a Village Administrative Officer and a mediator for seizure under Ex. P-1. It is his deposition that he went to the police station upon the requisition of P.W. 4 at 3-00 p. m. The SI of Police informed him that they were conducting raids and asked him to follow in the vehicle. Then he followed the SI of Police and other police personnel. When they reached near Lakshmi Hotel in the village Jagannadhagiri, they found the accused sitting at that Hotel. When the accused started running on seeing the police they were caught hold of and upon enquiry, the accused informed the police that the suit-cases and bag, which were marked as MOs 1 to 3 contained Ganja. Upon such confession, P.W. 4 opened the said MOs and found 8.5 kgs; 7.00 kgs and 2.00 kgs of Ganja in MOs 1 to 3 respectively. P.W. 4 took one hundred grams of Ganja from each of MOs 1 to 3 and the samples were placed in a cover and sealed. A Mediator report Ex. P-1 was drafted. The statements of other witnesses were also recorded.

6. P.W. 2, who is the proprietor of Lakshmi Hotel at Jagadgiri (sic) village also deposed in the same lines of P.W. 1 without any deviation.

7. P.W. 3 is the person, who weighed the quantity of ganja recovered from the possession of the accused.

8. P.W. 4 is the SI of Police. He also deposed on the material facts, in the same lines as was spoken to by P.W. 1.

9. P.W. 1 is the Investigating Officer. He examined P.Ws. 1 to 4 and recorded their statements. He further deposed that P.W. 4, the SI of Police informed him on the same day, when he apprehended the accused, about the apprehension of the accused and registration of the case.

10. On a consideration of the evidence on record, the following facts would emerge when the accused were found carrying MOs 1 to 3, P.W. 4 along with P.W. 1 caught hold of the accused and found the accused carrying MOs 1 to 3 which contained Ganja. The said material was seized from the accused under Ex. P-1 for which P.W. 1 is one of the mediators. After recording the statements of the prosecution witnesses, the accused were arrested and sent to custody. A perusal of the Mediator's report, Ex.P-1 would show that it corroborates the evidence of P.Ws. 1 to 4 on all material facts of the case. Therefore, it can safely be concluded that ganja was recovered from the possession of A-1 to A-3.

11. Now the question is whether the recovery/seizure of Ganja was 'from the person' of the accused or not in order to apply the safeguards provided for under Sections 50 and 57 of the Act.

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

(1) When 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.

(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.

Section 57 :Report of Arrest and seizure:

Whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

12. Insofar as compliance of Section 57 of the Act viz., reporting of the seizure immediately to the superior officers, it is undoubtedly complied with, inasmuch as P.W. 5 the Investigating Officer had deposed in his evidence that P.W. 4 informed him about the seizure and arrest of the accused and sending them to custody. Therefore, as per the evidence on record, I hold that provisions of Section 57 of the Act have been complied with.

13. The next question that would arise for consideration is whether Section 50 of the Act is to be strictly complied with or not in the present set of facts and circumstances.

14. In Purushotham Das v. State of A. P. (1999) 2 Andh LT (Crl) 400 : 1999 Cri LJ 4817, this Court following various Judgmentss of the Supreme Court held that procedure contemplated under Section 50 of the Act as mandatory. The Hon'ble Supreme Court in the Namdi Francis Nwazor v. Union of India (1997) 1 Cur Cri R 27 (SC) held as under :-

We must hasten to clarify that if that person is carrying hand bag or like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found and on search, incriminating articles are found therefrom, it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person.

15. From the above observations of the Hon'ble Supreme Court it is clear that even if a person is carrying hand bag or like and the incriminating article is found therefrom, it amounts to search of the person as postulated under Section 50 of the Act. Similar view was taken in another Judgment of the Supreme Court in State of Punjab v. Jasbir Singh : 1996(54)ECC79 .

16. In the decision reported in Kalema Tumba v. State of Maharashtra : 2000CriLJ507 the Hon'ble Supreme Court observed as under (para 5) :.It was submitted by her that the appellant was not told before the search by the officers of the Narcotic Control Bureau that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate. This contention deserves to be rejected because only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a Gazetted Officer or a Magistrate. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh : (1999)6SCC172 . This Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when the person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh : 1996(54)ECC79 (supra) wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in Baldev Singh case (supra). If a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it. it cannot be said that it was found from his 'person'. In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in the presence of a Gazetted Officer of a Magistrate.

(Emphasis supplied by me)

17. From the above observations it is clear that if a person is carrying bag or some other article, which contain narcotic substance, it cannot be said that it was found from his person. The facts of the above case reveal that heroin was found from a bag belonging to the appellant and not from his person and, therefore, it was not necessary to make a search as contemplated under Section 50 of the Act.

18. The said decision of Kalema Tumba 2000 Cri LJ 507 (supra) is subsequent to the decision to Namdi Francis Nwazor 1997 (1) Cur Cri R 27 (supra) and also following the Judgment of the Constitution Bench rendered by the Supreme Court in Baldev Singh case 1999 Cri LJ 3672 (supra) there is a visible change in the legal position consequent upon the Judgment of the Constitution Bench in Baldev Singh case (supra) which overruled the Judgment in Jasbir Singh case : 1996(54)ECC79 (supra). Further, it is to be noted that the Judgment of the Apex Court in Namdi Francis Nwazor (supra) has not been brought to the notice of the Constitution Bench in Baldev Singh case (supra). Therefore, the law laid down in Kalema Tumba case (supra) alone, in my considered view, has to be applied in the present set of facts.

19. From the law laid down by the Hon'ble Supreme Court it is clear that the search of a person indicates search of the body of the person only, but not the other articles like the hand bags, suit-cases etc. belonging to him and similarly search of such bags or suit-cases etc. cannot be treated as a search of the person. In other words, the search of a person cannot be equated to the search of the bags etc., belonging to the accused. Therefore, only when there is search of a person, then only the procedure contemplated under Section 50 has to be resorted to.

20. In the present case, the appellants were found carrying M.Os. 1, 2 and 3, which contain narcotic substance. Though the suit-cases and bags were found in the possession of the accused, the search of those suit-cases and bag cannot be treated as a search on the person of the accused. In such case, as observed by the Supreme Court, Section 50 has no application.

21. From the evidence on record it is clear that the appellants were apprehended along with M.Os. 1, 2 and 3, which contain narcotic substances and the same were seized in the presence of mediators under Ex. P1 panchanama and as per the evidence of P.W. 4, the S.I., the information with regard to the seizure and arrest had been passed on to the higher officials. Therefore, in such circumstances, it has to be held that the search was not on the person of the accused. However, the narcotic substance was seized from the bags, which belongs to and are in the possession of the accused. In these circumstances, as held by the Supreme Cour in Kalema Tumba's case 2000 Cri LJ 507(supra) Section 50 need not be complied with inasmuch as the search of the suit-cases and hand bags does not amount to search of the accused.

22. Therefore, for the foregoing reasons, I do not find any illegality in the impugned Judgment. The reasoning given by the court below while convicting the accused is just and proper and as such I do not find any reason to interfere with the same.

23. Accordingly the criminal appeal is dismissed.