Duraisingan and Senthil Vs. State, Inspector of Police, Madras - Court Judgment

Excerpt:
criminal - bail - section 439 of criminal procedure code, 1973 and section 50 (1) of narcotic drugs and psychotropic substances act, 1988 - petition for bail under section 439 on ground that section 50 (1) has not been complied with - informing accused that he has right to be searched before gazetted officer is neither mandatory nor obligatory on part of searching officer under section 50 - such failure not violation of mandate - held, petitioners not entitled to release on bail under section 37. - - 2. the learned additional public prosecutor objected to the grant of relief on the ground that even assuming that before conducting a search, if the searching officer failed to inform the option provided in the act to the accused and ascertain as to whether they are willing to be searched before a gazetted officer or before a nearest magistrate, it is not a mandatory violation and that as such, the petitioners are not entitled to the relief, as claimed. act reads like this :section 42 of the narcotic drugs and psychotropic substances act, 1988, read like this :a plain reading of section 42 of the n. act clearly provides that the respondent in the instant case is empowered to make the search and if he suspects with regard to the commission of any offence under the n. christopher, learned counsel appearing on behalf of the petitioner, on the above said facts claimed by the prosecution, vehemently argued before me, that the searching officer, namely the respondent, after having entered into the said house and before made the recovery or seizure failed to inform the petitioners that they are the gazetted officers and they intended to make the search of the house or person as contemplated by section 50 of the act, and that the said non-compliance, clearly amounts to violation of the mandatory rule provided in the above section, which clearly entitles the petitioner to be enlarged on bail, which plea is totally controverted by the learned additional public prosecutor on the opposite side. act, the words inbuilt therein 'he shall' refer to 'the search officer'.the further words 'if such person so requires' would clearly mean the persons who are to be searched, namely, the accused for the offences under the n. act, (the petitioner herein). the words 'so requires' if taken to mean particularly, would clearly enjoin that the accused persons must explicitly express their desire to be searched before the gazetted officer or a magistrate. act clearly demonstrates the intention of the legislature that the informing of the right by the searching officer is not mandatory. 409 it is observed as follows :it is a strong thing to read into an act of parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. 15. thus, for the above rationale of the legal position clearly enunciated and available, and after having considered the same by importing into the facts of the instant case, i am of the view that informing the accused by the searching officer that he has a right to be searched before a gazetted officer, is neither mandatory nor obligatory on the part of the searching officer. thus having considered the very legal ambut and the factual aspects in this case, i am constrained to hold, that the failure to inform the accused, namely, the petitioners in this case, by the respondent/searching officer and ascertain whether they require to be searched before the gazetted officer or a nearest magistrate is not a mandatory one under section 50 of the n.order1. the petitioners three in number while seeking their bail under section 439 of the criminal procedure code relied on the legal ground that section 50 clause (1) of the narcotic drugs and psychotropic substances act, 1988, has not been complied with and that such non-compliance amounts to a clear violation of the mandatory directions of the above section and they are entitled to be enlarged on bail. 2. the learned additional public prosecutor objected to the grant of relief on the ground that even assuming that before conducting a search, if the searching officer failed to inform the option provided in the act to the accused and ascertain as to whether they are willing to be searched before a gazetted officer or before a nearest magistrate, it is not a mandatory violation and that as such, the petitioners are not entitled to the relief, as claimed. the learned additional public prosecutor would object further, that even on facts of this case, since no search was conducted, the person cannot be categorised as one who will attract section 50 of the n.d.p.s. act and that on the said ground also, the bail is to be rejected. 3. in the light of the above rival pleas, the only question that arises for consideration is, whether the direction provided in section 50(1) of the n.d.p.s. act is mandatory in nature and if so, the non-compliance of the said direction entitles the petitioners to get the relief under section 439 of the code. 4. section 50(1) of the n.d.p.s. act reads like this : * * * * * * *section 42 of the narcotic drugs and psychotropic substances act, 1988, read like this :- * * * * * * *a plain reading of section 42 of the n.d.p.s. act clearly provides that the respondent in the instant case is empowered to make the search and if he suspects with regard to the commission of any offence under the n.d.p.s. act, he is entitled to recover the same under the relevant sub-clauses, by means of seizure and accordingly, the respondent has done. a perusal of the case diary in this case clinches the fact, that at about 2300 hours on 13-8-1993, the respondent along with his party entered into the house of the petitioner, namely, at no. 6, sakthy nagar, 4th street, choolaimedu, madras-94 and found the petitioners engaged in weighing the contraband of ganja to the extent of 112.500 grms. kept in brown papers numbering about 40 and with the assistance in lifting and packing of the assistants seized the same under the cover of a mahazar and arrested the petitioners and took up all the follow-up actions as contemplated by the law. it appears, he has sent a special report to his superior officer immediately. 4. mr. g. christopher, learned counsel appearing on behalf of the petitioner, on the above said facts claimed by the prosecution, vehemently argued before me, that the searching officer, namely the respondent, after having entered into the said house and before made the recovery or seizure failed to inform the petitioners that they are the gazetted officers and they intended to make the search of the house or person as contemplated by section 50 of the act, and that the said non-compliance, clearly amounts to violation of the mandatory rule provided in the above section, which clearly entitles the petitioner to be enlarged on bail, which plea is totally controverted by the learned additional public prosecutor on the opposite side. 5. from the facts, it appears, the only ground urged by the learned counsel for the petitioner is the alleged non-compliance of providing the option to the petitioners by the respondent before the alleged seizure or search was made, as to whether the search is to be done before any gazetted officer or nearest magistrate. it is seen, that the alleged seizure of the contraband was made within the premises above referred to and that while the respondent-police entered into, these three petitioners were found engaged in dealing with the contraband of narcotic drug, namely, ganja, by weighing and exactly packing into 40 wrapped packets and that was seized by the respondent-police. therefore, it is seen from the representations made on behalf of the respective parties that no search was actually done in this case. but, however, seizure of the contraband of ganja was made pursuant to sub-clause (1) of section 50 of the n.d.p.s. act. in this context, i may observe that the word 'search' as provided in sub-clause (1) of the said act is to be construed in such a proper way as was intended by the legislature in this regard. if it is so, the word 'search' implies an exploratory examination or probing into or seeking out something which is hidden, sealed or suspected and not open, exposed or demonstrated. the dictionary meaning of the term 'seizure' as provided by the oxford concise dictionary is 'take possession of by warrant or legal right, confiscate, impound, attach, lay hold of forcibly or suddenly, snatch, grasp with hand or mind' 'search' implies an exploratory examination or probing into or seeking out something which is hidden, sealed or demonstrated and not open, exposed or demonstrated. the above view was held by this court, as conceded in wider terms in shri ramakrishan srujusgab jhaver & others v. commissioner of commercial taxes (1985) 16 stc. 708. following this ratio, the rajasthan high court in hiralal chhaganlal v. state of rajasthan has held the same view. if the above meaning in its wider scale is attracted to the concept of the word 'search' in the context of sub-clause (1) of section 50 of the n.d.p.s. act, it is manifest, that the respondent did not conduct any search so as to attract the above principle of law. therefore, for the reasons aforesaid, i am not in a position to countenance the arguments advanced by mr. christopher, learned counsel for the petitioner, in this regard. 6. coming to the next aspect of non-informing of the petitioners' right to exercise option as to whether they are willing to be searched in front of a gazetted officer or a nearest magistrate as provided under sub-clause (1) of section 50 of the n.d.p.s. act, it has become useful for me to refer a case law held in ahammed koya v. state 1990 m.l.j. (crl.) 577 in which a learned judge of the kerala high court on a similar point held as follows : * * * * * * *7. if the above view is to be taken and deployed to the facts of the instant case, in the context of sub-clause (1) of section 50 of the n.d.p.s. act, the words inbuilt therein 'he shall' refer to 'the search officer'. the further words 'if such person so requires' would clearly mean the persons who are to be searched, namely, the accused for the offences under the n.d.p.s. act, (the petitioner herein). the words 'so requires' if taken to mean particularly, would clearly enjoin that the accused persons must explicitly express their desire to be searched before the gazetted officer or a magistrate. if they do so, the searching officer must take such persons without unnecessary delay to the nearest gazetted officer of any of the department or the nearest magistrate as provided. nowhere in the section, it is provided that the searching officer shall inform the persons to be searched to exercise their option as to whether they are to be searched before any gazetted officer or the nearest magistrate. it is thus seen, that the legislature, for the obvious reason, has not provided such power so specifically or in any particular words to the searching officer and if that is the position, one would find every difficulty to identify the legal mandate as was submitted by the learned counsel appearing for the petitioner. however, in the context that no specific words 'searching officer' has been embodied the courts of law with every caution must interpret the same in the context of the very object and reasons for which the various provisions of the act has been enacted. as was rightly pointed out by the learned single judge of the kerala high court in the above case law, rule of construction or the interpretation of statutes does not require the substitution of the new mandate or law of enactment. but the courts can definitely subscribe its view and proper meaning on the basis of correct interpretation to the words 'adumbrated' in the enactments made by the legislature. in this regard, it has become useful for me to refer the case law in jumma masjid v. kodimaniandra deviah : air1962sc847 (supplementary), 554 wherein, venkatarama aiyar, j. quoted the following, from the decision in lord lordburn l.c. in vickers sons and maxim ltd. v. evans (1910) 79 lj kb 9540 : 'we are not entitled to read words into an act of parliament unless clear reason for it is to be found within the four corners of the act itself.' 8. if the legislature wanted the officer to ascertain from the accused whether he desires to have the search before the gazetted officer or the magistrate, it could have been stated to in more clear and unambiguous words. the absence of the specific terms in section 50 of the n.d.p.s. act clearly demonstrates the intention of the legislature that the informing of the right by the searching officer is not mandatory. but, on the other hand, the section gives the accused only the right of option to be searched before the gazetted officer or magistrate if he so requires. it is thus seen, it does not intend that the officer should ascertain from the accused whether he wants to be searched before a gazetted officer or a magistrate. 9. in this regard, it is useful to quote the observation made by the apex court in nalinakhya bysack v. shyam sundar haldar and others 1952 s.c.r. 533 which runs as follows :- 'in construing a statute it is not competent to any court to proceed upon the assumption that the legislature has made a mistake and even if there is some defect in the phraseology used by the legislature the court cannot aid the defective phrasing of an act or add and amend, or by construction, make up deficiencies which are left in the act.' 10. it is useful also to refer the following passage in page 33 of maxwell on the interpretation of statutes - 12th edition : 'it is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.' 11. in thompson (pauper) v. coold & co. (1910) a.c. 409 it is observed as follows :- 'it is a strong thing to read into an act of parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.' 12. thus, from the above passages of the legal ratio and from the ruling of section 50 of the n.d.p.s. act, it has become very difficult to hold that the officer who is empowered to search the accused is bound to bring to the notice of the accused of his right to be produced before a gazetted officer or a magistrate, for the reason that section itself does not lead to any prejudice if the availability of such a right is not known to the accused. 13. in banke das v. state of orissa (1993) c.l.j. 443, the orissa high court has held the same view and enunciated the law on this core in the following words : * * * * * * *14. citing the case law held by a single judge of this court in sham sundar v. state by s.i. nib, c.b., c.i.d. 1993 l.w. (crl.) 251 holding the view that the non-compliance of section 50 of the n.d.p.s. act since mandatory entitles the accused under the act to get himself enlarged on bail, the learned counsel for the petitioner persuaded me to accept his contention that the duty cast upon the searching officer under sub-clause (1) of section 50 of the act is mandatory. but with great respect, had the above case laws and the legal principles quoted above, been brought to the notice of the learned single judge in the above case law, the result of the case would have been also otherwise. for this reason only, i am totally unable to persuade myself to countenance the very persuasive argument of mr. christopher, learned counsel for the petitioner. 15. thus, for the above rationale of the legal position clearly enunciated and available, and after having considered the same by importing into the facts of the instant case, i am of the view that informing the accused by the searching officer that he has a right to be searched before a gazetted officer, is neither mandatory nor obligatory on the part of the searching officer. but, however it is the duty cast upon the accused person and if he requires so, then, it is incumbent upon the searching officer to take him before a gazetted officer or a nearest magistrate without any unnecessary delay and conduct the search and for the said reason alone sub-clause (2) of section 50 of the n.d.p.s. act also has been provided. if so requires, the searching officer can detain the accused till the arrival of the gazetted officer in whose presence the alleged search is to be made. thus having considered the very legal ambut and the factual aspects in this case, i am constrained to hold, that the failure to inform the accused, namely, the petitioners in this case, by the respondent/searching officer and ascertain whether they require to be searched before the gazetted officer or a nearest magistrate is not a mandatory one under section 50 of the n.d.p.s. act and that, therefore, it is not a violation of the mandate as was contended. in this context, by the very rigour of section 37 of the n.d.p.s. act, i am to hold, that the petitioners are not entitled to be enlarged on bail. 16. in the result, the petition fails and accordingly, it is dismissed.

Judgment:
ORDER

1. The petitioners three in number while seeking their bail under Section 439 of the Criminal Procedure Code relied on the legal ground that Section 50 Clause (1) of the Narcotic Drugs and Psychotropic Substances Act, 1988, has not been complied with and that such non-compliance amounts to a clear violation of the mandatory directions of the above section and they are entitled to be enlarged on bail.

2. The learned Additional Public Prosecutor objected to the grant of relief on the ground that even assuming that before conducting a search, if the Searching Officer failed to inform the option provided in the Act to the accused and ascertain as to whether they are willing to be searched before a Gazetted Officer or before a nearest Magistrate, it is not a mandatory violation and that as such, the petitioners are not entitled to the relief, as claimed. The learned Additional Public Prosecutor would object further, that even on facts of this case, since no search was conducted, the person cannot be categorised as one who will attract Section 50 of the N.D.P.S. Act and that on the said ground also, the bail is to be rejected.

3. In the light of the above rival pleas, the only question that arises for consideration is, whether the direction provided in Section 50(1) of the N.D.P.S. Act is mandatory in nature and if so, the non-compliance of the said direction entitles the petitioners to get the relief under Section 439 of the Code.

4. Section 50(1) of the N.D.P.S. Act reads like this :

* * * * * * *

Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1988, read like this :-

* * * * * * *

A plain reading of Section 42 of the N.D.P.S. Act clearly provides that the respondent in the instant case is empowered to make the search and if he suspects with regard to the commission of any offence under the N.D.P.S. Act, he is entitled to recover the same under the relevant sub-clauses, by means of seizure and accordingly, the respondent has done. A perusal of the case diary in this case clinches the fact, that at about 2300 Hours on 13-8-1993, the respondent along with his party entered into the house of the petitioner, namely, at No. 6, Sakthy Nagar, 4th Street, Choolaimedu, Madras-94 and found the petitioners engaged in weighing the contraband of ganja to the extent of 112.500 Grms. kept in brown papers numbering about 40 and with the assistance in lifting and packing of the assistants seized the same under the cover of a mahazar and arrested the petitioners and took up all the follow-up actions as contemplated by the law. It appears, he has sent a special report to his superior officer immediately.

4. Mr. G. Christopher, learned counsel appearing on behalf of the petitioner, on the above said facts claimed by the prosecution, vehemently argued before me, that the Searching Officer, namely the respondent, after having entered into the said house and before made the recovery or seizure failed to inform the petitioners that they are the Gazetted Officers and they intended to make the search of the house or person as contemplated by Section 50 of the Act, and that the said non-compliance, clearly amounts to violation of the mandatory rule provided in the above section, which clearly entitles the petitioner to be enlarged on bail, which plea is totally controverted by the learned Additional Public Prosecutor on the opposite side.

5. From the facts, it appears, the only ground urged by the learned counsel for the petitioner is the alleged non-compliance of providing the option to the petitioners by the respondent before the alleged seizure or search was made, as to whether the search is to be done before any Gazetted Officer or nearest Magistrate. It is seen, that the alleged seizure of the contraband was made within the premises above referred to and that while the respondent-police entered into, these three petitioners were found engaged in dealing with the contraband of narcotic drug, namely, ganja, by weighing and exactly packing into 40 wrapped packets and that was seized by the respondent-police. Therefore, it is seen from the representations made on behalf of the respective parties that no search was actually done in this case. But, however, seizure of the contraband of ganja was made pursuant to sub-clause (1) of Section 50 of the N.D.P.S. Act. In this context, I may observe that the word 'search' as provided in sub-clause (1) of the said Act is to be construed in such a proper way as was intended by the Legislature in this regard. If it is so, the word 'search' implies an exploratory examination or probing into or seeking out something which is hidden, sealed or suspected and not open, exposed or demonstrated. The dictionary meaning of the term 'seizure' as provided by the Oxford Concise Dictionary is 'take possession of by warrant or legal right, confiscate, impound, attach, lay hold of forcibly or suddenly, snatch, grasp with hand or mind' 'search' implies an exploratory examination or probing into or seeking out something which is hidden, sealed or demonstrated and not open, exposed or demonstrated. The above view was held by this court, as conceded in wider terms in Shri Ramakrishan Srujusgab Jhaver & Others v. Commissioner of Commercial Taxes (1985) 16 STC. 708. Following this ratio, the Rajasthan High Court in Hiralal Chhaganlal v. State of Rajasthan has held the same view. If the above meaning in its wider scale is attracted to the concept of the word 'Search' in the context of sub-clause (1) of Section 50 of the N.D.P.S. Act, it is manifest, that the respondent did not conduct any search so as to attract the above principle of law. Therefore, for the reasons aforesaid, I am not in a position to countenance the arguments advanced by Mr. Christopher, learned counsel for the petitioner, in this regard.

6. Coming to the next aspect of non-informing of the petitioners' right to exercise option as to whether they are willing to be searched in front of a Gazetted Officer or a nearest Magistrate as provided under sub-clause (1) of Section 50 of the N.D.P.S. Act, it has become useful for me to refer a case law held in Ahammed Koya v. State 1990 M.L.J. (Crl.) 577 in which a learned Judge of the Kerala High Court on a similar point held as follows :

* * * * * * *

7. If the above view is to be taken and deployed to the facts of the instant case, in the context of sub-clause (1) of Section 50 of the N.D.P.S. Act, the words inbuilt therein 'he shall' refer to 'the Search Officer'. The further words 'if such person so requires' would clearly mean the persons who are to be searched, namely, the accused for the offences under the N.D.P.S. Act, (the petitioner herein). The words 'so requires' if taken to mean particularly, would clearly enjoin that the accused persons must explicitly express their desire to be searched before the Gazetted Officer or a Magistrate. If they do so, the Searching Officer must take such persons without unnecessary delay to the nearest Gazetted Officer of any of the department or the nearest Magistrate as provided. Nowhere in the section, it is provided that the Searching Officer shall inform the persons to be searched to exercise their option as to whether they are to be searched before any Gazetted Officer or the nearest Magistrate. It is thus seen, that the Legislature, for the obvious reason, has not provided such power so specifically or in any particular words to the Searching Officer and if that is the position, one would find every difficulty to identify the legal mandate as was submitted by the learned counsel appearing for the petitioner. However, in the context that no specific words 'Searching Officer' has been embodied the Courts of law with every caution must interpret the same in the context of the very object and reasons for which the various provisions of the Act has been enacted. As was rightly pointed out by the learned single Judge of the Kerala High Court in the above case law, Rule of construction or the interpretation of statutes does not require the substitution of the new mandate or law of enactment. But the Courts can definitely subscribe its view and proper meaning on the basis of correct interpretation to the words 'adumbrated' in the enactments made by the Legislature. In this regard, it has become useful for me to refer the case law in Jumma Masjid v. Kodimaniandra Deviah : AIR1962SC847 (Supplementary), 554 wherein, Venkatarama Aiyar, J. quoted the following, from the decision in Lord Lordburn L.C. In Vickers Sons and Maxim Ltd. v. Evans (1910) 79 LJ KB 9540 :

'We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.'

8. If the Legislature wanted the officer to ascertain from the accused whether he desires to have the search before the Gazetted Officer or the Magistrate, it could have been stated to in more clear and unambiguous words. The absence of the specific terms in Section 50 of the N.D.P.S. Act clearly demonstrates the intention of the Legislature that the informing of the right by the Searching Officer is not mandatory. But, on the other hand, the Section gives the accused only the right of option to be searched before the Gazetted Officer or Magistrate if he so requires. It is thus seen, it does not intend that the officer should ascertain from the accused whether he wants to be searched before a Gazetted Officer or a Magistrate.

9. In this regard, it is useful to quote the observation made by the Apex Court in Nalinakhya Bysack v. Shyam Sundar Haldar And Others 1952 S.C.R. 533 which runs as follows :-

'In construing a statute it is not competent to any court to proceed upon the assumption that the Legislature has made a mistake and even if there is some defect in the phraseology used by the Legislature the Court cannot aid the defective phrasing of an Act or add and amend, or by construction, make up deficiencies which are left in the Act.'

10. It is useful also to refer the following passage in page 33 of Maxwell on the Interpretation of Statutes - 12th Edition :

'It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.'

11. In Thompson (Pauper) v. Coold & Co. (1910) A.C. 409 it is observed as follows :-

'It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.'

12. Thus, from the above passages of the legal ratio and from the ruling of Section 50 of the N.D.P.S. Act, it has become very difficult to hold that the Officer who is empowered to search the accused is bound to bring to the notice of the accused of his right to be produced before a Gazetted Officer or a Magistrate, for the reason that section itself does not lead to any prejudice if the availability of such a right is not known to the accused.

13. In Banke Das v. State of Orissa (1993) C.L.J. 443, the Orissa High Court has held the same view and enunciated the law on this core in the following words :

* * * * * * *

14. Citing the case law held by a Single Judge of this Court in Sham Sundar v. State By S.I. NIB, C.B., C.I.D. 1993 L.W. (Crl.) 251 holding the view that the non-compliance of Section 50 of the N.D.P.S. Act since mandatory entitles the accused under the Act to get himself enlarged on bail, the learned counsel for the petitioner persuaded me to accept his contention that the duty cast upon the Searching Officer under sub-clause (1) of Section 50 of the Act is mandatory. But with great respect, had the above case laws and the legal principles quoted above, been brought to the notice of the learned single Judge in the above case law, the result of the case would have been also otherwise. For this reason only, I am totally unable to persuade myself to countenance the very persuasive argument of Mr. Christopher, learned counsel for the petitioner.

15. Thus, for the above rationale of the legal position clearly enunciated and available, and after having considered the same by importing into the facts of the instant case, I am of the view that informing the accused by the searching officer that he has a right to be searched before a Gazetted Officer, is neither mandatory nor obligatory on the part of the Searching Officer. But, however it is the duty cast upon the accused person and if he requires so, then, it is incumbent upon the Searching Officer to take him before a Gazetted Officer or a nearest Magistrate without any unnecessary delay and conduct the search and for the said reason alone sub-clause (2) of Section 50 of the N.D.P.S. Act also has been provided. If so requires, the Searching Officer can detain the accused till the arrival of the Gazetted Officer in whose presence the alleged search is to be made. Thus having considered the very legal ambut and the factual aspects in this case, I am constrained to hold, that the failure to inform the accused, namely, the petitioners in this case, by the respondent/Searching Officer and ascertain whether they require to be searched before the Gazetted Officer or a nearest Magistrate is not a mandatory one under Section 50 of the N.D.P.S. Act and that, therefore, it is not a violation of the mandate as was contended. In this context, by the very rigour of Section 37 of the N.D.P.S. Act, I am to hold, that the petitioners are not entitled to be enlarged on bail.

16. In the result, the petition fails and accordingly, it is dismissed.