Narcotic Drugs and Psychotropic Substances Act, 1985 – s.20(b)(ii)(c) – Recovery of 1.5 kgs of Charas from accusedappellant – PW2, on receipt of information that a drug dealer would be in vicinity of a club, sought permission to organize the raid – After grant of permission, raiding party reached the spot and intercepted appellant walking on the road – Before conducting search, option was given to the appellant whether he wished to be searched before the gazetted officer or the magistrate – Appellant opted for gazetted officer – When PW-4-gazetted officer arrived, he once again confirmed if he wanted to opt for search by magistrate – Appellant consented to search in presence of PW-4-gazetted officer – Thereafter, PW-4 also gave liberty to the appellant to search PW-2-raiding officer which appellant did and found no narcotic substance from the person of raiding officer – On search of the appellant in the presence of PW-4, a bag was recovered from the appellant carrying 1.5 kgs of charas, and Rs. 2,400/- cash was recovered from the pocket of the appellant’s trouser – Conviction of appellant by courts below – Plea of appellant that there was non-compliance of s.42 and s.50 of the Act – Held: Plea not sustainable – The appellant was walking along the Garden Road – He was intercepted and detained immediately by the raiding party in front of the club, which was not a building, conveyance or an enclosed place – The place of occurrence was accessible to the public and fell within the ambit of the phrase “public place” in the explanation to s.43 – Therefore, s.42 had no application – Before the appellant’s search was conducted, both PW-2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a Gazetted Officer or a Magistrate – The options given by both PW-2 and PW-4 were unambiguous – Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search – The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4 – Thus, there was strict compliance with the requirements of s.50(1) of the Act.
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.42 – Essential requirement – Held: Compliance with s.42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Narcotic Drugs and Psychotropic Substances Act, 1985 – s.43 – When attracted – Held: s.43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
Dismissing the appeal, the Court
HELD: 1. An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. The appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase “public place” in the explanation to Section 43. Section 42 had no application. [Paras 7, 8] [741-C-F] Vijaysinh Chandubha Jadeja v State of Gujarat (2011) 1 SCC 609 : [2010] 13 SCR 255 – relied on.
State of Himachal Pradesh v Pawan Kumar (2005) 4 SCC 350 : [2005] 3 SCR 417 ; Dilip v State of Madhya Pradesh (2007) 1 SCC 450 : [2006] 9 Suppl. SCR 390 – referred to.
2.1 Strict compliance with Section 50(1) by the empowered officer is mandatory. Section 50, however, applies only in the case of a search of a person. PW-2 conducted a search of the bag of the appellant as well as of the appellant’s trousers. Therefore, the search conducted by PW-2 was also of the appellant’s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. Before the appellant’s search was conducted, both PW-2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. [Paras 10, 11] [745-A-B; 747-F-G; 748-B-C]
2.2 The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. [Para 11] [748-D-E]
Abdul Rashid Ibrahim Mansuri v State of Gujarat (2000) 2 SCC 513 : [2000] 1 SCR 542 ; Directorate of Revenue v Mohammed Nisar Holia (2008) 2 SCC
370 : [2007] 12 SCR 906 ; State of Rajasthan v Jagraj Singh (2016) 11 SCC 687 : [2016] 4 SCR 451 ; Myla Venkateswarlu v State of Andhra Pradesh (2012) 5 SCC
226 ; State of Rajasthan v Parmanand (2014) 5 SCC
345 : [2014] 3 SCR 522 ; Namdi Francis Nwazor v Union of India (1998) 8 SCC 534 ; State of Punjab v Baldev Singh (1999) 6 SCC 172 : [1999] 3 SCR 977 ; Narayanaswamy Ravishankar v Assistant Director, Directorate of Revenue Intelligence (2002) 8
SCC 7 : [2002] 3 Suppl. SCR 121 ; Krishna Kanwar (Smt) Alias Thakuraeen v State of Rajasthan (2004) 2 SCC 608 : [2004] 1 SCR 1101 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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