Suneer P.K v. State of Kerala

_Crl.A.No:949 of 2018 1_ _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943_ _CRL.A NO. 949 OF 2018_ _AGAINST THE ORDER/JUDGMENT IN SC 19/2015 OF SPECIAL COURT (NDPS_ _ACT CASES), VADAKARA_ ## _APPELLANT/ACCUSED:_ _SUNEER.P.K, AGED 34 YEARS S/O.KARIM, PADINJARE KUNNUMMAL HOUSE,PALOOR AMSOM DESOM, THIKKODI VILLAGE, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P_ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI -682 031. PP-SRI.ARAVIND V. MATHEW_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2021, THE COURT ON 02.12.2021 DELIVERED THE FOLLOWING:_ _Crl.A.No:949 of 2018 2_ ## **J U D G M E N T** The appellant herein is the sole accused in S.C (NDPS).No.19 of 2015 on the file of the Special Judge (NDPS Act Cases), Vatakara. As per the judgment passed in the said case, the appellant stands convicted by the Special Court for the offence punishable under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act) and was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.10,000/- (Rupees ten thousand only) with default imprisonment for one month. 2. The prosecution case is that, on 16.12.2016 at about 8.30 am accused was found near State Bank of Travancore, P.S.Branch, near new bus stand, Vatakara along with 9 grams of heroine, a narcotic drug, in contravention of the provisions of the NDPS Act and thus he has committed an offence punishable under Section 21(b) of the Act. _Crl.A.No:949 of 2018 3_ 3. In support of the prosecution case, PW1 to 3 were examined, Exts.P1 to P10 were marked and material objects Nos.1 to 3 were identified from the part of the prosecution. Exts.D1 to D3 were marked as Exhibits from the side of the defence. After completing the prosecution evidence, the appellant was questioned under Section 313 Cr.P.C, during which, incriminating evidence brought out by the prosecution was put to him. He denied the same and pleaded innocence. Thereafter upon evaluating the materials available on record, the Sessions Court arrived at a finding that the appellant is guilty of the offence and accordingly he was imposed with the sentence as mentioned above. 4. Head Sri.R.Bindu Sasthamangalam, learned counsel for the appellant and Sri.Aravind V. Mathew, learned Public Prosecutor for the State. 5. The learned counsel for the appellant contends that the entire prosecution is vitiated in view of the fact that the available documents do not indicate compliance of mandatory _Crl.A.No:949 of 2018_ _4_ procedure contemplated under the NDPS Act. Non compliance of Section 50 of the Act was also pointed out. 6. The learned counsel for the appellant places reliance upon the judgment in **Thundiyil Muhammadali v. State of Kerala [2020(4) KHC 64]** . Based on the same, he seeks for acquittal of the appellant. 7. Per contra, the learned Public Prosecutor contends that, even though there are no materials to establish compliance of Section 42 of the Act, the same cannot be treated as fatal to the prosecution case. It is pointed out that the search and seizure was made in this case from a public place and in such event, the procedure to be adopted is as per Section 43 of the NDPS Act and not that of Section 42 of the Act. In such circumstances, he prays for dismissal of the appeal. 8. The primary question that has come up in this appeal is as to whether there is compliance of Section 42 of the Act and if there is no compliance, whether it vitiates the proceedings. Section 42 of the Act reads as follows: _Crl.A.No:949 of 2018_ _5_ “42. **Power of entry, search, seizure and arrest without warrant or authorisation.,** (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act _Crl.A.No:949 of 2018_ _6_ is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset;- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any _Crl.A.No:949 of 2018_ _7_ time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy- two hours send a copy thereof to his immediate official superior.” As per the aforesaid provision, upon getting information as to the commission of a crime under the Act, the detecting officer has to take down the said information in writing and shall sent the said information to his immediate official superior within 72 hours of receiving such information. 9. The factual background of this case must be examined in the light of the above statutory stipulation. PW3 is the Excise Inspector who detected the offence. In his evidence, it is stated that, on 16.12.2013 while he was in the office, a person came there at 8.15 am and gave secret information regarding the accused. As per the information, a person with a blue coloured check shirt and ash coloured lunki was selling brown sugar near the step of State Bank of India, P.S.B. Branch situated on the east of new bus stand, Vadakara. Immediately, PW3 recorded this _Crl.A.No:949 of 2018 8_ information and passed over the same to the official superior over phone. Thereafter, he proceeded to the place of occurrence and reached there by 8.25 am. At that time, the appellant was found, and he was apprehended. He was informed of his right to have his body search conducted in the presence of a gazetted officer. The response of the appellant was that he does not want the presence of such officer and he granted permission to PW3 to conduct the search. Accordingly, body of the appellant was searched, during which the contraband article which was covered in a plastic cover was recovered. Immediately, the same was weighed and Ext.P1 mahazar was prepared. Ext.P3 is the body search notice. Ext.P4 is the arrest memo and Ext.P5 is the crime and occurrence report. Immediately, the samples were collected from the same and the appellant was arrested. On the very same day, the appellant as well as the articles seized were produced before the jurisdictional Magistrate. Thereafter, investigation was conducted and upon completion thereof, final report was filed. _Crl.A.No:949 of 2018 9_ 10. The evidence of PW3 is clearly corroborated by the evidence of PW1, who is the officer who accompanied PW3 while conducting the search and seizure. On examining the aforesaid materials, it can be seen that there is absolutely no document to indicate that the information which was received by PW3 was forwarded to his official superior. Therefore, it is evident that the procedure contemplated under Section 42 of the Act was not complied with. 11. However, the crucial question that arises in the facts and circumstances of this case is as to whether the compliance of Section 42 of the Act is fatal to the prosecution or not. From the careful reading of the contents of Section 42 of the Act, it is evident that the procedure contemplated therein is in respect of entry and search of any building, conveyance or enclosed place between sunrise and sunset. In this case, in Ext.P1 seizure mahazar, it is clearly mentioned that the information that was received by him was that the appellant was selling brown sugar by standing near the western side of the building wherein State Bank of Travancore, P.S.Branch is situated and it is on the _Crl.A.No:949 of 2018 10_ eastern side of the New bus stand, Vadakara, which is a public place. The other materials available on record also indicate that the search and seizure was conducted in a public place. If that be so, the proper procedure applicable is what is contemplated under Section 43 of the Act, which reads as follows: “43. **Power of seizure and arrest in public place.-** Any officer of any of the departments mentioned in section 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence _Crl.A.No:949 of 2018_ _11_ punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.- For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.” 12. The contention of the learned counsel for the appellant is that Section 43 of the Act deals with a chance detection as the said provision does not contain anything about the search and seizure conducted on the basis of a prior information received by the detaining officer. It is true that, Section 43 of the Act does not contain anything about an information received as to the commission of any crime. However, in my view, that by itself, is not a ground to arrive at the conclusion that the procedure contemplated under Section 43 of the Act cannot be made applicable in respect of a search and seizure conducted in a public place on the basis of a prior information. It is because, the requirement of recording the _Crl.A.No:949 of 2018_ _12_ information and forwarding the same to the superior officer as contemplated under Section 42 of the Act is only for the purpose of entry and search, in any building, conveyance or enclosed place. The said provision does not deal with entry or inspection in a public place. On the other hand, Section 43 of the Act contains the manner in which the search and seizure has to be conducted in a public place. In my view, as the procedure contemplated under Section 42 of the Act is confined to the “entry and search in a building, conveyance or enclosed place”, the aforesaid procedure cannot be made mandatory for conducting search and seizure in a public place. The decision in **Thundiyil Muhammadali** (supra) relied upon by the learned counsel for the appellant to establish the requirement of compliance of Section 42 of the Act cannot be made applicable to the facts of this case. In the aforesaid case, this Court was dealing with an inspection conducted in a private dwelling. In this regard, it is to be noted that, as rightly observed by the Sessions Court, the observations contained in the judgment of the Honourable Supreme Court in **Karnail Singh v. State of Haryana [(2009)** _Crl.A.No:949 of 2018 13_ **8 SCC 539]** are very relevant. In paragraph 18A of the said judgment, it was observed as follows: “The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). In the aforesaid judgment, the Honourable Supreme Court was pleased to hold that, compliance of the procedure contemplated under Section 42 of the Act is mandatory, if the information received is of the nature referred to in Sub-Section (1) of Section 42 of the Act. The nature of information as mentioned in Sub-Section (1) of Section 42 of the Act is for the purpose of conducting search in a building, conveyance or enclosed place only. 13. There is yet another aspect which fortifies the above view. Even if it is found that the procedure under Section 42 of the Act was not complied with, that would not by itself vitiate the entire prosecution. The consequence of non-compliance of the _Crl.A.No:949 of 2018 14_ said provision is that the materials recovered on the basis of such search and seizure cannot be relied upon for establishing the offence against the accused. However, in order to attract the same, the materials which were detected must have been through a search conducted in the manner contemplated under Section 42 of the Act, which means, a search conducted in any building, conveyance or enclosed place. In this case, the evidence clearly reveals that the search and seizure was conducted from a public place and hence the contraband articles recovered in this case were not through the search conducted under Section 42 of the Act. On the other hand, it was detected from a search conducted under Section 43 of the Act, for which a different procedure is contemplated. In such circumstances, I am of the view that, the non-compliance of Section 42 of the Act is not material to the prosecution and under no circumstances, any benefit thereof can be given to the appellant in this case. 14. Another contention put forward by the learned counsel for the appellant is regarding Section 50 of the Act. It is evident from Ext.P3 body search notice that, the appellant was informed _Crl.A.No:949 of 2018 15_ of his right to get the presence of a gazetted officer for conducting the search. However, he had not opted for the same and permitted PW3 to conduct the body search wherein the contraband articles were recovered. The aforesaid search and seizure are in compliance of Section 50 of the Act and this fact is duly proved from the evidence of PW3 coupled with documentary evidences of Exts.P1, P3, P4 and P5 which are contemporaneous documents. In such circumstances, the contention regarding non compliance of Section 50 of the Act is also not sustainable. In the light of the aforesaid finding, I do not find any merit in this appeal. Accordingly, this appeal is dismissed, confirming conviction and sentence imposed by the Sessions Court. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG