IMPORTANT POINTS
1. To attract provisions of Section 42(2) of NDPS Act, Commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place.
2. There is no specific form prescribed and what is necessary in compliance of Section 50 of NDPS Act is that accused should be made aware of existence of his right to be searched in presence of one of the authorised officer named in the section.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 42-Recovery of 600 grams of heroin in personal search of appellant-accused who was pillion rider on a motorcycle which was being driven by co-accused-Conviction challenged on ground of non-compliance of Section 42 of the Act-Apprehension of accused was on prior secret information-To attract provision of sub-section (2) of Section 42 of the Act, commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place-Concurrent findings by Courts below that there was compliance of Section 42(2) of the Act in sense that requisite document were sent to superior officer-No substance in plea that there was violation of Section 42(2) of the Act. (Paras 14 to 16)
       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50-Provision applies in case of personal search of a person and does not extend to search of a vehicle, container or bag or premises-No specific form prescribed or intended for conveying the information required to be given-Accused should be made aware of existence of his right to be searched in presence of one of the officers named in Section-Court has to see the substance and not the form of intimation-Fair play and transparency in process of search has been the primacy-No specific words are necessary to be used to convey existence of the right. (Paras 20 to 22)
       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 21-Recovery of 600 grams of smack in personal search of accused appellant-Sentence-Quantity recovered could not be said to be small-Sentence of 14 years imprisonment awarded by trial Court and upheld in appeal called for no interference. (Para 25)

JUDGMENT

Arijit Pasayat, J.-Originally three appeals were filed against the common judgment of the Rajasthan High Court, Jodhpur, whereby three appeals were disposed of. During the pendency of Criminal Appeal No. 51/2003, the appellant Shamshuddin died and by order dated 20.1.2004 the appeal has been dismissed having abated. The consideration, therefore, is restricted to other two appeals i.e. Criminal Appeal Nos. 52/2003 and 53/2003.

2. Of the two appeals one has been filed by convict-accused Smt. Krishna Kanwar i.e. Crl. Appeal No. 53 of 2003 and the other appeal has been filed by the State of Rajasthan (Crl. Appeal No. 52 of 2003) questioning the acquittal of accused Mangi Lal and Nathu Singh, as directed by the Trial Court and upheld by the High Court. Initially, seven persons were treated to be accused persons. Four of them, namely, Shamshuddin, Smt. Krishan Kanwar, Mangi Lal and Nathu Singh were tried by District and Sessions Judge, Pratapgarh, who found accused Shamshuddin and Smt. Krishna Kanwar guilty of offences punishable under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act ) and sentenced each to undergo rigorous imprisonment for 14 years and to pay a fine of Rs. 2 Lakh with default stipulation. Nathu Singh and Mangi Lal (A-6 and A-7) respectively, were acquitted.

3. Prosecution case as unfolded during trial is as follows:

Prassan Kumar Khamesara (PW-16), Dy. S.P. Chhotti Sadri received information at about 8.30 p.m. on 5.7.1994 to the effect that on 6.7.1994 between 5.00 a.m. to 9.00 a.m. one Shamshuddin S/o Shakoor Khan, resident of Dharakhedi, shall be coming on a Rajdoot motorcycle, from Chittorgarh side and will be proceeding towards Udaipur, alongwith contraband heroin.

4. The above information was not only recorded but also forwarded to S.P., Chittorgarh and Addl. S.P., Pratapgarh through Indermal (PW-9). Upon above information, Shiv Prasad (PW-14), Addl. S.P., Pratapgarh alongwith lady constable Smt. Vimla Chaudhary (PW-5) and other members of staff reached Police Station, Chotti Sadri on 6.7.1994 in the morning at about 4.00 a.m. Rajeev Dasot, S.P. Chittorgarh reached at Ghomana Choraya in the morning of 6.7.1994, where Datar Singh SHO (PW-11) alongwith other staff of his Police Station were present. After discussing the matter with S.P. and Addl. S.P., Dy. S.P. Prassan Kumar Khamesara (PW-16) staged a nakabandi at Ghomana Choraya, in which Yudhishtar Singh (PW-8) and Wardichand (PW-13), independent attesting witnesses were also associated.

5. At about half past six in the morning, one motorcycle came from Pratapgarh side, which was apprehended by the police party. The person who was driving the motorcycle, disclosed his name as Shamshuddin and pillon rider disclosed her name to be Smt. Krishna Kanwar. Both the persons were apprised of the secret information that they were carrying contraband heroin and, therefore, their search is to be conducted and, if they desire, same can be undertaken in the presence of a Magistrate or a Gazetted Officer. Written notices (Exb. P-9 and P-10 respectively) were given to them whereupon both of them wanted to be searched by Dy. S.P. Prassan Kumar Khamesara (PW-16) himself.

6. Thereafter their personal search was conducted in the presence of not only police personnel but also in the presence of attesting witnesses Yudhisthar (PW-8) and Wardichand (PW-13). A plastic bag was found tied on the stomach and waist of Shamshuddin in which 2 Kgs. heroin was kept. Similarly, from the personal search of Smt. Krishna Kanwar, 600 gms. heroin was recovered. They were not having any license to carry the above contraband; therefore, same was seized and two samples of 30 gms. from each lot were drawn and sealed separately. The remaining mal-mudda was also sealed separately. Seizure memo, (Exb. P-3) was prepared simultaneously, on which thumb impression of not only both the accused persons but signatures & thumb impression of both the attesting w

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2004 Supreme(SC) 102

Cases Referred (7)