Longuram Tariram Thakur & another vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 962

IN THE HIGH COURT OF BOMBAY
Vishnu Sahai D.G. Deshpande, JJ.
Longuram Tariram Thakur another..... Applicants.
Versus
The State of Maharashtra..... Respondents.
Criminal Appeal No. 465 of 1995, decided on 15-12-1999.
Advocates appeared :
Shirish Gupte Ms. Sharmila Kaushik, for the applicants-accused.
Ms. Usha Kejariwal, A.P.P., for the State-respondents.

Headnote:-Sections 20(b)(ii), 42(1) and 42(1), Proviso-Information received by police officer that accused were carrying or were in possession of contraband at the bus stand-As the information was in respect of search and seizure in open place or public place and not any building conveyance or enclosed place, the officer was not bound to reduce the information in writing-No non-compliance of provisions of Section 42(1) by the Officer.-If officer as referred to in Section 42(1) receives information in respect of any offence committed in public place or in an open place or in a place which is not in any building, conveyance or enclosed place is not required to reduce the information received by him. He is required to reduce such information only in case the information relates to any search to be taken in any building, conveyance or enclosed place. (1994) 3 SCC 299 Referred.
-Sections 41(2) and 42(1)-Distinction under Sections 41(2) and 42(1).-Section 42 (1) of the Narcotic drugs and Psychotropic Substances Act empowers every officer superior in rank to peon, sepoy and constable to take action necessary for enforcement of the Narcotic Drugs and Psychotropic Substances Act. The authorisation under Section 41(2) to a subordinate must follow from officer of the Gazetted rank. Section 42(1) does not put any restriction that the officer to act should be of the Gazetted rank. It only lays down that such an officer should be superior in rank to a peon, sepoy and constable. This distinction shows that the object of Section 42 (1) was to empower everybody i.e. every officer superior in rank to peon, sepoy and constable to take prompt and quick action under the Narcotic Drugs and Psychotropic Substances Act. However, there is a restrain in the powers conferred to these two types of officers, namely those of the rank of Gazetted Officer as provided in Section 41(2) and those who may not be Gazetted Officer but who may be superior in rank to peon, sepoy and constable as provided under Section 42(1) and that restriction is, officers acting under Section 41(2) may search, seize and arrest any time by day or by night. However, officers acting under Section 42(1) have been empowered only to act between sunset and sunrise. It appears from these distinguishing lines that officers who are not Gazetted Officers but who are above the rank of peon, sepoy and constable cannot on their own accord carry out search, seizure and arrest after sunset and between sunrise, that is in the evening from sunset to the next day dawn/morning. If the authority to carry out search or seizure flows from the Magistrate then there is no time restriction, neither any restriction about the post or status of the person carrying out all those orders of the Magistrate. If the authority flows from an officer of the Gazetted rank as provided by sub-section (2) of Section 41 then also there is no restriction of time but if any other officer who is not a Gazetted Officer but who is above or superior in rank to peon, sepoy or constable then his authority is restricted upon carrying out search and seizure between sunrise and sunset. Such an officer of the last category, is however empowered to carry out search and seizure between sunset and sunrise after recording the grounds of his belief in case where the search, warrant or authorisation cannot be obtained to the detriment of the investigating agency or prejudice to the provisions of the Narcotic Drugs and Psychotropic Substances Act.
-Section 50-Accused found in possession of suitcases containing charas-Before taking search the accused were informed about the object of the search and they were also asked whether they wanted their search to be taken by to before the Gazetted Officer or a Magistrate and the accused declined to accept the offer-This is sufficient compliance of Section 50 of Narcotic Drugs and Psychotropic Substances Act-Merely because the investigating officer had not used the word right in his communication to the accused, it cannot be said that there was non-compliance of Section 50, Cri. App. No. 396 of 1990; State of Punjab v. Baldev Singh Referred

JUDGMENT - D.G. DESHPANDE, J.:---This appeal has been preferred by both the appellants i.e. the original accused against their conviction in N.D.P.S. Special Case No. 126 of 1993 by the Special Judge, T.N. Nalawade, Pune, for offences under section 20(b)(ii) of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as "the N.D.P.S. Act") by which they were sentenced to suffer R.I. for ten years and to pay a fine of Rs. 1,00,000/- in default R.I. for two years.

2. Since Mr. Gupte Counsel for the accused raised mainly two legal questions, we are narrating the facts of the case in brief.

P.W. 4 P.S.I. Parameshwar Baburao Bhagat was attached to police chowky under Bundgarden Police Station on 12-10-1992. At about 19.00 hours he received an information that two persons were carrying a suitcase containing large quantity of narcotic drugs at Pune S.T. stand and would shortly leave Pune by S.T. bus for Goa. P.W. 4 therefore called two panchas, sent intimation to the P.I. of the Police Station, obtained permission to carry out the raid and proceeded to the spot where they found the information was correct and two persons with the same description and two suit cases were there at platform No. 1 of the bus stand. He, therefore surrounded them with the police party and the panchas told them that they were required to be searched, apprised them of their right under section 50 of the N.D.P.S. Act and examined the two suit cases which found to contain about 8 kgs. and 9 kgs. of charas in small vials and tubes. The property was seized packed, sealed and labelled and thereafter offence was registered against the accused. The entire property was thereafter sent to the C.A. and on receipt of C.A. report, the charge sheet was filed.

3. The defence of the accused, when the trial commenced was of denial. The prosecution thereafter examined five witnesses including the C.A. The Special Judge however accepted the prosecution case and convicted the accused, as stated above. It is this conviction that is challenged by the applicants - accused.

4. It was mainly contended by Mr. Gupte that firstly there is non compliance of section 50 of the N.D.P.S. Act and also non compliance of sections 41 and 42 of the N.D.P.S. Act. So far as section 42 is concerned Mr. Gupte contended that it was admitted by P.W. 4 Mr. Bhagat that he had received prior information from somebody on phone in Marathi, by which along with the description of the accused he was informed that the accused were carrying charas in huge quantity along with them. According to Mr. Gupte P.W. 4 Bhagat did not reduce this information into writing and committed breach of the mandatory provision of section 42 of the N.D.P.S. Act. Further, according to him P.W. 4 admitted in his cross examination that he had reduced the information in writing on a chit of paper which he did not maintain or preserve but which he tore away, and so far as section 50 of the N.D.P.S. Act was concerned, it was contended by him that even though the officer P.W. 4 informed the accused that they could be searched by or before a Gazetted Officer or a Magistrate the accused were not made aware of their right as contemplated by the Full Bench decision of the Supreme Court in the case of (The State of Punjab v. Baldev Singh etc.)1, Criminal Appeal No. 396 of 1990 etc., reported in 1998(5) Bom.C.R. 448(S.C) and therefore for non compliance of these two provisions the accused were entitled for acquittal.

4. On the other hand it was contended by Ms. Kejariwal, A.P.P. for the State that so far as section 50 of the N.D.P.S. Act was concerned there was compliance and at any rate there was substantial compliance and so far as section 42 is concerned, the same was not applicable in the instant case.

5. The question is therefore whether section 42 of the N.D.P.S. Act applies in the present case and whether the submissions made by Mr. Gupte have any legal basis . In order to appreciate the rival submissions, it is ne

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1999 Supreme(Bom) 962

Cases Referred (2)