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2001 Supreme(Cal) 276
IN THE HIGH COURT AT CALCUTTA
BASUDEVA PANIGRAHI AND MALAY KUMAR BASU, JJ.
Fatima Bibi @ Fatema Bibi - Appellant
Versus
State – Respondent
C.R.A. No. 370 of 1999
Decided on: May 14, 2001
Advocate Appeared:
Mr. Arup Chatterjee and Anirban Mitra, for the Appellant
Mr. Sudipta Moitra and R.K. Ghosal, for the State
Mr. Himangsu Dey and Kallol Mondal, for the Narcotic Control Bureau
1. Non-compliance with Section 42 of the Narcotic Drug and Psychotropic Substance Act, 1985, which requires the officer conducting the search to record the secret information on which the search is based in writing, renders the search and seizure illegal and vitiates the trial. 2. The requirement under Section 50(4) of the Act that a female accused be searched by a female does not mandate the involvement of a female officer, but only requires that the search be conducted by a female.
Headnote:
NARCOTIC DRUG AND PSYCHOTROPIC SUBSTANCE ACT, 1985 - SECTION 42 - SEARCH AND SEIZURE - REQUIREMENT OF RECORDING SECRET INFORMATION IN WRITING BEFORE CONDUCTING SEARCH - NON-COMPLIANCE - EFFECT - SECTION 50(4) - SEARCH OF FEMALE ACCUSED - TO BE CONDUCTED BY FEMALE - INTERPRETATION.
Fact of the Case:
The appellant, a female, was convicted under Section 21 of the Narcotic Drug and Psychotropic Substance Act, 1985 for possessing 20 grams of heroin. The prosecution's case was that the appellant was searched by a female constable in the presence of independent witnesses and the heroin was recovered from her blouse. The appellant challenged the conviction on the grounds that the search and seizure were illegal due to non-compliance with Section 42 of the Act, which requires the officer conducting the search to record the secret information on which the search is based in writing, and that the search of a female accused should be conducted by a female officer as per Section 50(4) of the Act.
Finding of the Court:
The court held that the non-compliance with Section 42 of the Act rendered the search and seizure illegal and vitiated the trial. The court also held that the requirement under Section 50(4) of the Act that a female accused be searched by a female does not mandate the involvement of a female officer, but only requires that the search be conducted by a female.
Issues: 1. Whether the non-compliance with Section 42 of the Narcotic Drug and Psychotropic Substance Act, 1985, which requires the officer conducting the search to record the secret information on which the search is based in writing, renders the search and seizure illegal and vitiates the trial? 2. Whether the requirement under Section 50(4) of the Act that a female accused be searched by a female mandates the involvement of a female officer, or only requires that the search be conducted by a female?
Ratio Decidendi: 1. The court held that Section 42 of the Act is mandatory and its non-compliance prejudices the accused. The court relied on the Supreme Court judgment in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, where it was held that non-compliance with Section 42 would cause severe prejudice to the accused and could lead to the possibility of a false case being cooked up against them. 2. The court held that Section 50(4) of the Act does not require the involvement of a female officer, but only requires that the search be conducted by a female. The court relied on the judgment in Chameli Devi v. State, where it was held that the Legislature did not intend to take the assistance of a female Officer. What all it has been stated is that a female accused should be searched by another female.
Final Decision: The court set aside the conviction of the appellant and acquitted her of the charge under Section 21 of the Narcotic Drug and Psychotropic Substance Act, 1985.
Panigrahi, J.
1. This appeal has assailed the judgment and order dated 30th September, 1999 passed by the learned Additional Sessions Judge, Hooghly convicting the appellant under Section 21 of the Narcotic Drug and Psychotropic Substance Act, 1985 in N.D.P.S. Case No. 5/98 and sentencing her to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer R.I. for a further period of 2 years.
2. The factual matrix leading to the filing of this appeal is as follows :-
That on 11th May, 1998 after receiving secret information the Intelligence Officer, Narcotic Control Bureau along with other Officers including a lady Sepoy cordoned the appellant's house at 14, Bazar Road, Rishra, Hooghly at 17 hrs. The Officers knocked at the door, the appellant is said to have come out of her house. When she was questioned about her identity the appellant disclosed her name as Fatima Bibi. The Officers also stated their identity as N.C.B. Officers and expressed their intention to search the premises including the appellant's person on having secret intelligency report that she was dealing with Heroin. The appellant was given an option whether she liked to be searched by the raiding party before a Magistrate or a Gazetted Officer. But, she desired that the search may be conducted by the raiding party in presence of a Gazetted Officer who all along was present with them.
The search was conducted by the lady Sepoy. From the house of the appellant, the lady Sepoy took out a polythene packet containing brown colour powder believed to be Heroin from the appellant as it was kept inside her blouse. The lady Sepoy handed over the polythene packet to the Seizing Officer from which a small quantity was taken out for the purpose of holding a test by thest kit. The recovered brown colour powder was duly weighed and it was found to be 20 grams in presence of two independent witnesses and the appellant. The seizure was effected under Section 42 of the N.D.P.S. Act. The respective sample in duplicate of 5 grams each was also drawn in presence of the witnesses who had signed not only in the Seizure List but also on the sealed packet. The appellant also put her L.T. I. on the Seizure List as well as on the sample packet. A copy of notice was given under Section 67 of the Act to her.
On the basis of such complaint a case was initiated against the appellant under Section 21 of the N.D.P.S. Act. The charges have been framed after recording the statements of the witnesses who were, subsequently, cross-examined by the accused/appellant. The learned Additional Sessions Judge-cum-Special Judge on considering the evidence on record bad, however, inclined to record an order of conviction and passed sentence as stated above.
3. Mr. Chatterjee, learned Advocate appearing for the appellant has brought to our notice that the judgment is unsustainable and unsupportable in law inasmuch as there was failure of compliance of the mandatory requirement of Section 42 of the N.D.P.S. Act. It has also been submitted that the prosecution had significantly failed to observe the requirement as required under Section 50(4) of the N.D.P.S. Act.
4. The evidence of the prosecution witnesses according to Mr. Chatterjee, is also interested since only all the official witnesses have been examined. Even though two independent witnesses were allegedly present at the time of seizure but the prosecution, it is not known why chose to leave out for being examined in Court. The time of seizure as indicated in the First Information Report and that of the evidence is quite discrepant and, therefore, no reliance could be placed upon the prosecution witnesses. It has been further stressed by the appellant that even though the lady Sepoy was said to have accompanied the raiding party, yet she did not offer herself to be searched either by the accused or by the Intelligence Officer who was conducting the search. Therefore, on this ground also the prosecution case should have been di
