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1997 Supreme(Guj) 479
Gujarat High Court
Judgename :A.R.Dave, K.R.VYAS
MUKESH NATVARLAL MODI - Appellant
Versus
H.S.BAROT - Respondent
CRIMINAL APPEAL 855 of 1988
Decided On : 09/30/1997
Headnote:(a) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 50 - Its scope - Requirement explained - Word `person - Appearing in this provision means a person himself - When his body is required to be searched or his bag/baggages found with him - In such a situation he is to be given option of search - This is not applicable when search is made of any conveyance, of a building or place meaning a premises - Held, application of Sec. 50 is thus limited for the search and giving the option, as above.
In Court opinion, since the premises of the accused No. 1 were searched and as the words to arrest such a person or search a building, conveyance or place incorporated in Secs. 41 and 42 are not incorporated in Sec. 50 and only the word person is used, and rightly so, in our opinion by excluding the words building, conveyance or place, there was no question of offering option to accused No. 1 whether he wanted to be produced before a Magistrate or a Gazetted Officer before carrying out the raid of his premises and therefore, Sec. 50, in this case, is not attracted at all.
[Para 19]
Word person appearing in Sec. 50 would mean a person himself who is bodily required to be searched or a person found with his bag and baggages and the like wherefrom any narcotic and psychotropic substance is kept or concealed. It is only when such a person is required to be searched, a duty is cast on the police officer or the empowered officer or the authorised officer to produce such person to be searched before a Magistrate or a Gazetted Officer. However, this would not include search of a building, conveyance or place as contemplated in Secs. 41 and 42 as, in our opinion, search of a building, conveyance or place means a premises, i.e., building, conveyance or place wherein it is suspected or there is reason to believe that any narcotic or psychotropic substance is kept or concealed. In our opinion, therefore, on a true and correct interpretation of Secs. 41 and 42 read with Sec. 50 of the NDPS Act, search of a building, conveyance or place means such building, conveyance and place alongwith the articles and things lying, therein wherefrom any narcotic and psychotropic substance is kept or concealed as contemplated in Secs. 41 and 42, whereas search of a person means a person himself who is bodily required to be searched or a person found with his bag and baggages and the like wherefrom any narcotic and psychotropic substance is kept or concealed, as contemplated in Sec. 50.
[Para 18]
(b) Narcotic Drugs & Psychotropic Substances Act, 1985 - Secs. 41(2) & 42(1) - Information is to be taken down in writing - Inspector of Customs got the information and he took it to the Superintendent of Customs but it was not recorded - Mandatory provision has been violated.
If the officer empowered under Sec. 41 has enough or sufficient time to consult his superior officer, he is not expected to exercise powers under Sec. 42. However, that officer to whom a warrant under Sub-sec. (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under Sub-sec. (2) have all the powers of an officer acting under Sec. 42. From the wordings of Sub-sec. (2) of Sec. 41 that Any such officer of Gazetted rank of the departments of . . . if he has reason to believe . . . . ., it is clear that such officer who is informed by any person also includes the officer under Sec. 42.
[Para 14]
(c) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 67 - Customs Officer records the statement of family members - These statements are admissible in evidence - As these are not governed by the provisions of CrPC because the Customs Officer is not a police officer.
It is held that all the provisions of Chapter XII of the Criminal Procedure Code cannot be attracted in respect of narcotic offences investigated by authorised officers of Customs, Excise and other department and such authorised officers are not Police Officers and statements made before them are not inadmissible in evidence.
[Para 11]
( 1 ) THESE two appeals have been preferred by original accused nos. 1 and 2 of Sessions Case No. 259 of 1987, who, at the end of the trial, have been convicted by the learned City Sessions Judge, Ahmedabad, for offence punishable under S. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the N. D. P. S. Act" ). Accused No. 1 was convicted on the count of purchase of brown-sugar and was sentenced to suffer 10 years R. I. and to pay a fine of Rs. 1 lac in default to undergo further R. I. for one year. The said accused was also convicted on the count of being in possession of brown-sugar and was sentenced to suffer R. I. for ten years and to pay a fine of Rs. 1 lac in default to undergo further R. I. for one year. The learned trial Judge ordered the substantive sentences imposed upon accused No. 1 on the above counts to run concurrently. Accused No. 2 was covicted for the offence punishable under S. 21 of the N. D. P. S. Act for selling brown-sugar to accused No. 1 and was sentenced to suffer R. I. for ten years and to pay a fine of Rs. 1 lac and in default to undergo further R. I. for one year.
( 2 ) AS both these appeals arise out of the judgment and order of conviction and sentence passed by the learned City Sessions Judge in Criminal Case No. 259 of 1987, we have heard both these appeals together and are being disposed of by this common judgment.
( 3 ) THE prosecution case, in brief, can be stated as under : on June 6, 1987, Mr. A. A. Maulvi (P. W. 2) the then Inspector of Customs (Preventive), Ahmedabad, was contacted by an informant to give him some information. Mr. Maulvi thereafter contacted Mr. H. S. Barot (P. W. 1) the then superintendent of Customs with the informant. The informant gave information to mr. Barot to the effect that accused No. 1 has in his house brown-sugar or heroin. On receiving such information Mr. Barot prepared a record of that information and put the same in an envelope, which was sealed and passed on that sealed envelope to Mr. H. D. Desai, Assistant Collector of Customs (Preventive ). After certain discussion with Mr. H. D. Desai regarding the modality of carrying out the raid at the house of accused No. 1, a decision was taken to carry out the raid in the morning of June 7, 1987. Accordingly at about 6-00 a. m. on June 7, 1987, Mr. Barot, Mr. Maulvi and Mr. R. N. Rathod (P. W. 3) the then Inspector, assembled at the Customs house, Ahmedabad, Mr. Barot prepared and issued a search warrant in the name of Mr. Maulvi ordering and authorising him to search the house of accused no. 1. Under the direct supervision of Mr. Barot, it was also decided to accompany the raiding party. Mr. Barot instructed Mr. Maulvi to arrange for and to take with him two Panch witnesses. The raiding party proceeded in two motor vehicles towards the house of accused No. 1. On way to the house of accused No. 1. Mr. Maulvi, from near Jamalpur Gate, summoned two Panch witnesses and took them with him in the car. The members of the raiding party assembled at a short distance away from the house of accused No. 1, which is situated on the first floor of bungalow No. 1 ranchhodrai Society at Gordhanwadi Tekra. Mr. Maulvi showed the search warrant to accused No. 1 and obtained his singnature thereon and the endorsement about the execution of search warrant was also made thereon and the singnature of the panchas were also obtained on that document. Mr. Maulvi, as Searching Officer, has also put his sinngature thereon. Accused No. 1 was informed about the purpose for which the party had approached his house. He was also informed that if he so desired, he would search the persons of the members of the raiding party to which accused No. 1 showed no inclination. At the time of the search of the house of accused No. 1, other members of the family of accused No. 1, viz. , his father natvarlal, his wife Alkaben and his wifes sister Deepaben and two minor children were present. When th
