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GAUHATI HIGH COURT
D.Biswas, J.
Kamal Ch.Bhowmik -Appellant
Versus
State of Assam -Respondent
Crl.Appeal No. 121 of 2001
Decided On : 05-09-2002
Narcotic Drugs - Illegal Seizure - Narcotic Drugs and Psychotropic Substances Act, 1985, Section 20(b)(i), Section 49, Section 42 - The court discussed the provisions of Section 49 and Section 42 of the NDPS Act, emphasizing the requirement for officers to be empowered to exercise search and seizure powers. It referenced key legal principles established in previous judgments to highlight the illegality of seizure by non-empowered officers and the consequent impact on the prosecution's case.
Fact of the Case:
The appellant was convicted under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 based on the seizure of cannabis during a vehicle search. The appellant challenged the conviction on the grounds that the investigating officer was not empowered under the Act to conduct the search and seizure.
Finding of the Court:
The court found that the seizure of the contraband was illegal as the officers involved were not empowered to exercise search and seizure powers under the NDPS Act. It concluded that the conviction and sentence could not be sustained in law.
Issues: The key issue was the legality of the seizure of the contraband and the authority of the officers involved to conduct the search and seizure under the NDPS Act.
Ratio Decidendi: The court relied on previous judgments to establish the principle that seizure by non-empowered officers is illegal and vitiates the trial under the NDPS Act.
Final Decision: The appeal was allowed, and the appellant was acquitted based on the finding that the seizure of the contraband was illegal and could not form the sole basis for the appellant's conviction.
Key Points: - The seizure/conviction is illegal because the investigating officer was not empowered under the NDPS Act to conduct search and seizure. (!) (!) - Section 49 powers to stop and search conveyances are available only to officers empowered under Section 42 and require proper notification by the State Government; absence of such empowerment renders actions illegal. (!) (!) (!) (!) [14000185150004] - No empowered officer = seizure cannot form the basis of conviction; the judgment set aside and the appellant acquitted. (!) (!) (!) - Referenced jurisprudence (Roy V.D., Baldev Singh) establishes that searches/arrests by non-empowered officers are illegal and vitiate the trial. (!) [14000185150007] - Case involved seizure of cannabis during a vehicle search by state police not empowered under NDPS Act; conviction under Section 20(b)(i) was reversed. (!) [14000185150002] - The Court required empowerment and proper notification for Section 42/49 to be applicable; failure leads to illegality of seizure and trial.
The learned Special Judge, Sonitpur on conclusion of trial in CR Case No. 6/98 convicted the appellant under Section 20(b)(i) of the Narcotic Drugs and Pshychotropic Substances Act, 1985 and sentenced him to undergo Rigorous Imprisonment for five years and to pay a fine of Rs. 10,0007- in default thereof, to further Rigorous Imprisonment for three months.
2. I have heard Mr. BK Bhattacharjee, learned counsel for the appellant and also Ms. B Rajkhowa, learned Public Prosecutor, Assam.
3. The prosecution case in brief is that on 23.1.97 a Maruti Van with registration No. NL-04-1173 was intercepted and checked in usual and routine frisking of vehicles near Kaliabhomora Bridge over the river Brahmaputra. During the course of search, one of the occupants of the vehicle made an attempt to run away with the vehicle and the other two occupants also made attempts to escape. The two persons who ran away towards the river bank were apprehended. The vehicle was found in an abandoned condition and seized. After search, 75 packets of cannabis (Ganja) were recovered. Seizure memo was prepared and after completion of investigation, chargesheet was submitted. The learned Special Judge after evaluation of the evidence of the prosecution as well as the defence convicted the appellant as aforesaid.
4. Mr. Bhattacharjee, learned counsel submitted that the conviction of the appellant in the instant case cannot be sustained as the investigating officer belonging to the State police was not empowered under the Act to search and seize the cannabis (Ganja) and investigate the case. Section 49 deals with the power to stop and search conveyance. It reads as follows ;
"49. Power to stop and search conveyance. - Any officer authorised under Section 42, may if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, in respect of which he suspects that any provisions of this Act has been, or is being, or is about to be contravened at any time, stop such animal or conveyance, or in the case of an aircraft, compel it to land and. -
(a) rummage and search the conveyance or part thereof;
(b) examine and search any goods on the animal of in the conveyance;
(c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means to stopping it, and where such means fail the animal or the conveyance may be fired upon."
5. It would appear that an officer authorised under Section 42, may at any time, stop and search the conveyance, if he has reason to suspect that the said conveyance is about to be used for the transport of any narcotic drug or psychotropic substance. The powers under Section 49 are available to the officers mentioned in Section 42 only. Any officer of the State as specified may exercise the powers of Section 49 only when he is empowered in this behalf by a general or special order of the State Govt. *as per provisions of Section 42. The learned Public Prosecutor was asked to furnish copy of the notification, if any, issued under Section 42. But she failed to produce any such notification.
6. In Roy V.D. appellant -versus- State of Kerala, respondent, 2000 AIR SCW 4005, the Supreme Court in para 16 and 17 held as follows :
" 16. Now, it is plain that no officer than an empowered officer can resort to Section 41(2) or exercise powers under Section 41 (1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of the Section 36-A of the NDPS Act. It follows that any collection of material , detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial.
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