Accused apprehended by private persons and handed over to police.

JUDGMENT: The appellant is the first accused in S.C.No.3 of 1998 tried by the Special Judge for trial of the N.D.P.S. Act cases, Vadakara. He challenges the conviction entered against him for the offence under Sec.21 of the N.D.P.S. Act and sentence of rigorous imprisonment for 10 years and fine of Rs.1,00,000 (in default simple imprisonment for six months) imposed therefor.

2. The prosecution alleged that at about 3.30 p.m. on 17.3.1997 the appellant and the second accused involved in the aforesaid case, who was acquitted by the trial Court, were found entering a latrine situated on the western side of the old State Bank building at Koduvally. They closed the door behind them. Feeling suspicious of their movements, some persons of the locality peeped in through the door and found that the accused were engaged in treating something in a steel vessel and also drawing out something out of it through a syringe. Some articles like cigar lighter, lead papers, plastic bottles and scissor were also found around the accused besides a candle, which was burning. The two accused were nabbed by the people and taken to the office of the Circle Inspector of Police. On being convinced that the accused were engaged in processing brown sugar and after recording the statement of P.W.3, who was one of the persons, who had caught the accused red-handed and taken them to the police station, the articles produced by the said persons were seized. Thereafter, the Circle Inspector of Police appraised the accused of their right under Sec.50 of the N.D.P.S. Act and on getting a negative reply from the accused, proceeded to search their body. Though nothing could be found on the body of the second accused, two packets were found in the pocket, of the underwear worn by the first accused. One of them weighing 1.38 gms. was found to contain brown sugar, the weight of which was ascertained as 550 mgms. The accused were arrested, taken to the police station, case registered, investigation proceeded with and ultimately charge-sheeted.

3. The trial Court accepted the prosecution evidence and found that the first accused was guilty of the offence. The conviction and sentence followed. The Court, however, acquitted the 2nd accused as nothing was seized from him during the body search made by P.W.4.

4. Sri James Mathew, who appeared for the appellant as State Brief, submitted that the conviction and sentence are unjustified in so far as there is violation of the mandatory provisions in the N.D.P.S Act. According to him, the persons who nabbed the accused were incompetent to do so under the provisions of the N.D.P.S. Act. In the absence of any arrest made at the spot by an empowered officer, the accused is entitled to get an acquittal. It is also pointed out that in any event, atleast from the stage at which the accused was produced before the Circle Inspector of Police, he should have proceeded under the provisions of N.D.P.S. Act and that his failure to record the information and to forward the same to the immediate superior is contemplated under Sec.42(2) of the N.D.P.S. Act is fatal.

5. On the arguments advanced the points that arise for decision are:

(i) Whether there is violation of law in the matter of apprehending the accused and in producing them before the Circle Inspector of Police?

(ii) Whether there is violation of Sec.42(2) of the N.D.P.S. Act and if so, what is the consequence?

(iii) Whether the appellant is entitled to get an acquittal?

6.Point No.1: The learned Public Prosecutor placed reliance on Secs.43 and 46 of the Code of Criminal Procedure to contend that the apprehension of the accused by P.W.3 and other persons of the locality was fully justified. The aforesaid provisions are quoted herein.

“43. Arrest by private person and procedure on such arrest: (1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without necessary delay, shall mak

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