2018 Supreme(Mad) 4472

IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Selvaraj - Appellant
Versus
State Rep. By Narcotic Investigation Bureau C.I.D., Nagapattinam District - Respondent
Criminal Appeal No. 777 of 2010
Decided On : 13-12-2018

Headnote:

Criminal Procedure Code,1973 - 51(2),52,100,165 and 374(2) - NDPS Act 1985 - Sections 8(c) r/w 18(c) ,41,41(1)(2-A), 41(2) , 42 ,42(1)(2-C),43,44,52,50,50(4),50(6),57,60(6) - Constitution of India,1950 - Article 21 - Ganja -Search and seizer of ganja - Appeal Against Conviction - PW1 Muniasamy Sub Inspector of Police attached to NIBCID Nagapattainam received information from his Informer in person at about when he was in office that and were going to smuggle illegal contraband namely Opium from to Sri Lanka at about - Said information was recorded by Balasubramanian Head Constable NIBCID in presence of - After recording Information same was endorsed by PW5 Inspector of Police NIBCID Trichy in-charge at about when he was in his office at and thereafter he had discussion with Deputy Superintendent of Police - After that Muniasamy Gurusamy Sub-Inspector of Police Balasubramanian along with Police Party including Informer reached scene of occurrence at about on same day and watched movements by hiding themselves - At about came and stood there with two polythene bags - Both of them were identified to Police Party by their Informer - His police party surrounded accused and introduced themselves at about and told about information received by them - Accused were apprised of their rights available under NDPS Act to search them but they did not avail their said rights and permitted Police party to search them - In that effect a report Exhibit-P2 was prepared by in presence of in between and obtained signatures of in Exhibit P2 - Since no independent witness came forward for said search - Search was proceeded by police party on - During search operation was found in possession of contraband opium which was weighed as - Two samples of each were taken out - Samples and remaining contraband of were packed and sealed and same were recovered under cover of Mahazar Ex-P3 - Search of seizure of was conducted in between - Whether appellant is agreeable to conduct search in presence of Magistrate or Gazetted Officer for which appellant gave reply that search could bad conducted by search officer himself - Whether it was undue or whether same has been explained or not will be a question of fact in each case - Whether sample contains opium or not and it is denial of fair trail which violates Article 21 of Constitution of India - Held, Appellant contraband was found and seized but no intimation was given to higher officials as contemplated under section 50(6) of NDAPS Act - So mandatory provision of section 60(6) of NDAPS Act was not follows and violated - Insufficient sample taken by respondent caused prejudice to appellant which vitiates laboratory report Exhibit P12 and findings given by chemical analyst - So insufficient quantity of sample taken vitiated entire trial conviction and sentence - Fair procedure to find out guilty of appellant is not followed - Hence conviction and sentence are not sustainable under law - Provisions of Sections 52 and 57 which deal with steps to be taken by officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory - If there is non-compliance or if there are lapses like delay etc then same has to be examined to see whether any prejudice has been caused to accused and such failure will have a bearing on appreciation of evidence regarding arrest or seizure as well as on merits of case - Trial court convicted appellant/accused under Section 8(c) r/w 18(c) of NDPS Act 1985 and sentenced to 10 years Rigorous Imprisonment and to pay a fine in default of payment of fine amount further to undergo of year Rigorous Imprisonment - Aggrieved by said Judgment of conviction and sentence appellant/accused has prepared this present appeal - While conducting search and seizure in addition to safeguards provided under Code of Criminal Procedure safeguards provided under NDPS Act are also required to be followed - Section 50(4) of NDPS Act lays down that no female shall be searched by anyone excepting a female - This provision is similar to one contained in Section 52 of Code of Criminal Procedure 1898 and Section 51(2) of Code of Criminal Procedure 1973 relating to search of females - Section 51(2) of Code of Criminal Procedure 1973 lays down that whenever it is necessary to cause a female to be searched search shall be made by another female with strict regard to decency - Empowered officer must therefore act in manner provided by Section 50(4) of NDPS Act read with Section 51(2) of Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched - Document prepared by investigating officer at spot must invariably disclose that search was conducted in aforesaid manner and name of female official who carried out personal search of female concerned should also be disclosed - Personal search memo of female concerned should indicate compliance with aforesaid provisions - Failure to do so may not only affect credibility of prosecution case but may also be found as violative of basic right of a female to be treated with decency and proper dignity - Appeal Allowed