RAJENDRA AND ANR.versusSTATE OF MADHYA PRADESH

A                           RAJENDRA AND ANR.
                                        v.
                       STATE OF MAD HY A PRADESH

                             DECEMBER 17, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

         Narcotic Drugs and Psychotropic ·Substances Act, 1985.

          Sedions 8, 20(B)(l), 42, 43, 50, 55 and 57-"Ganja" seized fi·om
C   suitcases of accused persons at Railway Platform-Whether Section 42
    attracted-Held, for the application of Section 42, the commission of any
    offence under Chapter IV or concealment ofdocuments etc. must be in any
    building, conveyance or enclosed space-On the facts, held, though
     per se Section 42 had no application still there was compliance ofSection
D   42(2) by the prosecution-Whether Section 50 attractted-Held, Section 50
    only applies in case of personal search C?f person and not to search of
    premises, vehicles or articles-On the facts, held, Section 50 not attracted
    and hence no _violation of its provisions.

         Prosecution Case was that on 31.3.2001 Inspector A, PW-10,
E received information that the two accused persons, R and K, waiting
  at Railway Station were carrying contraband article (Ganja) in their
  suitcases and bags and this information was duly recorded by him.
  Thereafter, he proceeded with his staff to the Railway platform and
  on search of the suitcases of the two accused persons found 40
F Kilograms of "Ganja" therein which was seized and seizure memos
  were prepared. The seized articles were kept in sealed condition in the
  Malkhana. Samples of seized articles were also taken and sealed and
  sent with specimen of seal to the Forensic Science Laboratory, for
  analysis and report supporting the prosecution case was also received
G from the laboratory. PW-10 also sent full report of the search and
  seizure to the superior railway police officers· on 1.4.2001.

         Trial Court convicted accused persons for commission of offences
    punishable under Section 8 read with Section 20(B){l) of the Narcotic
    Drugs and Psychotropic Substances Act, 1985 which was also maintained
H   by the High Court in appeal. Hence, this appeal by the accused persons.
                                        986
                         RAJENDRA v. STATE OF M.P.                        987

           Appellant contended that there was violation of Section 42 of the A
      Act as there was no evidence of sending copies of the requisite
      documents to the superior officers; that there was also violation of
      Section 50 of the Act as before the search was made the accused
      persons were not intirilated of their right to be searched in the presence
      of prescribed authority; and that there was non-compliance with the B


--    requirements of Sections 55 and 57 of the Act.

           Dismissing the appeal, the Court

             HELD : 1. Section 42 of the Narcotic Drugs and Psychotropic
      Substances Act, 1985 enables certain officers duly empowered in this C
      behalf by the Central or State Government, as the case may be, to enter
      into and search any building, conveyance or enclosed place for the
      purpose mentioned therein without any warrant or authoriza.tion. Section
      42 deals with "building, conveyance or enclosed place" whereas Section
      43 deals with power of seizure and arrest in public place. Section 42
      comprises of two components. One relates to the basis ofinformation i.e. D
      (i) from personal knowledge (ii) information given by person and taken
      down in writing. The second is that the information must relate to
      commission of offence punishable under Chapter IV and/or keeping or
      concealment of document or article in any building, conveyance or
      enclosed place which may furnish evidence of commission of such offence. E
      Unless both the components exist Section 42 has no application. Sub-
      section (2) mandates that where an officer takes down any information
      in writing under sub-section (1) or records grounds for his belief under
 ,\   the proviso thereto, be shall forthwith send a copy thereof to his immediate
      official superior. Therefore, sub-section (2) only comes into operation
      where the office concerned does the enumerated acts, in case any offence F
      under Chapter IV has been committed or documents etc. are concealed
      in any building, conveyance or enclosed space. Therefore, the commission
      of the act or concealment of document etc. must be in any building,
      conveyance or enclosed space. The trial Court and the High Court after
      analyzing the evidence have come to hold that there was compliance of G
      Section 42(2) in the sense that requisite documents were sent to the
      superior officers, though per se Section 42 had no application to the facts
      of the case. (992-C-D, G-H; 993-A-D)

           State of Punjab v. Baldev Singh, (1999) 6 SCC 172 and State of
      Punjab v. Balbir Singh, [1994) 3 SCC 299, followed.                 H
    988                SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.
A        2. A bare reading of Section 50 shows that it only applies in case
    of personal search of a ·person. It does not extend to search of a vehicle
    or a container or a bag or premises. The language of Section 50 is s_o
    implicitly clear that the search has to be in relation to a person as
    contrasted to search of premises, vehicles or articles. As the search was
B   of the bags and not of the persons. Section 50 has no application and
    the High Court was right in its conclusions. (994-A-B-C)

          State of Punjab v. Baldev Singh, [1999] 6 SCC 172, followed.

          Kalema Tumba v. State of Maharashtra and Anr., JT (1999) 8 SC
C 293, Gurbax Singh v. State of Haryana, (2001] 3 SCC 28 and Madan Lal
    and Anr. v. State of Himachal Pradesh, (2003) 6 Supreme 382, relied on.

          3. The trial Court has referred to the evidence of the witnesses
    and held that articles were kept in Malkhana in safe custody and were
D   sent for chemical examination after necessary orders by the Magistrate
    and, therefore, the requirements of Section 55 were complied with.
    Section 57 relates to reporting of arrest and seizu·re to immediate
    superior officer. The evidence shows that same has been done. There
    is no infirmity in the conclusions of the Trial Court and the High Court
    regarding compliance of Sections 55 and 57 to warrant interference.
E                                                                  (994-E-FJ

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    633 of 2003.

          From the Judgment and Order dated 28.11.2002 of the Madhya
F Pradesh High Court Cr!. A. No. 1271 of 2001.
          Pragati Neekhra and B.K. Satija for the Appellants.

        R.P. Gupta, Binod N. Tewari and Ms. Kamakshi S. Mehlwal for the
G   Respondent.

          The Judgment of the Court was delivered by

          ARIJIT PASAYA T, J. : Appellants faced trial for alleged commis-
    sion of offences punishable under Section 8 read with Section 20 (B)(I)
H   of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the
            RAJENDRA v. STATE OF M.P. [PASAYAT, J.]                   989

Act'). Each was found guilty and sentenced to undergo imprisonment for A
3 years and to pay a fine of Rs. 2,000 with default stipulation by the learned
Special Judge (NDPS) Bhopal. The conviction and sentence were main-
tained by the High Court of Madhya Pradesh at Jabalpur by the impugned
judgment.

      Background facts as projected by the prosecution during trial are as
                                                                             B
follows:

      On 31.3.2001, while Inspector Ajay Singh Bisen (PW-10) was on
duty at G.R.P. Police Station, Bhopal, he received an information that two
persons had got down from Madhya Pradesh Express and were waiting at C
platform No. 2 for Coolie with suitcases and bags in which they were
carrying contraband article (Ganja). This information was recorded by him
(Ex.P-25) and thereafter, he proceeded with his staff to the place as per
the information received by him. He found the appeliants standing with the
suitcases and bags. On search of the suitcase of appellant no. l Rajendra, D
he found 23 kilograms of"Ganja" therein, which was seized. Likewise, on
the search of the bag of appellant no. 2 Kalicharan he found 17 kilograms
of "Ganja" therein, which was also seized. PW-10 prepared the seizure
memos (Exh.P-5 and P-8 respectively). He took samples of25 grams each
and sealed the same. The sample Panchnama is Exh.P-7. The seized articles
were kept in sealed condition in the Malkhana. PW-10 had sent the sealed E
samples with specimen of seal to the Forensic Science Laboratory, Sagar
vide Exh. P-23 on 12.4.2001 and the report of the laboratory is Exh.
P-29. PW-10 sent the full report of the search and seizure to the senior
 railway police as per Exh. P-28, dated 1.4.2001. K. Barsaiya (PW-3) was
 posted as Malkhana Moharrir in the Police Station, Government Railway F
 Police, Bhopal and on 31.3.2001, the seized "Ganja" and the sample
packets along with the suitcase and bag which were seized from the
appellants were deposited by him in the Malkhana in a sealed condition.

     Placing reliance on the evidence adduced, the trial Court recorded
conviction and imposed sentence as noted supra. Appeal before the High G
Court did not bring any relief.

      In support of the appeal, learned counsel for the appellants submitted
that there was violation of Sections 42 and 50 of the Act. There was no
proof of endorsement to the superior officer as mandated in Section 42(2) H
    990                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A of the Act.    Before the search was made the accused persons were not
    intimated of their right to be searched in the presence of prescribed
    authority. There was also non-compliance with the requirements of
    Sections 55 and 57.

          Learned counsel for the State on the other hand submitted that both
B   the trial Comt and High Court have analysed the factual and legal position
    in detail. There is no infraction as alleged and the impugned judgment
    suffers from no infirmity.

          The requirements vis-a-vis Sections 42 and 50 have been dealt with
C in many cases, more particularly by a Constitution Bench in State ofPunjab
    V. Baldev Singh, [1999] 6 sec 172. In para I 7 the conclusions in an earlier

    judgment State of Punjab v. Balbir Singh, [1994] 3 SCC 299 at para 25
    were quoted and approved. We are concerned with conclusions (2-C) and
    (3) which read as follows:

D            "(2-C) Under Section 42(1) the empowered officer if has a prior
             information given by any persons, that should necessarily be taken
             down in writing. But if he has reason to believe from personal
             knowledge that offences under Chapter IV have been committed
             or materials which may furnish evidence of commission of such
             offences are concealed in any building etc. he may carry out the
E
             arrest or search without a warrant between sunrise and sunset and
             this provision does not mandate that he should record his reasons
             of belief. But under the proviso to Section 42(1) if such officer
             haS' to carry out such search between sunset and sunrise, he must
             record the grounds of his belief.
F
                   (3) Under Section 42(2) such empowered officer who takes
             down any information in writing or records the grounds under
             proviso to Section 42( 1) should forthwith send a copy thereof to
             his immediate official superior. If there is total non-compliance
             of this provision the same affects the prosecutions case. To that
G            extent it is mandatory. But if there is delay whether it was undue
             or whether the same has been explained or not, will be a question
             of fact in each case."

         Section 42 deals with power of entry, search, seizure and arrest
H   without of authorization. The provision reads as follows:
   RAJENDRA v. STATE OF M.P. [PASAYAT, J.]                    991

"42. Pvwer of entry, search, seizure and arrest without warrant or A
authorisation. - ( 1) Any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the Departments of Central
Excise, Narcotics, Customs, Revenue Intelligence or any other
depa11ment of the Central Government or of the Border Security
Force as is empowered in this behalf by general or special order B
by the Central Government, or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the Revenue,
Drugs Control, Excise, Police or any other department of a State
Government as is empowered in this behalf by general or special
order of the State Government, if he has reason to believe from C
personal knowledge or information given by any person and taken
down in writing, that any narcotic drug, or psychotropic sub-
stance, in respect of which an offence punishable under Chapter
IV has been committed or any document or other article which
may furnish evidence of the commission of such offence is kt;:pt
or concealed in any building, conveyance or enclosed place, may, D
between sunrise and sunset, -

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any
obstacle to such entry;                                              E
(c) such drug or substance and all materials used in the inanufac-
ture thereo1° and any other article and any animal or conveyance
which he has reason to believe to be liable to confiscation under
this Act and any document or other article which he has reason       F
to believe may furnish evidence of the commission of any offence
punishable under Chapter IV relating to such drug or substance;
and

(d) detain and search, and, if he thinks proper, arrest any
person whom he has reason to believe to have committed any G
offence punishable under Chapter IV relating to such drug or
substance:

Provided that if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without affording H
     992                SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A            opportunity for the concealment of evidence or facility for the
             escape of an offender, he may enter and search such building,
             conveyance or enclosed place at any time between sunset and
             sunrise after recording the grounds of his belief.

              (2) Where an officer takes down any information in writing under
B
              sub-section ( l) or records grounds for his belief under the proviso
              thereto, he shall fo1thwith send a copy thereof to his immediate
              official superior."

            Section 42 enables certain officers duly empowered in this behalf
C by the Central or State Government, as the case may be, to enter into and
     search any building, conveyance or enclosed place for the purpose
     mentioned therein without any warrant or authorization. Section 42 deal
     with "building, conveyance or enclosed place" whereas Section 43 deals
     with power of seizure and arrest in public place. Under sub-section (1)
D    of Section 42 the method to be adopted and the procedure to be followed
     have been laid down. If the concerned officer h:is reason to believe from
     personal knowledge, or information given by any person and has taken
     down in writing, that any narcotic drugs or substance in respect of which
     an offence punishable under Chapter IV of the Act has been committed
E    or any other articles which may furnish evidence of the commission of such
     offence is kept or concealed in any "building or conveyance or enclosed
     place" he may between sunrise and sunset, do the acts enumerated in
     clauses (a), (b), (c) and (d) of sub-section (I) .

.F         The proviso came into operation if such officer has reason to believe
     that search warrant or authorization cannot be obtained without affording
     opportunity for the concealment of evidence or facility for the escaped
     offender, he may enter and search such building, conveyance or enclosed
     place any time between sunrise and sunset after recording grounds of his
     belief. Section 42 comprises of two components. One relates to the basis
G    of information i.e. (i) from personal knowledge (ii) information given by
     person and taken down in writing. The second is that the information must
     relate to commission of offence punishable under Chapter IV and/or
     keeping or concealment of document or article in any building, conveyance
     or enclosed place which may furnish evidence of commission of such
H    offence. Unless both the components exist Section 42 has no application.
            RAJENDRA v. STATE OF M.P. [PASAYAT, J.]                    993

Sub-section (2) mandates as was noted in Baldev Singh 's case (supra) that A
where an officer takes down any information in writing under sub-section
(1) or records grounds for his belief under the proviso thereto, he shall
forthwith send a copy thereof to his immediate official superior. Therefore,
sub-section (2) only comes into operation where the officer concerned does
the enumerated acts, in case any offence under Chapter IV has been B
committed or documents etc. are concealed in any building, conveyance
or enclosed place. Therefore, the commission of the act or concealment of
document etc. must be in any building, conveyance or enclosed place.

        The trial Court and the High Court after analyzing the evidence have
come to hold that there was compliance of Section 42(2) in the sense that C
requisite documents were sent to the superior officer, though per se Section
42 had no application to the facts of the case. Though learned counsel for
the appellant tried to submit that there was no definite evidence about
sending copies of the requisite documents to the superior officers, yet in
view of the analysis of evidence done by the trial Court and also by the D
 High Court, we do not find any substance in the plea that there was
violation of Section 42(2).

     So far as non-compliance of Section 50 is concerned, the said
provision reads as follows:
                                                                              E
     "50. Conditions under which search of persons shall be conducted.-

     (1) When any officer duly authori~ed under Section 42 is abo!..t to
search any person under the provisions of Section 41, Section 42 or Section
43, he shall, if such person so requires, take such person without
unnecessary delay to the nearest gazetted officer of any of the depaitments   F
mentioned in Section 42 or to the nearest Magistrate.

     (2) If such requisition is made, the officer may detain the person until
he can bring him before the gazetted officer or the Magistrate referred to
in sub-section (1).                                                           G
     (3) The gazetted officer or the Magistrate before whom any such
person is brought shall, if he sees no reasonable ground for search,
forthwith discharge the person but otherwise shall direct that search be
made.
                                                                              H
    994                 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A         (4) No female shall be searched by anyone excepting a female."

         As in the instant case the search was of the bags and not of the
    persons, Section 50 has no application and the High Court was right in its
    conclusions.

B         A bare reading of Section 50 shows that it only applies in case of
    personal search of a person. It does not extend to search of a vehicle or
    a container or a bag, or premises. (See Kalema Tumba v. State of
    Maharashtra and Anr., JT (1999) 8 SC 293, Baldev Singh 's case (supra),
    Gurbax Singh v. State of Haryana, [2001] 3 SCC 28). The language of
C   Section 50 is implicitly clear that the search has to be in relation to a person
    as contrasted to search of premises, vehicles or articles.· This position was
    settled beyond doubt by the Constitution Bench in Baldev Singh 's case
    (supra). Above being the position, the contention regarding non-compli-
    ance of Section 50 of the Act is also without any substance.
D
        A similar question was examined in Madan Lal and Anr. v. State of
    Himachal Pradesh (2003) 6 Supreme 382.

         Coming to the question of alleged non-compliance of the requirement
    of Sections 55 and 57, we find the trial Court has referred to the evidence
E   of the witnesses and held that articles· were kept in Malkhana in safe
    custody and were sent for chemical examination after necessary orders by
    the Magistrate and, therefore, the requirement of Section 55 were complied
    with. Section 57 relates to reporting of arrest and seizure to immediate
    superior officer. The evidence shows that same has been done. We find
F   no infirmity in the conclusions of the trial Court and the High Court
    regarding compliance of Sections 55 and 57 to warrant interference.

          Learned counsel for the appellant residually submitted that the
    accused have suffered about 2 years and 9 months of custodial sentence,
G   and, therefore, sentence should be altered to the sentence undergone. We
    find no substance in the plea looking to the gravity of the offence
    committed and large quantity of contraband a1ticles seized. The appeal is
    without any merit and is dismissed.

    A.K.T.                                                     Appeal dismissed.