SAIKOU JABBIversusSTATE OF MAHARASHTRA

·'

     A                            SAIKOU JABBI
                                       v.
                             STATE OF MAHARASHTRA

                                  DECEMBER 3, 2003

     B           [DORAISWAMY RAJU AND ARIJI1' PASAYAT, JJ.]

              Narcotic Drugs and Psychotropic Substances Act, 1985 :

               Section 50-Search ofpersons-Conditions to be fuljilled-Applica-
     C   bility of-S 50 applies in case ofpersonal search of a person-It does not
         extend to search of a vehicle or a container or a bag or premises.

             The appellant was apprehended for carrying heroin in his
         bagg~ge. The Intelligence Officer attached to the Narcotics Control
         Bureau screened the baggage and seizure was made of the heroin,
     D   which was concealed in the appellant's suitcase.

              The appellant was charged for offences punishable under Sections
         21, 23, 28 and 29 of the Narcotic Drugs and Psychotropic Substances
         Act, 1985 and also under Section 135(i)(a)(ii) of the Castoms Act, 1962.
     E   The trial court acquitted the appellant on the ground that there was
         non-compliance with the requirement of Section 50 of the NDPS Act
         as the appellant was not made aware of his right to be searched before
         a gazetted officer or a Magistrate before the s~arch was conducted.
         However, the High Court held that Section 50 of the NDPS Act was
         not attracted to the facts of the case and accordingly convicted the
     F   appellant. Hence this appeal.

              Dismissing the appeal, the Court

              HELD : 1.1. Section 50 of the Narcotic Drugs and Psychotropic
     G Substances Act, 1985 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. [463-D-E]

              State of Punjab v. Baldev Singh, JT (1999) 4 SC 595, followed.

     H        Kalema Tumba v. State of Maharashtra, JT (1999) 8 SC 293 and

                                           456
      SAIKOU JABB! v. STATE OF MAHARASHTRA [PASA YAT, J.]           457

Gurbax Singh v. State of Haryana, 12001 I 3 sec 28, relied on.             A
     1.2. The language of 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. 1463-E-Fl

     State of Punjab v. Baldev Singh, JT (1999) 4 SC 595, followed.        B
     2. The contraband articles were suspected to be hidden in the
suitcase of the accused and were not in his physical possession. The
suitcase was put on the screening machine. This cannot be equated to
be a recovery made from the person of the accused by a personal C
search. 1463-F-G-HJ

     Birakishore Kar v. State of Orissa, 12001 )9 SCC 541 ani Madan
Lal v. State of Himachal Pradesh, (2003) AIR SC 3969, relied on.

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. D
103 of 2003.

     From the Judgment and Order dated 7/8.8.2001 of the Bombay High
Court in Crl. A. No. 690 of 1997.

     Mis. C.K. Sucharita (AC) for the Appellant.                           E
     Mukesh K. Giri and Ravindra Keshavrao Adsure for the Respondent.

     The Judgment of the Court was delivered by

      ARIJIT PASAYAT, J. The appellant, a Gambian national, was F
apprehended around mid-night of 17 .9 .1993 at the Sahara Airport Bombay
for carrying heroin in his baggage in ET Flight No. 661. Ashok Thaker,
(PW- I) an intelligence officer attached to the Narcotic Bureau screened the
baggage and seizure was made of the heroine weighing about l kg. which
was concealed in a suitcase. After recording the statement accused was G
taken for alleged contravention of various provisions of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short the 'Act') and also under
the Customs Act, 1962 (in short the 'Customs Act'). He was charged for
offence punishable under Se~tions 21, 23, 28 and 29 of the Act and also •
Sections 135(1 )(a)(ii) of the Customs Act. Accused pleaded innocence: H
    458                 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.
A He was tried in the Court of Special Judge for Greater Bombay who found
    that there was non-compliance with the requirement of Section 50 of the
    Act as he was not made aware of his right·to be searched before a gazetted
    officer or a Magistrate before the search was conducted. It was also held
    that the requirement of Section 42(2) to submit the gist of information to
B   higher officer immediately was also not established. The accused was
    acquitted of all the charges. The prosecuting agency filed an appeal before
    the Bombay High Court which by the impugned judgment held the accused
    guilty for offences punishable under Section 8(c) read with Section 21 of
    the Act for which custodial sentence of I 0 years imprisonment and fine
    of Rs. I lakh for default stipulation was awarded. Further for offence
C   relatable to Sections 28 read with Section 23 of the Act a similar sentence
    was awarded. Though he was convicted under Section 135(l)(a)(ii) of the
    Customs Act, but no separate sentence was awarded. T~e High Court held
    that Section 50 was not attracted to the facts of the case. Similarly, it was
    held that there was compliance ofrequirements of Section 42(2) of the Act.

          Said judgment of the High Court is under challenge in this appeal.

          In support of the appeal, learned counsel appearing for the appellant
    submitted that the trial Court was justified in holding that the accusations
    were not established against the appellant. Unfortunately, the High Court
E   had on an erroneous reading of Sections 42 and 50 came to hold that there
    was compliance with the requirements of the said provisions. The seized
    articles were sent for chemical examination on 23.9.1993. This was in
    violation of Section 55 of the Act.

F        Learned counsel for the respondent-State submitted that the High
    Court was justified in its conclusion and correct interpretation of the
    relevant provisions of the Act have been made. Further, the plea that there
    was any prejudice to the accused on account of delayed dispatch was not
    taken before the courts below. In any event, the investigating officer
G   categorically stated that the seized articles were kept in safe custody. There
    was not even any material brought on record to doubt the statement.

           Before dealing with rival submissions, it is appropriate to take note
    of the factual background noticeJ by the trial Court and the High Court.

H          During the night between 17.9.1993 and 18.9.1993 PW-I attached
      SAIKOU JABBI v. STATE OF MAHARASHTRA [PASAYAT, J.]             459
to Narcoti<.. Control Bureau (in short 'NCB') Office, received information A
that the accused, a Gambian national, was likely to smuggle heroin in his
baggage by ET flight 661, scheduled to arrive at 0645 hours that night.
He received the information when he was at the airport. He reduced the
same to writing (Exh. 1?-A) and placed it before his immediate superior
Assistant Director, Mr. S.C. Rohatgi, who was present at the Airport. Mr. B
Rohatgi perused it and put his signature and asked the officer to act upon
the said information. At ihe Airp01t, he called two panchas and kept a
watch at the X-ray machine counter. One Mr. Karanj la, who was a security
officer, was Screen Machine Operator at the relevant time. When the
accused placed three baggages for screening, the security officer gave C
signal to PW-1. On the monitor of the screening machine PW-1 noticed
green dense patches/spot when a blue coloured caravan make zipper
suitcase was put. All the 3 baggages of the accused were placed on the
screening machine. PW-1 &s well as the security officer suspected conceal-
ment of contraband in blue coloured suitcase. The three baggages of the
accused were therefore, kept separately near the counter. PW-1 the D
 i11telligence officer, who was also an empowered officer disclosed his
 identity to the accused and his intention to search his baggages. This
 officer along with the accused, panchas and 3 baggages of the accused went
 to the Air Traffic Room of Air India for the purpose of search of those
 baggages. In that room PW-1 took charge of the travel document of the E
 accused consisting of his passport, ticket etc. Accused opened blue
 coloured suitcase with his keys. The same was filled with old and new
 garments and one bed sheet. Two polythene bags containing brown powder
 were found in the folds of bed sheet. Small quantity of the brown powder
 was taken out for the purpose of testing which, when tested on testing kit, F
 answered positive for heroin. Both the polythene bags were emptied in
 one big polythene bag. The total quantity of powder found in the said bags
weighed 990 grams. Three samples were drawn in separate small polythene
 bags. Those bags were sealed by heating and were put in separate paper
 bags which were closed. All these samples packets were sealed with office
 seal bearing No.03-NCB in the presence ofpanchas whose signatures were G
obtained after putting patticulars and marked S-1, S-2 and S-3. Sample
 packets were also signed by PW-I as well as the accused. The remaining
quantity of powder was separately sealed with the seal of N.C.B. and the
 signatures of the panchas and the accused were taken on the labels. The
 seizure panchnama (Exh. 17) was prepared. The panchnama was signed H
    460                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A by both the panchas as well as PW-1. One copy of the said panchnama
    was handed over to the accused which he acknowledged by putting his
    signature on the seizure panchnama. The blue suitcase, the contraband and
    the bed sheet were seized. Other two suitcases were returned to the accused.
    The travel documents and foreign currency wo1th 20 I US $ and 700 Francs
B   recovered in personal search of the accused were also seized under the
    panchnama.

           ·Thereafter, the accused along with the contraband and samples was
    brought to the N.C.B. Office. A note about the interception, search and
C   seizure was prepared by the officer, (Exh. 17-A). The same was placed
    before his superior officer Mr. S.C. Rohatgi along with seizure panchnama
    and the muddemal property. Summons were served to the accused under
    Section 67 of the Act and his statement was recorded by PW. I on
    18.9.1993 in which the accused admitted the recovery of 990 grams of
    heroin from his suit case. The same was marked as (Exh.18). His further
D   statement was recorded on 19.9.1993 as per (Exh.19). The accused "'.as
    arrested on 19.9.1993.

            On 23.9.1993, sample packet marked as S-1 was handed over to the
    Dy. Chief of the Laboratory and Chemical Analyst's Report from the
E   Laboratory dated 26.10.1993 was received (as per Exh.21), according to
    which the sample was of heroin (diacetylmorphine). After the investigation
    was completed complaint was filed. The Special Judge framed charges
    against the accused under Section 8(c) read with Sections 21, 23, 28 and
    29 ofthe Act and under Section 135(l)(a)(ii) of the Customs Act. Separate
F   charge under Section 8(c) of the Act read with Section 21 of the Act was
    als:l framed against the accused. As the accused pleaded not guilty,
    prosecution led evidence of two witnesses. PW- I, as noted above Ashok
    Thaker, who had received the information, conducted the search and also
    investigated the case. The other witness examined was par..:h PW-2
    Ankush Yerunkar, who was panch to the search and seizure of the
G   contraband from the accused. He fully supported the prosecution case. The
    prosecution has also produced on record the relevant documents like copy
    of the information reduced to writing, Seizure panchnama, Chemical
    Analyst's Report etc.

H         The first aspect which needs to be considered is whether there was
     SAIKOU JABBI v. STATE OF MAHARASHTRA [PASAYAT, J.]             461

any non-compliance of Sections 42 and 50 of the Act as pleaded. So far A
as these two provisions are concerned, they read as follows:

        "Section 42: Power of ent1y, search, seizure and arrest without
        warrant or authorization:

        (I) Any such officer (being an officer superior in rank to a peon, B
        sepoy or constable) of the departments of central excise, narcotics,
        customs, revenue intelligence or any other department of the
        Central Government including para-military forces or armed
        forces as is empowered in this behalf by general or special order
        by the Central Government, or any such officer (being an officer C
        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
        persons knowledge or information given by any person and taken D
        down in writin.g that any narcotic drug, or psychotropic substance,
        or controlled substance in respect of which an offence punishable
        under this Act has be~n committed or any document or other
        article which may furnish evidence of the commission of such
        offence or any illegally acquired property or any document or E
        other article which may furnish evidence of holding any illegally
        acquired property which is liable for seizure or freezing or
        forfeiture under, Chapter VA of this Act is kept or concealed in
        any building, conveyance or enclosed place, may between sunrise
        and sunset,-
                                                                          F
             (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;
                                                                          G
             ( c) seize such drug or substance and all materials used in the
        manufacture thereof and any other a1ticle and any animal or
        conveyance which he has reason to believe to be liable to
        confiscation under this Act a11d any document or other artjcle
        which he has reason to believe may furnish evidence of the H
    462             SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A         commission of any offence punishable under this Act or furnish
          evidence of holding any illegally acquired property which is liable
          for seizure or freezing or forfeiture under Chapter VA of this Act;
          and

               (d) detain and search, and, if he thinks proper, arrest any
B         person whom he has reason to believe to have committed any
          offence punishable under this Act:

               Provided that if such officer has reason to believe that a
          search warrant or authorization cannot be obtained without afford-
c         ing opportunity for the concealment or 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
D         sub-section ( l) or records grounds for his beiief under the proviso
          thereto, he shall within seventy-two hours send a copy thereof to
          his immediate official superior.

          Section 50: Conditions under which search. of persons shall be
E         conducted-

          (1) When any officer duly authorized under Section 42 is about
          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
F
          of any of the departments 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
G         Magistrate referred to in sub-section (1 ).

          (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
H         that search be made.
      SAIKOU JABBI v. STATE OF MAHARASHTRA [PASAYAT, J.]               463

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

        (5) When an officer duly authorized under section 42 has reason
        to believe that it is not possible to take the person to be searched
        to the nearest Gazetted Officer or Magistrate without the possi-
        bility ofthe person to be searched parting with possession of any B
        narcotic drug or psychotropic substance, or controlled substance
        or article or document, he may, instead of taking such person to
        the nearest Gazetted Officer or Magistrate, proceed to search the
        person as provided under section I 00 of the Code of Criminal
        Procedure, 1973 (2 of 1974).
                                                                             c
        (6) After a search is conducted under sub-section (5), the officer
        shall record the reasons for such belief which necessitated such
        search and within seventy-two hours send a copy thereof to his
        immediate official superior."

     Now comes the question whether there was non-compliance of D
Section 50 of the Act.

       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 E
Maharashtra and Anr., JT (1999) 8 SC 293; The State of Punjab v. Baldev
Singh, JT (1999) 4 SC 595 and Gurbax Singh v. State of Haryana, [200 I]
3 SCC 28]. The language of 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 p
Bench in Baldev Singh's case (supra). Above being the position, the
contention regarding non-compliance of Section 50 of the Act is also
without any substance.

       In the case at liand the contraband articles were suspected to be
hidden in the brue suitcase of the accused, and was not in his physical G
possession. The suitcase was put on the screening machine. This cannot
be equated to be a recovery made from the person of the accused by a
personal search.

       In Birakishore Ktfr v. State ofOrissa, [2001] 9 sec 541 it was held H


                          \.
    464                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A that when there was a recovery from a plastic bag belonging to the accu~ed
    on which he was found sitting on railway compartment, Section 50 was
    not applicable. Baldev's case (supra) was referred to hold that Section 50
    in case of search comes into play only in case of search by a person as
    distinguished from search from any premises etc. The position was also
B   highlighted recently in Madan Lal & Anr. v. State of Himachal Pradesh,
    AIR (2003) SCW 3969. Above being the position the ·High Court was
    justified in holding that Section 50 had no application.

         So far as compliance with Section 42(2) is concerned, the statement
    of PW-1 to the effect that he had informed his superior remained unshaken
C   and there was even no cross-examination to point out any falsity in the said
    statement. The note of intelligence information was placed on record vide
    Exh. 16-A to substantiate the testimony of PW-1. That being so the High
    Court was justified in holding that the provisions of Section 42(2) had been
    complied with.
D
           Coming to the plea regarding non-compliance of Section 55 of the
    Act, as rightly submitted by learned 'counsel for the respondent-State, there
    was not even any argument advanced on that score before the trial Court
    and the High Court. Even otherwise also the evidence of the investigating
E   officer about safe custody of the contraban~ articles have not been
    challenged or shaken in the cross-examination. That being the position we
    are not inclined to accept the plea that there was non-compliance with the
    requirements of Section 55 of the Act. ·

           Looked at from any angle, the appeal is sans merit, deserves ·
F   dismissal, which we direct.

    v.s.s.                                                   Appeal dismissed.