State of Orissa Vs. Laxman Jena
EmailAppeal: Criminal Appeal No. 1670 of 1996
Petitioner: State of Orissa
Respondent: Laxman Jena
Apeal: Criminal Appeal No. 1670 of 1996
Judges: R.P. Sethi & Doraiswamy Raju, JJ.
Date of Judgment: Apr 24, 2002
Head Note:
CRIMINAL LAW
Narcotic Drugs and Psychotropic Substances Act, 1985
Sections 18, 42 and 50 – Power of entry, search, seizure and arrest without warrant or authorization – Procedure to be followed for searches – Precondition for exercise of powers under section 42 – Effect of non compliance. Held, compliance with the requirements of the proviso to section 42(1) is a legal obligation on the part of the authority exercising the powers under section 42. Such authority ought to record the grounds of his belief to make the search in terms of the powers conferred on him. In the instance case since there was no material or evidence on record to show that the requirements of the proviso to section 42(1) had been complied with, the High Court was justified in acquitting the accused. (Paras 5, 6 and 7)
Cases Reffered:
1. Beckodan Abdul Rehman v. State of Kerala (JT 2002 (4) SC 68) (Para 8)
2. State of Punjab v. Baldev Singh (JT 1999 (4) SC 595) (Para 7)
2. State of Punjab v. Baldev Singh (JT 1999 (4) SC 595) (Para 7)
JUDGEMENT:
Order
1. On a specific information received by him, Shri Priya Ranjan Patra- PW-5, recorded the information in the station diary, entry no. 57 and processed to house of the respondent for effecting the recovery of opium, allegedly concealed therein. The house of the accused was searched between 2 a.m. and 3 a.m. in the presence of the witnesses and opium total weighing 2.690 kgs. recovered. After compliance of the legal formalities, the contraband was seized and the accused arrested. The trial court after recording evidence found the respondent guilty for the commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him rigorous imprisonment for ten years besides paying a fine of Rs. 1 lakh and in default of payment of fine to undergo further R.I for two years and 6 months.
2. Not satisfied with the judgment of the trial court, the respondent filed criminal appeal no. 32 of 1993 in the High Court, which was allowed vide the judgment impugned and he was acquitted of the charge. The High Court found that the mandatory provisions of section 42 and section 50 of the Act had been violated.
3. Mr. R.S. Jena, learned counsel appearing for the appellant-state has submitted that the High Court committed an error of law by holding that as the provisions of section 50 of the Act were violated, the respondent was entitled to be acquitted. It is contended that in the facts and circumstances of the case, section 50 of the Act was not at all applicable, so there was no question of its violation. Section 50 of the Act deals with the conditions under which a search of a person can be conducted. It does not refer to the search of a house or any other place. As admittedly the person of the respondent was not subjected to search, the provisions of section 50 of the Act were not applicable. The High Court, therefore, committed a mistake of law in holding the violation of section 50 of the Act in the instant case.
4. The learned counsel for the appellant-state further contended that as the provisions of section 42 of the Act had been substantially compiled with, the High Court was not justified in arriving at the conclusion regarding its violation. Section 42 of the Act provides:
“42. Power of entry, search, seizure and arrest without warrant or 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 department of the central government, or of the Border Security Force as is empowered in this behalf by general or special order 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 personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, 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 kept or concealed in any building, conveyance or enclosed place, may, 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;
(c) seize such drug or substance and all materials used in the manufacture thereof 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 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 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 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 sun set and sun rise after recording the grounds of his belief.
(2) 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.”
5. There is no dispute that section 42 has two parts. The first part deals with the recording of the information and the second with the conduct of the search. Again first part of the section has two limbs, first dealing with the recording of the information received and the other relating to the belief of the officer based upon his personal knowledge. Any information recorded in terms of sub-section (1) of section 42 is required to be sent to the superior officer of the person recording the information as mandated by sub-section (2) of section 42. Second part of the section 42(1) deals with the power of the officer regarding entry, search, seizure and arrest without warrant of authorisation. The authorised officer has the power to enter into and search any building, conveyance or place and in case of resistance, break open any door and remove any obstacle to such entry. He has power to seize the drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the Act and to detain and search, if he thinks proper, and arrest any person whom he has reason to believe to have committed any offence punishable under chapter IV relating to such drug or substance.
6. However, in exercising a power under the second part of section 42 (1) the designated officer is under a legal obligation to comply with the mandate of the proviso to sub-section (1) providing for recording of grounds of his belief to make the search in terms of the powers conferred upon him. In the instant case the High Court has found on facts that before making the search, the officer concerned had not recorded reasons or grounds for his belief to make the search in terms of proviso to section 42 (1) of the Act.
7. The mandate of law, as incorporated under the Act, is required to be strictly compiled in view of the grave consequences which are likely to be followed on proof of illicit article under the Act. The legislature had enacted and provided certain safeguards in various provisions of the Act including sections 42 and 50, in all cases which must be proved to have been strictly followed. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and comply with of safeguards. Our constitution bench of this court in the State of Punjab v. Baldev Singh1 has held:
“Prior to the passing of the NTPS Act 1985 control over narcotic drugs was being generally exercised through certain central enactment though some of the states also had enacted certain statutes with a view to deal with illicit traffic in drugs. The Opium Act, 1857 related mainly to preventing illicit cultivation of poppy, regulating cultivation of poppy, and manufacture of opium. The Opium Act, 1878 supplemented the Opium Act, 1857 and made possession, transportation, import, export, sale, etc. of opium also an offence. The Dangerous Drugs Act, 1930, was enacted with a view to suppress traffic in contra band and abuse of dangerous drugs, particularly derived from opium, Indian hemp and coca leaf, etc. The Act prescribed maximum punishment of imprisonment for 3 years with or without fine, in so far as the first offence is concerned and for the second or the subsequent offence, the punishment could go upto four years RI. these Acts, however, fail to control illicit drug traffic and drug abuse on the other hand exhibited an upward trend. New drugs of addiction known as psychotropic substances also appeared on the scene causing serious problems. It was noted that there was absence of comprehensive law to enable effective control over psychotropic substances in the manner envisaged by the international convention on psychotropic substances, 1971. The need for the enactment of some comprehensive legislation on narcotic drugs and psychotropic substances was therefore felt. Parliament with a view to meet our social challenge of great dimensions enacted the NDPS Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalties particularly for trafficking and various other offences. The NDPS Act, 1985 provides stringent penalties for various offences. Enhanced penalties are prescribed for the second and subsequent offences. The NDPS Act, 1985 was amended in 1988 w.e.f…. 29.5.1989 with minimum punishment of ten years imprisonment which may extend upto 20 and a minimum fine of 1 lakh rupees which may extend upto Rs. 2 lakhs have been provided for most of the offences under the NDPS Act, 1985. For the second and subsequent offences, minimum punishment of imprisonment is 15 years which may extend to 30 years while minimum fine is Rs. 1.5 lakhs which may extend to Rs. 3 lakhs. Section 31 (a) of the Act, which was inserted by the Amendment Act of 1988, has even provided that for certain offences, after previous convictions, death penalty shall be imposed without leaving any discretion in the court to avoid imprisonment for life in appropriate cases. Another amendment of considerable importance introduced by the Amendment Act, 1988 was that all the offences under the Act were made triable via special court. Section 36 of the Act provides for constitution of special courts manned by a person who is a sessions judge or an additional sessions judge. Appeals from the orders of the special courts lie to the High Court. Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail. However despite the stringent provisions of the NDPS Act, 1985 as amended in 1988, drug business is booming: addicts are rapidly rising; crime with its role in narcotics is galloping and drug trafficking network is ever growing. While interpreting various provisions of the statute, the object of the legislation has to be kept in view but at the same time, the interpretation has to be reasonable and fair.”
8. Again this Court in Backodan Abdul Rehman v. State of Kerala1 held:
After referring to host of judgments, the constitution bench of the Court held that the provisions of the sections 42 and 50 are mandatory and their noncompliance would render the investigations illegal. It was reiterated that severe the punishment, greater the care to be taken to see that all the safeguards provided in the statue are scrupulously followed. The safeguards mentioned in section 50 are intended to serve dual purpose to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. If the empowered officer fails to comply with the requirements of the section, the prosecution is to suffer for the consequences. The legitimacy of the judicial process may come under the cloud if the court is shown to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law, which may have the effect of unconsciously compromising the administration of justice.
9. The learned counsel appearing for the appellant state could not refer to any record or evidence to show that the mandate of proviso to subsection (1) of section 42 was followed by the officer concerned before making the search. The High Court in the absence of cogent evidence, rightly concluded that the aforesaid provision had not been followed which entitled the accused the benefit of the acquittal.
10. We do not find any illegality or error of jurisdiction in the order of the High Court requiring our interference. There is no merit in this appeal, which is accordingly dismissed.
1. On a specific information received by him, Shri Priya Ranjan Patra- PW-5, recorded the information in the station diary, entry no. 57 and processed to house of the respondent for effecting the recovery of opium, allegedly concealed therein. The house of the accused was searched between 2 a.m. and 3 a.m. in the presence of the witnesses and opium total weighing 2.690 kgs. recovered. After compliance of the legal formalities, the contraband was seized and the accused arrested. The trial court after recording evidence found the respondent guilty for the commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him rigorous imprisonment for ten years besides paying a fine of Rs. 1 lakh and in default of payment of fine to undergo further R.I for two years and 6 months.
2. Not satisfied with the judgment of the trial court, the respondent filed criminal appeal no. 32 of 1993 in the High Court, which was allowed vide the judgment impugned and he was acquitted of the charge. The High Court found that the mandatory provisions of section 42 and section 50 of the Act had been violated.
3. Mr. R.S. Jena, learned counsel appearing for the appellant-state has submitted that the High Court committed an error of law by holding that as the provisions of section 50 of the Act were violated, the respondent was entitled to be acquitted. It is contended that in the facts and circumstances of the case, section 50 of the Act was not at all applicable, so there was no question of its violation. Section 50 of the Act deals with the conditions under which a search of a person can be conducted. It does not refer to the search of a house or any other place. As admittedly the person of the respondent was not subjected to search, the provisions of section 50 of the Act were not applicable. The High Court, therefore, committed a mistake of law in holding the violation of section 50 of the Act in the instant case.
4. The learned counsel for the appellant-state further contended that as the provisions of section 42 of the Act had been substantially compiled with, the High Court was not justified in arriving at the conclusion regarding its violation. Section 42 of the Act provides:
“42. Power of entry, search, seizure and arrest without warrant or 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 department of the central government, or of the Border Security Force as is empowered in this behalf by general or special order 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 personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, 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 kept or concealed in any building, conveyance or enclosed place, may, 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;
(c) seize such drug or substance and all materials used in the manufacture thereof 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 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 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 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 sun set and sun rise after recording the grounds of his belief.
(2) 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.”
5. There is no dispute that section 42 has two parts. The first part deals with the recording of the information and the second with the conduct of the search. Again first part of the section has two limbs, first dealing with the recording of the information received and the other relating to the belief of the officer based upon his personal knowledge. Any information recorded in terms of sub-section (1) of section 42 is required to be sent to the superior officer of the person recording the information as mandated by sub-section (2) of section 42. Second part of the section 42(1) deals with the power of the officer regarding entry, search, seizure and arrest without warrant of authorisation. The authorised officer has the power to enter into and search any building, conveyance or place and in case of resistance, break open any door and remove any obstacle to such entry. He has power to seize the drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the Act and to detain and search, if he thinks proper, and arrest any person whom he has reason to believe to have committed any offence punishable under chapter IV relating to such drug or substance.
6. However, in exercising a power under the second part of section 42 (1) the designated officer is under a legal obligation to comply with the mandate of the proviso to sub-section (1) providing for recording of grounds of his belief to make the search in terms of the powers conferred upon him. In the instant case the High Court has found on facts that before making the search, the officer concerned had not recorded reasons or grounds for his belief to make the search in terms of proviso to section 42 (1) of the Act.
7. The mandate of law, as incorporated under the Act, is required to be strictly compiled in view of the grave consequences which are likely to be followed on proof of illicit article under the Act. The legislature had enacted and provided certain safeguards in various provisions of the Act including sections 42 and 50, in all cases which must be proved to have been strictly followed. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and comply with of safeguards. Our constitution bench of this court in the State of Punjab v. Baldev Singh1 has held:
“Prior to the passing of the NTPS Act 1985 control over narcotic drugs was being generally exercised through certain central enactment though some of the states also had enacted certain statutes with a view to deal with illicit traffic in drugs. The Opium Act, 1857 related mainly to preventing illicit cultivation of poppy, regulating cultivation of poppy, and manufacture of opium. The Opium Act, 1878 supplemented the Opium Act, 1857 and made possession, transportation, import, export, sale, etc. of opium also an offence. The Dangerous Drugs Act, 1930, was enacted with a view to suppress traffic in contra band and abuse of dangerous drugs, particularly derived from opium, Indian hemp and coca leaf, etc. The Act prescribed maximum punishment of imprisonment for 3 years with or without fine, in so far as the first offence is concerned and for the second or the subsequent offence, the punishment could go upto four years RI. these Acts, however, fail to control illicit drug traffic and drug abuse on the other hand exhibited an upward trend. New drugs of addiction known as psychotropic substances also appeared on the scene causing serious problems. It was noted that there was absence of comprehensive law to enable effective control over psychotropic substances in the manner envisaged by the international convention on psychotropic substances, 1971. The need for the enactment of some comprehensive legislation on narcotic drugs and psychotropic substances was therefore felt. Parliament with a view to meet our social challenge of great dimensions enacted the NDPS Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalties particularly for trafficking and various other offences. The NDPS Act, 1985 provides stringent penalties for various offences. Enhanced penalties are prescribed for the second and subsequent offences. The NDPS Act, 1985 was amended in 1988 w.e.f…. 29.5.1989 with minimum punishment of ten years imprisonment which may extend upto 20 and a minimum fine of 1 lakh rupees which may extend upto Rs. 2 lakhs have been provided for most of the offences under the NDPS Act, 1985. For the second and subsequent offences, minimum punishment of imprisonment is 15 years which may extend to 30 years while minimum fine is Rs. 1.5 lakhs which may extend to Rs. 3 lakhs. Section 31 (a) of the Act, which was inserted by the Amendment Act of 1988, has even provided that for certain offences, after previous convictions, death penalty shall be imposed without leaving any discretion in the court to avoid imprisonment for life in appropriate cases. Another amendment of considerable importance introduced by the Amendment Act, 1988 was that all the offences under the Act were made triable via special court. Section 36 of the Act provides for constitution of special courts manned by a person who is a sessions judge or an additional sessions judge. Appeals from the orders of the special courts lie to the High Court. Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail. However despite the stringent provisions of the NDPS Act, 1985 as amended in 1988, drug business is booming: addicts are rapidly rising; crime with its role in narcotics is galloping and drug trafficking network is ever growing. While interpreting various provisions of the statute, the object of the legislation has to be kept in view but at the same time, the interpretation has to be reasonable and fair.”
8. Again this Court in Backodan Abdul Rehman v. State of Kerala1 held:
After referring to host of judgments, the constitution bench of the Court held that the provisions of the sections 42 and 50 are mandatory and their noncompliance would render the investigations illegal. It was reiterated that severe the punishment, greater the care to be taken to see that all the safeguards provided in the statue are scrupulously followed. The safeguards mentioned in section 50 are intended to serve dual purpose to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. If the empowered officer fails to comply with the requirements of the section, the prosecution is to suffer for the consequences. The legitimacy of the judicial process may come under the cloud if the court is shown to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law, which may have the effect of unconsciously compromising the administration of justice.
9. The learned counsel appearing for the appellant state could not refer to any record or evidence to show that the mandate of proviso to subsection (1) of section 42 was followed by the officer concerned before making the search. The High Court in the absence of cogent evidence, rightly concluded that the aforesaid provision had not been followed which entitled the accused the benefit of the acquittal.
10. We do not find any illegality or error of jurisdiction in the order of the High Court requiring our interference. There is no merit in this appeal, which is accordingly dismissed.
