Supreme Court Upholds Conviction Under NDPS Act: SK Raju vs. State of West Bengal (2018)

Introduction

Date of the Judgment: September 5, 2018

Citation: 2018 INSC 797

Judges: Dipak Misra, CJI, Dr. Dhananjaya Y Chandrachud, J, and Indira Banerjee, J.

When can a search of a person be considered legal under the Narcotic Drugs and Psychotropic Substances Act, 1985? The Supreme Court of India recently addressed this critical question in a case involving the recovery of charas from a bag carried by an individual. This judgment clarifies the mandatory procedures that law enforcement officers must follow during searches and seizures under the NDPS Act. The bench comprised of Chief Justice Dipak Misra, Justice Dr. Dhananjaya Y Chandrachud, and Justice Indira Banerjee. The majority opinion was authored by Justice Dr. Dhananjaya Y Chandrachud.

Case Background

On November 15, 2011, Sub-Inspector Prasanta Kr. Das (PW-2) of the Narcotics Cell received information about a drug dealer operating near Tiljala Falguni Club. After obtaining permission from the Assistant Commissioner of Police, PW-2 and his team reached the location. Around 1:40 PM, the informant identified the appellant, SK Raju, who was then intercepted and detained. The appellant was informed of the reasons for his detention and his right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for a search by a gazetted officer. Inspector Joysurja Mukherjee (PW-4) arrived at 3:20 PM and presented the appellant with the same option again, to which the appellant consented. The appellant was then given the option to search PW-2 before being searched himself. No narcotics were found on PW-2. Subsequently, a search of the appellant led to the recovery of 1.5 kilograms of charas from a bag he was carrying, along with Rs. 2,400 in cash from his trouser pocket.

Timeline

Course of Proceedings

The Additional Sessions Judge (ASJ) and Special Court convicted the appellant on February 15, 2014, for an offense under Section 20(b)(ii)(C) of the NDPS Act, sentencing him to 14 years of rigorous imprisonment and a fine of Rs 1,40,000. The Calcutta High Court upheld this conviction on February 19, 2016. The appellant then appealed to the Supreme Court.

Legal Framework

The case primarily revolves around the interpretation and application of Sections 42, 43, and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

✓ Section 42 of the NDPS Act outlines the power of entry, search, seizure, and arrest without a warrant or authorization. It specifies that an officer must have reason to believe, based on personal knowledge or written information, that an offense under the Act has been committed or that related items are concealed in a building, conveyance, or enclosed place. The officer must record this information and send a copy to their superior within 72 hours.

The provision states:

“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 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 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, or controlled substance in respect of which an offence punishable under this Act has been 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 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, — (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 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 person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub -inspector: Provided further 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 sunset and sunrise 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 within seventy -two hours send a copy thereof to his immediate official superior.”

✓ Section 43 of the NDPS Act grants the power of seizure and arrest in a public place. It allows authorized officers to seize substances and arrest individuals in public places or during transit if they have reason to believe an offense has been committed under the Act. A public place includes any public conveyance, hotel, shop, or other place accessible to the public.

The provision states:

“43. Power of seizure and arrest in public place. — Any officer of any of the departments mentioned in section 42 may — (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or 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; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation. — For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.”

✓ Section 50 of the NDPS Act outlines the conditions under which a search of a person must be conducted. It mandates that if a person being searched requests, they must be taken to the nearest gazetted officer or magistrate. The officer must inform the person of this right.

The provision states:

“50. Conditions under which search of persons shall be conducted. — (1) When any officer duly authorised 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 nearest Gazetted Officer 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 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 that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised 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 possibility of the person to be searched parting with possession of any 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 section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (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.”

Arguments

The appellant argued that there was non-compliance with both Section 42 and Section 50 of the NDPS Act.

• Non-compliance with Section 42: The appellant contended that PW-2, despite knowing the importance of complying with Section 42, did not properly record the information about the drug dealer. The appellant argued that the failure to record the information, apart from a letter seeking permission from the superior officer, violated the mandatory requirements of Section 42. The appellant relied on the cases of Abdul Rashid Ibrahim Mansuri v State of Gujarat [2000] 2 SCC 513, Directorate of Revenue v Mohammed Nisar Holia [2008] 2 SCC 370, and State of Rajasthan v Jagraj Singh [2016] 11 SCC 687 to support this argument.
• Non-compliance with Section 50: The appellant argued that Section 50 was not followed because he was not informed of his legal right to be searched before a gazetted officer or magistrate. Instead, he was merely given an “option” by PW-2 and PW-4. The appellant also pointed out that a personal search was conducted, resulting in the recovery of cash from his trouser pocket, which mandates compliance with Section 50. The appellant cited Myla Venkateswarlu v State of Andhra Pradesh [2012] 5 SCC 226, State of Rajasthan v Parmanand [2014] 5 SCC 345, and Namdi Francis Nwazor v Union of India [1998] 8 SCC 534 to support this argument.

The respondent-State argued that the search was conducted in a public place, falling solely under Section 43, thus negating the need for compliance with Section 42. They also argued that Section 50 does not apply to the search of a bag or article belonging to a person.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether Section 42 of the NDPS Act is attracted to the facts of the present case.
2. Whether Section 50 of the NDPS Act was required to be complied with in the present case.
3. If Section 50 was attracted, whether the requirements of Section 50 were strictly complied with by PW-2 and PW-4.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

What weighed in the mind of the Court?

The Supreme Court emphasized the distinction between searches conducted in public places versus enclosed spaces. It highlighted that Section 42 of the NDPS Act applies to searches in buildings, conveyances, or enclosed places, while Section 43 applies to searches in public places. The Court also stressed the importance of strict compliance with Section 50 when a personal search is conducted, but clarified that a search of a bag does not automatically trigger Section 50 unless a personal search is also involved. The Court noted that the appellant was informed of his rights under Section 50 and voluntarily chose to be searched by a gazetted officer.

The Court reasoned that since the appellant was intercepted in a public place, Section 43 of the NDPS Act was applicable, not Section 42. The Court also clarified that while Section 50 is mandatory for personal searches, it is not automatically triggered by the search of a bag unless a personal search is also conducted. The Court emphasized that in this case, the appellant was properly informed of his rights under Section 50 and voluntarily chose to be searched by a gazetted officer.

The Court quoted the following from the judgment:

“The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure , Section 43 does not contain any such provision…”

“…it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate.”

“…if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application.”

Key Takeaways

• Distinction Between Section 42 and 43: Section 42 applies to searches in buildings, conveyances, or enclosed places, while Section 43 applies to searches in public places.
• Compliance with Section 50: Section 50 of the NDPS Act is mandatory for personal searches. The person being searched must be informed of their right to be searched in the presence of a gazetted officer or magistrate.
• Search of a Bag: A search of a bag alone does not trigger Section 50. However, if a personal search is also conducted, Section 50 will apply.
• Voluntary Choice: If a person is informed of their right to be searched before a gazetted officer or magistrate and they voluntarily choose to be searched by a gazetted officer, it is considered compliance with Section 50.