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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 317 OF 2006

Sekhar Suman Verma         Appellant(s)

VERSUS

The Superintendent of N.C.B. & Anr.      Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This  appeal  is  filed  against  the  final  judgment

and order dated 31.08.2004 passed by the High Court

of  Calcutta  in  C.R.A.  No.  269 of  2003 whereby  the

Division Bench of the High Court dismissed the appeal

filed by the appellant herein and affirmed the  orders

dated  11.04.2002  and  12.04.2002  of  the  Special

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Judge,  N.D.P.S.  Act  and VIth  Bench,  City Sessions

Court  at  Calcutta  in  N.D.P.S.  Case  No.  11  of  1998

convicting the appellant herein under Section 21 of the

Narcotic  Drugs  and  Psychotropic  Substances  Act,

1985 ( hereinafter referred to as “the NDPS Act”) and

sentencing him to suffer rigorous imprisonment for ten

years and to pay a fine of Rs.1,00,000/-, in default, to

suffer further rigorous imprisonment for one year.

2) The case of the prosecution is as under:

Acting on an information received on 21.05.1998,

a batch of officers of N.C.B., EZU, Calcutta led by a

Gazetted  Officer  proceeded  for  New  Sarat  Lodge  at

77/1A,  Acharya  Prafulla  Chandra  Road,  Calcutta.

After reaching there, the N.C.B. officers searched the

room of the appellant herein who was staying in Room

No.1  of  New  Sarat  Lodge.   The  officers  asked  the

appellant  in  writing  as  to  whether  he  wanted  to  be

searched  in  the  presence  of  a  Gazetted  officer  or  a

Magistrate  and  informed  the  appellant  that  one

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Gazetted officer was already with them and if  he so

desired,  he  might  be  searched by the  said  Gazetted

officer as well.   

3) After search being done by the raiding party, a

polythene  packet  containing  brown coloured  powder

weighed 250 grams of heroin was recovered from the

left side pocket of his wearing trouser.  Thereafter, the

appellant was arrested on the same day at 22.30 hrs.  

4) As a follow up action of  the said recovery,  one

Anjan De was arrested from the Bidhan Nagar Railway

Station  at  Calcutta  by  the  said  N.C.B.  officers

possessing 245 grams of heroin on 22.05.1998.

5) During the trial, the prosecution examined eight

witnesses and the defence examined nine witnesses.

6) The  learned  Judge  VIth  Bench,  City  Sessions

Court  acting as the Judge,  Special  Court  under  the

N.D.P.S.  Act  by  his  judgment  and  orders  dated

11.04.2002 and 12.04.2002 found the appellant guilty

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of  the  offence  punishable  under  Section  21  of  the

NDPS Act,  convicted  him thereunder  and sentenced

him to suffer rigorous imprisonment for ten years and

to  pay  a  fine  of  Rs.1,00,000/-,  in  default  to  suffer

further rigorous imprisonment for one year.  However,

the  appellant  was  acquitted  of  the   offence  charged

under Section 29 of the NDPS Act.  So far as  another

accused- Anjan De was concerned, he was not found

guilty of both the offences under Sections 29 and 21 of

the NDPS  Act and was accordingly acquitted thereof.

7) Challenging  the  said  order  of  conviction  and

sentence,  the  appellant  preferred  an  appeal  being

C.R.A. No. 269 of 2003 before the High Court.   The

High Court,  by impugned judgment and order dated

31.08.2004,  dismissed  the  appeal  filed  by  the

appellant.

8) Aggrieved by  the  said  judgment  and order,  the

appellant has filed this appeal by way of special leave

before this Court.   

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9) By order dated 17.09.2007, this Court released

the appellant on bail.  

10) In this appeal, we find from the record that the

appellant  was  originally  represented  by  an  amicus

curiae - Mr. Mulkh Raj, who later stopped appearing

for the appellant after leave was granted by this Court.

Thereafter  Mr.  Abhijit  Sengupta,  learned  counsel

appeared for  the  appellant  and bail  was  granted by

this Court on 17.09.2007. On 10.12.2015, Mr. Abhijit

Sengupta,  learned  counsel  also  filed  application  for

discharge of advocate of the appellant.  By order dated

15.12.2015, this Court allowed the application filed by

Mr. Abhijit Sengupta and discharged him from acting

as AOR on behalf of the appellant.  The Registry served

notice  on  the  appellant  by  speed  post  but  no  one

represented the appellant.   

11) When  the  appeal  came  up  for  hearing  on

19.05.2016,  in the interest of justice and fair play, we

requested  Mr. Aniruddha P. Mayee, learned counsel,

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who was present in Court, to appear as amicus curiae

on  behalf  of  the  appellant.  On  our  request  Mr.

Aniruddha P. Mayee, learned counsel  appeared and

argued the case for the appellant. We place on record

our appreciation for Mr. Aniruddha P. Mayee for his

valuable services in arguing the case of the appellant.  

12) In  these  circumstances,  we  are  of  the  opinion

that the appellant is sufficiently and duly represented

throughout  in  these  proceedings  and  it  is  not

necessary to issue any fresh notice  to  the appellant

and give him another opportunity to engage a counsel

of his choice.   

13) The submission of the learned counsel appearing

for the appellant (accused) was only one and that was

in regard to non-compliance of requirements of Section

42 read with Section 50 of the NDPS Act. According to

him,  the  compliance  of  these  Sections  being

mandatory at the time of search and the same in this

case  was  not  done  in  the  manner  required  by  the

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concerned officials of the Department, the appellant's

conviction is rendered legally unsustainable and hence

deserves to be set aside.

14) Learned  counsel  for  the  respondents,  however,

supported the impugned order and urged for dismissal

of the appeal. It was his submission that compliance of

the requirements of Sections 42 and 50 of the  NDPS

Act has been done in letter  and spirit  and both the

Courts rightly held the same to have been done and

hence there arises no case to interfere in the impugned

order.

15) Having heard the learned counsel for the parties

and on perusal of the record of the case, we find no

merit in this appeal.

16) The point urged by the learned counsel  for the

appellant was dealt with by the High Court as under:

“Now, we come to the main area which has  detained  Shri  Jash  at  length.  His argument  that  there  was  no  compliance  of Section 42 of the said Act. This ground has to be discarded at the very outset in view of the

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latest decision of Supreme Court in State of Haryana Vs. Jarnail Singh and Ors. [2004 SAR (Criminal) 535] wherein Their Lordships had held:

“Moreover it cannot be lost sight of  that  the  Superintendent  of Police was also a member of the searching party. It has been held by this Court in M. Prabbulal vs. Assistant Director, Directorate of Revenue  Intelligence:  (2003)  8 SCC 449 that where a search is conducted  by  a  gazetted  officer himself acting under Section 41 of  the  NDPS  Act,  it  was  not necessary  to  comply  with  the requirement  of  Section  42.  For this reason also, in the facts of this case, it was not necessary to comply  with  the  requirement  of the proviso to Section 42 of the NDPS Act.”

Such being the position the argument of Shri Jash so far as infraction of Section 42 of the said Act is concerned has no merit at all since PW7 was a Gazetted Officer himself and he conducted the raid and also effected the search and seizure from the Appellant.  

Now, this brings us to the last ground of Shri Jash that Section 50 of the said Act was not strictly complied with. We have carefully gone through the evidence of P.Ws 4,6, and 7 in this regard and we feel that the provisions of  Section  50  of  the  said  Act  have  been complied with.  

P.W.4, who conducted the Raid, stated:

“We  gave  him  off  in  writing whether he likely to be searched in presence of  a  Magistrate  or  a Gazetted  Officer  or  a  Gazetted Officer accompanying the raiding

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party.  He  agreed  to  be  searched before  the  accompanying Gazetted Officer. Prior to search, we gave offer to him if he likes he can  search  the  Gazetted  Officer, N.C.B.  Officers  etc.  But  he declined.”

P.W.6,  conducting  the  raid  on  the relevant date and time of seizure, supported the said version and stated:

“We gave written offer that  we  want  to  search  and disclosed  to  him  whether  he would  like  to  be  searched  by  a Gazetted Officer or a Magistrate or  the  accompanying  Gazetted Officer,  who  was  with  us.  He stated  to  us  that  he  could  be searched  before  our accompanying  Gazetted  Officer. We asked him to search us before we started conducting search to him.  He  expressed  his unwillingness.”

P.W.7 the Gazetted Officer similarly stated:

“One  of  our  officers offered  the  accused  to  be searched  in  presence  of  a Gazetted Officer or a Magistrate. We  also  told  him  that  one Gazetted  Officer  accompanied the  raiding  party.  The  accused agreed  to  be  searched  in presence  of  the  accompanying Gazetted officer.”

The  decision  of  KRISHNA  KANWAR (SMT)  ALIAS  THAKURAEEN  (supra),  relied upon by the Revenue has full application in the fact situation of the instant case (see also Prabha  Shankar  Dubey  Vs.  State  of  M.P. [(2003) 8 Supreme 565.  

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From  a  broad  analysis  of  the  entire evidence  and other  materials  on  record  we find  from  the  Seizure  List  (Ext.9)  which discloses seizure of contraband articles from the place of occurrence (New Sarat Lodge at 77/1A, A.P.C. Road, Calcutta – 700 009) on 21.5.98 at about 16-00 hours in presence of the  witnesses  and  being  signed  by  the Appellant  himself.  The  said  contraband articles  in question,  which was seized from the possession of the Appellant were found to be HEROIN on the basis of the Report (Ext.2) submitted  by  Chemical  Analyst  (P.W.2)  and even  if  we  leave  out  the  Statement  (Ext.6) made  by  him  as  he  had  disclosed  on  the second day of his production (08.6.98)  that “he  was  forced  to  write  his  confessional statement  on  the  threat  and  torture.  It  is also his allegation that his signature on more or  less  18 blank papers  were  taken by  the prosecution” we find that the other evidence on  record  is  quite  sufficient  to  prove  the Charge against the Appellant.  

We find that the Prosecution has been able to prove its case beyond any shadow of doubt  against  the Appellant  and the points canvassed by Shri  Jash have no manner of application  in  view  of  the  discussion  held hereinabove.”

17) We  are  in  complete  agreement  with  the

aforementioned finding of  the High Court as,  in our

opinion,  it  is  just,  legal  and  proper  calling  no

interference in this appeal.

18) Firstly, the High Court has recorded the finding

keeping in view the law laid down by this Court  in

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State of Haryana vs.  Jarnail  Singh & Ors.,  (2004)

SAR (Criminal)  535.   Secondly,   since PW-7 himself

was the gazetted officer, it was not necessary for him

to  ensure  compliance  of  Section 42  as  held  by  this

Court  in  Prabha Shankar Dubey vs.  State of  M.P.

(2003) 8 Supreme 565 = (2004) 2 SCC 56 and lastly,

so far as compliance of the requirement of Section 50

is concerned, it was found and indeed rightly that the

offer  to  search  the  appellant  was  given  to  him  in

writing and on his giving consent,  he was accordingly

searched.  

19) The High Court was, therefore, right in upholding

the  procedure  followed  by  the  raiding  party  for

ensuring  compliance  of  Section  50  and  rightly  held

against the appellant on this issue. We find no ground

to take a different view than the one taken by the High

Court and accordingly uphold the finding on this issue

against the appellant.

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20) We have also carefully examined the record with

a view to find out as to whether the appeal involves

any  ground  other  than  the  one  urged.  Having  so

examined,  we  find  none  except  the  one  urged  and

decided against the appellant.

21) In the light of  foregoing discussion,  we find no

merit in this appeal.  It  thus fails and is accordingly

dismissed.  

22) As a result, the bail granted to the appellant by

this  Court  by  order  dated  17.09.2007  is  hereby

cancelled and the  appellant  is  directed to surrender

before the Trial Court to undergo the remaining  period

of sentence awarded to him by the courts below.

                                .……...................................J.           [ABHAY MANOHAR SAPRE]

                              ………..................................J.           [ASHOK BHUSHAN]

New Delhi, June 29, 2016

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