S.50 NDPS Act | Personal Search Conducted In Presence Of ACP Not Bad Merely Because He Belongs To Police Dept: Karnataka High Court

A single judge bench of Justice H P Sandesh said,

"Assistant Commissioner of Police is also a Gazetted Officer...Search by the officer of the said department is not a bar and no law prescribes that he (suspect/accused) should be subjected to the personal search in the presence of the Gazetted Officer not belonging to the particular department."

Further the court observed, "Under Section 37 of the NDPS Act, the Court cannot enlarge the petitioner on bail unless there is a reasonable ground that the petitioner is not guilty and he is not likely to be involved in similar offences in future." It added "The Court has to look into the interest of the society at large and if such acts are considered in a lenient way, it affects the society at large."

Case Background:

As per the prosecution case it received credible information at 1.00 p.m, on June 22, 2021 that five persons were indulging in trafficking the narcotic drugs i.e., Ecstasy pills, Ashes and LSD Strips to the college students, ITBT employees.

The complainant – R. Virupakshaswamy along with staff and panchas went and apprehended the accused persons in the room and after apprehending them, secured the Assistant Commissioner of Police at 3.45 p.m. and subjected them for personal search and panchanama was drawn.

The accused Joswin Lobo was arrested under Sections 8(c), 20(ii)(b), 21(c), 22(c), 23(c), 27(A) of Narcotic Drugs and Psychotropic Substances Act. He approached the court seeking bail in the case.

Petitioners submissions:

The petitioners submitted that the search and seizure is not done before the Gazetted Officer and though it claims that the same was done in the presence of the Gazetted Officer, the said Gazetted Officer is also the part of the raid, hence, he cannot be termed as Gazetted Officer.

Further, it was stated that the Assistant Commissioner of Police himself searched the accused persons and hence, the search and the seizure is not in accordance with the procedure established under the NDPS Act.

The petitioner also claimed that the FIR clearly discloses that drugs were seized in the room hence, the bifurcation of the drugs in the name of the petitioner is erroneous. It was also said that there is no fairness on the part of the police in the alleged seizure and the petitioner was arrested under mysterious circumstances.

The Investigating Officer has totally failed to comply with the procedure established under Section 50 of NDPS Act and also Sections 42 of the NDPS Act and it shows clear violation of Section 52(3) of NDPS Act as the Officer who arrested is not an Officer in-charge of police station.

Prosecution opposed the plea:

It was argued that heinous offence is committed by the petitioner along with other accused persons and MDMA was seized to the extent of 56.50 grams and apart from that 250 grams of Hashish was recovered at the instance of the petitioner.

Further, it was said that non-compliance of Section 42 will not be a ground to enlarge the petitioner on bail and it is a matter of trial.

Finally it was said that it would be too early to take into account and judge the matter regarding non-compliance with the formalities and hence, at this juncture, the Court cannot evaluate the evidence with regard to the admissibility and non-compliance and the Court has to take note that it is an offence against the society at large.

Court findings:

Firstly the court went through the complaint and noted that, "The raid was conducted along with staff and panchas and mahazar was drawn from 3.00 p.m to 7.00 p.m, securing the Gazetted Officer i.e., Assistant Commissioner of Police and subjected this petitioner to search and nowhere it is found that the Assistant Commissioner of Police is also a part of the raid."

Further it observed, "It is clear that after apprehending the accused persons, Assistant Commissioner of Police came and asked the accused persons whether the other Gazetted Officer to be called or he himself can search them. The accused person gave consent to search them by the Assistant Commissioner of Police only and thereafter, the search was conducted with the consent of the accused persons."

The court held,

"When the personal search is made in the presence of Assistant Commissioner of Police who is also a Gazetted Officer and the very contention that he belongs to the same department cannot be a ground to disbelieve the case of the prosecution."

It also opined, "In the case on hand also in the presence of the Gazetted Officer only, the personal search was made and hence, there is a compliance of Section 50 of NDPS Act."

The court also observed, "Mere completion of investigation and filing of charge-sheet is not a ground to enlarge the petitioner on bail when he has been apprehended along with a manufactured drugs of commercial quantity and apart from that the Special Enactment is brought into force when the IPC is not sufficient to combat the offences which are against the society at large and only in order to prevent the menace in the society, the Special Enactment is brought into force."

The court also noted that petitioner along with others were indulging in trafficking the manufactured drugs to the college students, ITBT employees and to the general public. Recovery was made at the instance of the petitioner that too of a commercial quantity, hence, it is not a fit case to exercise the discretion in favour of the petitioner to enlarge him on bail.

Case Title: Joswin Lobo v. State of Karnataka

Case No: Criminal Petition No.6916/2021

Citation: 2022 LiveLaw (Kar) 40

Date of Order: February 2, 2022

Appearance: Senior Advocate Hashmath Pasha a/w Advocate Nasir Ali for petitioner; Advocate Krishna Kumar K.K for respondent

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