Section 43 NDPS Act- Seizure By ASI Is Not Without Authority Of Law: Calcutta HC [Read Order]

Bench of Justice Manojit Mandal and Justice Joymalya Bagchi was considering bail application of the accused Surajit Roy alias Buro under section 439 of the Code of Criminal Procedure in connection with a case filed under Sections 21(c)/29 of the NDPS, Act and had many questions for consideration before it. He had sought bail at parity with his co-accused Faruk Ali who was granted bail by the trail court in view of the inherent lack of jurisdiction on part of the seizing officer.

Court had issued suo motu notification to accused Faruk Ali as to why his bail should not be cancelled in view of the fact that it was wrongly decided.

Submissions

It was submitted on behalf of the accused Faruk Ali that Assistant Sub-Inspector of Police was not being empowered by the State of West Bengal to undertake search and seizure under the provisions of the N.D.P.S. Act. Submission was supported by a notification which said that officers of departments of Excise and police not below the rank of Sub Inspector of Police have, inter alia, been empowered to effect search and seizure under Section 42(1) of the N.D.P.S. Act. Counsel for State, on the other hand, submitted that the notification does not apply to search and seizure effected in a public place under Section 43 of the N.D.P.S. Act.

The Law

Section 42 of the N.D.P.S. Act empowers officers attached to the police and other departments specified therein to enter any building, conveyance or enclosed space to affect search in the manner as provided therein. The said provision also empowers the Central or the State Government, as the case may be, to specify by general or special order the category/rank of officers of the said departments who may exercise such powers. On the other hand, section 43 of the Act provides that any officer of any of the departments specified in section 42 may undertake search and seizure in any public place.

Seizure of contraband in public place attracts section 43 and not section 42

Court said that the notification at hand empowering officers not below the rank of Sub Inspector of Police to enter and search any building, conveyance or place under section 42 of the Act does not circumscribe the powers of the police officers to effect search in a public place which would include public conveyances, hotel, shop or any other places intended for use by or accessible to the public under section 43 of the Act. In the instant case, recovery from Md. Faruk had not been made pursuant to a search undertaken in any building, conveyance or private place. Narcotic substance was allegedly recovered from a bag which was carried by him in a public thoroughfare. Seizure of narcotic substance in the aforesaid manner does not attract the provision of Section 42 of N.D.P.S. Act but was effected under Section 43 thereof. Hence, the restrictive impact of the notification has no manner of application to the recovery from accused Md. Faruk Ali on a public road under section 43 of the Act.

ASI not barred under section 50 of the Act to conduct search

Rejecting the contention on behalf of the accused that search by ASI of Police is illegal as section 50 requires search to be conducted by an officer authorized under section 42 of Act, who as per the notification must be one who is not below the rank of sub-Inspector of Police, court observed that there is no doubt search of the body of a suspect attracts section 50 which is to be undertaken by a duly authorised officer under section 42 of the Act. But the recovery in the present case from Md. Faruk Ali was not from his person/body but from a bag carried by him in his hand on a public road. Hence seizing officer lacked no jurisdiction to conduct search, court noted.

"In the light of the aforesaid discussion, we observe that recovery of narcotic substance from a bag carried in the hand of the accused Md. Faruk Ali on a public road attracts section 43 of the [NDPS] Act and, therefore, the seizure of narcotic substance by an Assistant Sub Inspector of Police is not without authority of law or contravention of the notification issued by the State of West Bengal under Section 42 of the Act."

Bail Application Cancelled

Court accordingly canceled the bail application of the accused Faruk Ali which was earlier granted saying it suffered from the patent illegality and non-application of mind to the facts and circumstances of the case involving recovery of commercial quantity of narcotic substance under section 43 of the N.D.P.S. Act from a public place to which the statutory restrictions under Section 37 of the N.D.P.S. Act apply. It directed the accused to surrender before the court within a fortnight from the date of the order and directed the trial court to expedite the trial and conclude the same at an early date preferably within six months from the next date fixed before it for recording evidence provided that accused Faruk Ali surrenders before the trial court within a fortnight from date and all the accused persons co-operate with the trial court for expeditious disposal of the case.

Court also declined bail to present petitioner/applicant Surajit on the fact that prima facie material disclosing recovery of narcotic substance above commercial quantity i.e. 3 grams of heroin from the petitioner and in the light of statutory restrictions under section 37 of the Act, it was not inclined to grant him bail.

Click here to download the Order