30 Apr 2121

Non-compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is irrelevant when Search and Seizure is effected in public place - Bombay High Court

Case : Edyma Siregar v. V. V. Satardekar and Anr. Criminal Appeal No. 128 of 2016

Court : Bombay High Court

Bench : Justice Bharati Dangre

Decided on : 30 Apr 2121

Relevant Statues

Sections 8(c), 22(c), 23, 28, 35, 41, 42, 43, 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985

Brief Facts & Procedure History

1. The relevant seminal facts are that the Appellant was found in possession of 3.930 kgs of Methamphetamine, a psychotropic substance in contravention of provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was therefore tried for commission of offences punishable under Section 8(c) read with Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 8(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for being party to criminal conspiracy to contravene the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 Act viz. to possess, transport and export the psychotropic substance. Further, in an attempt to import a psychotropic substance of 3.93 kg, she was charged for offences punishable under Section 23 read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. This Appeal is preferred by the Appellant, an Indonesian National assailing the judgment and order dated 19/08/2015 passed by the Special Judge in N.D.P.S. Special Case No.21 of 2013 thereby convicting and subjecting her to undergo sentence on such conviction.

The Issue of the Case

Whether the procedure under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 should adhere to the process of search and seizure? 

The Observations of the Court

The Honourable Bombay High Court observed the following:

1. Critically analyzed Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and opined that even though the compliance of the said section is mandatory, in the present case it is not warranted as the arrest was made after the search of cabin baggage that contained cocaine.

2. For the above observation, reliance was placed on several precedents such as Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence, 2003 Cri. L. J. 27; Ravindran @ John v. Superintendent of Customs, (2007) 6 SCC 410; Karnail Singh v. State of Haryana, (2009) 8 SCC 539; Raju v. State of West Bengal, (2018) 9 SCC 708, Etc.

3. Took cognizance of the fact that the Prosecution Witness-1, Mrs. Vishaka Satardekar was empowered under Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the search was carried out in the presence of Prosecution Witness-10, Mr. Sameer Wankhede, Assistant Commissioner, Air Intelligence Unit, a gazette officer himself where an empowered officer has the power to seize any narcotic drug or psychotropic substance or controlled substance in any public place or in transit and detain such a person in case the possession of such substance is unlawful, he is empowered to arrest the person.

4. Contemplated that Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 cannot adhere as the contraband was found in the check-in baggage belonging to the Appellant.

5. Observed the defence taken by the Appellant that there is a likelihood of the contraband being planted into the baggage and opined that the defence has no merit as it was only because the passenger was intercepted by the concerned authorities, the checked-in baggage underwent a search before reaching the ultimate destination.

The Decision Held by the Court

The Honourable Bombay High Court upheld the judgment of the Special Court of Greater Bombay dated 19/08/2015 in NDPS Special Case No.21 of 2013.

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