S. K. RAJU @ ABDUL HAQUE @ JAGGA versus STATE OF WEST BENGAL

Citation: [2018] 10 S.C.R. 731 · Decided: 05-09-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

Cited by 3 judgment(s) · cites 8 · see the full citation network in Lexace

Judgment (excerpt)

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S. K. RAJU @ ABDUL HAQUE @ JAGGA
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 459 of  2017)
SEPTEMBER 05, 2018
[DIPAK MISRA, CJI, DR. D. Y. CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.20(b)(ii)(c) – Recovery of 1.5 kgs of Charas from accused-
appellant – PW2, on receipt of information that a drug dealer would
be in vicinity of a club, sought permission to organize the raid –
After grant of permission, raiding party reached the spot and
intercepted appellant walking on the road – Before conducting
search, option was given to the appellant whether he wished to be
searched before the gazetted officer or the magistrate – Appellant
opted for gazetted officer – When PW-4-gazetted officer arrived,
he once again confirmed if he wanted to opt for search by magistrate
– Appellant consented to search in presence of PW-4-gazetted officer
– Thereafter, PW-4 also gave liberty to the appellant to search
PW-2-raiding officer which appellant did and found no narcotic
substance from the person of raiding officer – On search of the
appellant in the presence of PW-4, a bag was recovered from the
appellant carrying 1.5 kgs of charas, and Rs. 2,400/- cash was
recovered from the pocket of the appellant’s trouser – Conviction
of appellant by courts below – Plea of appellant that there was
non-compliance of s.42 and s.50 of the Act – Held: Plea not
sustainable – The appellant was walking along the Garden Road –
He was intercepted and detained immediately by the raiding party
in front of the club, which was not a building, conveyance or an
enclosed place – The place of occurrence was accessible to the
public and fell within the ambit of the phrase “public place” in the
explanation to s.43 – Therefore, s.42 had no application – Before
the appellant’s search was conducted, both PW-2 and PW-4 on
different occasions apprised the appellant of his legal right to be
searched either in the presence of a Gazetted Officer or a Magistrate
– The options given by both PW-2 and PW-4 were unambiguous –
Merely because the appellant was given an option of searching
  [2018] 10 S.C.R. 731
  731
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SUPREME COURT REPORTS
[2018] 10 S.C.R.
PW-2 before the latter conducted his search, would not vitiate the
search – The search of the appellant was as a matter of fact
conducted in the presence of PW-4, a gazetted officer, in consonance
with the voluntary communication made by the appellant to both
PW-2 and PW-4 – Thus, there was strict compliance with the
requirements of s.50(1) of the Act.
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.42 – Essential requirement – Held: Compliance with s.42, including
recording of information received by the empowered officer, is not
mandatory, when an offence punishable under the Act was not
committed in a building, conveyance or an enclosed place.
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.43 – When attracted – Held: s.43 is attracted in situations where
the seizure and arrest are conducted in a public place, which includes
any public conveyance, hotel, shop, or other place intended for
use by, or accessible to, the public.
Dismissing the appeal, the Court
HELD: 1. An empowered officer under Section 42(1) is
obligated to reduce to writing the information received by him,
only when an offence punishable under the Act has been
committed in any building, conveyance or an enclosed place, or
when a document or an article is concealed in a building,
conveyance or an enclosed place. Compliance with Section 42,
including recording of information received by the empowered
officer, is not mandatory, when an offence punishable under the
Act was not committed in a building, conveyance or an enclosed
place. Section 43 is attracted in situations where the seizure and
arrest are conducted in a public place, which includes any public
conveyance, hotel, shop, or other place intended for use by, or
accessible to, the public.  The appellant was walking along the
Picnic Garden Road. He was intercepted and detained
immediately by the raiding party in front of Falguni Club, which
was not a building, conveyance or an enclosed place. The place
of occurrence was accessible to the public and fell within the ambit
of the phrase “public place” in the explanation to Section 43.
Section 42 had no application. [Paras 7, 8] [741-C-F]
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Vijaysinh Chandubha Jadeja v State of Gujarat
(2011) 1 SCC 609 : [2010] 13 SCR 255 – relied on.
Stat

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