- Bookmark
- Share
- CaseIQ
K. Chithhayan v. State Of Tamil Nadu .
Factual and Procedural Background
On 16 December 1999, Sub-Inspector Veerannan (PW 1) of the NIB-CID, Salem, acting on secret information, observed the appellant standing at Pethanayakkampalaym bus stop with a yellow bag. After informing the appellant of his right to be searched before a Gazetted Officer or Judicial Magistrate, PW 1 conducted the search in the presence of two independent witnesses (PW 2 and PW 3) and a Head Constable (PW 4). The search yielded 2 kg of diazepam, two 25-gram samples were taken, and the remainder was sealed. The appellant was arrested, an FIR (Crime No. 91 of 1999) was registered, and a report under Section 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was forwarded to superior officers.
Inspector Sankarapandian (PW 6) continued the investigation, obtained chemical analysis confirming the substance as diazepam, and filed a charge-sheet under Section 22 of the NDPS Act. The Special Judge, Salem, convicted the appellant and imposed 10 years’ rigorous imprisonment and a fine of ₹1,00,000. The Madras High Court dismissed the appellant’s challenge. The present appeal before the Supreme Court contests that decision.
Legal Issues Presented
- Whether the search and seizure violated Section 42(2) of the NDPS Act, given the alleged failure to send information to a superior officer within 72 hours.
- Whether the safeguards under Section 50 of the NDPS Act were attracted and, if so, complied with during the search of the appellant’s bag.
Arguments of the Parties
Appellant's Arguments
- The prosecution failed to comply with the mandatory requirements of Section 42(2) by not forwarding the written information to a superior officer within the prescribed time.
- The search contravened Section 50 because the appellant was not afforded all procedural safeguards before the search.
Respondent State's Arguments
- The search occurred at a public bus stop, invoking Section 43—not Section 42—thereby negating the appellant’s Section 42(2) objection.
- The search targeted a bag rather than the appellant’s person; therefore, Section 50 was inapplicable.
- Both the trial court and the High Court correctly applied existing Supreme Court precedent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Punjab v. Baldev Singh, (1999) 6 SCC 172 | Differentiates between searches in public places and private premises; outlines scope of Sections 42, 43 and 50 of the NDPS Act. | Relied upon to hold that a search in a public place is governed by Section 43, rendering Section 42(2) inapplicable. |
| State of Haryana v. Jarnail Singh, (2004) 5 SCC 188 | Reiterates the principles laid down in Baldev Singh regarding searches in public places. | Cited to reinforce the conclusion that Section 43, not Section 42(2), governs the present search. |
| State of H.P. v. Pawan Kumar, (2005) 4 SCC 350 | Holds that Section 50 applies only to personal searches, not to searches of bags or containers. | Used to reject the appellant’s contention that Section 50 safeguards were mandatory for the bag search. |
Court's Reasoning and Analysis
The Supreme Court determined that the search occurred at a public bus stop, classifying it as a “public place” under the NDPS Act. Consequently, Section 43 governed the officers’ powers, and the reporting obligation in Section 42(2) did not arise. Citing Baldev Singh and Jarnail Singh, the Court confirmed that compliance with Section 42(2) was unnecessary in a public-place search.
Regarding Section 50, the Court observed that only the appellant’s bag was searched; no personal search took place. Following the principle in Pawan Kumar, Section 50 safeguards pertain solely to personal searches. Therefore, the alleged non-compliance with Section 50 was irrelevant. Finding no procedural irregularity and no misapplication of law, the Court upheld the concurrent findings of the trial court and the High Court.
Holding and Implications
Appeal Dismissed; Conviction and Sentence Affirmed.
The appellant’s sentence of 10 years’ rigorous imprisonment and a fine of ₹1,00,000 remains intact. The judgment reinforces existing precedent distinguishing searches in public places from private premises and clarifies that Section 50 does not apply to searches of bags, without creating new legal principles.
Dr. Arijit Pasayat, J.— Challenge in this appeal is to the judgment of a learned Single Judge of the Madras High Court upholding the conviction of the appellant for offences punishable under Section 8(c) read with Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the Act”) and sentence of 10 years' rigorous imprisonment and a fine of Rs 1,00,000 as was imposed by the learned Special Judge, Salem.
2. Background facts in a nutshell are as follows:
Veerannan (PW 1), Sub-Inspector of Police, attached to NIB CID, Salem on 16-12-1999 at about 9.00 a.m along with Vellingiri (PW 4), Head Constable No. 910 and other police party on secret information were patrolling at Pethanayakkampalaym Bus-stop. They found activities of the appellant-accused, who stood near the bus-stop with a yellow-coloured bag on his right hand, at about 12.00 noon, to be suspicious. PW 1 after introducing himself, conveyed to him that he is entitled for the conduct of the search before a gazetted officer or a Judicial Magistrate. The accused gave consent to be searched by the official himself. Accordingly, PW 1 searched his bag in the presence of the two independent witnesses, namely, Duraisamy (PW 2), Village Administrative Assistant and Duraisamy's assistant (PW 3) and PW 4 Head Constable and found 2 kg of diazepam. PW 1 seized the same under Ext. P-2 mahazar in the presence of the said witnesses. He took two samples of 25 gm each marked as MO 2 and affixed the seal and the rest of the contraband was sealed, which was marked as MO 1.
3. The appellant-accused was arrested under Ext. P-3, arrest memo, a copy of which was served on him. The accused was brought to the office, and a case was registered as Crime No. 91 of 1999 under Section 20(b) of the Act. Ext. P-4, printed FIR was prepared. The accused was taken to the court concerned along with the FIR and the material objects. A detailed report under Ext. P-5 under Section 57 of the Act was prepared and sent to the higher officials. Sankarapandian (PW 6), Inspector of Police, NIB CID, Salem took up further investigation after obtaining Ext. P-5 and other relevant records from PW 1. He proceeded to the site of occurrence and also to the house of the accused, made a search in front of the witnesses, prepared Ext. P-7, search memo, examined PWs 1 to 4 and recorded their statements.
4. The investigating officer (PW 6) made a request under Ext. P-8 to the court for sending MO 2 for chemical analysis. Accordingly, the sample was analysed by Arulanandam (PW 5), Scientific Assistant attached to the Forensic Laboratory, who found that the sample under MO 2 is diazepam. PW 5 sent Ext. P-6, report to the court. On 19-1-2002 PW 6 examined PW 5 and recorded his statement. On completion of the investigation, PW 6 filed a charge-sheet against the accused under Section 22 of the Act.
5. Since the accused pleaded innocence the trial was held. Six witnesses were examined and several exhibits and material objects were brought on record. In his examination under Section 313 of the Code of Criminal Procedure, 1973 (in short “the Code”) the appellant-accused flatly denied the accusations. He examined his wife as PW 1 (sic DW 1). The trial court found that the prosecution has been able to establish its accusations. Two grounds were taken before the High Court relating to the alleged non-compliance with the mandatory provisions of Section 42(2) and the other Section 50 of the Act. The High Court did not find any substance. Accordingly, the appeal was dismissed.
6. In support of the appeal, learned counsel for the appellant submitted that even if the prosecution case is accepted in toto there is clear material to show the contravention of the requirements of Sections 42(2) and 50 of the Act.
7. Learned counsel for the respondent State supported the judgments of the trial court and the High Court.
8. Sections 42(2) and 43 of the Act are as under:
“42. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
43. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in Section 42 may—
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation.—For the purposes of this section, the expression ‘public place’ includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.”
9. So far as Section 42(2) is concerned it is to be noted that search was made in a public place and not in a building and as such what was applicable was Section 43 and not Section 42(2) of the Act. The decision of this Court in State of Punjab v. Baldev Singh (1999) 6 SCC 172 is clearly applicable to the facts of the present case. The view in Baldev Singh case (1999) 6 SCC 172 was reiterated in State of Haryana v. Jarnail Singh (2004) 5 SCC 188.
10. So far as the applicability of Section 50 of the Act is concerned, it is to be noted that there was search of the bag carried by the appellant and there was no personal search. It has been held in State of H.P v. Pawan Kumar (2005) 4 SCC 350 that when there is no personal search and the search is effected in relation to a bag, Section 50 of the Act has no application.
11. Above being the position, we find no infirmity in the judgment of the High Court to warrant interference. The appeal is without merit and is dismissed accordingly.
Alert