# ) K. CHITHHAYAN v. STATE OF TAMIL NADU

- **Citation:** [2008] 8 S.C.R. 941
- **Court:** Supreme Court of India
- **Decided:** 2008-05-15
- **Case number:** Criminal Appeal No. 827 of 2005
- **Bench:** Dr. Arijit Pasayat, P. Sathasivam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-chithhayan-v-state-of-tamil-nadu-24784
- **Pages:** 5

## Headnote

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985:
ss 42(2), 43 and 50 - Search of bag belonging to ac- c
cused conducted in a public place-Bag contained contraband
item - Conviction by trial court and sentence of 10 years RI -
Upheld by High Court - HELD: Since search was made in
public place and not in a building, s. 43 and not s.42(2) was
applicable-As there was no personal search, s.50 has no apD
~
plication - There is no infirmity in judgment of High Court to
warrant interference.
The appellant was found carrying 2 kg Diazepam in
a bag. The trial court convicted him uls 22 of the Narcotic E
Drugs and Psychotropic Substances Act, 1985, and sentenced him to 10 years rigorous imprisonment. The conviction and sentence was upheld by the High Court.
In the instant appeal it was contended for the appellant that the courts below failed to take into consideration
F
that there was non-compliance of requirements of sections 42(2) and 50 of the Act.
Dismissing the appeal, the Court
HELD: 1. So far as Section 42(2) of the Narcotic Drugs G
..
and Psychotropic Substances Act, 1985 is concerned, it
is to be noted that search was made in public place and
not in a building and, as such, Section 43 and not Section
42(2) of the Act was applicable. [para 6] [945-D-E]
941
H
.
fl
942
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A
State of Punjab vs. Baldev Singh 1999 (6) SCC 172;
1State of Haryana v. Jamail Singh and Ors. 2004 (5) SCC 188
- relied on
2. As regards applicability of Section 50 of the Act,
B
there was search of the bag carried by the appellant and
there was no personal search. Therefore, Section 50 of
the Act has no application. [para 7] [942-F]
State of H.P v Pawan Kumar 2005 (4) SCC 350-relied on
¥
3. There is no infirmity in the judgment of the High
c Court to warrant interference. [para 8] [942-G]

## Text

[2008] 8 S.C.R. 941
-)
K. CHITHHAYAN
A
V.
STATE OF TAMIL NADU
(Criminal Appeal No. 827 of 2005)
May 15, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ]
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985:
ss 42(2), 43 and 50 - Search of bag belonging to ac- c
cused conducted in a public place-Bag contained contraband
item - Conviction by trial court and sentence of 10 years RI -
Upheld by High Court - HELD: Since search was made in
public place and not in a building, s. 43 and not s.42(2) was
applicable-As there was no personal search, s.50 has no apD
~
plication - There is no infirmity in judgment of High Court to
warrant interference.
The appellant was found carrying 2 kg Diazepam in
a bag. The trial court convicted him uls 22 of the Narcotic E
Drugs and Psychotropic Substances Act, 1985, and sentenced him to 10 years rigorous imprisonment. The conviction and sentence was upheld by the High Court.
In the instant appeal it was contended for the appellant that the courts below failed to take into consideration
F
that there was non-compliance of requirements of sections 42(2) and 50 of the Act.
Dismissing the appeal, the Court
HELD: 1. So far as Section 42(2) of the Narcotic Drugs G
..
and Psychotropic Substances Act, 1985 is concerned, it
is to be noted that search was made in public place and
not in a building and, as such, Section 43 and not Section
42(2) of the Act was applicable. [para 6] [945-D-E]
941
H
.
fl
942
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A
State of Punjab vs. Baldev Singh 1999 (6) SCC 172;
1State of Haryana v. Jamail Singh and Ors. 2004 (5) SCC 188
- relied on
2. As regards applicability of Section 50 of the Act,
B
there was search of the bag carried by the appellant and
there was no personal search. Therefore, Section 50 of
the Act has no application. [para 7] [942-F]
State of H.P v Pawan Kumar 2005 (4) SCC 350-relied on
¥
3. There is no infirmity in the judgment of the High
c Court to warrant interference. [para 8] [942-G]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 827 of 2005
From the final Judgment and Order dated 4.8.2003 of the
D High Court of Judicature at Madras in C.A. No. 653/2001
K. Sarada Devi for the Appellant.
R.Shunmugasundaram, S.J.Aristotle, Prabu Ramasubramanian
and V.G. Pragasam for the Respondent.
E
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. 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 offence punishable un-
,(
F der 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 learned Special Judge, Salem.
2. Background facts in a nutshell are as follows:
G
Veerannan (PW-1), Sub Inspector of Police, attached to
•
N.l.B. C.l.D., 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 i,nformation were patrolling at
H Pethanayakkampalaym Bus Stop. They found activities of the
K. CHITHHAYAN v. STATE OF
943
TAMIL NADU [DR. ARIJIT PASAYAT, J.]
- )-
appellant/accused, who stood near the bus stop with a yellow A
colour bag on his right hand, at about 12.00 noon, to be suspicious. P.W.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, P.W.1 searched
B
his bag in the presence of the two independent witnesses namely
Duraisamy (PW-2), Village Administrative Assistant and
'
Duraisamy Assistant (PW-3) and P.W.4 Head Constable and
found 2 Kilograms of Diazepam. P.W.1 seized the same under
Ex.P2 mahazar in the presence of the said witnesses. He took c
two samples of 25 grams each marked as M.0.2 and affixed
the seal and the rest of the contraband was sealed, which is
marked as M.0.1.The appellant/accused was arrested under
Ex.P3 arrest memo, a copy of which was served on him. The
accused was brought to the Office, and a case was registered
D
in Crime No. 91/99 under Sec. 20(b) (1) of the Act. Ex.P4 printed
F.l.R. was prepared. The accused was taken to the concerned
Court along with the F.l.R and the material objects. A detailed
report under Ex.P5 under Sec.57 of'the Act was prepared and
sent to the higher officials. Sankarapandian (PW-6), Inspector
E
of police, NIB CID, Salem took up further investigation after
obtaining Ex.P5 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
Ex.P7 search memo, examined PWs 1 to 4 and recorded their
statements. The investigating officer (PW-6) made a request
F
under Ex.PB to the Court for sending M.0.2 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 M.0.2 is diazepam. PW5 sent Ex.P6 report to the Court. On 19.1.2002 PW-6 examG
..
ined 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.
Since the accused pleaded innocence the trial was held.
H
944
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A
Six witnesses were examined and several exhibits and mate-
-f -
rial objects were brought on record. In his examination under
)-
Section 313 of the Code of Criminal Procedure, 1973 (in short
the 'Code') the accused-appellant flatly denied the accusations.
He examined his wife as PW-1. The trial Court found that the
B prosecution has been able to establish its accusations. Two
grounds were taken before the High Court relating to the alleged non compliance of the mandatory provisions of Sections
42(2) and the other 50 of the Act. The High Court did not find
~
any substance. Accordingly, the appeal was dismissed.
c
3. 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.
D
4. Learned counsel for the respondent-State supported the
judgments of the trial Court and the High Court.
5. Sections 42(2) and 43 of the Act are as under:
"42(2)-Where an officer takes down any information in
E
writing under sub-section (1) or records grounds for his
1belief 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
F
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
G
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
H
K. CHITHHAYAN v. STATE OF
945
TAMIL NADU [DR. ARIJIT PASAYAT, J.]
-)
under this Act or any document or other article which may A
furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act;
(b) detain and search any person whom he has reason to
B
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. c
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."
6. So far as Section 42(2) is concerned it is to be noted D
that search was made in 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 §fate of Punjab
vs. Baldev Singh (1999 (6) SCC 172) is clearly applicable to
the facts of the present case. The view in Baldev Singh's case
E
(supra) was re-iterated in §tate of Haryana v. Jarnail Singh
and Ors. (2004 (5) SCC 188).
7. 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 F
. 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.
8. Above being the position, we find no infirmity in the judgG
.>
ment of the High Court to warrant interference. The appeal is
without merit and is dismissed accordingly.
R.P.
Appeal dismissed.
H