Hamza v. State of Kerala — 1999 DIGILAW 556 (KER)

Judgment :- R. Rajendra Babu, J. This appeal is at the instance of the accused in S.C. No. 88/96 on the file of the II-Additional Sessions Court, Kozhikode. The appellant was convicted and sentenced to undergo rigorous imprisonment for a period often years and to pay a fine of Rs. one lakh or in default rigorous imprisonment for a further period of one year, for an offence under S.21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act). Aggrieved by the above conviction and sentence, the appellant preferred this appeal. 2. The case of the prosecution was that on 22.8.1995 at 4.15 p.m. the appellant was found to be in possession of 4.5 grams of opium. Two police constables (P.W. 2 and PC 3434) attached to the crime squad found the appellant sitting on the varanda of a shop on the southern side of the Bavutti Haji Road. As the appellant was jittering, they suspected the appellant of having possession of Narcotic Drugs. Accordingly P.W. 2 informed the matter telephonically to the Town Police Station. P.W. 1, the Additional Sub Inspector proceeded to the spot and informed the appellant that P.W.1 would like to search his body and asked whether the appellant required the search being conducted in the presence of a gazetted officer. The appellant replied that it was not necessary and permitted P.W. 2 to conduct the search. Thereafter, P.W.1 conducted the search on the body of the appellant and recovered a plastic paper containing opium which was kept in the pouch of the belt worn by the appellant. P.W.I seized the contraband and the belt as per Ext. P1 mahazar. After reaching the police station, Ext. P2 report was also prepared by P. W., regarding the seizure and informed the matter to the Circle Inspector of Police. A case was registered on the basis of Ext. P2 report as Crime 145/95. P.W. 7, the Circle Inspector conducted the investigation of the case and P.W. 8, Circle Inspector completed the investigation and laid the charge. 3. As the appellant pleaded not guilty to the charge, P.Ws.1 to 8 were examined and Exts.P1 to P14 were marked on the side of the prosecution. M.0s.1,2 and 2A were also identified. P.W. 7, the Circle Inspector conducted the investigation of the case and P.W. 8, Circle Inspector completed the investigation and laid the charge. 3. As the appellant pleaded not guilty to the charge, P.Ws.1 to 8 were examined and Exts.P1 to P14 were marked on the side of the prosecution. M.0s.1,2 and 2A were also identified. The appellant denied the correctness of the prosecution evidence, when the incriminating evidence found against him was brought to his notice while questioned under S.313 Cr. P.C. No evidence was let in on the side of the accused. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The main argument advanced by the learned counsel for the appellant was that there was non-compliance of S.50 of the Act and as such the search and seizure was illegal and hence the appellant was entitled to be acquitted. P. W.1 was the Addl. Sub Inspector who detected the offence and conducted the search. His evidence before court was that he proceeded to the scene of occurrence, on receiving telephonic information from P.W. 2 (a police constable) and informed the appellant that he had the right to demand the search being conducted in the presence of a gazetted officer and the appellant waived that right. The learned counsel for the appellant argued that the above version given by the appellant that he informed the appellant of his right to demand the search being conducted in the presence of a gazetted officer was a new story spoken to by him for the first time in court and Ext. P1 mahazar or Ext. P2 report did not disclose such case. Ext. P1 was the seizure mahazar prepared by P.W.1 at the time of the alleged search and seizure of the articles. Ext. P1 did not disclose anything about the compliance of S.50 of the Act and also about the alleged wavier by the appellant. The evidence of the prosecution cannot be discarded for the sole reason that Ext. P1 seizure mahazar did not disclose the compliance of S.50 of the Act in view of the decision of the Apex Court in Pan Adithan v. Dy. Director, Narcotic Control Bureau, Madras OT 1999 (4) SC 540). The evidence of the prosecution cannot be discarded for the sole reason that Ext. P1 seizure mahazar did not disclose the compliance of S.50 of the Act in view of the decision of the Apex Court in Pan Adithan v. Dy. Director, Narcotic Control Bureau, Madras OT 1999 (4) SC 540). There it was held that even in the absence of any independent evidence or any other supporting documentary evidence, the evidence of the solitary departmental witness can be regarded as sufficient compliance of S.50 of the NDPS Act, if such evidence is reliable. 6. The question for consideration is whether S.50 had been complied with by P.W.1 who conducted the search and seized the articles. Ext. P2 report prepared by P.W.1 would disclose what transpired at the scene. P.W.1 admitted that Ext. P2 report was prepared after reaching the police station. What was stated in Ext. P2 was : (asked whether the presence of a gazetted officer was necessary and replied that it was not necessary). The above recital in Ext. P2 was not about informing the appellant of his right to demand the search being conducted in the presence of a gazetted officer or a magistrate, but the appellant was asked whether he required the presence of a gazetted officer during the search. It did not disclose about informing the appellant about his right to demand the search being conducted in the presence of a gazetted officer or a magistrate. The presence of a magistrate was not at all mentioned in Ext. P2. In fact, P. W.1 admitted that he omitted to ask the appellant regarding his right to demand the search in the presence of a magistrate. But the version of P. W. 2 (police constable) was that P.W.I had informed the appellant about his right to demand the presence of a gazetted officer as well as a magistrate and the appellant replied that he did not require the presence of a gazetted officer or a magistrate. The version given by P. W.2 is highly exaggerated and in fact inconsistent with the version given by P. W.1. The evidence of P. W. 7 the investigating officer would reveal that P. Ws.1 and 2 had not given such a version when he questioned P.Ws.1 and 2. The version given by P. W.2 is highly exaggerated and in fact inconsistent with the version given by P. W.1. The evidence of P. W. 7 the investigating officer would reveal that P. Ws.1 and 2 had not given such a version when he questioned P.Ws.1 and 2. The above circumstances would cause much doubt regarding the version given by P. W.1 that he informed the appellant of his right to demand the search being conducted in the presence of a gazetted officer. 7. P. Ws. 2 and 6 are the two independent withnessess who signed in Ext. P1. The evidence of P. Ws. 3 and 6 would reveal that they had not seen P. W.I searching the body of the appellant and recovering opium or any contraband. Their version was that when they reached the scene of occurrence, the appellant was there with the police. Their evidence did not disclose that the body of appellant was searched in their presence and that the appellant was informed of his right to demand the search to be conducted in the presence of a gazetted officer or a magistrate. There was no independent evidence regarding the compliance of S.50 of the Act. 8. The learned counsel for the appellant argued that even if the version of P.W.1 is accepted, it was not sufficient to hold that there was compliance of S.50 of the Act as P.W.1 had not informed the appellant about his right to demand the search in the presence of a magistrate. The evidence of P.W.1 was that he informed the appellant about the right to demand the search in the presence of only a gazetted officer and the right to demand the search to be conducted in the presence of a magistrate was omitted to be informed to the appellant. Placing reliance on a decision of the Rajasthan High Court in Sardar Singh v. State of Rajasthan (1996 Crl. Law Journal 1386), learned counsel for the appellant argued that the partial compliance was not compliance under S.50 and on that ground alone the conviction and sentence are to be set aside. Placing reliance on a decision of the Rajasthan High Court in Sardar Singh v. State of Rajasthan (1996 Crl. Law Journal 1386), learned counsel for the appellant argued that the partial compliance was not compliance under S.50 and on that ground alone the conviction and sentence are to be set aside. There it was held: "Where the accused was given only one option to be searched in presence of a Gazetted Officer and the option to be searched in presence of Magistrate was not given to him, there being non-compliance with the provisions of S.50 of the Narcotic Drugs and Psychotropic Substances Act (1985), the conviction was liable to be set aside." The learned Public Prosecutor argued that a single judge of this Court took a contrary view in Rasheed v. State of Kerala (1999 (3) KLT 133) that the partial compliance would be sufficient to sustain the conviction. There Shafi, J. held that: "The mention to the suspect the he is entitled to be searched before a Gazetted Officer alone or the nearest Magistrate alone will be proper substantial and adequate compliance of the mandatory provisions of S.50 of the Act unless and until it is established that due to the failure of the searching officer to mention about both the alternatives to the suspect prejudice is caused to him." In Raghbir Singh v. State ofHaryana (1996 (2) SCC 201), the Supreme Court held: "The opinion under S.50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word 'nearest' in S.50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, Gazetted Officer or Magistrate." In view of the above decisions, informing the accused about his right to demand the search to be conducted either before the Gazetted Officer or a Magistrate would be proper and adequate compliance of S.50 of the Act. Hence the above argument of the learned counsel for the appellant cannot be accepted. 9. Ext. P2 report did not disclose that the appellant was informed of his right to demand the search to be conducted in the presence of a Gazetted Officer or a magistrate but what was informed to the appellant was whether he required the search to be conducted in the presence of a gazetted officer. In view of Ext. P2 report prepared by P.W.1 on the same day and the inconsistent version given by P. Ws.1 and 2 regarding he compliance of S.50 of the Act, I find it unsafe to place reliance on the evidence of J. Ws.1 and 2 on the above aspect. In State of Punjab v. Beldev Singh (JT 1999(4) SC 195) the Supreme Court held: "To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is in extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the DPS Act. There is, no justification for the empowered officer, who goes to search the person, prior information, to effect the search, of not informing the concerned person of the distance of his right to have his search conducted before a Gazetted Officer or a Magistrate, as to enable him to avail of that right. It is, however, not necessary to give the information the person to be searched about his right in writing. The prosecution must, however, at the it. It is, however, not necessary to give the information the person to be searched about his right in writing. The prosecution must, however, at the it. establish that the empowered officer had conveyed the information to the concerned reason of his right of being searched in the presence of the Magistrate or a Gazetted Officer, the time of the intended search." It was further held: "Therefore, without expressing any opinion as to whether the provisions of S.50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of S.50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by S.50 by intimating to the concerned person about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate would cause prejudice to an accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of S.50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires is sacrosanct and indefeasible it cannot be disregarded by the prosecution except at its own peril." The evidence was not to the effect that the appellant was informed about his right to demad the search to be conducted in the presence of a Gazetted Officer or a Magistrate. As the appellant was not informed about his right, in view of the above decision the conviction and sentence cannot be sustained for non-compliance of S.50 of the Act. 10. As the appellant was not informed about his right, in view of the above decision the conviction and sentence cannot be sustained for non-compliance of S.50 of the Act. 10. The learned counsel for the appellant advanced another argument that the prosecution had not established that the contraband article alleged to have been recovered from the appellant was opium as defined under the Act, as the Chemical Examiners report (Ext. P10) did not disclose the percentage of morphine content in the contraband article. He further argued that in the absence of the required percentage of morphine in the contraband, it did not come within the definition of opium as under S.2 (xv) of the Act. The definition of opium in the Act is as follows: "(xv) "opium" means - (a) the coagulated juice of the opium poppy; (b) any mixture, with or without any natural material of the coagulated juice of the opium poppy,but does not include any preparation containing not more than 0.2 per cent of morphine;" Ext. P10 is the report of the Chemical Examiner wherein he has opined that the contraband was opium. But he had not mentioned the percentage of morphine in the contraband. It was argued that in the absence of disclosure of the percentage of morphine in the contraband, Ext. P10 report of the chemical examiner cannot be relied on for holding that the contraband was opium as defined in the Act. There is force in the argument advanced by the learned counsel for the appellant. Learned counsel for the appellant cited a decision of the Delhi High Court in Satish Kumar v. State (delhi) (1989(2) Crimes 109) wherein it was observed that if morphine is found above 0.2% in the product, it has to be treated as opium as defined in the Act. There it was further observed that morphine is the main and principal alkaloid of opium and if morphine is found in the product above 0.2%, the product "has to be treated as'opium'. In fact, the percentage of morphine in the contraband is the important factor which makes the possession of the contraband culpable under the Act. As the percentage of morphine was not mentioned in Ext. P10 report, it may not be proper to place reliance on Ext. P10 and to hold that the contraband was opium as defined in the Act. In fact, the percentage of morphine in the contraband is the important factor which makes the possession of the contraband culpable under the Act. As the percentage of morphine was not mentioned in Ext. P10 report, it may not be proper to place reliance on Ext. P10 and to hold that the contraband was opium as defined in the Act. When the statute specifically mentions "but does not include any preparation containing not more than 0.2 per cent of morphine" it was incumbent on the prosecution to establish that the contraband had morphine contents above the percentage as mentioned in definition and the possession of such opium alone could be culpable under the Act. The prosecution failed to establish that the seized contraband article was opium with morphine contents more than 2% as defined in the Act. Hence the appellant was entitled to be acquitted on the above ground also. The prosecution failed to establish that the contraband was opium as defined in the Act and that S.50 had been complied with. Hence the conviction and sentenced cannot be upheld and the appellant is entitled to be acquitted. In the result this appeal is allowed. The conviction and sentence passed against the appellant are set aside and he is found not guilty of the offence under S.21 of the NDPS Act and is acquitted. The appellant shall be released forthwith if not required in connection with any other case.