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2000 DIGILAW 1183 (RAJ)

Chhotu Lal v. State of Rajasthan

2000-09-20

SHASHI KANT SHARMA

body2000
JUDGMENT : 1. - Their Lordships of the Supreme Court in State of Punjab v. Baldev Singh, AIR 1999 Supreme Court 2378. propounded that "A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair".The only argument advanced in the instant appeal by the learned Amicus Curiae is that provisions contained in Section 50 of the Narcotic Drugs And Psychotropic Substances Act, 1985 have been flouted by the Investigating Agency and the impugned judgment of the learned Trial Court deserved to be set-aside. 2. The question that arises for consideration is whether the Investigating Agency followed the procedure as envisaged by Section 50 of the Narcotic Drugs And Psychotropic Substances Act scrupulously? Learned Trial Court answered this question in affirmative and convicted the accused-appellant under Section 8/21 of the Narcotic Drugs And Psychotropic Substances Act to undergo 10 years rigorous imprisonment and a fine of rupees one lakh, in default to further undergo one year simple imprisonment. 3. On October 21, 1993 Durga Narain Purohit, SHO Bhimganj Mandi received secret information about illegal selling of smack by the appellant. SHO along with the police party reached at the spot and found the appellant at the specified place. Appellant was given option to be searched before the Magistrate or the Gazetted Officer but he volunteered to be searched by the SHO. On being so searched smack weighing two gms. was recovered from the possession of the accused. Necessary memos were drawn and after completion of the investigation, charge-sheet was filed. Appellant denied the charge under Section 8/21 of the Narcotic Drugs And Psychotropic Substances Act, and claimed trial. Prosecution examined as many as six witnesses. Thereafter statement of the appellant under Section 313, Criminal Procedure Code was recorded. After hearing the arguments learned Trial Court convicted the appellant as indicated herein above. 4. Learned Public Prosecutor supported the impugned judgment and canvassed that the procedure enumerated in Section 50 was followed by the Investigation Officer in letter and spirit. 5. I have pondered over the rival submissions and carefully weighed the material on record. 6. After hearing the arguments learned Trial Court convicted the appellant as indicated herein above. 4. Learned Public Prosecutor supported the impugned judgment and canvassed that the procedure enumerated in Section 50 was followed by the Investigation Officer in letter and spirit. 5. I have pondered over the rival submissions and carefully weighed the material on record. 6. It is well-settled that the right by way of safeguard confined under Section 50 of the Narcotic Drugs And Psychotropic Substances Act in the context is all the more important and valuable. It is to be taken as an imperative requirement on the part of the officer intending so search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. This provision has been incorporated to make the individual more acutely aware that he is faced with a phase of the adversary system that he is not in the presence of persons acting solely in his interest. Therefore, the individual must be informed in clear and unequivocal terms that he has the right to be searched in the presence of a Gazetted Officer or a Magistrate. 7. In State of Punjab v. Om Prakash, 1997 Cr.L.J. 4611 . the Division Bench of the Punjab and Haryana High Court propounded as under : "Where the accused is alleged to have subscribed his thumb impression to the memo, by and under which the accused is alleged to have given his consent for being searched by the Investigating Officer him - self and where it is not attested by independent witnesses, the same cannot be acted upon or taken to be evidence of the accused having agreed to be searched by the Investigating Officer himself. This is especially so when it is seen that the accused is illiterate." 8. In Nadeem v. State of Rajasthan, S.B. Criminal Appeal No.142 of 1996 decided on 18-2-1998, it was held by this Court that "when prosecution comes with a case that accused did not exercise option of being searched in the presence of Gazetted Officer or Magistrate but volunteered to be searched by the police officer, then the search must be conducted in the presence of independent witnesses unless it was unreasonable and impracticable to procure the presence of such witnesses. The Investigating Agency cannot be permitted to make casual statement that witnesses were not available or they declined to cooperate". 9. Their Lordships of the Supreme Court in State of Punjab v. Baldev Singh. (supra), indicated that : "If the empowered officer fails to comply with the requirements of Section 50 and an order of acquittal is recorded on the ground, the prosecution must thank itself for its lapses." 10. The Division Bench of Punjab and Haryana High Court in Amrik Singh v. State of Haryana, held thus : "To give meaning or content to the clear legislative intent underlying the safeguard provided by Section 50 of the Act, cogent and reliable evidence and not merely the statement of a police officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the presence of a Gazetted Officer or Magistrate, but he choose to decline this offer." 11. In the case on hand the Investigating Officer did not record the secret information received in the Rojnamcha in view of Section 42 of the Narcotic Drugs And Psychotropic Substances Act. The Investigating Officer by passed the mandatory provision by saying that he received the information while he was patrolling. The incident had taken place in the nearby area of Police Station Bhimganj Mandl. In the F.I.R Ex. P.9 the distance of place of occurrence from the police station has not been indicated. The appellant was nabbed in busy area but no independent witness was produced to support the prosecution case. It was necessary for the prosecution to bring on record cogent and reliable evidence to establish that the appellant was informed of his right to be searched in the presence of a Gazetted Officer or Magistrate but he declined the offer and the evidence adduced by the prosecution does not appear to be reliable. Except SHO and police party, nobody came forward to support the prosecution case. In the consent memo, the accused-appellant only put his signatures, rest of the formality was completed by the police party, even the alleged consent given by the appellant was not in his handwriting. In the statement under Section 313, Criminal Procedure Code the accused-appellant stated that he was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate. In the statement under Section 313, Criminal Procedure Code the accused-appellant stated that he was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate. I am satisfied that the evidence collected by the Investigating Officer is in breach of the safeguard provided by Section 50 and the whole of the investigation and trial is unfair. 12. Under these circumstances I have no option but to allow the appeal of the accused-appellant. 13. In the result, the appeal stands allowed and the impugned judgment of conviction dated 25-8-1997 of the learned Special Judge, NDPS Cases-cum-Additional Sessions Judge No. 2, Kota stands set aside. The accused-appellant shall stand acquitted from the charge under Section 8/21 of the Narcotic Drugs And Psychotropic Substances Act. He shall be released forthwith if not required in any other case.Appeal allowed. *******