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2000 DIGILAW 15 (JK)

Jai Singh v. State Of J. &K.

2000-02-11

O.P.SHARMA

body2000
1. Both these appeals are directed against the judgment and order of conviction dated 24-06-1998 in a sessions case No. 151 of 1996 passed by the Sessions Judge, Jammu in FIR No. 198 dated 20-10-1996 registered u/s 20/29 of Narcotic Drugs and Psychotopic Substances Act, 1985 (for short N.D. PS. Act in police station Bahu, Jammu vide which all the three appellants have been sentenced to undergo rigorous imprisonment for a period of 10 years and fine of Rs. one lac each. In default of payment of fine to further undergo imprisonment for a period of one year. 2. Brief facts of the case are these on 12-10-1996 a police party comprising Head constable Sat Paul was on a nakka duty at Narwal Bala Chowk. The police party found three persons carrying bags and intercepted them. These bags were found containing charas. The Head constable detained the persons and flashed a message on wireless to Sh. Lohit Kumar Lohya, Sub-Divisional Police Officer who immediately appeared on the scene. It was only after his arrival that search and seizure of the charas was affected from the appellants. The samples of the charas were also obtained from each of the bags separately and sent for chemical examination. These samples were sent to the Director, J&K, P.S.L. Jammu. According to the report of the Scientific Assistant, the samples were found to contain charas. On receipt of the report from the Laboratory and completion of the investigation, the accused were charged u/s 20 of the Act and sent up for trial which culminated in their conviction. 3. These samples were sent to the Director, J&K, P.S.L. Jammu. According to the report of the Scientific Assistant, the samples were found to contain charas. On receipt of the report from the Laboratory and completion of the investigation, the accused were charged u/s 20 of the Act and sent up for trial which culminated in their conviction. 3. The appellants impugned the judgment and order of conviction on the following grounds:- (i) That the trial and conviction is vitiated because search of the appellants was effected in violation of section 50 of the Act, (ii) that the officer arresting the appellants also failed to comply with the provisions of section 52 of the Act, (iii) that the report of the Scientific Assistant reveals that the weight of the samples tested by him was much more than the weight of the samples recorded in the seizure memo which creates doubt about the genuineness of the samples, (iv) that the impression of the seals did not tally with the specimen of seal impression forwarded by the Magistrate which makes the samples doubtful, (v) that section 57 of the Act has also been violated because no report was forwarded in terms of this section, (vi) that none of the independent witness has been examined which also creates doubt about the prosecution story, (vii) that the evidence relied in support of order of conviction has not been put to the appellants u/s 342 Cr. P.C. 4. Mr. Bakshi, learned counsel for the appellants argued that the presence of Assistant Suptd. of Police (SDOP), Gandhi Nagar, Jammu at the time of search is not compliance of section 50 of the Act because he did not conduct the search himself. Mr. Gupta appearing for one of the appellants while adopting the arguments of Mr. Bakshi pointed out that the officer effecting search had failed to give option to the accused as required u/s 50 and, therefore, search and seizure is bad and the conviction of the appellants is illegal. He also pointed out that the term Gazetted Officer does not include a police officer of the gazetted rank and, therefore, trial is vitiated. Section 50 of the Act reads as under: - 50. Conditions under which search of persons shall be conducted. He also pointed out that the term Gazetted Officer does not include a police officer of the gazetted rank and, therefore, trial is vitiated. Section 50 of the Act reads as under: - 50. Conditions under which search of persons shall be conducted. - (1) when any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground to search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female.� So under sub-section (1) the officer authorised u/s 42 is empowered to search any person, but this power is subject to the condition that the person about to be searched is informed of his right to be searched before a Gazetted Officer of any of the department mentioned in section 42 or in the presence of a nearest Magistrate. In case person to be searched offers himself to be searched by the officer authorised u/s 42 instead of being taken to the Gazetted Officer or the Magistrate such a search does not violate section 50. However the question how the person to be searched is to be made aware of his right to be searched in presence of a Gazetted Officer or a Magistrate has been considered by the apex court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299. While rejecting an argument to the contrary in Ali Mustafa Vs. State of Kerala AIR 1995 SC 244 their lordships observed as under:- A similar argument had been advanced in Balbir Singh™s case (1994 AIR SC 1802) (supra) and the Bench repelled the same after a detailed discussion and observed (at p. 1819-20 of AIR). The words if the person to be searched so desires� are important. State of Kerala AIR 1995 SC 244 their lordships observed as under:- A similar argument had been advanced in Balbir Singh™s case (1994 AIR SC 1802) (supra) and the Bench repelled the same after a detailed discussion and observed (at p. 1819-20 of AIR). The words if the person to be searched so desires� are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been concerned, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a gazetted officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right.� 7. We respectfully agree with the above observations and reject the submission made on behalf of the respondents.� 5. In the instant case, this option was given to each one of the appellants as per EXPW-SP, EXPW-SP/1 and EXPW-SP/ 2. The appellants were specifically asked whether they would like to be searched in presence of the Gazetted Police Officer or a Magistrate and they opted to be searched in presence of the police officer of the gazetted rank. This provision is therefore, satisfied. However, after being so informed whether the appellants had opted for such a course or not is a question of fact to be decided by reference to the evidence of the witnesses. This provision is therefore, satisfied. However, after being so informed whether the appellants had opted for such a course or not is a question of fact to be decided by reference to the evidence of the witnesses. In our words, it is a question of appreciation of evidence laid down in Balbir Singh case (supra). M/s Head constable Sat Paul and Lohit Kumar Lohya, Suptd. of Police, Rajouri have deposed that appellants were given option to be searched in presence of the gazetted officer or the Magistrate and they offered to be searched in presence of the former. Their evidence on this point has not been challenged in the cross-examination. In view of this, there is no violation of section 50. It was faintly suggested on behalf of the appellants that gazetted officer means a person other than a police officer. In support of this, reliance is placed on the decision of the High Court of Punjab and Haryana in Neki Ram Vs. State of Haryana, 1998 Cr. Law Journal 199, the relevant portion of which is extracted below: - .....The judgment in Balbir Singh™s case does not support the argument advanced by Mr. Sanghi in this case, it was held that once a full offer under section 50 of the Act had been made to an accused, the further option with regard to selecting either one of the two officers was left to the police officer conducting the search. The words ˜Senior Officer™ relied upon by the Court, to hold that the Act envisaged a search by the DSP himself, have to our mind been read out of context. The observations in pare 11 of the report clearly visualise a search before such Senior Officer that is envisaged in section 50 of the Act that is a Gazetted Officer or a Magistrate and not just any Officer, and that too after an officer under this section has been made.� 6. These observations are, not, contrary to the judgment in Balbir Singh™s case in which three member Bench of the apex court once again had to consider the question whether a person to be searched u/s 50 of the Act, 1985 has a right to be given an option of being searched by a Gazetted Officer or by a Magistrate. These observations are, not, contrary to the judgment in Balbir Singh™s case in which three member Bench of the apex court once again had to consider the question whether a person to be searched u/s 50 of the Act, 1985 has a right to be given an option of being searched by a Gazetted Officer or by a Magistrate. Their lordships observed as under:- We may mention here that section 43 which deals with the power of seizure and arrest in public places is slightly different from section 42 in certain respects. Under this provision any empowered officer u/s 42 has the power to seize, detain, search or arrest in public place or in transit if he has reason to believe that an offence punishable under Chapter IV relating to such drug or substance has been committed and seize any document or other article which may furnish evidence of the commission of such offence and can seize any animal or conveyance or article liable to confiscation and can detain and search any person similarly. The empowered officer while acting u/s 43 need not record any reasons of his belief. This section also does not mention anything about the empowered officer having prior information given by any person or about recording the same, as compared to section 42.� 25. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows: - (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions Cr. P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation with the other provisions of the NDPS Act.� 7. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation with the other provisions of the NDPS Act.� 7. Term Senior Officer� has not been used in section 50 and Gazetted Officer has to be of any of the departments mentioned in section 42. Since the Asstt. Suptd. of Police is a Gazetted Officer and section 42 includes officer of the police department also, therefore, search in presence of PW Lohit Kumar Lohya is not in contravention of section 50.This argument, therefore, is without any substance and as such is rejected. The argument that section 42 has also been violated has to be rejected because the appellants were intercepted while walking on a public road and, therefore, procedure u/s 42 (2) of the Act was not required to be followed. This was laid down by their lordships of the Supreme Court in Sayar Puri Vs. State of Rajasthan 1998 Cr. L.J. 4589 (SC) by observing:- In our opinion this contention is misconceived. The police officers who were examined in this case and also the panch witnesses have stated that the accused was found sitting on a bench on the Mandia Road. Thus the accused was found sitting on a public road and, therefore, neither the procedure u/s 42 (2) of the Act was required to be followed nor the site plan was required to be prepared. So section 42 is not attracted. 8. It was next argued that none of three independent witnesses have been examined, the inference is that if examined, they would not have supported the prosecution. The only evidence of search and seizure being that of the police officials the same according to the learned counsel could not be relied to convict the appellants as they are interested in the prosecution. There is no substance in this contention because evidence of police officials cannot be rejected on the ground that they are interested in the prosecution of the accused. A similar argument was rejected by the Supreme Court in State of Kerala Vs. There is no substance in this contention because evidence of police officials cannot be rejected on the ground that they are interested in the prosecution of the accused. A similar argument was rejected by the Supreme Court in State of Kerala Vs. M.M. Mathew AIR 1978 SC 1571 holding that: - It is true that courts of law have to judge the evidence before them by applying the well recognised test of basic human probabilities and that some of the observations made by the Session Judge, especially one to the effect that the evidence of officers constituting the inspecting party is highly interested because they want that the accused are convicted cannot be accepted as it runs counter to the well recognised principle that prima-facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case.� The mere fact that (witnesses) are police officers was enough to discard their evidence. No reason was shown for their hostility to the appellant.� Moreover, it is a case of chance recovery and there is no suggestion that the appellants were known to any one of the prosecution witnesses who are police officials. Therefore, this argument is not sustainable and as such is rejected. The appellants also assail the order of conviction on the ground that the trial is vitiated because of violation of sections 52, 55 and 57 of the Act. This argument was also advanced before the learned Sessions Judge who rejected it by observing as under.- It is a well settled law that violation of the statutory provisions would be certainly prejudicial to defence. It is, however, consistent judicial view that the provisions of statute creating public duty are generally speaking directly. It is to be borne in mind that considering the purpose of the statute procedural instructions contained therein are to be interpreted. If in order to safeguard to legal right of an accused or a person sought to be apprehended such statutory instructions are given to be complied with by public functionaries, any of the same would be prejudicial to the interest of the accused. If in order to safeguard to legal right of an accused or a person sought to be apprehended such statutory instructions are given to be complied with by public functionaries, any of the same would be prejudicial to the interest of the accused. It is pertinent to point out that the aspect of prejudice was regarded as material when at no point of time the accused pleaded prejudice on account of contravention of any provisions by the investigating officer even in a statement under sec. 342 Cr P.C. the prejudice to the accused and the trial cannot be held to be vitiated. In Chotu Ram Vs. State of Rajasthan 1995 Criminal Law Journal the Investigating Officer did not use any special seal but used a general seal of the Police Station. However, as there was no prejudice to the accused the trial was not held to be vitiated.� The observations are general in nature, the provisions have not been complied. However, non-compliance of section 55 is admitted by ASI Jagan Nath who stated that seizure property was not sealed with the seal of the officer in charged of a Police Station. In Balbir Singh™s case (supra) scope of sections 52 and 57 was analysed by their lordships as under:- 24. Sections 52-and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the Cr. PC. If there is any violation of these provisions, then the court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search or in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the traitor the conviction if otherwise there is sufficient material. But such violation by itself does not invalidate the traitor the conviction if otherwise there is sufficient material. Therefore, it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution.� So as an abstract proposition of law the trial court was not wrong in holding that mere non-compliance of the provisions will not vitiate the trial. But since no explanation muchless proper explanation was offered by the investigating officer for non-compliance, such a finding could not be returned. Moreover, the observation that accused in their statements u/s 342 Cr. PC. have not pleaded any prejudice is against the settled law that prosecution case is to stand on its own legs. Since it is admitted case of the prosecution that sections 55 and 57 have been totally ignored and there is no explanation for the non-compliance, this certainly according to the observations of their lordships in Balbir Singhs case "would have adverse affect on the prosecution�. It is thus not a case of failure to strictly comply the provisions, but a case in which both these provisions have been totally ignored. Such being the case the decision in Mohinder Kumar Vs. State of Punjab Goa (AIR 1995 SC 1157) applies. In this case their lordships held as follows:- ...... In Balbir Singhs case, it has been further stated that the provisions of sections 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted.� Likewise Mr. Sharma was unable to show any material on record that these provisions have been adhered to. So the prejudice has to be inferred. The accused is, therefore, entitled to be acquitted.� Likewise Mr. Sharma was unable to show any material on record that these provisions have been adhered to. So the prejudice has to be inferred. In view of this, it is not necessary to examine the question of prejudice caused to the appellants. However, even if it is held that no prejudice is caused to the appellants by the non-compliance though in the circumstances of the case it is not possible to render such a finding, these appeals have to be allowed because of non-compliance of section 342 of the Cr PC. The evidence against the accused is three fold, one recovery and seizure of charas from their possession, two taking of samples of the charas and forwarding of these samples to the PSL and three report of the chemical examiner. Strangely enough, the only question put to the appellants is about their personal search and seizure as per exhibit EXPW-SP/2, EXPW-SP/3 and EXPW-SP/4. No question about the taking of samples or the weight of the samples was put to any of them. Similarly although the finding of the Sessions Judge is that the report of the PSL is admissible and the same has been tendered in evidence, but when the samples were taken, what was their weight and with whose seal these were sealed have not been, put to the appellants. Moreover, the only evidence against the appellants is the recovery of bags containing substance similar to charas. Accordingly, samples were obtained and sent to the PSL for chemical examination. As per report of the Forensic Science laboratory the samples were of charas. The report of Assistant Chemical examiner is admissible in evidence u/s 510 Cr. P.C. But before it can be used against the accused, its contents had to be put to the appellants in the absence of which it cannot be read against them. In case this report cannot be read there will be no evidence to hold them in possession of charas as observed in Babu Singh Vs. State 1989 KLJ 235 holding that, "sure method of ascertaining the contents of a liquid is to have chemical test done by a chemical examiner or some expert in the line. In case this report cannot be read there will be no evidence to hold them in possession of charas as observed in Babu Singh Vs. State 1989 KLJ 235 holding that, "sure method of ascertaining the contents of a liquid is to have chemical test done by a chemical examiner or some expert in the line. Here we have the report of the chemical examiner, but it cannot be looked into because of the failure of the trial court to invite the attention of the appellants to the most vital piece of evidence against them. In Sardool Singh Vs. State 1980 KLJ 454 this court held that:- It is relevant to point out here that even if the alleged recovery had been established, the same could not have been used against the appellant, because in his statement u/s 342 Cr. P.C, no question was put to him regarding the alleged recovery of the empty cartridges at his instance which the prosecution was relying upon to connect the appellant with the crime.� 12. Similarly in Mazahar Ali Vs. State 1976 J&K Law Reporters 22, it has been laid down that:- Whatever be the little evidentiary value of this conduct of the accused in running away from the scene of crime in a given case relating to the conduct of the accused cannot be used against the accused persons as these circumstances were not put to the accused persons in their statements recorded u/s 342 Cr. P.C and it is well settled in highest judicial authority that no circumstances can be used against an accused person unless the same has been put to him u/s 342 Cr. P.C. and he is given an opportunity to explain the said circumstances.� In Megha Jesha Vs. State of Gujarat AIR 1979 SC 1566, their lordships observed as under:- Unfortunately, however, as this circumstance was not put to the accused in his statement u/s 342. Cr. P.C. the prosecution cannot be permitted to rely on this statement in order to convict the appellant particularly after the...� In view of the above as it stands the evidence of chemical examiner being the only evidence to prove possession of charas which the learned Sessions Judge failed to put to the accused u/s 342 Cr. PC. Cr. P.C. the prosecution cannot be permitted to rely on this statement in order to convict the appellant particularly after the...� In view of the above as it stands the evidence of chemical examiner being the only evidence to prove possession of charas which the learned Sessions Judge failed to put to the accused u/s 342 Cr. PC. the same cannot be read against them to hold them guilty It appears the statement of the accused appellants has been recorded in a most casual manner without any regard to the mandate of section 342 Cr. P.C. which has to a large extent resulted in the miscarriage of justice. Apart from the fact that provisions of sections 55 and 57 of the Act have also not been adhered to. In view of the above, these appeals are allowed and conviction of the appellants set aside. They are acquitted accordingly.