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Andhra High Court · body

2000 DIGILAW 33 (AP)

Durga Prasad Jaiswal v. State Of A. P.

2000-01-24

B.SUDERSHAN REDDY

body2000
B. SUDERSHAN REDDY, J. ( 1 ) THE appellants herein were convicted by the learned Special Judge-cum-Additional Sessions Judge, Adilabad in N. D. S. C. No. 21 of 1996 for the offences punishable under Sections 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned Special Judge sentenced the appellants herein to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1,000. 00 each in default to undergo rigorous imprisonment for six months. ( 2 ) THE appellants challenge the judgment rendered by the learned Special Judge in this criminal appeal. Briefly stated, the prosecution case : the Sub Inspector of Police, Adilabad (PW-4) while on patrolling duty, having received some credible information on 2-4-1996 about the suspicious movements of the appellants herein, rushed to the RTC Bus stand Adilabad and found both the appellants carrying two bags. PW-4 produced both the appellants, with the bags, before the Mandal Revenue Officer, Adilabad (PW-3) herein. The presence of PWs 1 and 2 (Panch witnesses) was secured. It is the case of the prosecution that both the appellants confessed before PWs 3 and 4 that they purchased Ganja at Indervelli and surrounding villages to transport the same to Nagpur in Maharashtra State. The Ganja was about ten Kgs. , wrapped in four polythene bags, was seized from the first appellant and six Kgs of Ganja was seized from the second appellant in the presence of panch witnesses under panchanamas, Exs. P1 and P2, respectively. On the strength of the panchanamas, PW-4 registered a case in Cr. No. 108 of 1996 under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act ) and sent the FIRs to all concerned officers. Sample of ganja was collected at the time of Panchanama and sent to Chemical Examiner, at Nizamabad under Exs. P-5 and P-6 dated 9-4-1996. Ex. P-7 is the Chemical Examiner s Report dated 1-5-1996 certifying that the sample sent was analysed and found to be Ganja. ( 3 ) THE prosecution examined PWs. 1 to 4, got marked Exs. P-1 to P-7 and MOs-1 to 4. However, PWs 1 and 2 turned hostile by refusing to support the case of the prosecution. Ex. P-7 is the Chemical Examiner s Report dated 1-5-1996 certifying that the sample sent was analysed and found to be Ganja. ( 3 ) THE prosecution examined PWs. 1 to 4, got marked Exs. P-1 to P-7 and MOs-1 to 4. However, PWs 1 and 2 turned hostile by refusing to support the case of the prosecution. The learned Special Judge upon appreciation of the evidence and the material available on record came to the conclusion that the prosecution clearly established the case against the appellants herein beyond reasonable doubt and accordingly convicted both the appellants under Section 20 (b) (i) of the Act and sentenced them as indicated above. The learned Judge also came to the conclusion that the Officers have followed the mandatory procedure prescribed by the Act. ( 4 ) SRI Nazeer Khan, learned counsel for the appellants contended that the whole prosecution case and the trial is vitiated for the reason of non-compliance with the mandatory requirements of Section 50 of the Act. Learned counsel submits that the appellants were not informed by PW-4 that if they so require, they would be searched before any Gazetted Officer or the nearest Magistrate. Learned counsel further submits that whenever an officer duly authorised under Section 42 of the Act, is about to search any person under the provisions of Sections 41, 42 or 43 of the Act, he is duty bound to inform such persons that if they so require they would be searched before the nearest Gazetted Officer of any of the Departments or the nearest Magistrate. ( 5 ) BEFORE adverting to the said question, it would be necessary to notice as to what PWs 3 and 4 have stated in their evidence. PW-3 in his evidence, in categorical terms, stated that on 2-4-1996 at about 5. 00 pm, PW-4 produced both the appellants herein. The appellants were produced along with Ganja kept in two separate bags containing ten kgs. and six kgs. MOs 1 and 2 are the two bags produced before him on that day. Panchanama was written in his presence and Ganja was seized from the possession of the appellants in MOs 1 and 2, under Ex. P1 and P-2, respectively. The appellants were taken away by PW-4 after the panchanama. In the cross examination, however, PW-3 says that he is not acquainted with the provisions of the NDPS Act. Panchanama was written in his presence and Ganja was seized from the possession of the appellants in MOs 1 and 2, under Ex. P1 and P-2, respectively. The appellants were taken away by PW-4 after the panchanama. In the cross examination, however, PW-3 says that he is not acquainted with the provisions of the NDPS Act. It is stated in the cross-examination that prior to questioning the accused, he has not informed the appellants that he is a Gazetted Officer and they are at liberty to give any statement before him. PW-3 in categorical terms denied the suggestion made to him that the appellants were not produced along with Ganja before him. PW-4 in his evidence stated that on 2-4-1996 at about 4. 30 p. m. on suspicion both the appellants were apprehended at RTC Bus stand, Adilabad, while they were carrying two bags and they were accordingly produced before the Mandal Revenue Officer, Adilabad (PW-3) along with the bags. Ganja contained in Mos 1 and 2 was seized under Exs. P-1 and P-2, respectively. He has also informed the superiors about the apprehension of the appellants herein under the Act. Ex. P-3 is the original FIR sent to the Court. Samples were sent through the Court to the Chemical Analyst. Ex P-4 is the requisition, Ex. P-5 is the letter of Advice and Ex. P-6 is the covering letter of the Court. Ex. P-7 is the chemical analysis report certifying that the contents are found as Ganja. In the cross-examination PW-4 stated that he has not put it in writing nor told the appellants that they have got a right to be searched before a Gazetted Officer prior to producing them before PW-3 on that day. ( 6 ) LEARNED counsel for the appellants submits that admittedly, PW-4 has not informed the appellants herein that they have got a right only to be searched before a Gazetted Officer or a Magistrate and thus violated the mandatory requirement provided under Section 50 of the Act. ( 7 ) IN State of Punjab v. Baldev Singh, AIR 1999 SC 2378 : (1999 Cri LJ 3672) the Apex Court laid down the law as to the nature and scope of S. 50 of the Act. ( 7 ) IN State of Punjab v. Baldev Singh, AIR 1999 SC 2378 : (1999 Cri LJ 3672) the Apex Court laid down the law as to the nature and scope of S. 50 of the Act. The Apex Court observed (Paras 25, 26 and 32) :"to be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an 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 NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provisions is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is thus, no justification for the empowered officer, who goes to search the person, on prior information to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the Court that the requirements of Section 50 were duly complied with. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the Court that the requirements of Section 50 were duly complied with. The safeguards or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of illicit Drugs and Narcotic Substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate is a necessary sequence for enabling the concerned person to exercise that right under Section 50 because after Maneka Gandhi v. Union of India, AIR 1978 SC 597 , it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not "reasonable, fair and just" and when a statute itself provides for a just procedure, it must be honoured. Conducting a search under Section 50, without initimating to the suspect that he has a right to be searched before a Gazetted Officer or a Magistrate, would be violative of the reasonable, fair and just procedure and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be fair , just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, if he so requires, would place any premium on ignorance of law. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, if he so requires, would place any premium on ignorance of law. The argument loses sight to a clear distinction between ignorance of the law and ignorance of the right to a reasonable, fair and just procedure . However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 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 Section 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 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 Section 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 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. " ( 8 ) IT is true that the Supreme Court held that to be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right given by the legislature to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. The Supreme court in categorical terms laid down that an empowered officer cannot search a person, on prior information, without informing the concerned person of the existence of his right to have his search conducted before a Gazetted Officer or the nearest Magistrate so as to enable him to avail of that right. The Supreme Court further observed that it is not necessary to give that information to the person concerned to be searched about his right in writing. The law laid down by the Supreme Court is clear and categorical in its terms. It lays down that the empowered officer cannot search any person on prior information without informing the concerned person of the existence of his right to be searched before a Gazetted officer or a Magistrate so as enable him to avail of that right. The empowered officer is bound to take the concerned person to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 of the Act, if such a person so requires and exercises his right only to be searched before a Gazetted Officer or a nearest Magistrate. The empowered officer is bound to take the concerned person to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 of the Act, if such a person so requires and exercises his right only to be searched before a Gazetted Officer or a nearest Magistrate. It would be open to the empowered officer to effect search, if the concerned person does not require to take him before the nearest Gazetted officer or to the nearest magistrate and volunteers to be searched by the empowered officer, even after being informed about his right that he can require the empowered officer to search only in the presence of a nearest Gazetted Officer or the Magistrate. Further it is also clear that no prejudice would be caused in a case where the empowered officer straightway takes the person to the nearest Magistrate or Gazetted officer of any of the Departments for making search without informing the person concerned about his right to be produced before a Gazetted Officer or the Magistrate. ( 9 ) IN the instant case PW-4 having noticed the suspicious movements of the appellants herein without information to them of their right to be searched in the presence of the Gazetted Officer or the nearest Magistrate straightway produced them before PW-3 and effected search in the presence of PW-3 and seized Ganja under Exs. P-1 and P-2 before the panch witnesses. Thus the search has been conducted in the presence of PW-3, who is admittedly a Gazetted Officer. The search, as well as the seizure was in the presence of PW-3. Therefore, mere fact that the appellants were not informed by PW-4 about their right to be searched in the presence of a Gazetted Officer has not resulted in any prejudice whatsoever to the rights of the appellants. PW-4 had substantially complied with the mandatory requirements of Section 50 of the Act by searching the appellants in the presence of PW-3, admittedly, who is a Gazetted Officer. As such, neither the prosecution nor the trial could be stated to be vitiated. Therefore, the conviction of the appellants herein under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, does not suffer from any factual or legal infirmities warranting interference of this Court. As such, neither the prosecution nor the trial could be stated to be vitiated. Therefore, the conviction of the appellants herein under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, does not suffer from any factual or legal infirmities warranting interference of this Court. Therefore, the conviction of the appellants under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, is accordingly upheld. ( 10 ) I also do not find any reason whatsoever to interfere with the sentence imposed upon the first appellant herein. The sentence of four years rigorous imprisonment and fine of Rs. 1,000. 00 in default to under-go rigorous imprisonment for six months, imposed upon the first appellant is confirmed. Appellant No. 2 at the relevant time was aged about eighteen years. The quantity of Ganja seized from the second appellant was only six (four) kgs, less than what has been seized from the first appellant. Having regard to the totality of the facts and circumstances, I consider it appropriate to reduce the sentence imposed against the second appellant and the second appellant is accordingly sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs. 1,000. 00 in default to undergo rigorous imprisonment for six months. The sentence imposed upon the second appellant is accordingly modified to this extent. The appeal shall accordingly stand partly allowed. Appeal partly allowed.