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2000 DIGILAW 881 (RAJ)

Hazari v. State of Rajasthan

2000-07-24

SUNIL KUMAR GARG

body2000
Judgment Sunil Kumar Garg, J.-This appeal has been filed by the accused appellants against the Judgment and order dated 18-1-1999 passed by the learned Special Judge, NDPS cases, Chittorgarh by which he convicted both the accused appellants for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced each of them to ten years Rigorous Imprisonment and fine of Rs. 1 lac and in default of payment of fine, they shall further undergo R.I. for two years. .2. The necessary facts giving rise to this appeal are as follows :On 21-1-1997, SHO, Police Station Kotwali, Chittorgarh Shri Ganpat Singh Chouhan, PW. 13 received a secret information that two persons having opium with them are travelling by Roadways Bus from Neemach to Delhi and the Bus is likely to arrive at Bus Stand Chittorgarh at about 8.45 p.m. That information has been reduced in writing to make the compliance of Section 42 of the NDPS Act and, thereafter, for making further compliance of the said Section, that information was sent to Dy. Superintendent of Police, Chittorgarh by P.W. 13 Ganpat Singh Chouhan and thereafter, he along with Police party consisting of Ishwarlal, ASI, PW 10, Babulal. PW. 6, Mannalal. PW. 7, Jai Prakash & Ors.s reached Bus Station, Chittorgarh, where Bus No. RJ9 P728 arrived and PW. 13 Ganpat Singh entered the Bus and he found that two persons were sitting on the last seat of the Bus. PW. 13 Ganpat Singh enquired from them. They disclosed their names as Hazari and Mohan. Thereafter, a notice Ex. P/5 under the provisions of Section 50 of the NDPS Act was given to the accused appellant Mohan by PW. 13 Ganpat Singh informing him whether he wants to be searched before a Gazetted Officer or a Magistrate. After receiving the notice, accused appellant Mohan gave his consent and, thereafter, PW. 13 Ganpat Singh, in presence of Motbirans PW. 4 Chunni Lal and PW. 5 Shankerlal made search and recovered from accused Mohan 2 Kg. opium, which was in the Polythene bag wrapped in a cloth on the belly, out “of which, 30 gms. (two samples) were taken and the same were sent to FSL for chemical analysis. Thereafter, accused appellant Hazari was also given notice Ex. 4 Chunni Lal and PW. 5 Shankerlal made search and recovered from accused Mohan 2 Kg. opium, which was in the Polythene bag wrapped in a cloth on the belly, out “of which, 30 gms. (two samples) were taken and the same were sent to FSL for chemical analysis. Thereafter, accused appellant Hazari was also given notice Ex. P/8 under the provisions of Section 50 of the NDPS Act informing whether he wants to be searched before a Gazetted Officer or a Magistrate. After receiving the notice, accused appellant Hazari gave his consent and, thereafter, PW. 13 Ganpat Singh, in presence of Motbirans PW. 4 Chunni Lal and PW. 5 Shankerlal made search and recovered from accused Hazari 1 kg. opium, which was in the polythene bag wrapped in a cloth on the belly, out of which 30 grams, (two samples) were taken and the same were sent to FSL for chemical analysis. From the FSL report Ex. P/16, it appears that both samples gave positive tests for the presence of chief constituents of coagulated juice of opium Poppy having 5. 32% (live point three two percent) morphine. Both the accused appellants were arrested and after usual investigation, police submitted challan against the accused appellants for the offence under Section 8/18 of the NDPS Act. The learned Special Judge framed charges against the accused appellants for the offence under Section 8/18 of the NDPS Act. Both the accused appellants denied charges and claimed trial. The prosecution examined as many as 13 witnesses and got exhibited 24 documents. Thereafter statements Under Section 313, Cr. P.C. were recorded. After recording evidence and conclusion of trial, the learned Special Judge vide his Judgment and order dated 18-1-1999 found both the accused guilty of the charge under Section 8/18 of the NDPS Act and convicted and sentenced them as stated above. Note: -By the said Judgment & order dated 18-1-1999 passed by the learned Special Judge, one accused Bhanwarlal was acquitted of the charge framed against him under Section 8/29 of the NDPS Act. .Aggrieved from the said Judgment and order dated 18-3 -1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh, the present appeal has been filed by the accused appellants. .3. In. this appeal, the following arguments have been raised by the learned Counsel for the accused appellants:- 1. .Aggrieved from the said Judgment and order dated 18-3 -1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh, the present appeal has been filed by the accused appellants. .3. In. this appeal, the following arguments have been raised by the learned Counsel for the accused appellants:- 1. That while effecting search and seizure In this case, the mandatory provisions of Section 42 of the NDPS Act have not been followed and non-compliance of the mandatory provisions of Section 42 vitiates the trial; 2. That compliance of the provisions of Section 50 of the NDPS has also not been made by the prosecution and as a result of non-compliance of the said provisions the trial stands vitiated and thus, accused appellants deserve to be acquitted only on this ground. 3. That according to the prosecution, the samples which were taken out, were 30 grms. each, but according to the FSL, they received samples of 265 grins. This shows the variation in samples weight, therefore, it cannot be said that the samples were the same which were recovered from the accused appellants and the probability of tampering with the sealed sample cannot; be overruled. Hence, both the accused appellants should be acquitted of the charge under Section 8/18 of the NDPS Act. 4. The learned Public Prosecutor has argued that the recovery in this case has been made at public place and, therefore, provisions of Section 42 of the NDPS Act would not apply and the provisions of Section 43 of the NDPS Act would apply. 5. In my opinion, as per the secret information, which was received by PW. 13 Ganpat Singh, there is a specific mention that accused appellants were carrying narcotic drugs in the vehicle and in Section 42 of the NDPS Act, the word “conveyance” is also there and, therefore, this information is falling under Section 42 of the NDPS Act and not. under Section 43 of the NDPS Act and thus, the police officer is obliged to take down the information in writing as provided in Section 42(1) of the NDPS Act and furthermore, in compliance of Section 42(2), to send that information to superior officer. In other words, in the present case, PW. 13 Ganpat Singh, SHO is duty bound to comply with the mandatory provisions of Section 42 of the NDPS Act. Apart from this, from perusing Parcha Kayami Ex. P/2 1. In other words, in the present case, PW. 13 Ganpat Singh, SHO is duty bound to comply with the mandatory provisions of Section 42 of the NDPS Act. Apart from this, from perusing Parcha Kayami Ex. P/2 1. It appears that PW. 13 Ganpat Singh was conscious of the fact that the search in the present case is being conducted under the provisions of Section 42 of the NDPS Act and that is why, he has specifically mentioned Section 42 of the NDPS Act in Ex. P/21. 6. For the aforesaid reasons, it is held that in the present case Section 42 of the NDPS Act would apply and not Section 43 of the NDPS Act. 7. The next question for determination is whether in the present case compliance of Section 42 of the NDPS Act has been made or not. Legal position in respect of Section 42 of NDPS Act. 8. According to Section 42, the officer specified therein is obliged to take down in writing his reasons to believe that the personal knowledge, he possesses or information given by any person to him before he carries out any of the functions mentioned in Section 42(1)(a) to 42(1)(d). However, according to proviso to this sub-section empowers an officer to enter and search the building, conveyance or place at any time only between sun set and sunrise without a search warrant or authorisation letter after recording grounds of his belief that a search warrant or authorisation could not be obtained without affording opportunity for concealment of evidence or facility, for the offenders to escape. Subsection (2) of Section 42 enjoins upon the officer to send the copy of the written information or the recorded grounds to his immediate official superiors 9. The Hon’ble Supreme Court in so many cases has discussed the scope of Section 42 of the NDPS Act and the important case in this respect is State of Punjab v. Balbir Singh 1994 CriLR 241 (SC): 1994 CriLJ 3702 where the Hon’ble Supreme Court after discussing the so many provisions ofNDPS Act & Ors., legal aspects, came to the following conclusions (para 26):- “(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act make a search or arrest a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of 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 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 in accordance with the other provisions of the NDPS Act. (2A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offence have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act, by any one other than such officers, the same would be illegal. (2B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction. (2C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. If there is a contravention that would affect the prosecution case and vitiate the conviction. (2C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. .(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42 (1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case, to that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4A) If a police officer, even if he happens to be an ‘empowered’ officer while effecting an arrest or search during normal investigation into offence purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of Sections 100 and 165, Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4B) If an empowered officer or an authorised officer under Section 4 1(2) of the Act carries out a search, he would be doing so under the provisions of Cr. P.C. namely Sections 100 and 165, Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and circumstances of each case. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and circumstances of each case. .(5) On prior information, the empowered officer or authorised officer while acting under Section 4 1(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. .(6) Theprovisions of Sections 52 and 57 which deal with the steps to be taken by the officer after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.” .10. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.” .10. In Mohinder Kumar v. The State, Panaji, Goa AIR 1995 SC 1157 , the Hon’ble Supreme Court has laid down .the following law :-“Where the police officer accidentally reached the house of accused while on patrolling duty and effected search and seizure of charas from accused without recording the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas and did not forward a copy of the grounds to his superior officer, as required by Section 42(2) of the Act and also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, the mandatory provisions of Sections 42 and 50 of the Act were not complied with and, therefore, the accused would be entitled to be acquitted.” 11. In this respect, the decision of the Hon’ble Supreme Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 Cr LR 373 (SC): (2000 CriLJ 1384) may also be seen. 12. Keeping the above legal position in mind, now it is to be examined whether in the present case, the prosecution has placed on record to show that there was compliance of the provisions of Section 42 of the NDPS Act or not. 13. The fard which was reduced in writing by PW. 13 Ganpat Singh for compliance of the provisions of Section 42(1) of the NDPS Act is Ex. P/23 and the report which was sent to superior officer in compliance of Section 42(2) of the NDPS Act is Ex. P/24. .14. PW. 13 Ganpat Singh, SHO, who conducted the search in the present case, has tried to prove Ex. P/23 and Ex. P124. When PW. P/23 and the report which was sent to superior officer in compliance of Section 42(2) of the NDPS Act is Ex. P/24. .14. PW. 13 Ganpat Singh, SHO, who conducted the search in the present case, has tried to prove Ex. P/23 and Ex. P124. When PW. 13 Ganpat Singh was being examined in the Court and when the question of producing these two documents came before the Court, the learned Special Public Prosecutor took time to produce them as is evident from the statement of PW. 13 Ganpat Singh which was recorded on 3 1-7-1998. The statement of PW. 13 Ganpat Singh was being resumed on 27-10-1998 where these two documents were got exhibited. In cross-examination, he admits:- 1. That documents Ex. P/23 and P/24 from the date of search upto the production in the Court i.e. 27-10-1998, were lying In the office of C.O. and not in Court file. 2. Thatit is wrong to say that documents Ex. P/23 and P/24 are being prepared today i.e. 27-10-1998. 3. That it is also correct that documents Ex. P/23 and P/24 are not in his writing and they were written by ASI Babulal, PW. 6. 15. From the statement of PW. 13 Ganpat Singh, it is very much clear that documents Ex. P/23 and P/24 were not produced in the Court along with the challan and they have been produced in the Court for the first time on 27-10-1998. The possibility that these two documents Ex. P/23 and P/24 have been fabricated later on after filing of charge sheet cannot be ruled out. In these circumstances, no reliance can be placed on the documents Ex. P/23 and P/24. Thus, it can be said easily that the information which was received by PW. 13 Ganpat Singh has not been reduced in writing by him and the same has also not been sent to the superior officer on the date of search. Thus, compliance of mandatory provisions of Section 42(1) and (2) has not been made in the present case. Therefore, it is fit case where it can be said that no compliance of Section 42 of the NDPS Act has been made and non-compliance thereof vitiates the trial. Now legal aspect of Section 50 of the NDPS Act. 16. Thus, compliance of mandatory provisions of Section 42(1) and (2) has not been made in the present case. Therefore, it is fit case where it can be said that no compliance of Section 42 of the NDPS Act has been made and non-compliance thereof vitiates the trial. Now legal aspect of Section 50 of the NDPS Act. 16. In State of Punjab v. Balbir Singh (1994 CriLJ 3702) (supra), it was also been held that provisions of Section 50 of the NDPS Act are mandatory. .17. In Manohar Lal v. State of Rajasthan AIR 1996 SC 2880 : (1996 CriLJ 1367), the Hon’ble Supreme Court has .held as under:-“Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Section 50 Search and Seizure Option given to accused is only to choose whether he would like to be searched by search officer or in presence of nearest available Gazetted Officer or nearest Magistrate - However choice of nearest available Gazetted Officer or nearest Magistrate lies with search officer and not with accused.” 18. In State of Punjab v. Labh Singh, etc. 1997 CriLR 76 (SC) : (1996 CriLJ 3996), it was held as under :-“Narcotic Drugs and Psychotropic Sub-stances Act, 1985. Section 50 - Search without compliance of mandatory requirement of Section 50 -Accused not informed about his right to be searched in the presence of Gazetted Officer-Held, Trial vitiated - Discharge order upheld.” .19. In AH Mustaffa Abdul Rabman Moosa v. State of Kerala, AIR 1995 SC 244 , the Hon’ble Supreme Court .has held as follows :-“Where a police Officer on receiving information that a person is in possession of contraband (charas), wants to subject him to search, it is the duty of the Police Officer to give option to the person as to whether he desired to be searched in the presence of a Gazetted Officer or a Magistrate as envisaged by Section 50. The failure to provide that option to the accused vitiates his conviction. The provisions of Section 50 are mandatory, the non-compliance whereof vitiates the conviction. It is not necessary that the person who is about to be searched should by himself make a request.” 20. In Mohinder Kumar v. The State Panaji, Goa (AIR 1995 SC 1175) (supra), it has also been held that the provisions of Section 50 of the NDPS Act are mandatory. 21. It is not necessary that the person who is about to be searched should by himself make a request.” 20. In Mohinder Kumar v. The State Panaji, Goa (AIR 1995 SC 1175) (supra), it has also been held that the provisions of Section 50 of the NDPS Act are mandatory. 21. In this connection, reference may be made to the decision of the Hon’ble Supreme Court in T. Hamza v. State of Kerala AIR 1999 SC 2966 : (1999 CriLJ 4059). 22. TheConstitutional Bench of the Hon’ble Supreme Court in State of Punjab v. Baldev Singh, AIR 1999 SC 2378 : (1999 CriLJ 3672) while interpreting Section 50 of the NDPS Act has held inter alia thus (para 55) :-“(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-sec. (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. .(2) That failure to inform the person concerned about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. .(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit articles 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 from his person, during a search conducted in violation of the provisions of Section 50 of the Act. .(4) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be ‘relevant for recording an order of conviction or acquittal. .(4) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be ‘relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with it would not be permissible to cut short a criminal trial. .(5) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the concerned person of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.” 23. In this context, reference may be made to the latest decision of the Hon’ble Supreme Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000 CriLJ 1384) (supra). 24. Keeping the above principles of law in mind, it is to be seen now whether compliance of the provisions of Section 50 of the NDPS has been made by the prosecution in the present case or not. 25. Thenotice which was given to accused appellant Mohan for compliance of Section 50 of the NDPS Act is Ex. P15. That notice was given by PW. 13 Ganpat Singh, SHO, in which the words “you please give your consent” are written in the last line. Similar notice given to accused appellant Hazari is Ex. P/8, in which similar words “you please give your consent” are written in the last line. .26. Now we turn to the statement of PW. 13 Ganpat Singh, SHO concerned. In his cross-examination, he has admitted the following facts in respect of compliance of Section 50 of the NDPS Act:- .(1) That after giving notices Ex. P15 and Ex. P/8 to both the accused, no consent in writing has been taken from them, but on4y oral consent has been taken. .(2) That it is correct that in notices Ex. P1 5 and Ex. P/8, there is no mention of the word ‘oral consent’. 27. P15 and Ex. P/8 to both the accused, no consent in writing has been taken from them, but on4y oral consent has been taken. .(2) That it is correct that in notices Ex. P1 5 and Ex. P/8, there is no mention of the word ‘oral consent’. 27. Thus, from the statement of PW. 13, Ganpat Singh, SHO, it appears that notices for taking consent were given to both the accused, but no consent either oral or in writing has been obtained from them. The argument that Ex. P15 and Ex. P/8 bear the signatures of accused persons and, therefore, their consent should be taken for granted, is not tenable in view of the fact that these signatures would prove the fact only to the extent that notices were given to them. No option was obtained from the accused appellants whether they want to be searched before a Gazetted Officer or a Magistrate. Simple asking or informing the accused whether they want to be searched before the Gazetted Officer or Magistrate is not enough unless and until the option is being exercised by the accused. Therefore, in absence of it, in the present case, it cannot be said that the prosecution has made compliance of mandatory provisions of Section 50 of the NDPS Act. .28. Accordingly, it is held: .(1) That compliance of the provisions of Section 42 of the NDPS has not been made by the prosecution in the present case; .(2) That compliance of the provisions of Section 50 of the NDPS has also not been made by the prosecution in the present case; 29. Thus, as a result of non-compliance of the provisions of Sections 42 and 50 of the NDPS Act by the prosecution in the present case, the trial stands vitiated and therefore, the accused appellants are entitled to acquittal of the charges framed against them and the impugned Judgment and order dated 18-1-1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh are liable to be set aside. 30. Since the compliance of the mandatory provisions of Sections 42 and 50 of the NDPS Act has not been made by the prosecution in the present case, the third argument need not be discussed. 7.31. 30. Since the compliance of the mandatory provisions of Sections 42 and 50 of the NDPS Act has not been made by the prosecution in the present case, the third argument need not be discussed. 7.31. For the reasons stated above, the appeal filed by the accused appellants Hazari and Mohan is allowed and the impugned Judgment and order dated 18-1-1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh are set aside. Since the accused appellants Hazari and Mohan are in jail, they be released forthwith if not required in any other case.