Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 134 (RAJ)

Suresh Kumar v. State of Rajasthan

2001-01-24

SHIV KUMAR SHARMA

body2001
JUDGMENT 1. - Accused-appellants-Suresh Kumar, Irshad Alam and Om Prakash, in the instant appeal seek to quash the judgment dated 30.7.1999 of the learned Special Judge (NDPS Cases) Bharatpur in Sessions Case No. 172/97 whereby each of the appellant was convicted under section 8/21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short `the NDPS Act') to undergo 10 years rigorous imprisonment and a fine of Rs. 1,00,000/- and in default to further undergo one year rigorous imprisonment. 2. The case of the prosecution is that on 18.7.1997 a bus belonging to UP Roadways No. UP 80 9846 was intercepted and the appellants were found having illegally possessed charas. After having completed all legal formalities provided in the NDPS Act, the appellants were arrested and charge-sheet was filed. Charge under section 8 /21 of the NDPS Act was read over to the appellants, who denied the charge and claimed to be tried. As many as 9 prosecution witnesses were examined. Thereafter statements of the appellants were recorded under section 313 Cr.P.C. The appellants did not produce any defence witness and the learned trial Court after hearing arguments convicted the appellants as indicated hereinabove. 3. Mr. A.K. Gupta, learned counsel appearing for the appellants invited my attention to the various infirmities in the case, but I proceed to discuss the infirmity related to Section 50 of the NDPS Act which goes in the root of the case. Before scanning the prosecution evidence it may be recapitulated that the provisions contained in Section 50 of the NDPS Act cast statutory duty on the person intending to take search that the person to be searched is to be informed that he has legal right to be searched in the presence of a Gazetted Officer or the Magistrate. This provision is mandatory in nature and violation thereof would be prejudicial to the accused. The words in Section 50 are unambiguous and have no scope for interpretation to the effect that the police officer or any other authority can violate this provision at their whims and pleasure. The intention of the Legislature obviously is that as stringent punishments are provided under the Act, there should be sound safeguards to ensure that innocent persons are not harassed or unnecessarily detained by any arbitrary or whimsical actions of the police or the other authorities. 4. The intention of the Legislature obviously is that as stringent punishments are provided under the Act, there should be sound safeguards to ensure that innocent persons are not harassed or unnecessarily detained by any arbitrary or whimsical actions of the police or the other authorities. 4. In the case on hand, Kanchan PW 1 & Mahesh @ Guddu PW 2, who were shown as independent witnesses of alleged recovery of charas, did not support the prosecution case and they were declared hostile. Bhagwan Singh PW 3, the constable in his examination-in-chief stated that Circle Officer asked the appellants that if they require they may be searched in the presence of Gazetted Officer or Circle Officer himself, who was the Gazetted Officer, may search them. At this the appellants volunteered to be searched by them. Maharaj Singh PW 4 was the constable who carried the sealed packets to FSL. Mangi Singh PW 5 made entires of the sealed packets in the register. Manvendra Singh PW 6 SHO recorded secret information in the Rojnamcha and proceeded to the place of incident. Before that he intimated Phool Singh, Circle Officer, who also reached at the spot and asked the appellants that if they require they may be searched in the presence of a Magistrate or Gazetted Officer but the appellants did not desire to be so searched and volunteered to be searched by the Circle Officer himself. Gangaram Chaudhary PW 7 recorded the statement of Manvendra Singh, Chandrabhan PW 8 conductor of the bus, did not support the case of the prosecution and was declared hostile. Phool Singh PW 9 Circle Officer stated that he asked the appellants that if they require they may be searched in the presence of Gazetted Officer or Magistrate or he himself may search them but the appellants volunteered to be searched by him. 5. The accused-appellants in their statement under section 313 Cr.P.C. categorically stated that nothing was recorded from their possession and they have been falsely implicated by the police. 6. It is thus evident that none of the independent witnesses supported the prosecution version and only two police officials Manvendra Singh PW 6 and Phool Singh PW 9 implicated the appellants with the crime. A look at the record of the trial Court demonstrates that Phool Singh PW 9 himself had drawn the memo of recovery Ex.P/3 and put his signatures. A look at the record of the trial Court demonstrates that Phool Singh PW 9 himself had drawn the memo of recovery Ex.P/3 and put his signatures. In his cross-examination he admitted that SHO Manvendra Singh called him at the spot as he was the Gazetted Officer. He further deposed that he himself given option to the appellants under section 50 of the NDPS Act and in the capacity of a Gazetted Officer had drawn the memo of consent of the appellants Ex.P/12. The question that arises for consideration is as to whether a Gazetted Officer can perform the task of investigating officer? 7. The Division Bench of the Calcutta High Court in Re : B. Ramannamma, (IV 1993) CCR 3095 (DB) in para 33 of the judgment indicated thus : "33. Section 50 of the said Act of 1985 affords as inbuilt safeguard to the petitioner. It casts duty on the Gazetted Officer or Magistrate to be satisfied that nothing is planted and search is necessary to be taken where he is not so satisfied, he can discharge the accused. Thus he has not to act mechanically. A member of the raiding party even he himself may be a Gazetted Officer or a superior to the department cannot himself perform the dual task of being a party to the search and arriving at a satisfaction that the search is warranted or not as required by Section 50. 8. Under sub-section (3) of Section 50 of the NDPS Act, the Legislature has given wide powers to the Gazetted Officer or the Magistrate before whom any such person is brought, to discharge that person if the Magistrate or the Gazetted Officer sees no reasonable ground for search. These wide power have been given even to the Gazetted Officer treating him as an independent and impartial authority. Gazetted Officer is not expected to perform the task of investigating officer. He should not become the party to the search and should not involve himself in drawing necessary memos. In the instant case Phool Singh PW 9 acted, not as an impartial Gazetted Officer but he adopted the role of investigating authority. He himself had drawn the memos of consent and recoveries and behaved as a member of the raid party. He should not become the party to the search and should not involve himself in drawing necessary memos. In the instant case Phool Singh PW 9 acted, not as an impartial Gazetted Officer but he adopted the role of investigating authority. He himself had drawn the memos of consent and recoveries and behaved as a member of the raid party. I am of the view that in the facts and circumstances of the case, testimony of Phool Singh has lost its veracity and it cannot be relied upon. 9. The only evidence that remains to be considered now is the testimony of SHO Manvendra Singh PW 6. According to him the appellants did not require the presence of any Magistrate or Gazetted Officer and they volunteered to be searched by Phool Singh, Circle Officer. None of the independent witnesses supported the said version. Even Bhagwan Singh PW 3 a police constable did not say so and he only stated that a partial option was given to the appellants. 10. In Koluttumottil Razak v. State of Kerala, (2000) 4 SCC 465 their Lordships of the Supreme Court observed in para 8 of the said judgment thus : "8. The second infirmity is that PW 1 admitted that before the search was conducted no officer or Magistrate as envisaged in Section 50 of the Act was called. The excuse put for and by PW 1 for not resorting to such action was that the appellant himself told that he did not require the presence of any such officer. For that matter also we have only the ipse dixit of the police officer. None of the independent witnesses stated the said version. PW 1 in his cross-examination said that he arrested the appellant at 5.20 p.m. and the body of the appellant was searched only after that. When law requires that the appellant must be afforded with an opportunity to have the presence of a gazetted officer or a Magistrate the appellant has a right to be taken to the nearest gazetted officer or Magistrate for the purpose of conducting search in his presence. The said right cannot be sidelined as a mere formality. When law requires that the appellant must be afforded with an opportunity to have the presence of a gazetted officer or a Magistrate the appellant has a right to be taken to the nearest gazetted officer or Magistrate for the purpose of conducting search in his presence. The said right cannot be sidelined as a mere formality. A Constitution Bench of this Court has highlighted the importance of such a right, the implication of non-compliance with the same and other allied matters connected with Section 50 of the Act vide State of Punjab v. Baldev Singh, (1999) 6 SCC 172 . 11. In view of the ratio indicated in Koluttumottil Razak (supra) I am unable to place reliance on the testimony of Manvendra Singh PW 6 whose statement did not find support from any independent witness. 12. As the mandatory provisions contained in Section 50 of the NDPS Act have not been complied with, it is difficult to sustain the conviction and sentence of the appellants. The graver the consequences the greater must be the circumspection to be adopted. The learned Court below did not properly appreciate the material on record and committed illegality in convicting the appellants. 13. In the result I allow this appeal and set aside the conviction and sentence passed on the appellants as per the impugned judgment. I direct the appellants-Suresh Kumar, Irshad Alam and Om Prakash to be set at liberty forthwith unless they are required in any other case. The record of the case may be sent back forthwith.Appeal allowed. *******