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2001 DIGILAW 416 (MP)

SHYAMA BAI v. STATE OF M. P.

2001-05-11

ARUN MISHRA

body2001
ARUN MISHRA, J. ( 1 ) THE appellant stands convicted under S. 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'ndps Act') and she has been sentenced to undergo 10 years' R. I. for allegedly possessing 50 grams of opium on 30-10-1987. ( 2 ) PROSECUTION alleges that on 30-10-1987, Sub-Inspector, Police Station Mandla, received information from an informer that the accused was selling opium. On the basis of the said information, Sub-Inspector R. G. Chourasia (PW-3) went to the place along with other police personnel and the witnesses and asked witness Dubedas to purchase the opium worth Rs. 10/ -. Currency note of Rs. 10/- was signed by Dubedas and Mahesh Kumar (PW-4) and an inquest Ex. P/5 was prepared. Dubedas went to purchase the opium for Rs. 10/- and handed over the currency note to the accused. Thereafter her house was searched and from the possession of accused 50 grams of opium and currency note of Rs. 10/- was recovered vide seizure memo Ex. P/6 and the purchased opium was also seized as per the seizure memo Ex. P/4. Spot map Ex. P. 9 was also prepared. Accused was arrested and arrest memo Ex. P/14 was prepared. R. G. Chourasia (PW-3) is said to have informed the Town Inspector and recorded the first information report Ex. P/10 at the police station and also made entry in the general diary Ex. P/8 of going and coming back to the spot. Seized material, sent for chemical examination to Forensic Science Laboratory, Sagar, was found to be opium as per the report Ex. P/12. ( 3 ) ACCUSED abjured the guilt and contended that opium was not recovered from her possession. She has been falsely implicated. Her son had a quarrel with Mahesh Kumar (PW-4) and R. G. Chourasia, Sub-Inspector had misbehaved with her daughter-in-law, of which she had lodged a complaint owing to which the case was cococted. ( 4 ) LEARNED counsel appearing for the appellant Shri P. Rusia submits that it is a case where there is total breach of mandatory provisions of Section 50 and 52a (2) of the NDPS Act. Her personal search could not be taken by male person. The recovery from the possession of the appellant is not proved. She is an aged woman of nearly 80 years and has been falsely implicated in the case. Her personal search could not be taken by male person. The recovery from the possession of the appellant is not proved. She is an aged woman of nearly 80 years and has been falsely implicated in the case. He submits that the Sub-Inspector was not incharge of police station. Hence, he could not investigate the matter without permission of Station House Officer. The factum of purchase and sending of decoy for that purpose has not been mentioned in general diary. Offence was registered without informing station House Officer of the police station concerned. At the time of seizure witnesses of locality were not called. The seizure from accused appellant is not established. The investigation is not proper and it would not be safe to convict the appellant on the basis of evidence led in the case, that too at the fag end of her life as she is about 80 years of age by now. ( 5 ) THE learned counsel for the State submits that conviction of the appellant is proper and guilt stands established from the evidence led in the case. The conviction and sentence do not call for any interference in the present appeal. ( 6 ) IN the instant case prosecution has examined four witnesses. M. C. Dubey (PW-11), Excise Sub-Inspector, to whom the seized contraband was brought on 15-12-1987, he prima facie opined on the basis of smell test that the material appears to be opium. Constable Govind Das (PW-2) took the contraband to Forensic science laboratory at Sagar for chemical examination. The Investigating Officer Shri R. G. Chourasia (PW-3) made seizure and other investigation. Witness of seizure; Mahesh Kumar (PW-4), a cycle Rikshaw-puller has also been examined. ( 7 ) THE prosecution has not examined the decoy who was employed to purchase the opium namely Dubedas. The Station House Officer of the concerned police station has also not been examined in the case. ( 8 ) IT is a case where the Investigating Officer Shri R. G. Chourasia (PW-3) admits in para 4 of his deposition that he had visited the house of the accused on earlier occasion once or twice. He admits to know personally the son Bachhu and daughter-in-law Geeta Bai, of accused Shyama Bai. Witness has not stated what was the purpose of his earlier visit to the house of the accused. He admits to know personally the son Bachhu and daughter-in-law Geeta Bai, of accused Shyama Bai. Witness has not stated what was the purpose of his earlier visit to the house of the accused. The accused has clearly attributed mala fide to Shri R. G. Chourasia (PW-3) in her statement recorded under S. 313, Cr. P. C. that Investigation Officer Shri R. G. Chourasia used to misbehave with her daughter-in-law. She had objected to it and complained the matter. This suggestion was also put to Shri R. G. Chourasia (PW-3) in his cross-examination, which he denied. However, Investigating Officer Shri R. G. Chourasia (PW-3) was acquainted and visited the house of the accused on earlier occasion. The Court is put at guard to scrutinize the evidence minutely so as to rule out any possibility of false implication. ( 9 ) THE place from where opium was seized is not clear. The Investigating Officer Shri R. G. Chourasia (PW-3) and Mahesh Kumar (PW-4) are the witnesses in that regard. The Investigating Officer says that recovery was made from the basement of house from the person of the accused. She had tied the bag containing opium to her waist. Mahesh Kumar (PW-4) contradicts him. He has stated that the opium was placed below the seat of his Rikshaw, that too by the boy who had alighted in front of house of accused. He also stated that police was snatching some thing from the house of accused. The other witness set up for purchase and witnessed the seizure namely Dubedas has not been examined. Thus, there is serious discrepancy as to place from where the opium was seized and whether it was seized from inside the house or from cycle Rikshaw. In State of evidence of witness above mentioned which is contradictory, it was necessary to have examined the witness Dubedas, due to his non-examination, as adverse inference is possible to be drawn in the case as he could have thrown light on vital issues. ( 10 ) THE facts assume significance when considered cumulatively with other circumstances that no respectable person of locality was called or present. No neighbour was called by Investigating Officer at the time of seizure. ( 10 ) THE facts assume significance when considered cumulatively with other circumstances that no respectable person of locality was called or present. No neighbour was called by Investigating Officer at the time of seizure. ( 11 ) EFFECT of non-compliance of Section 50 of the N. D. P. S. Act has been considered by their Lordships of the Supreme Court recently in the case of Ahmed v. State of Gujarat, 2000 AIR SCW 2969 : (2000 Cri LJ 4008) and their Lordships observed that even where the search was made by gazetted officer, but, without compliance of Section 50, was held to be violative of valuable right available to the accused, to be searched in accordance with the provision as contained under the N. D. P. S. Act. Their Lordships have held in paragraph 4 as under :"since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reason to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another gazetted officer or the Magistrate and that the rightcannot be taken away, merely because the officer going to search happens to be a gazetted officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the legislature has enhanced the safeguard contained in S. 50 to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequential that may entail the possession of illicit articles under the NDPS Act, namely the shifting of the onus to the accused and the severe punishment to which he becomes liable. Where accused himself wanted to be searched before a Gazetted Officer or a Magistrate and the same having been denied, there cannot be any doubt that failure on the part of the prosecution in complying with the provisions of S. 50 renders the recovery of illicit articles suspect and vitiates the conviction and senence of the accused, since the conviction is based solely on the alleged possession of Charas, which was recovered from his person, during a search conducted in violation of the provisions of S. 50 of the Act. " ( 12 ) FOR search of female, Section 50 (4) of the N. D. P. S. Act contains a provision that no female shall be searched by any one excepting a female. In the case of Gurbax Singh v. State of Haryana, 2001 AIR SCW 670 : (2001 Cri LJ 1166) the apex Court observed in para 8 that "sub-section (3) provides that where any person in or about such place a reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. " In Carmel Sanchez Garcia v. Customs, New Delhi, 1998 (1) EFR 644 (Delhi), the High Court of Delhi observed that the search should be made by woman when it is so mandated by the section and a woman should be associated from beginning with the search. Similar view has been taken in Geeta (Smt.) v. State (Delhi Admn.), 1989 (1) FAC 194 and In Re. B. Rammannamma, 1994 (1) EFR 604 (Cal) (DB ). In State of Punjab v. Nachhattro, 1994 Cri LJ (NOC) 307 (Pandh), recovery made from personal search was held doubtful as same was not conducted by the female police official. Acquittal was upheld. In Amina Abdul Sheikh v. State of Maharashtra, 1994 (1) FAC 285 (Bom) a lady was apprehended in a public lane (road ). Out of the two panch witnessees of the search, one was lady special Executive Magistrate, Lady Constable was also present. The panch witness did not state that recovery was made from person as accused was taken in the small bath room. The search was held doubtful and it was emphasized that search should have been made in the presence of witness. In Protima Ghosh v. State of West Bengal, 1995 AIHC 5728 : 1996 (2) Crimes 118 (Cal), the search made by male contravening, provision of Section 50 (4) was held violative of provision and rejected. ( 13 ) IN the facts of instant case it was very much possible to secure presence of the female police officer to make search but, no effort was made by the Investigating Officer to do so. He did not make any effort to procure presence of any woman of neighbourhood, nor called any respectable person. ( 13 ) IN the facts of instant case it was very much possible to secure presence of the female police officer to make search but, no effort was made by the Investigating Officer to do so. He did not make any effort to procure presence of any woman of neighbourhood, nor called any respectable person. The Investigating Officer also did not inform the accused of her right to be taken to nearest Gazetted Officer or to the nearest Magistrate. No requisition was made to secure presence of such a person. The Investigating Officer Shri R. G. Chourasia (PW-3) was even unable to state the name of constable who accompanied him at the relevant time of seizure. ( 14 ) THE provisions of Sections 52 and 57 of the N. D. P. S. Act are directory. Violation does not vitiate the trial by itself, but, failure to observe the provisions has relevant bearing on the question how much weight to be attached to evidence adduced. It does not appear in the instant case that Muddamal was sealed at the spot as witness Mahesh Kumar (PW-4) has stated that no sealing took place in his presence, even the muddammal was not sealed by officer incharge of the police station as required under Section 55 of the N. D. P. S. Act. The prosecution has not led any evidence to show that the chemical analyser received the sample with proper intact seals so as to establish that same sample was sent for chemical analysis. It does not appear that full report was immediately made to superior official under Section 57. The report appears to be received only next day by the Station House Officer of police station concerned. The panch witness in the case is shaky and has given different version. The bag in which opium was actually found was not seized. This fact does not find place in seizure memo that opium was found in bag tied to waist of the accused. This is material omission in seizure memo Ex. P/6 and in the First Information Report. The Investigating Officer was unable to state how Mahesh Kumar and Dubedas reached police station. The Investigation Officer Shri R. G. Chourasia (PW-3) was unable to state how many seals were put. Specimen seal was not retained by him. This is material omission in seizure memo Ex. P/6 and in the First Information Report. The Investigating Officer was unable to state how Mahesh Kumar and Dubedas reached police station. The Investigation Officer Shri R. G. Chourasia (PW-3) was unable to state how many seals were put. Specimen seal was not retained by him. No weighment of opium was done, as per his statement quantity may be little more or less. Mahesh Kumar (PW-4) says that no one was sent to purchase opium in his presence, then case of purchase of opium is itself cast in shadow of doubt. Place of inquest is also belied by Mahesh Kumar (PW-4 ). He contradicts that it was prepared at the house of accused. As per his version it was done at the police station. He states that no sealing and seizure was done in his presence. The document was not read over to him. He has not been declared hostile by the prosecution. There is overwriting in first information report Ex. P/10 as to time of seizure/occurrence and there is overwriting in the date of drawing Ex. P/1 by Excise Sub-Inspector whether it was 17/12/, it was scored out and then it appears that 15/12 was put. ( 15 ) IN the case of Kalema Tumba v. State of Mahrashtra, AIR 2000 SC 402 , 1999 AIR SCW 4544 the apex Court has observed that when a person is required to be searched he is required to be informed about his right to be examined in presence of Gazetted Officer or a Magistrate. The apex Court has distinguished personal search than the possession of accused. If the contraband is recovered from his person then provision of Section 50 of the N. D. P. S. Act is invokable and requires complainance. In the case of Baldev Singh, 1999 (6) SCC 172 : 1999 AIR SCW 2494 : AIR 1999 SC 2378 : (1999 Cri LJ 3672) the Constitution Bench observed that:"section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. " ( 16 ) THE apex Court in the case of Gurbax Singh v. State of Haryana, 2001 AIR SCW 670 : (2001 Cri LJ 1166) in view of faulty investigation conducted in that case, observed thus :"it is true that provisions of Sections 52 and 57 are directory. " ( 16 ) THE apex Court in the case of Gurbax Singh v. State of Haryana, 2001 AIR SCW 670 : (2001 Cri LJ 1166) in view of faulty investigation conducted in that case, observed thus :"it is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I. O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I. O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness PW-1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the Officer-in-charge of the police station as required under Section 55 of theN. D. P. S. Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creats a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that prescribed under Section 57 of the N. D. P. S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I. O. particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that muddamal seal used by the PSI was wooden seal. As against this, it is the say of PW-2 SI/io that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk. " ( 17 ) TAKING cumulative view of facts found in the instant case and state of evidence, the conclusion is inescapable that the prosecution has failed to prove the guilt of the appellant beyond periphery of doubt. ( 18 ) IN the result, the appeal is allowed. The conviction and sentence imposed upon the appellant is set aside. " ( 17 ) TAKING cumulative view of facts found in the instant case and state of evidence, the conclusion is inescapable that the prosecution has failed to prove the guilt of the appellant beyond periphery of doubt. ( 18 ) IN the result, the appeal is allowed. The conviction and sentence imposed upon the appellant is set aside. She is acquitted of the charge. Her bail bonds are discharged. Appeal allowed. .