Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 241 (HP)

LATIF MOHAMMAD v. STATE OF HIMACHAL PRADESH

2002-08-29

M.R.VERMA, R.L.KHURANA

body2002
JUDGMENT M.R. Verma, J.—This appeal is directed against the judgment dated 10/13-11-2002 passed by the learned Sessions Judge, Chamba whereby the appellant/accused (hereafter referred to as the accused) has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereafter referred to as the Act) and has been sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/-. 2. Case of the prosecution against the accused is that on 22.11.1997 at about 8.30 a.m. when a police party, headed by Head Constable Kartar Singh (PW-7) of Police Station, Dalhousie, was present at Toll Tax Barrier Banikhet for traffic checking, bus bearing No. HP-19-1605 came there. It was stopped by the police party. When PW-7 started checking the bus, the accused alighted from the bus and tried to escape but was apprehended by the police party. On inquiries he disclosed his particulars. He was informed by PW-7 that he was suspected of being in possession of "Charas" and was given option of being searched before a Gazetted Officer or a Magistrate. The accused opted to be searched by PW-7 vide Memo PA. Thereafter search of the accused was conducted by PW-7 in the presence of bus driver Ram Lai and bus conductor Surinder Singh (PW-1) and a green coloured polythene bag was found tied to the waist of the accused inside the pant and it was found to contain "Charas" which on weighing was found 250 grams. Two samples of 10 grams each were separated from the recovered "Charas" and samples so separated and the remaining "Charas" were made into separate parcels and were sealed with seal X. Seal samples were separately taken. The seal Ext.X after use was handed over to PW-1. The memo regarding the proceedings of search and recovery was prepared in the presence of the aforesaid witnesses which is Ext.PB. PW-7 drew Ruka Ext.PE and sent the same to the Police Station, Dalhousie where formal F.I.R. Ext.PF was recorded. The accused was informed of the grounds of his arrest vide Memo Ext.PC. Special report, copy whereof is Ext.PC, was sent to S.P. Chamba and S.D.P.O., Dalhousie. PW-7 drew Ruka Ext.PE and sent the same to the Police Station, Dalhousie where formal F.I.R. Ext.PF was recorded. The accused was informed of the grounds of his arrest vide Memo Ext.PC. Special report, copy whereof is Ext.PC, was sent to S.P. Chamba and S.D.P.O., Dalhousie. The accused and the case property, alongwith sample seals, were produced by PW-7 before S.I./S.H.O. Rajinder Sharma (PW-6), who re-sealed the case property with seal impression K and handed over the same to MHC Rajesh Kumar (PW-3) for being kept in the safe .custody in the "Malkhana". One sample of the "Charas" was sent to the laboratory for chemical analysis and on such analysis was found to be "Charas" vide report Ext. PJ of the Chemical Examiner. 3. On completion of the investigation, a charge-sheet was submitted against the accused, who was tried by the learned Sessions Judge, Chamba, on a charge under Section 20 of the Act and was finally convicted and sentenced as aforesaid. Hence, this appeal. 4. We have heard the learned counsel for the accused and the learned Additional Advocate General for the respondent/State and have also gone through the records. 5. The learned counsel for the accused assailed the impugned conviction and sentence on the following grounds: 1. that the mandatory provisions of Section 42 of the Act have not been compiled with which vitiates the trial; 2. that the mandatory provisions of Section 50 of the Act have also not been complied with rendering the impugned conviction and sentence illegal; and 3. that there are material contradictions and discrepancies in the statements of the prosecution witnesses which render the prosecution case highly doubtful. GROUND NO. 1 6. It was contended by the learned counsel for the accused that the Investigating Officer in the case had failed to comply with the provisions of Section 42 of the Act inasmuch as he did not record the reasons of his belief leading to search of the person of the accused nor a copy of such reasons of belief had been sent by him to his superior officer. Therefore, non-compliance of the mandatory provisions of Section 42 of the Act has vitiated the trial and the conviction cannot be sustained. 7. Therefore, non-compliance of the mandatory provisions of Section 42 of the Act has vitiated the trial and the conviction cannot be sustained. 7. By now it is well settled that it is obligatory on the part of the empowered officer making entry, search, seizure and arrest without a warrant or authorization under Section 42 of the Act to comply with the provisions of the said section and the failure to do so affects the prosecution case and vitiates the trial. The question, however, is, as to whether in the facts and circumstances of the case, compliance of all or any of the provisions of Section 42 of the Act was required or not. Section 42 of the Act reads as under: "42. The question, however, is, as to whether in the facts and circumstances of the case, compliance of all or any of the provisions of Section 42 of the Act was required or not. Section 42 of the Act reads as under: "42. Power of entry, search, seizure and arrest without warrant or authorization.—(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." 8. It is manifest from a bare reading of the aforesaid provisions that the requirement of recording in writing personal knowledge or information given by any person will apply only when the empowered officer wants to act under (a) to (d) of sub-section (1) (supra) i.e. to enter into and make search/seizure in any building, conveyance or place wherein as per his belief based on such recorded personal knowledge or information any narcotic drug or psychotropic substance or controlled substance regarding which an offence punishable under the Act has been committed or any document or article which may furnish evidence of the commission of such offence or any illegal acquired property or any document or other article which may furnish evidence of holding of any illegally acquired property liable for seizure or freezing or forfeiture under Chapter VA of the Act is kept concealed and such entry and search is to be made between sunrise and sunset. Thus, this requirement will apply only in a case where entry, search and seizure is to be made in a building, conveyance or enclosed place. 9. It is further clear that in case such entry, search and seizure in a building, conveyance or enclosed place is to be made between sunset and sunrise and search warrant and authorization cannot be obtained without affording opportunity for the concealment of evidence or facility in the escape of an offender, it is obligatory on the part of the empowered officer to record the grounds of his belief before making such entry, search and seizure without warrant/authorization between sunset and sunrise. This requirement is also applicable to a case wherein the entry, search and seizure is to be made in a building, conveyance or enclosed place and not to any other case. The provisions of sub-section (2) regarding sending a copy of the information in writing under sub-section (1) or recorded grounds of belief under the proviso to sub-section (1) to his immediate official superior within 72 hours will be applicable only in a case where the entry, search etc. is to be made in any building, conveyance or enclosed place. 10. The provisions of sub-section (2) regarding sending a copy of the information in writing under sub-section (1) or recorded grounds of belief under the proviso to sub-section (1) to his immediate official superior within 72 hours will be applicable only in a case where the entry, search etc. is to be made in any building, conveyance or enclosed place. 10. In the case in hand, the Investigating Officer, alongwith other police officials, was present on the spot for routine traffic checking. Even the entry into the bus by the police was with a view to carry out the routine checking of the bus and not because of suspicion that any psychotropic substance or narcotic drug might be therein or being transported thereby. The Investigating Officer had no suspicion whatsoever even about the accused being in possession of "Charas" till the accused tried to escape. After apprehension of the accused it was his personal search which was conducted by the police and not the search of any building, conveyance or enclosed place, therefore, the provisions of Section 42 of the Act are not applicable to the conducting of the search of the accused but such search is required to be carried out as per the provisions of Section 50 of the Act which provides sufficient safeguards to the suspect in respect of such search. Therefore, the contention raised for the accused is not sustainable. GROUND No. 2: 11. It was contended by the learned counsel for the accused that the Investigating Officer has failed to comply with the provisions of Section 50 of the Act and the alleged consent of the accused for being searched by the Investigating Officer has been taken under highly suspicious circumstances rendering the prosecution version highly unbelievable and unreliable. 12. It is also well settled that when any authorized officer is about to search any person suspected of being in possession of narcotic drug or psychotropic substance it is obligatory for such officer to inform the suspect that if he so requires he shall be produced before a Gazetted Officer or a Magistrate for search and the 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 be non-compliance of Section 50 of the Act which is mandatory and would affect the prosecution case and vitiate the trial. 13. 13. The case of the prosecution is that when the accused tried to slip away he was apprehended because of suspicion and was given the option of being searched before a Gazetted Officer or a Magistrate or by police party present on the spot and the accused consented to be searched by PW-7 and in this regard consent memo Ext.PA was prepared and was signed by the accused in the presence of marginal witnesses Surinder Singh (PW-1) and one Ram Lai. The Investigating Officer (PW-7) has stated that when the bus was being checked the accused tried to slip away and on suspicion he was apprehended and enquiries about his particulars were made. Since he entertained suspicion that the accused might be carrying "Charas" he told him in the presence of PW-1, Conductor of the bus and Ram Lai, Driver of the bus, whether he wanted to be searched before any Gazetted Officer or a Magistrate or by the police present on the spot and the accused voluntarily gave his consent that he wanted to be searched by him and consent memo Ext.PA was accordingly prepared which is signed by the accused and the aforesaid witnesses. In the cross-examination, he has stated that consent memo Ext.PA was written by Constable Lokinder Singh and the writing Ext.PA i.e. the consent given by the accused was also written by the Constable. PW-1, one of the marginal witness of memo Ext.PA, has stated that while the police were checking the bus the accused tried to slip away and on suspicion the police made him to alight from the bus and he was told whether he wanted to be searched before a Gazetted Officer or a Magistrate or police present on the spot and the accused consented to be searched by PW-7 and memo Ext.PA was accordingly prepared and was signed by the accused, the witness and Ram Lai, the driver of the bus. In the cross-examination, the witness has reiterated that the accused was asked by the police in his presence whether he wanted to be searched before a Gazetted Officer or a Magistrate and denied the suggestion that consent of the accused for being searched by the police present on the spot was not taken. 14. In the cross-examination, the witness has reiterated that the accused was asked by the police in his presence whether he wanted to be searched before a Gazetted Officer or a Magistrate and denied the suggestion that consent of the accused for being searched by the police present on the spot was not taken. 14. Thus the statement of the Investigating Officer (PW-7) regarding compliance of the provisions of Section 50 of the Act is fully corroborated by PW-1 who is not shown either interested in the police case or hostile to the accused for any reason whatsoever. It is, thus, fully proved that before conducting the personal search of the accused the Investigating Officer had complied with, the provisions of Section 50 of the Act and it is not a case of non-compliance of the said provisions. 15. Case of the accused, in his statement under Section 313 of the Cr.P.C, is that his signatures were taken on Ext.PA at Police Station, Dalhousie on 22.11.1997 when the paper was blank. However, this defence had not been suggested either to PW-7 or to PW-1 in their cross-examination, therefore, is simply an after thought. Therefore, the contention of the learned counsel for the accused that the trial stands vitiated for non-compliance of Section 50 of the Act is devoid of any merit and substance and is of no help to the accused. GROUND No. 3 : 16. It was contended by the learned counsel for the accused that there are material contradictions in the statements of the prosecution witnesses which render the prosecution case highly unreliable and unbelievable. The contradictions, so pointed out, are with regard to the seat in which the accused was sitting in the bus and the place where his search was conducted. It was pointed out by the learned counsel for the accused that as per the statement of PW-1 the accused was sitting near the Conductors seat whereas according to PW-7 he was sitting on the back seat of the bus Driver, it was further pointed out that according to PW-7 the accused was searched on the road and the search proceedings took place there whereas according to PW-1 the accused was searched on the Toll Tax Barrier. According to the learned counsel for the accused these discrepancies are vital and material and raise doubt about the genuineness of the prosecution version regarding search and seizure. 17. According to the learned counsel for the accused these discrepancies are vital and material and raise doubt about the genuineness of the prosecution version regarding search and seizure. 17. Be it stated that PW-1 being the Conductor of the bus wherein the accused was travelling can be said to be fully aware as to where the accused was sitting. According to him, the accused was sitting near his seat. On the other hand, PW-7 no doubt has stated that the accused was sitting on the back seat of the driver but he has at the same time explained that the accused had left the seat when the checking of the bus was started. The accused was especially noticed by the Investigating Officer when he tried to slip away, therefore, what can be gathered from the statement of PW-7 to the effect that the accused had left the seat when he started the checking is that he was not fully aware as to where the accused was in fact sitting in the bus. The fact remains that, the accused was sitting in the bus and there is no dispute about it. Similarly about the alleged contradiction about the place where the search of the accused was conducted, it may be pointed out that a perusal of the spot map Ext.PK reveals that the Toll Tax Barrier is by the side of the main road. It is not stated by PW-1 that the search of the accused was conducted inside the Toll Tax Barrier premises but on the Toll Tax Barrier. Barrier is not inside a building and beyond the road. Thus, the conducting of the search at the Barrier evidently means search on the road where the Barrier is and not inside the Toll Tax Barrier premises. Thus, the contradictions pointed out by the learned counsel for the accused are really not contradictions but minor and insignificant difference of stating about the same thing. It is not possible for the witnesses to give an identical and graphic narration of the events because of lapse of memory, normal errors of perception and observation. The discrepancies, as pointed out hereinabove, being insignificant and not going to the root of the prosecution case, the accused cannot take any advantage thereof. 18. It is not possible for the witnesses to give an identical and graphic narration of the events because of lapse of memory, normal errors of perception and observation. The discrepancies, as pointed out hereinabove, being insignificant and not going to the root of the prosecution case, the accused cannot take any advantage thereof. 18. A perusal of the record reveals that the evidence led by the prosecution to prove the charge against the accused is cogent, consistent, confidence inspiring and reliable and thus the charge against the accused is .proved beyond any reasonable doubt. Hence, there is no merit and substance in this appeal. 19. As a result, this appeal is dismissed.