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2002 DIGILAW 43 (RAJ)

Ram Chandra v. State of Rajasthan

2002-01-08

KHEM CHAND SHARMA

body2002
JUDGMENT 1. - This criminal appeal by accused appellants arises out of the judgment dated 7.2.97 passed by the learned Sessions Judge, Baran, by which, he has convicted the accused appellants under Section 8/18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (for short 'the Narcotic Drugs And Psychotropic Substances Act') and sentenced him to undergo 10 years rigorous imprisonment with a fine of Rs. one lac, in default of payment of fine, to further undergo one year rigorous imprisonment. 2. Briefly stated the facts of the case are that on 8.9.95 P.W.2 Prem Shanker Meena, SHO Police Station, Kotwali, Baran having received information rushed to the place pointed out by the informant and apprehended the accused appellant. P.W.3 Satyendra Singh, Dy.S.P. also reached there. On being suspected that accused appellant was in possession of contraband, the SHO informed him of his right to have his search conducted either in presence of Shri Satyendra Singh, Dy.S.P. who was a Gazetted Officer and happened to be present there or in the presence of any Magistrate. The accused appellant consented for his search to be conducted in the presence of the Dy.S.P. On being searched, 570 grams of opium was recovered from his possession in the presence of P. W. 5 Ramesh Chand and P.W.6 Rajendra Kumar. Out of the recovered opium, a sample weighing 30 grams was taken and was sealed. The remaining opium was also sealed. The accused was accordingly arrested vide arrest memo Ex.P.5 and memo of recovery was prepared. The SHO, thereafter, registered a case vide FIR Ex.P.4 and deposited the recovered opium in the 'Malkhana'. During investigation, the police recorded the statement of witnesses and sent the sample to the Forensic Science Laboratory. On chemical examination, the sample contained in the packet marked 'B' gave positive tests for the Chief Constituents of coagulated juice of opium poppy having 5.43% morphine. 3. After completion of all these formalities, the accused was charge sheeted under Section 8/18 of the Act. The Trial Judge framed charge against the appellant u/s.8/18 of the Act, to which the appellant denied and claimed trial. 4. During trial, the prosecution examined as many as six witnesses and exhibited some documents. On conclusion of trial, the learned Additional Sessions Judge found the accused appellant guilty for offence u/s.8/18 of the Narcotic Drugs And Psychotropic Substances Act and accordingly convicted and sentenced him as aforesaid. 4. During trial, the prosecution examined as many as six witnesses and exhibited some documents. On conclusion of trial, the learned Additional Sessions Judge found the accused appellant guilty for offence u/s.8/18 of the Narcotic Drugs And Psychotropic Substances Act and accordingly convicted and sentenced him as aforesaid. Hence, the present appeal. 5. I have heard Mr.Suresh Sahani, learned counsel for the appellant and Mr.B.M. Sharma, learned public prosecutor and also perused the judgment under appeal and the evidence on record. 6. Mr.Suresh Sahani has assailed the conviction of the appellant on two grounds. The first ground urged by Mr.Sahgni. learned counsel for the appellant is that there was complete non compliance of the provisions of Section 42 of the Narcotic Drugs And Psychotropic Substances Act, which has rendered the resultant search and seizure of contraband suspicious. According to the learned counsel, the prosecution has not been able to prove beyond doubt that P.W.2 Prem Shankar Meena, SHO sent the information to his official superior. He has drawn my attention to the statement of P.W.2 Prem Shanker, wherein he has stated that he recorded the information of the informant in the Rojnamcha and sent it to the Deputy Superintendent of Police and Superintendent of Police through telephone. Except this statement of Police Officer, there is absolutely no independent evidence to ensure confidence that the information recorded was sent by him to his immediate superior official. 7. Before adverting to the argument as to the non-compliance of the provisions of Section 42 of the Narcotic Drugs And Psychotropic Substances Act, it has to be seen whether the provisions of Section 42 of the Narcotic Drugs And Psychotropic Substances Act are at all applicable in the facts and circumstances of the case in hand? 8. The provisions of Section 42 of the Narcotic Drugs And Psychotropic Substances Act are attracted only when the authorised officer proposed to enter into any building and conveyance or enclosed place. In the case of search and seizure in public places, the provisions of Section 43 of the Act are applicable and not the provisions of Section 42. 8. The provisions of Section 42 of the Narcotic Drugs And Psychotropic Substances Act are attracted only when the authorised officer proposed to enter into any building and conveyance or enclosed place. In the case of search and seizure in public places, the provisions of Section 43 of the Act are applicable and not the provisions of Section 42. To proceed further, it would be appropriate to refer the provisions of Section 43 of the Act, which reads as under: "Power of seizure and arrest in public places-Any Officer of any of the departments mentioned in Section 42 may- (a) Seize, in any public or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or substance, any animal or conveyance or article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appear; to him to be unlawful, arrest him and any other person in his company. Explanation-For the purposes of this section, the expression ' public place" includes any public conveyance, hotel, shop or other place intended for use by, or accessible to the public. 9. In the case in hand, as per the prosecution case, P.W.2 Prem Shankar, SHO received information that accused appellant Ram Chandra @ Ram Charan of village Khoparwala has come to Baran having opium in his possession and is waiting for customer at Satsang road. On this information, the SHO along with his team reached Satsang road and found a person of the same description as was disclosed by the informant, standing there whom the SHO apprehended on the road itself. Thereafter, the raiding party disclosed their identity and conducted search and seizure then and there. From these undisputed facts, it is crystal clear that it is a case of personal search of an accused conducted in a public place. 10. Thereafter, the raiding party disclosed their identity and conducted search and seizure then and there. From these undisputed facts, it is crystal clear that it is a case of personal search of an accused conducted in a public place. 10. A bare reading of Section 43 of the Narcotic Drugs And Psychotropic Substances Act makes it clear that for seizure of any narcotic drugs and psychotropic substances in any public place and for detention and search of any person in any public place whom the officer has reason to believe to have committed an offence punishable under Chapter IV, and for his arrest, it is not necessary to take down the information in writing and then to transmit a copy thereof to his immediate official superior. 11. While dealing with similar circumstances, the Division Bench of this Court in Hardeep Singh v. State of Rajasthan 2000(3) WLC (Raj.) 610: RLW 2001 (1) Raj. 188) while answering the legal question abut the applicability of the provisions of Sections 42 and 43 of the Narcotic Drugs And Psychotropic Substances Act referred to it, set at rest the controversy and relying upon the decision of the Apex Court in Sayara Puri v. State of Rajasthan (1999 Cr.L.R. (SC) 64) : RLW 1999(1) SC 110) and further quoted the findings in that case: "Thus the accused was found sitting on a public road and, therefore, neither the procedure under Section 42(2) of the Act was required to be followed nor was the site plan required to be prepared, And answered the reference in the following terms: In view of the aforesaid, we answer the reference as follows: that the provisions of sub-section (1) and (2) of Section 42 of the Narcotic Drugs And Psychotropic Substances Act does not apply to the search of persons in public places as defined in Explanation given in section 43 of the Narcotic Drugs And Psychotropic Substances Act. Having answered the question referred, we direct that the appeal will now be placed before the learned Single Judge taking up such matter for decision on merits. 12. Having answered the question referred, we direct that the appeal will now be placed before the learned Single Judge taking up such matter for decision on merits. 12. Thus, in the present case, the fact that accused appellant was detained on a public road and search and seizure of contraband was made then and there being undisputed, it must be held that Section 42 of the Narcotic Drugs And Psychotropic Substances Act has no application in view of Explanation attached to Section 43 of the Narcotic Drugs And Psychotropic Substances Act and the law laid down in Hardeep Singh's case (supra). 13. Having held that this was a case of search of the accused, the application of Section 50 of the NDPS act comes into play. There cannot be any controversy on the point that when any officer duly authorised under Section 42 of the Act is about to search a person under Sections 41,42 and 43 of the Act, he is bound to inform the person concerned of his legal right to have his search conducted either in presence of a Magistrate or a Gazetted Officer. It is well settled that informing a suspect of his right to be search as required by Section 50 of the Narcotic Drugs And Psychotropic Substances Act is a necessary sequence for enabling the concerned person to exercise his right. It is also the settled position that Section 50 of the Narcotic Drugs And Psychotropic Substances Act simplicity makes 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 of the Act. On the other hand, if offer in terms of Section 50 of the Act is not made to an accused by the person who has apprehended him, that by itself vitiates the conviction. The resultant position would be that the provisions of Section 50 of the Act are mandatory in character and violation thereof is fatal to the prosecution. 14. Coming to the question of compliance of Section 50 of the Narcotic Drugs And Psychotropic Substances Act, keeping in view the above settled position of law, I shall now examine the evidence on record so as to arrive at a conclusion whether or not, in the present case, the prosecution has been able to prove compliance of Section 50. 14. Coming to the question of compliance of Section 50 of the Narcotic Drugs And Psychotropic Substances Act, keeping in view the above settled position of law, I shall now examine the evidence on record so as to arrive at a conclusion whether or not, in the present case, the prosecution has been able to prove compliance of Section 50. 15. Ex.P.2 is the consent by which the accused appellant was informed of his right to be searched. A look at the notice shows that P.W.2 Prem Shanker. SHO, and officer authorised under Section 42 of the Act informed the appellant of his right that he can have his search conducted in the presence of Dy.Superintendent of Police, who happened to be a Gazetted Officer and was present at the site and if he wishes, he can be taken to any Magistrate. The accused appellant consented for his searched to be conducted in the presence of Dy.Superintendent of Police. The search was accordingly conducted in the presence of P.W.3 Satendra Singh. Deputy Superintendent of Police and the search was witnessed by P.W.5 Ramesh Chandra P.W.6 Rajendra Kumar, Constables. 16. P.W.2 Prem Shanker, SHO has stated in his statement during trial that pursuant to his information, P.W.3 Satyendra Singh, Dy.S.P. reached at the site, who made aware the accused of his designation while informing him about the information of the informant, sought his consent for search. In cross examination, P.W.2 Prem Shanker has categorically admitted that P.W.3 Satyendra Singh, Dy. Superintendent of Police was with the raiding party. The witness further stated that both Motbirs of the search were police constables and none bears to involve himself in the police proceedings. Since none becomes ready to be a witness in such police proceedings, therefore the police constable have been made witnesses under compulsion. 17. P.W.3 Satyendra Singh has stated in his statement that P.W.2 Prem Shanker introduced him as Dy.S.P. and the accused consented for his search to be conducted by the S.H.O. himself. In cross-examination the witness has stated that he was not a member of the raiding party but he had reached the place of incident. 18. From the evidence discussed above the question that emerges for consideration is, whether the procedure adopted for giving option for search to the accused-appellant is in consonance with the provisions of Section 50 of the Act. The answer is negative. 18. From the evidence discussed above the question that emerges for consideration is, whether the procedure adopted for giving option for search to the accused-appellant is in consonance with the provisions of Section 50 of the Act. The answer is negative. It is clear from the evidence discussed above that P.W.3 Satyendra Singh was a member of the raiding party. It is further clear from a bare reading of the option notice Ex.P.2 that P.W.2 Prem Shanker gave the appellant option of the search of the appellant to be conducted by the Dy. Superintendent of Police, who happened to be a Gazetted Officer and was present at the place of incident or if he wishes, to take him to any Magistrate. 19. A perusal of Section 50 Narcotic Drugs And Psychotropic Substances Act makes it clear that search has to be taken by an officer duly authorised under Section 42 in the presence of either a Gazetted Officer or the Magistrate opted by the accused. The Gazetted Officer or the Magistrate before whom the accused is brought, if he sees no reasonable ground for search shall forthwith discharge the person, but otherwise shall direct that search be made. 20. In the case of Sukh Pal Singh @ Bala v. State of Rajasthan (1996(1) R.C.C. 544 (Raj.) , similar question arose for consideration and it was observed that Section 50(3) of the Act provides that the Gazetted Officer or the Magistrate before whom the person to be searched is brought, shall, if he sees no reasonable grounds for search, forthwith discharge the person to be searched. The Gazetted Officer of the search party would obviously normally not exercise the second option because after relying on the information of Mukhbir, he has required that a person to be searched. A Member of the raiding party, even if he is a Gazetted Officer cannot himself do the dual task of being a party to the search and arrive at a satisfaction that search is warranted or not? Therefore, the Gazetted Officer performing functions under Section 50 of the Act has to be different from the one, who is a member of the raiding party or who is the officer conducting the search. Therefore, the Gazetted Officer performing functions under Section 50 of the Act has to be different from the one, who is a member of the raiding party or who is the officer conducting the search. It is the duty of Gazetted Officer intending to take search on suspicion, to inform the accused that he has a right to be taken to a Gazetted Officer or a Magistrate for search. He cannot be exempted from giving the option with regard to the search before a Gazetted Officer other than himself. 21. In the case of Nadeem v. State of Rajasthan (1999(1) Crimes 548), it was held that the words 'fake such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate' used in Sub-section (I) and the words 'any Gazetted Officer or Magistrate before whom any such person is brought' used in Sub-section (3) of Section 50 of the Act are of much significance. The words 'take and brought' imply that search should be conducted by taking the person before the Gazetted Officer or a Magistrate and the said officer or magistrate before whom the person is brought, shall, if he sees no reasonable ground for search discharge the person, but otherwise shall direct that search be made. But it appeared in the instant case that the investigating agency for its convenience has redrafted the solitary provisions of Section 50 of the Act by taking the Gazetted Officer. Circle officer to the accused. When Circle Officer was brought before the accused, the accused volunteered that he may be searched before C.O. It was held that it cannot, therefore, be said that Circle Officer was totally independent. Being a member of raiding party, he was having some interest in the success of raid. 22. In the case in hand, the option to get the accused searched in the presence of P. W.3 Satyendra Singh, Dy.S.P., who was a member of the raiding party cannot at all be said to be in consonance with Section 50 of the Act, though he was a gazetted Officer. The solitary provision contained in Section 50 has been made keeping in view the heavy punishment which is likely to be imposed in case a person is found guilty under Narcotic Drugs And Psychotropic Substances Act. The provision under the Act. The solitary provision contained in Section 50 has been made keeping in view the heavy punishment which is likely to be imposed in case a person is found guilty under Narcotic Drugs And Psychotropic Substances Act. The provision under the Act. A search that complies with the requirements of Section 50 of the Act imparts much more authenticity and credit worthiness to the proceedings, while equally providing an important safeguard to the accused. The provisions confers an important and valuable right and intended to minimise the allegation of planting or fabricating by the prosecution. 23. Admittedly, P.W.2 Prem Shanker informed the accused of their right to be searched either in presence of a Magistrate or in the presence of Satyendra Singh who happened to be on the spot in the capacity as a member and head of the raiding party and was a Gazetted Officer. In my considered opinion, the accused was misled by an option to give his consent to be searched in the presence of Deputy Superintendent of Police, who was a member of the raiding party and the appellant was searched in his presence. Thus, for the reason that the search having been conducted in the presence of a member of the raiding party, though he may be a Gazetted Officer, it must be concluded that the provisions of Section 50 of the Act have been breached. 24. It may also be stated that conducting search of a suspect in the presence of independent witnesses is also one of the allied matters connected with Section 50 of the Narcotic Drugs And Psychotropic Substances Act. In the case in hand, from a perusal of the statement of P.W.2 Prem Shanker it becomes crystal clear that he did not make any efforts to procure independent witnesses to ensure that search was infact conducted. The witness has categorically stated that since none becomes a party to the police proceedings therefore he conducted the search in the presence of two police constables. It has no where come in evidence that having failed to procure independent witnesses to the search, P.W.2 Prem Shanker had no option but to conduct search in the presence of police constables. From his statement it appears that no such efforts were made and that he himself presumed that none would like to become party to the police proceedings. It has no where come in evidence that having failed to procure independent witnesses to the search, P.W.2 Prem Shanker had no option but to conduct search in the presence of police constables. From his statement it appears that no such efforts were made and that he himself presumed that none would like to become party to the police proceedings. In the absence of there being independent witnesses, the search conducted by P.W.2 Prem Shanker cannot be acted upon and it cannot be said that appellant was in possession of contraband article. I find support from the observations of the apex Court in K. Mohanan v. State of Kerala (2000) 10 SCC 222 ) , wherein their lordships have held as under: We therefore, hold that there was non-compliance with Section 50 of the Act and consequently the evidence of search spoken to by P.W.1 cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article. 25. This Court also dealing with a case of identical circumstances in Banwari Lal v. State of Rajasthan (S.B. Cr. Appeal No. 193/96) decided on 29.2 2000, observed as under: "The provision made under section 100(4) Cr.P.C. is a salutary safeguard to ensure the sanctity of the search conducted by the police officers. The mere statement by the Investigating Officer that he tried to associate some respectable of the locality but none was available cannot suffice as a convenient bypass to the said provision." 26. From the discussions made above, I have no hesitation in holding that there was complete non-compliance of the mandatory provisions of Section 50 of the Act and its violation is per se fatal to the prosecution case and thus failure on the part of the prosecution to comply with these requirements adversely affected the prosecution case, thereby entitling the accused appellants for acquittal. 27. The result of the above discussion is that this appeal must succeed and it is hereby allowed. The judgment of conviction and sentence passed by the trial court is set aside. The appellant is in jail and he be set free forthwith, if no wanted in any other case.Appeal Allowed. *******