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Patna High Court · body

2002 DIGILAW 908 (PAT)

Ashok Kumar Pal v. State Of Bihar

2002-08-20

S.N.JHA, T.P.SINGH

body2002
Judgment S.N.Jha, J. 1. Two appellants have been convicted under Section 20 of the Narcotic Drugs and Psychotropic Sub-stances. Act, 1985 (in short, the NDPS Act) and sentenced to rigorous imprison-ment for 15 years and, further, fine of Rs. one lac or, in default, rigorous imprisonment for two years by the Third Additional Sessions Judge, West Champaran, Bettiah in Trial No. 15/99 arising out of Sugauli Rail P.S. Case No. 18/99. 2. The prosecution was set in motion on the fardbeyan of Sikandar Prasad, a constable of Sugauli G.R. Police Station on 9.8.99 at 2.30 A.M. recorded by S.I. Deepak Lal, Officer-in-charge, Motihari G.R. Police Station. Sikandar Prasad stated that in the night of 8/9.8.99 while he along with constable Barnwas Aihd was on platform duty of Sugauli Railway Station, he learnt through confidential information that smuggled goods were being carried in the third bogie from engine of train no. 530 down which was about,to arrive. After the train arrived both of them entered the bogie and started search. When he reached near the group of 4-5 suspects the train started moving. They made enquiry about the attache cases from the aforesaid persons who entered into altercation and started assaulting them causing grievous injuries. In the meantime the train reached Semra station. On hearing their shout the Escort Party reached there and tried to rescue them, but the suspects bolted the door from inside. Meanwhile, the train ieft Semra Station. When it reached Motihari Station the Escort Party again came there and succeeded in getting the door opened with the help of follow passengers. As soon as the members of Escort Party entered the compartment, 2-3 suspects escaped through the opposite side of the platform while the appellants were apprehended. They were produped before the Officer-in-charge of Motihari G.R.P.S. alongwith the attaches. Two kgs. of charas like substance in two packets wrapped in polythene were found besides five pieces of soap and one foreign made ladys umbrella from the attache of appellant no. 1. Similar recovery of two packets of charas like substance was made from the attache of appellant no. 2. 3. The Officer-in-Charge, Motihari G.R. Police Station recorded the fardbeyan of Sikandar Prasad and prepared the seizure memo. He sent information to Sugauli G.R.P.S. On receipt of information S.I. Surendra Kumar Brahmachari of Sugauli G.R.RS.carrie and took charge of the appellants and seized articles. 2. 3. The Officer-in-Charge, Motihari G.R. Police Station recorded the fardbeyan of Sikandar Prasad and prepared the seizure memo. He sent information to Sugauli G.R.P.S. On receipt of information S.I. Surendra Kumar Brahmachari of Sugauli G.R.RS.carrie and took charge of the appellants and seized articles. On the basis of the said fardbeyan of Sikandar Prasad he instituted Sugauli G.R.RS. case No. 18/ 99 against the appellants under Sections 20 and 21 of the NDPS Act and Section 307 etc. of the Penal Code. After recording the statements of the witnesses, getting the sample of seized articles examined by the Forensic laboratory and completing other formalities, he submitted chargesheet against the appellants and they were thus put on trial. 4. At the trial the prosecution examined 14 witnesses to prove its case. The array of the witnesses includes 5 members of the escort party as P.Ws. 3, 4, 5, 8 and 13 and officers and constables of Motihari G.R.P.S. and Sugauli G.R.P.S. as P.Ws. 6, 7, 9, 10, 11, and 12. The Assistant Director, Regional Forensic Laboratory, Muzaffarpur was examined as P.W. 14 to prove the report of the forensic test. The witnesses on the seizure were examined as PWs. 1 and 2. The appelants did not examine any witness in defence. They simply denied the prosecution case. At the end of the trial the trial court convicted the appellants for offences under Section20 of the NDPS Act while acquitting them of the charge under Section 23 of the NDPS Act and Sections 307 and 353 of the Penal Code. 5. Shri Rana Pratap. Singh, learned counsel for the appellants submitted that the procedural safeguards provided under the NDPS Act were not observed vitiating the entire trial and conviction of the appellants. He firstly submitted that the search was not in accordance with the provisions of Section 50 of the Act. A Constitution Bench of the Supreme Court in State of Punjab V/s. Baldeo Singh (1999) 6 SCC 172 has conclusively he|d that it is imperative and obligatory for Investigating Officer to inform the suspect orally or in writing about his right to be searched in presence of a Gazetted Officer or a Magistrate and where the suspect desires that the search be made only in presence of a Gazetted Officer or Magistrate, to do so. Non-Compliance renders the search illegal and conviction based on such search bad. Non-Compliance renders the search illegal and conviction based on such search bad. In the instant case no such opportunity was given to the appellants and therefore the conviction deserves to.be set aside. The submission has no substance. 6. Section 50 of the NDPS Act as it stood at the relevant time reads as under: 50.CondItions under which search of persons shall be conducted. (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41 Sec. 42 or Sec. 43, he,shall if such person sorequires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Sec. 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by any one excepting a female." It would appear from a reading of the provision that the requirement of giving information to the suspect as to whether he would like to be searched in presence of a Gazetted Officer or a Magistrate, arises only in case of search of person. In the instant case the subject-matter of search was attaches. The question as to whether the belonging of a person can be treated as part of his person is not res integra In State of Punjab V/s. Jasbir Singh (1996) 1 SCC 288 it was held that person includes baggage and therefore, in case of search of baggage too, Section 50 must be complied. However, in Kalema Tumba V/s. State of Maharastra (1999) 8 SCC 257 it, was held that the decision in Jasbir Sinighs case stands overruled by decision of the Constitution Bench in State of Punjab V/s. Baldeo Singh (supra). That was the case of baggage. In another case reported in the same volume of the SCC, namely, Surajdas V/s. State of Gujrat (1999) 8 SCC 508 , the Supreme Court took similar view. That was the case of bag hanging on a scooter which the accused were riding. These two cases were decided by Two-Judge Benches. That was the case of baggage. In another case reported in the same volume of the SCC, namely, Surajdas V/s. State of Gujrat (1999) 8 SCC 508 , the Supreme Court took similar view. That was the case of bag hanging on a scooter which the accused were riding. These two cases were decided by Two-Judge Benches. Earlier in the case of Namdi Francis Nwazor V/s. Union of India, (1998) 8 SCC 534 , a three Judge Bench Court had observed (at page 537 of the report) that "if a person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the acused requiring compliance with Section 50 of the Act." In Abdul Rasid Ibrahim Mansuri V/s. State of Gujrat the Supreme Court initially took the view that the decision in Sarjudas V/s. State of Gujrat (supra) rendered by a two Judge Bench was in conflict with the observations of the three Judges Bench in Namdi Francis Nwazor (supra) and accordingly referred the case to the larger Bench observing that the question whether search of the person envisaged in Section 50 of the Act would encompass the gunny bags found inside the autorickshaw so as to attract the mandatory requirements of Section 50 should be considered by a larger Bench of three Judges. The order of reference is reported in (2000) 2 SCC 217 . However, at the stage of final hearing the three Judge Bench silently followed the decision in Kalema Tumba (supra) and Surajdas (supra). The judgment is reported in (2000) 2 SCC 513 . The three Judge Bench too thus took the same view that search of gunny bags (containing charas) kept in autorickshaw driven by the accused did not amount to search of the person so as to attract Section 50 of the NDPS Act. The judgment is reported in (2000) 2 SCC 513 . The three Judge Bench too thus took the same view that search of gunny bags (containing charas) kept in autorickshaw driven by the accused did not amount to search of the person so as to attract Section 50 of the NDPS Act. As a matter of fact, in the case of Namdi Francis Nwazor (supra) itself, after making aforequoted observation that if the person is carrying a bag or the like and incriminating article is found therefrom, it would still be search of the person of the accused, the Court observed as follows : "However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person." (emphasis added) There is yet another case of gunny bag carried on the shoulder of the accused, search of which was held not to require compliance of Section 50. See Gurbax Singh V/s. State of Haryana, (2001) 3 SCC 28 . The case was decided relying on, amongst others, the case of Kalema Tumba (supra). 7. It would thus appear that except the case of Jasbir Singh (supra), in all other cases including Namdi Francis Nwazor (supra), the Supreme Court consistently took the view that compliance of Section 50 is necessary only where the person of the suspectas distinct from his belongingsis to be searched. The decision in Jasbir Singh was held to have been overruled by decision of the Constitution Bench in Baldeo Singh (supra) in the case of Kalema Tumba (supra). That has been followed in subsequent cases mentioned above. It is therefore not possible to place any reliance on decision in Jasbir Sinighs case, or the observation in Namdi Francis Nwazors case that if a person is carrying a handbag or the like it would still be a search of the person of the accused. 8. The question as to the true meaning of the term person in my opinion, can be found in sub-section (4) of Section 50 itself. As seen above, under Sub-Section (4) no female can be searched by any one except a female. 8. The question as to the true meaning of the term person in my opinion, can be found in sub-section (4) of Section 50 itself. As seen above, under Sub-Section (4) no female can be searched by any one except a female. If the requirement of giving opportunity to the suspect of getting the search conducted in presence of a Gazetted Officer/Magistrate is to be extended to his belongings as well, there was no rationale providing that the belonging of a female suspect can be searched by a female alone. The reason underlying the provision apparently is that the dignity and decency of a female should not be violated. The question of violating the dignity of a female can arise only when her person i.e. her body is to be searched. If her belongings are to be searched her personal dignity is not likely to be violated. Being part of Section 50, Sub-Section (4) thus gives sufficient indication of the fact that the term person has to be given a restricted meaning so as to refer to the body of the person or anything which may be part of her body such as wearing apparently which he or she may have put on. 9. In the above premises, in the instant case, the fact that the appellants were not given any opportunity to get their attaches searched in presence of a Gazetted Officer or a Magistrate would not attract the provision of Section 50 of the Act, and therefore, the search cannot be laid to be illegal. The contention of the counsel is thus rejected. 10. Shri Rana Pratap Singh next submitted that under Section 42 of the NDPS Act only an empowered Officer can make search and seizure. A Police Officer of the rank of Sub-Inspector not empowered to do so in the State of Bihar, the Officer-in-Charge of Motihari G.R.P.S. Deepak Lai was not competent to search or seize the articles rendering the entire search and seizure illegal and the conviction bad. He pointed out that in State of Punjab V/s. Balbir Singh (1994) 3 SCC 299 Section 42 has been held to be a mandatory. He pointed out that in State of Punjab V/s. Balbir Singh (1994) 3 SCC 299 Section 42 has been held to be a mandatory. In support of the contention as to the consequences of the seizure by an Officer not empowered under Section 42, he placed reliance on Mohinder Kumar V/s. State, Panaji, Goa (1998) 8 SCC 590 and Beckodan Abdul Rahiman V/s. State of Kerala (2002) 4 SCC 229 . In support of the contention that in the State of Bihar, Sub-Inspectors of Police are not empowered to carry out search and seizure, he placed reliance on a decision of this Court in Ram Awtar Yadav V/s. State of Bihar, 2000 (2) PLJR 445 . 11. Section 42 of the Act as stood at the relevant time may be quoted, so far as relevant, as under : "42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a person (sic peon), sepoy or constable) of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order of 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, ... may, between sunrise and sunset, (a) enter into and search any such building, conveyance or place; It would appear on a plain reading of the above provision that only an Officer who is empowered in this behalf by a general or special order of the Central Government or the State Government, as the case may be, can take action as to search, seizure etc. In State of Punjab V/s. Balbir Singh (supra) the Supreme Courtheld that the provision that only an empowered Officer can make search, seizure etc. is mandatory and failure to comply with the requirement would affect the prosecution case and vitiate the trial. The Court observed that the object of the NDPS Act is to make stringent provision for control and regulation of operations relating to drugs and psychotropic substances. is mandatory and failure to comply with the requirement would affect the prosecution case and vitiate the trial. The Court observed that the object of the NDPS Act is to make stringent provision for control and regulation of operations relating to drugs and psychotropic substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the Officer, certain safeguards have been provided which in the context have to be observed strictly. In Mohinder Kumar V/s. State, Panaji, Goa the question as to compliance of Section 42(1) of the NDPS Act arose in a somewhat different context. That was a case where the Police Officer accidentally stumbled upon the offending articles, and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the Punches and on their arrival drew up the Panchnama. The Supreme Court held that in the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for the panches, he was under an obligation to proceed further in the matter in accordance with the provisions of the NDPS Act. In Roy V.D. V/s. State of Kerala (supra) the Supreme Court held that arrest or search by an Officer not authorised, in violation of Sections 41 and 42 would be per se illegal and vitiate the trial. The proceedings in such cases would be an abuse of the process of Court and liable to be quashed under Section 482 of the Code of Criminal Procedure to secure the ends of justice. In Beckodan Abdul Rahiman V/s. State of Kerala (supra), again, the Court observed that keeping in mind the grave consequences which are likely to follow on proof of possession of illicit articles under the Act, namely, shifting of the onus to the accused and severe punishment to which he becomes liable, the legislature has enacted and provided certain safeguards in various provisions of the Act including Sections 42 and 50 of the Act. Where there is violation of these mandatory provisions the accused is entitled to acquittal. In view of the above decisions of the Apex Court it is thus established that where search, seizure etc. Where there is violation of these mandatory provisions the accused is entitled to acquittal. In view of the above decisions of the Apex Court it is thus established that where search, seizure etc. are carried out by an officer not empowered in that behalf, the trial of the accused would be abuse of the process of Court and he would be entitled to acquittal. 12. Adverting to the instant case, the submission of the counsel as to violation of Section 42 rests on the premise that P.W. 12 Deepak Lai, the Officer-in-charge of Motihari G.R.P.S. of the rank of Sub-Inspector was not empowered to carry out search and seizure but this premise is not true. Shri Aswini Kumar Sinha, learned counsel for the State, brought to our notice the Hindi text of the notification, SO 880 dated 5.9.88 (the same notification noticed and relied upon in the case of Ram Awtar Yadav V/s. State of Bihar (supra)) from which it appears that the Police Officers of the rank of Sub-Inspector and above are authorised to exercise power under Section 42 of the NDPS Act. The Hindi text mentions amongst others, the post of Awar Nirikahak, the Hindi equivalent of Sub-Inspector, in the English text the word "Sub" got omitted due to, what is called, printers devil. The decision in Ram Awtar Yadavs case seems to have been rendered on the basis of English text of the notification. The Hindi text apparently was not brought to the notice of the learned Judge as a result of which he took the view that only an Officer of the rank of Inspector and above of the Home (Police) Department is vested with the power under Section 42 of the NDPS Act. The decision thus has to be held to be per incurium. When the attention of Shri Rana Pratap Singh was drawn to the Hindi text of the notification he submitted that this argument was based on the decision in Ram Awtar Yadavs case and he has nothing further to say in the matter. Thus the contention as to incompetence of Deepak Lai to carry out search and seizure is rejected. 13. Shri Rana Pratap Singh lastly referred to violation of Section 55 of the NDPS Act. Thus the contention as to incompetence of Deepak Lai to carry out search and seizure is rejected. 13. Shri Rana Pratap Singh lastly referred to violation of Section 55 of the NDPS Act. He submitted that Section 55 lays down that the seized articles are to be kept in safe custody at the police station but from the materials on the record it will appear that the attache cases all along remained without lock or seal both at the Motihari G.R.P.S. as well as at Sugauli G.R.P.S. which creates doubt as to whether the contents of the attache cases were not tampered with. Any sample taken of the articles therefrom, therefore, could not be basis for the appellants prosecution. 14. Section 55 of the Act runs as under : "55. Police to take charge of articles and seized and delivered.An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station." In Gurbax Singh V/s. State of Haryana, (2001) 3 SCC 28 , it was observed that the provisions of Section 55 of the NDPS Act are directory, violations of which would not vitiate, ipso facto, the trial or conviction but it is not open to the Investigating Officer to totally ignore the provisions. In the facts of the case, the Court came to the conclusion that the provisions of Section 55, amongst others, were not complied and the investigation was faulty, and accordingly, set aside the conviction of the accused. The facts which weighed with the Court were that the I.O. admitted in his evidence that the seal which was affixed on the articles/parcels was handed over to the witness RW. 1 and remained with him for 10 days. He also admitted that the parcels were not sealed by the Officer-in-charge of the Police Station as required under Section 55 of the Act. 1 and remained with him for 10 days. He also admitted that the parcels were not sealed by the Officer-in-charge of the Police Station as required under Section 55 of the Act. There was also lack of evidence as to whether the chemical analyst on receipt of the sample had sealed it, which created doubt if the same sample was sent for chemical analysis. 15. In the instant case, from the evidence of P.W. 12 Deepak Lai, Officer-in-charge of Motihari G.R.P.S., it appears that when the attache cases were brought at the police station they were open. He took out the articles from the attache cases, prepared seizure list and again kept them in the attache cases. The attache cases however, were not locked by him as he did not have keys. He sent the attache cases in the same condition to the Officer-in-charge of the Sugauli G.R.P.S. S.K. Brahmchari P.W. 9. S.K. Brahmchari stated in his evidence that he was shown the contents of the attache cases by the Officer-in-charge of Motihari G.R.P.S. The attache cases were open. He brought them to Sugauli G.R.P.S. and kept them at the Malkhana. The attache cases were not sealed. There were 32 item of goods kept at the Malkhana from before. Later, after containers were purchased from the market he got the attache cases brought from Malkhana through Malkhana Incharge and took samples. Till then the attache cases were not sealed. After taking samples, he kept the articles in the attache cases and sent them to the Malkhana. He sealed the containers containing the samples in presence of the witnesses and sent them to Forensic Science Laboratory for chemical analysis. 16. The above short resume of the evidence is enough to create doubt about the veracity of the prosecution case that the articles found in the attache cases, carried by the appellants, contained charas. It is clear that the chemical analysis has been made on the basis of samples sent by P.W. 9 S.K. Brahmchari but there is no conclusive evidence that the samples were of the same articles which had been recovered and seized from the possession of the appellants. In view of the evidence on record, briefly noted above, I am satisfied that there are serious loopholes in the prosecution case, the benefit of which must go to the accused. In view of the evidence on record, briefly noted above, I am satisfied that there are serious loopholes in the prosecution case, the benefit of which must go to the accused. It may not be out of place to mention that P.W. 9 admitted in his evidence that this was the first NDPS case which he investigated which seems to be his admission of the fact the case was not investigated accordingly to law. 17. In Khet Singh V/s. Union of India (2002) 4 SCC 380 the Supreme Court noticed the guidelines contained in Standing Instruction 1/88 issued by the Narcotics Control Bureau, Clause 1.5 of which was to the effect that "Samples from the narcotic drugs and psychotropic substances seized must be drawn on the spot of recovery, in duplicate, in the presence of search (panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn.on the spot. "The Court further noticed clause 3.8 of a Standing Instruction 2/88 to the effect that each seizing officer should deposit the drugs fully packed and sealed with his seal in the godown within 48 hours of seizure of such drugs with forwarding memo indicating certain particulars (as mentioned therein). The Supreme Court held that the guidelines although not statutory, have been issued to ensure that fair procedure is adopted by the Officer-in-charge of investigation. Since mere possession of contraband invites grave consequences because it shifts the onus of the accused, a proper seizure is of vital importance. 18. In the facts and circumstances, I am thus constrained to hold that the prosecution has failed to prove its case beyond all reasonable doubts and the appellants are entitled to be acquitted. 19. In the result, the appeal is allowed, the conviction and sentence awarded to the appellants are set aside and they are acquitted of the charge. The appellants are in custody. They are directed to be released forthwith if not wanted in any other case. Tarkeshwar Prasad Singh, J. 20 I agree.