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2002 DIGILAW 918 (PAT)

Chhatho Khatoon v. State Of Bihar

2002-08-23

S.N.JHA, T.P.SINGH

body2002
Judgment S.N.Jha, J. 1. The appellants have been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act) and sentenced to rigorous imprisonment for 14 years and fine of Rs. one lac or, in default of fine, simple imprisonment for two years. 2. The prosecution case, briefly stated, is as follows. Ram Keshwar Singh, Officer-in-charge of Ram Nagar Police Station, received confidential information on 1.11.97 at about 9.40 A.M. that two women were carrying charas in plastic bags at Raili Bazar, Ram Nagar. He made station diary entry to that effect and proceeded to Raili Bazar along with Mahadeo Singh and Tirith Kumar Jha, Sub-Inspector/Assistant SubInspector of Police. When they reached Raili Bazar, they noticed the appellants who on seeing the police made attempt to hide themselves. However, they were caught by the police party. Plastic bags which they were carrying were searched in presence of witnesses, namely, Mankeshwar Ojha and Kasim Khan. The search yielded recovery of 7 kgs of charas. The article was seized and seizure list was prepared on the spot on which the said witnesses affixed their signatures. The appellants also gave their LTIs on the seizure lists. A copy of the seizure list was handed over to them. 3. On the self statement of Ram Keshwar Singh at 10.00 a.m. Ram Nagar PS. Case No. 170/97 was instituted against the appellants. In course of investigation sample was taken from the seized article and sent for test at the Forensic Science Laboratory, Patna. The test revealed that the article was charas. Charge-sheet was submitted against the appellants and they were put on trial. 4. At the trial, the prosecution examined 7 witnesses to prove its case. Ram Keshwar Singh, Mahadeo Singh, Tirith Kumar Jha were examined as P.Ws. 1, 2 and 3. Rameshwar Patel and Balram Rai were examined on the point of recovery as P.Ws. 4 and 5 but they turned hostile. The seizure list witness, Mankeshwar Ojha who was examined as RW. 6, also turned hostile. Subrat Gupta, Assistant Director, Forensic Science, Laboratory was examined as P.W. 7 to prove the sample was tested positive as Charas. He proved the report. 5. Shri S.D. Sanjay submitted that in this case there has been non-compliance of Section 50 of the NDPS Act and the trial and the conviction of the appellants are vitiated. 6, also turned hostile. Subrat Gupta, Assistant Director, Forensic Science, Laboratory was examined as P.W. 7 to prove the sample was tested positive as Charas. He proved the report. 5. Shri S.D. Sanjay submitted that in this case there has been non-compliance of Section 50 of the NDPS Act and the trial and the conviction of the appellants are vitiated. He submitted that before making search the suspect has to be informed as to whether he would like to be searched in presence of a Gazetted Officer or a Magistrate, but no such opportunity was given to the appellants in the instant case, and therefore, the impugned search was illegal. He submitted that the provisions of Section 50 are mandatory and their non-compliance renders the entire trial and conviction bad. He placed reliance on Namdi Francis Nwazor vs. Union of India, (1998) 8 SCC 534 , State of Punjab vs. Surinder Rani alias Chhindi, (2000) 10 SCC 429 and State of Haryana vs. Vikram Singh, (2002) 2 SCC 676 . I find no merit in the submission. 6. In State of Punjab vs. Baldeo Singh (1999) 6 SCC 172 , a Constitution Bench of the Supreme Court has held that it is imperative and obligatory for the 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 a Magistrate, to do so. Non-compliance renders the search illegal and conviction based on such search bad. However, the Court added "on its plain reading Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc." Earlier in the case of State of Punjab vs. Jasbir Singh (1996) 1 SCC 288 a two-Judge Bench of the Court had held that person includes baggage and therefore, in case of search of baggage too Section 50 must be complied. In Kalema Tumba vs. State of Maharastra (1999) 8 SCC 257 the Supreme Court held that the decision in Jasbir Singhs case stands overruled by the decision of the Constitution Bench in State of Punjab vs. Baldeo Singh (supra). In Kalema Tumba vs. State of Maharastra (1999) 8 SCC 257 the Supreme Court held that the decision in Jasbir Singhs case stands overruled by the decision of the Constitution Bench in State of Punjab vs. Baldeo Singh (supra). The same view was taken in Surajdas vs. State of Gujarat (1999) 8 SCC 508 , Abdul Rasid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513 and Gurbax Singh vs. State of Haryana (2001) 3 SCC 28 . 7. In the case of Namdi Francis Nwazor vs. Union of India (supra) relied upon by the appellants counsel, a three Judge Bench did observe 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 accused requiring compliance with Section 50 of the Act". This observation was noticed by the Supreme Court in the case of Abdul Rasid Ibrahim Mansuri vs. State of Gujarat (supra) and the case was referred to the larger Bench observing that the question as to whether search of the person envisaged in Section 50 of the Act would encompass the gunny bags inside the autorickshaw) so as to attract the mandatory requirement of Section 50 should be considered by a 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 took the same view that search of gunny bag (containing charas) 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 already referred to above. As a matter of fact, in the case of Namdi Francis Nwazor vs. Union of India itself after making the observation that if the person is carrying the bag or the like and incriminating article is found therefrom, it would still be a search of the person of the accused, the Court added, "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) 8. In view of the above decisions and observations of the Apex Court the contention of the counsel as to non-compliance of Section 50 of the Act has to be rejected. There is clear evidence on record that there was no search of the person on the appellants. As a matter of fact, in view of Sub-Section (4) of Section 50 which lays down that no female can be searched by any one except a female, there was no question of P.W. 1 Ramkeshwar Singh or any other member of the search party searching the person of the appellants. There is no such allegation and had this been the position, the question of search in presence of a Gazetted Officer or a Magistrate would have become secondary, more fundamental objection as to search by male Police Officers would have been taken. While referring to Sub-Section (4) of Section 50, it may be observed that the provisions that female can be searched only by a female suggests that restricted meaning has to be given to the term person in Section 50, for if the person therein includes the belongings as well, there was no question of belongings being searched by a female alone. The provision that a female can be searched only by a female simply underscores the need of preserving the dignity and honour of the females. Clearly, therefore, the term person in Section 50 refers to person or body of the suspect and not his or her belongings. 9. The reliance on State of Punjab vs. Surinder Rani alias Chhindi (supra) is entirely misconceived for the simple reason that that was a case of search of person of a female by male police officer and not her belongings. In State of Haryana vs. Vikram Singh (supra) the case of the prosecution was that accused was duly informed of his right of being searched by a Gazetted Officer or a Magistrate but he declined that offer. The High Court on consideration of the evidence on record came to the conclusion that prosecution has failed to establish that respondent was informed of his right under Section 50.The Supreme Court agreed with the High Court and dismissed the appeal filed by the State. The case was thus decided on its own facts without laying down any principle and therefore is of no help to the appellants. The case was thus decided on its own facts without laying down any principle and therefore is of no help to the appellants. In fact, none of the cases is of any help to them. 10. Shri S.D. Sanjay, learned counsel for the appellants also submitted, rather half-heartedly, that the prosecution failed to prove the seizure of the article inasmuch as the only witness examined on the point namely, P.W. 6, Mankeshwar Ojha did not support the prosecution case. I do not find any substance in the submission. It is true that Mankeshwar Ojha denied the prosecution case about seizure in his presence or his signing the seizure list but P.W. 1 Ram Keshwar Singh in his evidence has stated that the article was recovered from the appellants and seized by him. To the same effect is the evidence of other members of the search party. Therefore, the fact that the seizure list witness and/or Rameshwar Patel and Balram Rai, RWs. 4 and 5, turned hostile is of little consequence. 11. No other contention was raised on behalf of the appellants. However, in order to satisfy ourselves we have perused the evidence on record from which it appears that on recovery of the article from the possession of the appellants on 10.11.97, a seizure memo was immediately prepared on the spot by RW. 1 Ram Keshwar Singh P.W. 3 Tirith Kumar Jha to whom investigation was entrusted, took samples of the seized article and sent them for forensic test to Forensic Science Laboratory, Patna under proper seal. The seals were found intact by RW. 7 Subrat Gupta who after chemical analysis came to the conclusion that the article was charas. After the analysis he returned the samples in proper seals along with report. The samples were produced in Court as material exhibit. P.W. 7 was cross-examined on the point but nothing adverse could be elicited about the veracity of the prosecution case. Recovery of illicit article from possession of the accused gives rise to presumption under Section 54 of the NDPS Act and it is for the accused to prove the contrary. In other words, once possession is proved, onus shifts to the accused to prove his innocence. In the instant case there is conclusive evidence that the appellants were carrying charas, and therefore, they were required to prove their innocence. In other words, once possession is proved, onus shifts to the accused to prove his innocence. In the instant case there is conclusive evidence that the appellants were carrying charas, and therefore, they were required to prove their innocence. The case of the appellants is that they had been hired by one Raju Chhapoulia to carry the articles to Delhi who was travelling by the same train. He was to contact the appellants at Gorakhpur. Under Section 20(b) of the Act mere possession of the contraband makes the person liable to punishment and the appellants having been found in possession of charas, they are thus liable to be convicted under Section 20(b) (ii) of the Act. I thus do not find any infirmity in the conviction of the appellants. 12. Coming to the question of sentence, however, I am inclined to take a lenient view. As indicated above, the appellants appear to be mere carriers. The total quantity of article found in their possession is said to be 7 kgs. They agreed to carry the article on payment of Rs. 500/- each which indicates that they belong to the lower strata of society and on account of poverty agreed to take the risk. There is no evidence that they had indulged in similar acts before. I am therefore, of the view that the sentence of 10 years rigorous imprisonment which, is the minimum sentence prescribed under Section 20(b)(ii) besides fine of Rs. one lac would serve the ends of justice. Accordingly, while upholding the conviction of the appellants, I sentence them to rigorous imprisonment for 10 years and, also, fine of Rs. one lac each. In default of payment thereof, they will have to undergo imprisonment for two years. 13. With this modification in the sentence, the appeal is dismissed. T.P.Singh, J. 14 I agree.