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2003 DIGILAW 1055 (PAT)

Md. Sarfraj v. State Of Bihar

2003-09-25

B.N.P.SINGH, SACHCHIDANAND JHA

body2003
Judgment Sachchidanand Jha, J. 1. The sole appellant of this appeal has been convicted under Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to rigorous imprisonment for 15 years and fine of Rs. one lac; in default of payment whereof, further rigorous imprisonment for five years. 2. Briefly stated, the case of the prosecution is that on 3.6.1999 at about 6.30 p.m. in course of routine check of passengers of Narkatiaganj-Darbhanga Passenger train at Sitamarhi Railway Station the Custom officials led by R.N. Prasad, Inspector of Custom, Sitamarhi noticed the frightened posture of a passenger, the appellant herein. His body search revealed that some article in wrapper was tied around his waist. Two independent witnesses, namely, Indrajeet Kumar and Jyotindra Jha were called. All of them went to the customs office where in presence of the Superintendent of Customs and said Indraieet Kumar and Jyotindra Jha, amongst others, the suspect was formally searched, On search, besides one railway ticket from Sikta Railway Station to Laheriasarai Railway Station and cash of Rs. 15, three packets wrapped in polythene bag kept in markin cloth stitched like jhola were found tied around his waist. The article was weighed and the total weight came to 1.5 Kgs. worth Rs. 1.5 lacs. On enquiry the suspect disclosed his name and address. His confessional statement was recorded in his own handwriting which- he signed in presence of the witnesses and customs officials followed by seizure, panchnama and the interrogatory statement. The suspect disclosed that he had been hired by one Tamanna Khan to bring charas from Sikta. The article was handed over to him by a person there. He did not disclose the details of the person who handed over the article to him. In the complaint while R.N. Prasad, Inspector of Customs filed, he stated that the Department was investigating the case to trace the particulars of said two persons. Meanwhile, sample had been taken from the seized article, sealed and sent to the Government Alkaloid Works, Gazipur, U.P. for chemical analysis. The analysis disclosed that the article was charasa contraband under the NDPS Act. 3. At the trial which followed against the appellant the prosecution examined 9 witnesses to prove its case including R.N. Prasad, Inspector of Customs as P.W. 1, and Indrajeet Kumar as P.W. 2. The analysis disclosed that the article was charasa contraband under the NDPS Act. 3. At the trial which followed against the appellant the prosecution examined 9 witnesses to prove its case including R.N. Prasad, Inspector of Customs as P.W. 1, and Indrajeet Kumar as P.W. 2. P.W. 1 inter alia proved the seizure memo, panchnama, confessional statement and interrogatory statement of the appellant, chemical report, complaint petition and forwarding letter of the prosecution report which were marked respectively as Exts. 1 to 7. Members of the raiding party namely, Subhash Prasad, Inspector of Customs, Janak Baitha, Chandrabhan Prasad Rai, Sunil Kumar, Rama Shankar Dubey, Anil Kumar Gondall constables were examined as P.Ws. 3 to 8. P.Ws. 4 to 8 were in fact rendered. Another Inspector of Customs, Sanjay Kumar Choudhary, was examined as P.W. 9. He proved Ext. 8 by which the seized article had been handed over to him for being kept in godown. The appellant did not examine any witness in his defence. In his statement under Sec. 313 Cr.P.C. he admitted that the Customs officials had found him in suspicious condition in the Narkatiaganj-Darbhanga Passenger train at Sitamarhi Railway Station at 6.30 p.m. on 3.6.1999 and discovered as cloth wrapped around his waist. He however denied that he was taken to the customs office where he was searched in presence of witnesses. He also denied recovery of 1.5 Kgs. of charas. He stated that the recovery was from the compartment of the train. About his signature on the seizure list he stated that seizure list was prepared at the Railway Station and his signature was forcibly taken thereon. He denied taking of any sample containing his signature, sealing thereof and its despatch for chemical analysis. He also denied to have made any confessional statement. He stated that his signature was obtained by using force and after assaulting him. 4. At the end of the trial the appellant was convicted and sentenced in the manner as mentioned above. 5. He denied taking of any sample containing his signature, sealing thereof and its despatch for chemical analysis. He also denied to have made any confessional statement. He stated that his signature was obtained by using force and after assaulting him. 4. At the end of the trial the appellant was convicted and sentenced in the manner as mentioned above. 5. Shri Ashutosh Kumar, learned counsel for the appellant submitted that the search of the appellant was carried out at the Railway Station without ensuring the presence of a gazetted officer or a Magistrate, and even if it is accepted that the search was made in the customs office in presence of the Superintendent of Customs, the appellant was not made aware of his right that if he so liked he could be taken to a gazetted officer or a Magistrate and have his person searched in his presence. There was thus violation of the provisions of Sec. 50 of the NDPS Act vitiating the conviction. Counsel also submitted that the sample was not properly drawn as laid down in Sub-sec. (2) of Sec. 52 of the NDPS Act nor it can be said that the article which was sent for chemical analysis was the same as the one allegedly recovered from the appellant. Counsel referred to various authorities on the point. 6. On behalf of the respondents Shri Rakesh Kumar submitted that it was a case of routine check and not search on any prior information and therefore, the provisions of Sec. 50 of the NDPS Act are not attracted. Even if Sec. 50 is held to be applicable as the search was made in presence of Superintendent of Customs who in undisputedly a gazetted officer, the requirement of Sec. 50 stood substantially complied and in the circumstances, it cannot be said that appellant suffered any prejudice in the matter of search of his person. Counsel also submitted that even if the Court comes to the conclusion that the search was in violation of Sec. 50 of the Act, as the conviction is not on the basis of only possession of the seized article recovered during search of the appellant but also other materials, such as confessional statement which is admissible in evidence, the conviction of the appellant does not warrant any interference. Decisions were cited in support of the contentions. 7. Decisions were cited in support of the contentions. 7. After hearing counsel for the parties at length I am of the opinion that there has been noncompliance of the relevant provisions of Sec. 50 of the NDPS Act and on this ground alone the conviction of the appellant is fit to be set aside. 8. Sec. 50 of the NDPS Act so far as relevant 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, Section 42 or Sec. 43, he shall if such person so requires, 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) ............................................... (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) .......... ......... .........." 9. There was a divergence of opinion at to whether the provisions of Sec. 50 are mandatory or directory. A Constitution Bench of the Supreme Court in State of Punjab V/s. Baldeo Singh, while considering the question observed: "Therefore, without expressing any opinion as to whether the provisions of Sec. 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Sec. 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Sec. 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Sec. 50 of the Act. 10. 10. A doubt arose and it was submitted on behalf of the respondents that the object underlying search in presence of a gazetted officer or a Magistrate is to give creditworthiness to the search and thus in a case where the search has in fact been made in presence of a gazetted officer or a Magistrate it may not be said that Sec. 50 was violated. Counsel submitted that the only right of the suspect is to have his person searched in presence of a gazetted officer or a Magistrate and where the search is in fact made in presence of either of them he cannot complain of any prejudice. The requirement to approve the suspect of his right in presence of a gazetted officer or a Magistrate stands substantially satisfied where the search has been made in presence of either gazetted officer or a Magistrate without informing him of the right, for, even if he is made aware of his right, he can only opt for search in presence of either a gazetted officer or a Magistrate and thus if the search is actually made in presence of either of the two, it cannot be said that there has been violation of Sec. 50 of the Act. Counsel placed reliance on Manohar Lal V/s. State of Rajasthan, Raghbir Singh V/s. State of Haryana, Nirmal Kumar Biswas V/s. State of West Bengal, Mafaji Movataji Thakor V/s. State of Gujarat, and Kamarunnissa V/s. Union of India. 11. In Manohar Lal V/s. State of Rajasthan (supra) which was decided earlier in point of time (though reported later) by a Bench of two Judges, the contention of the appellant was that under Sec. 50 of the NDPS Act the accused is entitled to further option to be searched in presence of either a gazetted officer or a Magistrate. The Court rejected the contention observing that the provision only requires giving an option to the accused as to whether he would like to be searched in presence of a gazetted officer or a Magistrate; and on exercise of the option by the accused, it is for the officer concerned to have the search made in presence of the nearest gazetted officer or the nearest Magistrate whosoever is conveniently available in order to avoid undue delay in completion of that exercise. The choice of nearest gazetted officer or Magistrate has to be exercised by the Officer making the search. In Raghbir Singh V/s. State of Haryana (supra) the said decision in Manohar Lal V/s. State of Rajasthan was affirmed by a three-Judge Bench. It was observed that accused has an option to be searched in presence of a gazetted officer or a Magistrate depending upon who is conveniently available. There is no further option of being searched in presence of either a gazetted officer or a Magistrate. In other words, he cannot choose that he would like to be searched in presence of a gazetted officer or a Magistrate. Such search may be made in presence of whosoever is most conveniently available. The ratio of these two decisions thus is quite different and not relevant to the point involved in this case and they therefore are of no help to the respondents. 12. In the case of Nirmal Kumar Biswas V/s. State of West Bengal (supra) the Calcutta High Court observed that under Sec. 50 of the NDPS Act, an accused has option to get himself searched in presence of nearest Gazetted Officer or Magistrate but where the search is made in presence of a gazetted officer who is present with the raiding party, there is no further option to be searched in presence of any other officer of choice of the accused. In the case of Mafaji Movataji Thakor V/s. State of Gujarat (supra) the Gujarat High Court held that where the search is conducted by an authorised officer himself, there is no necessity to inform the accused of his right to be searched by a gazetted officer. This decision, it would appear, support the plea of the respondents, counsel. However, they do not seem to be in accord with the decision of the Apex Court and therefore it is not possible to accept them as laying down the correct law. 13. In State of Punjab V/s. Balbir Singh, which is one of the earliest decisions on the point, while considering the question as to the effect of non-compliance of Sec. 50 of the Act, Apex Court observed. The words If the person to be searched so desires are important. 13. In State of Punjab V/s. Balbir Singh, which is one of the earliest decisions on the point, while considering the question as to the effect of non-compliance of Sec. 50 of the Act, Apex Court observed. The words If the person to be searched so desires are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a gazetted officer or a Magistrate and there-after the search would be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires since such a search would import much more authenticity and credit-worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. The Constitution Bench in State of Punjab V/s. Baldev Singh (supra) while summing up the conclusion in paragraph 57 of the judgment held: "That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-sec. (l) of Sec. 50 of the Act being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (emphasis added) In K. Mohanan V/s. State of Kerala, after noticing the aforequoted finding in Baldeo Singhs case, the Supreme Court observed. (l) of Sec. 50 of the Act being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (emphasis added) In K. Mohanan V/s. State of Kerala, after noticing the aforequoted finding in Baldeo Singhs case, the Supreme Court observed. "If the accused who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so......"(emphasis added) The court observed that it was not possible to gauge after distance of time as to what would have been answered by the accused had he been told about his right under law to have himself searched in presence of a gazetted officer or a Magistrate. The decision in K. Mohanan V/s. State of Kerala, was relied in Vinod V/s. State of Maharashtra. In that case the High Court had taken the view that from the panchnama and the complaint it was apparent that before taking the search the accused had been asked whether he wants the search to be taken before an Executive Magistrate or a gazetted officer and on that basis, had held that the procedure contemplated under Sec. 50 of the NDPS Act had been fully complied with and there was no infirmity in the search etc. of the accused. Relying on K. Mohanans case the Court held that: ".........before conducting the search the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or a Gazetted Officer for the purpose of the search but inform him of his right in that behalf under the law. (emphasis added) 14 In view of the above decisions there cannot be any doubt that the requirement of Sec. 50 inter alia is to inform, the suspect of his right to have the search carried out in presence of a gazetted officer or a Magistrate and if he so requires, to take him to the nearest gazetted officer or Magistrate as may be, most conveniently available, for the purpose of search. The fact that the search is actually made by or in presence of a gazetted officer or for that matter, even a Magistrate is not enough. The fact that the search is actually made by or in presence of a gazetted officer or for that matter, even a Magistrate is not enough. As a matter of fact, it is not also enough to just ask him whether he would like to be searched in presence of a gazetted officer or a Magistrate. The requirement is to inform him of his right to have his person searched in presence of a gazetted officer or a Magistrate. The following observations in Ahmed V/s. State of Gujarat, may usefully be noticed: "The submission that the requirement of compliance with Sec. 50 will not arise, if a search is going to be made by an empowered officer, who happens to be a gazetted officer is devoid of any substance inasmuch as when an empowered officer or a duly authorised officer, acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sec. 50(1) of being taken to the nearest gazetted officer or the nearest Magistrate for making the search....... the right can not 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." 15. In view of the above decisions the submission of the respondents counsel that where the search is in fact made by or in presence of a gazetted officer the appellant cannot complain of prejudice has to be rejected. So far as the argument relating to prejudice is concerned, in State of Punjab V/s. Baldev Singh (supra) the Constitution Bench of the Court held in no uncertain terms that  failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. In the earlier part of the judgment (already quoted above) the Court had observed that the omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. In the earlier part of the judgment (already quoted above) the Court had observed that the omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The decision in Kamarunnissa V/s. Union of India (supra), cited on the point of prejudice is of little relevance as it was rendered in a different context while considering the validity of preventive detention. In view of the authoritative and categorical pronouncement of law by the Constitution Bench of the Apex Court there does not appear to be any doubt that failure on the part of the empowered officer to inform the suspect of his right to have his person searched in presence of a gazetted officer or a Magistrate per se causes prejudice to the accused vitiating his conviction. 16. Shri Rakesh Kumar submitted that the application of Sec. 50 would arise only where the search is made on any prior information. In the instant case search was in course of routine check in railway compartment and therefore Sec. 50 is not attracted. The sub-mission in the facts of the case is completely misconceived. What happened at Sitamarhi Railway Station was random search of the passengers and their baggage without any prior information but the actual search of the appellants person took place in the Customs office where the appellant was taken as suspect. That, in fact, is the case of the prosecution itself That the search was made in the customs office and the seizure memo etc. were prepared there. The relevant part of the complaint may be quoted as under: "On observing the scared face of that passenger, the Customs officials searched the body of that person thoroughly and it was confirmed that he was transporting some article in concealed manner which was wrapped around his waist. The Customs officials called two independent witnesses who were standing on Sitamarhi Railway Platform and were observing the interception. The Custom Officials requested both those witnesses to accompany the officials to the office of the Supdt. Customs, Sitamarhi where the suspected passenger was to be searched and they agreed. The suspected passenger was brought to the office of the Supdt. Customs, Sitamarhi and there he was searched in presence of the Supdt. The Custom Officials requested both those witnesses to accompany the officials to the office of the Supdt. Customs, Sitamarhi where the suspected passenger was to be searched and they agreed. The suspected passenger was brought to the office of the Supdt. Customs, Sitamarhi and there he was searched in presence of the Supdt. Customs, Sitamarhi who is a Gazetted Officer of the Customs Department as well as two independent witnesses, namely, Indrajeet Kumar and Jyotindra Jha besides other offi-cials of the Customs Department." 17. In State of Punjab V/s. Balbir Singh (supra) the Court observed that where the police officer without any information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provision of Criminal Procedure Code and when such search is completed at that stage Sec. 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. However, if during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. 18. In my opinion, where the search is not on the basis of any prior information about the commission of any offence under the NDPS Act, such as, receipt of anonymous information or tip-off, but in course of general search under the provisions of the Cr.P.C. or random search by the official empowered/authorised under the NDPS Act, Sec. 50 is not attracted but if in course of search they stumble on a contraband, from that point and onwards, they are required to comply with the procedure laid down in the NDPS Act. In the instant case, it is true, random search was conducted in different compartments of the train but after the appellant was taken in custody as a suspect and taken to the customs office for formal search, it cannot be said that search in the customs office was without any prior information. In the instant case, it is true, random search was conducted in different compartments of the train but after the appellant was taken in custody as a suspect and taken to the customs office for formal search, it cannot be said that search in the customs office was without any prior information. Where the person of a suspect is searched it cannot be said that the search was without any prior information. The search in the instant case was at two stages. There was a general body search in the train compartment and/or Railway Station. The actual search in presence of witnesses was in the customs office. It was on the basis of positive suspicion on the part of raiding party that the appellant was carrying contraband item that he was taken to the customs office for search. There thus can not be any doubt that, before making the search in the customs office Sec. 50 of the NDPS Act was required to be complied with. The submission of the counsel for the respondent is accordingly rejected. 19. Relying on State of Punjab V/s. Baldev Singh (supra) it was submitted on behalf of the respondent that non-compliance of Sec. 50 merely vitiates conviction, and not the trial as such, and where the conviction is based on other materials as well, no interference is warranted. I find no substance in this contention too. 20. The summum bonum of the charge against the appellant is his possession of an illicit article recovered during search which was conducted in violation of Sec. 50 of the NDPS Act. It is portion of that article which was allegedly sent for chemical analysis, the report of which forms the basis of the trial. Where the search was not in accordance with Sec. 50 of the Act causing inherent prejudice to the appellant, no reliance can be placed on recovery of any incriminating article and the conviction cannot be sustained only on the ground that the appellant had allegedly made confessional statement which according to him was forcibly taken after assault. Where the search was not in accordance with Sec. 50 of the Act causing inherent prejudice to the appellant, no reliance can be placed on recovery of any incriminating article and the conviction cannot be sustained only on the ground that the appellant had allegedly made confessional statement which according to him was forcibly taken after assault. It is to be kept in mind that where a person is found to be in possession of contraband the burden to explain possession lies upon him under Section 54 of the Act and therefore it is of utmost importance that the prosecution case about the accused being in possession of contraband article is proved to the hilt and beyond all reasonable doubts. 21. In the facts and circumstances mentioned above, I am of the view that the appellants conviction cannot be sustained. 22. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant are set aside and he is acquitted of the charge. The appellant is in Jail. He is directed to be released forthwith, if not wanted in any other case. 23. Before I part with this case, I must express my anguish that the appellant has been let off on a technical ground on account of laches of the concerned authorities. It is regrettable that despite repeated clear pronouncements of law by the Apex Court, as well as by this Court, more often than not, the accused under the NDPS Act are perforce acquitted because of procedural mistakes committed by the authorities.