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Madhya Pradesh High Court · body

2004 DIGILAW 1025 (MP)

STATE OF M. P. v. SALMA SHEIKH

2004-12-16

S.L.KOCHAR

body2004
JUDGMENT S.L. Kochar, J. This is an appeal preferred by the appellant/State against the judgment of acquittal dated 28-2-2001 passed by the learned Special Judge under N.D.P.S. Act, Ratlam in Special Case No. 25/99, after having obtained leave to appeal from this Court. By this judgment, the learned Special Judge has acquitted the respondent/accused Salama from the offence u/s 8 read with section 21 of the Narcotics Drugs and Psychotropic Substances Act (Hereinafter referred to as the 'Act'). Briefly stated, the prosecution case is that on 7-7-1999 A.S.I. Shri H. S. Yadav of G.R.P. Police Station Ratlam received information from the informant (Mukhbir) that two women named Aisha Bi and Salma aged 30 years and 20 years respectively were present on the platform No. 4 waiting for Awantika Express for going to Bombay. Both the women were hiding Narcotic Drug (Heroin). This information was recorded in the Daily-Diary. Thereafter, the information Ex.P/1 was sent to G.R.P. Railway Police Station. ASI Shri Yadav (PW-7) proceed with the other police officials along with the investigation equipments towards Ratlam Railway Station. They reached on the platform No. 4 and found that two women were sitting on the bench. On enquiry, they disclosed their names as Aisha Bi w/o Ishaq Mohd. Aged 30 years R/o Bail Bazar, Mumbai and Salma W/o Nisar Mohd. Sheikh Aged 20 years R/o Bail Bazar, Kalyan, Mumbai. ASI Shri Yadav (PW-7) informed the respondent Salma about her right of being searched in the presence of Magistrate Gazetted Officer or by the Investigating Officer. Shri Yadav prepared the Panchnama to this effect vide Ex. P/25. On this information, the respondent is said to have given her consent which was recorded as Ex. P/26 and its Panchnama is Ex. P/27. She gave the consent to be searched by the ASI Shri H. S. Yadav vide Ex. P/26. Thereafter Shri Yadav, gave his own search and the search of the accompanied police force in the presence of the witnesses. Its Panchnama is Ex.P/28. Ex. P/29 search-memorandum was prepared by Shri Yadav and the same in disclosing the fact that the search was taken by ASI Yadav and he found a white-check cloth of flower design wrapped around the waist of Salma and over it she was wearing a Kurti. The said cloth was got untied by a lady constable named Gayatri No. 240. Ex. P/29 search-memorandum was prepared by Shri Yadav and the same in disclosing the fact that the search was taken by ASI Yadav and he found a white-check cloth of flower design wrapped around the waist of Salma and over it she was wearing a Kurti. The said cloth was got untied by a lady constable named Gayatri No. 240. On opening, two polythene packets were found present therein in the cloth containing white powder. In one packet, 495 grams of white rough powder was present. Out of this packet of 495 grams, two samples of 5 grams each were taken and the same were packed and sealed. From another polythene packet, 210 grams of heroin was found and out of which two samples of 5 grams each were taken and sealed and rest 200 grams was packet and sealed in another packet. Ex. P/30 is the document of recovery Panchnama and identification of Narcotics Drug. Thereafter, weighment of the powder was done and its Memorandum is Ex.P/31. Ex. P/32 is the seizure-memo and Ex. P/33 is the details of Narcotics Drugs seized from the possession of the respondent Salma by the police. By Panchnama Ex. P/34, the respondent/accused Salma was arrested. The seized samples were sent to the Regional Forensic Science Laboratory, Indore and its report is Ex.P/53, dated 24-7-1999. According to this report in packet A/2 presences of paracetamol and Diacetyl Morphine was present. The samples were sent through Constable Rajendra No. 488 of G.R.P. Ratlam Police Station on 9-7-1999. After necessary investigation, charge-sheet was filed. The respondent denied the charges and claimed herself to be innocent. She was, therefore, put to trial. The prosecution examined in total 13 witnesses to prove its case. The respondent did not examine any witness in her favour. The learned trial Court after hearing both the parties, acquitted the respondent, against which the State has filed this appeal after grant of leave by this High Court. I have heard Shri Amitabh Upadhyaya, learned Dy. Govt. Advocate appearing for the appellant/State and Shri Sanjay Sharma, learned counsel for the respondent/accused and also perused the entire record carefully. Contention of the learned counsel for the appellant/State is that the learned trial Court has not properly construed and given correct interpretation to the provisions of sections 42 and 50 of the Act. Govt. Advocate appearing for the appellant/State and Shri Sanjay Sharma, learned counsel for the respondent/accused and also perused the entire record carefully. Contention of the learned counsel for the appellant/State is that the learned trial Court has not properly construed and given correct interpretation to the provisions of sections 42 and 50 of the Act. According to the learned counsel, section 50, sub-section (4) says that "no female shall be searched by any one excepting a female" means if police officer intercepted any female on information that she is carrying contraband article, then, the search of the said female shall be taken only by a female. But, the learned trial Court has held that the search of the female can be taken by the female who has been empowered as per provision u/s 42 of the Act. This is not correct legal position. According to him, when the female is apprehended on information or on suspicion by the authorised police officer as per provision u/s 42 of the Act and if he considers that the. search of the female is necessary under the provisions of sections 41, 42or 43 of the Act then in that event, the police officer shall take such female without unnecessary delay to the nearest Gazetted Officer of any of the Departments mentioned in section 42 or to the nearest Magistrate if such female expresses such desire and thereafter, before the authorised officer, the search of the female would be done by a female. For the purposes of search of a female, authorised female officer is not necessary. The search can be done by any female, but the same would be in the presence of the authorised police officer or if such female expresses her desire to be searched in the presence of the Gazetted Officer or a Magistrate the authorised officer would take the female to the Gazetted Officer of any of the Departments mentioned in section 42 of the Act or to the nearest Magistrate and there also the female shall be searched by an another female. Learned counsel has also submitted that the seized contraband articles were properly sealed on the spot and kept them intact and the same were immediately sent to the Forensic Science Laboratory, Indore. Learned counsel has also submitted that the seized contraband articles were properly sealed on the spot and kept them intact and the same were immediately sent to the Forensic Science Laboratory, Indore. Learned counsel has also submitted that the learned Trial Court has erred in not holding that the provisions of section 55 of the Act is mandatory. Therefore, the acquittal of the respondent by the learned Trial Court on these grounds is illegal and unjust. In reply, the learned counsel for the respondent has supported the judgment and finding of acquittal recorded by the learned Trial Court. Having considered the rival contentions and on perusal of sections 41, 42 43, 50 and 55 of the Act as well as the entire record of the case, this Court is of the view that the findings of the learned Trial Court that the female accused can be searched only by authorised female officer as per provision u/s 42 of the Act, is not correct. The authorised Police Officer can be a male or a female or both. But, when the search of female accused shall be effected the same shall be done by a female meaning thereby in the presence of the male authorised police officer, a female accused shall be searched by a female. Section 50 sub-section (4) nowhere says that the female accused shall be searched by the authorised female officer. If the accused is female, then her search would be done in the presence of a Gazetted Officer or Magistrate if so desired by her and if she gives consent to the authorised Police Officer who has intercepted the female and, if the female has given consent in writing to be searched by the authorised Police Officer then, there is no need to take the female to the nearest Gazetted Officer of any of the Departments mentioned in section 42 of the Act or to the nearest Magistrate, but, the search of the female would be done by another female in the presence of the authorised Police Officer. On perusal of the evidence and the documents available in the present case, vide Ex.P/25, this notice was given to the respondent by ASI Shri Yadav (PW-7) upon which, she has given the consent Ex.P/26 for her search before him and she did not desire to be searched before any Magistrate or the Gazetted Officer. On perusal of the evidence and the documents available in the present case, vide Ex.P/25, this notice was given to the respondent by ASI Shri Yadav (PW-7) upon which, she has given the consent Ex.P/26 for her search before him and she did not desire to be searched before any Magistrate or the Gazetted Officer. Before search of the respondent, the memorandum of search of person of ASI Yadav and other police officials was prepared. In this document Ex.P/28, it is mentioned specifically that "MUJH ASI H. A. YADAV NE SALMA KE BADAN KI TALASHI LENE KE PURVA." This shows that the person of female was searched by ASI Yadav. This is further clear from the search Memorandum Ex.P/29 in which ASI started taking search of the person of the respondent Salma and he found under the Kurti, one white-check cloth of flower-print was tied around her waist. Thereafter, the same was got untied by him through a female Constable Gayatri (PW-12). This fact shows that the person of the respondent Salma (female) was searched by ASI Yadav and when he found the cloth tied around her waist, thereafter the female Constable only untied the same, whereas according to section 50(4) of the Act, a female shall be searched by any female. Therefore, the search of the respondent was not in conformity with the mandatory provision of section 50 sub-section (4). ASI Shri Yadav (PW-7) in his deposition para 5 has stated that he got the search of the respondent by Constable Gayatri Devi and the search memorandum Ex.P/29 was prepared by Constable Gayatri (PW-12) but the search memorandum Ex-P/29 is disclosing the contrary facts. This document is prepared by ASI Yadav and it is mentioned in this document that it was prepared by Constable Gayatri. Gayatri (PW-12) has simply put her signature on the memorandum Ex.P/29. All the documents appear to have been prepared by ASI Shri Yadav because all are in one and the same hand-writing. This witness was confronted by the defence counsel about her statement regarding search of the respondent Salma by Constable Gayatri Devi which is not mentioned in the search memorandum Ex.P/29. In para 36 ASI Yadav has accepted the portion marked C to C in Ex.P/29 written by him. This part of the memorandum is disclosing the fact that the search of respondent was taken by ASI Yadav. In para 36 ASI Yadav has accepted the portion marked C to C in Ex.P/29 written by him. This part of the memorandum is disclosing the fact that the search of respondent was taken by ASI Yadav. The learned trial Court in para 10 discussed the statement of PW-9 Head Constable Madanlal who was the in-charge of Malkhana. In the same para he has also discussed the statement of PW-7 H. S. Yadav who in para 32 of his deposition stated that the articles which were seized and sealed in the packet could be taken out easily from the packet without any disturbance to the seal affixed on the packet containing the signature of witnesses and the seizing officer. On the basis of the evidence of Malkhana in-charge PW-9 Madanlal Head Constable and ASI H. S. Yadav (PW-7), the trial Court has held that the prosecution has failed to establish that the seized contraband articles were kept intact right from the time of seizure till its reaching to the Forensic Science Laboratory and the prosecution has failed to comply with the standing order No. 1/89 issued by the Central Finance Department regarding taking of sample its seizure and seal under the provisions of the Act. This Court does not find any illegality or perversity in this finding especially when the Constable to whom the property was handed over to take it upto the Forensic Science Laboratory, Indore, has not been examined. After the detailed discussion of the evidence in the judgment para 13 to 20 and 21 the learned trial Court has rightly held that the provisions of section 55 of the Act regarding taking of charge of the seized Article by the in-charge of the Police Station and to keep the same intact till its reaching to the Forensic Science Laboratory, has not been complied with by the prosecution. This is the appeal preferred by the State against acquittal. The law relating to appeal against acquittal is well settled and when two views are possible and the view taken by the trial Court is reasonable, then the same shall not be disturbed in appeal against acquittal. This is the appeal preferred by the State against acquittal. The law relating to appeal against acquittal is well settled and when two views are possible and the view taken by the trial Court is reasonable, then the same shall not be disturbed in appeal against acquittal. This Court, after over all examination of the oral and documentary evidence as well as the provisions of section 40 to 50 and 55 of the Act, is of the opinion that the prosecution has utterly failed to establish the compliance of the mandatory provisions of section 50 about the search of the respondent who is a female. This Court does not find any perversity and manifest legal defect in the judgment of acquittal. Consequently, this appeal fails and is hereby dismissed. Office is directed to send the record of the trial Court along with a copy of this judgment to that Court immediately. The record of this appeal is showing that respondent is in jail since 29-10-2002. She could not furnish bail. Therefore, the trial Court is directed to release the respondent forthwith, if not required in any other criminal case. Final Result : Dismissed