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2004 DIGILAW 198 (PAT)

Abhay Kumar Singh @ Abhay Singh v. State Of Bihar

2004-02-19

B.N.P.SINGH

body2004
Judgment B.N.P.Singh, J. 1. Appellants, in both the appeals, suffered conviction under Section 33 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as NDPS Act) on evidence of possession of heroin, an illicit article under the NDPS Act and were sentenced to suffer rigorous imprisonment for ten years each and also to pay a fine of Rs. one lakh each, in default of which to suffer further rigorous imprisonment for a term of two years, by Special Court, constituted under the NDPS Act. 2. Factual matrix, which are not in much details, are that in the evening of 12th February, 2002 Uday Pratap Singh, Sub Inspector, Arrah Town P.S., on prior information about sale of heroin and liquor by some persons in Babu Bazar a lane, near Friends Medical Hall, laid a trap in the company of other Police officials, when appellants were nabbed and it was alleged that while from possession of Shekhar Kumar, there was seizure of 10 packets of heroin, from possession of Abhay Kumar Singh, other appellant, there was seizure of 5 packets of heroin and also 36 gms. of heroin kept in plastic, along with one black coin. Allegedly on disclosures made by Shekhar Kumar, his house premises too was searched from where there was seizure of one black coin, some quantity of heroin and also Rs. 7120/-, by the Police officials. A police case had been registered, pursuant to which investigation followed and on its conclusion, charge sheet was laid before the Court. In trial that followed, eight witnesses were examined by the State including Reporting Officer, Investigating Officer, panch witnesses and others. 3. Defence of the appellants was that of innocence and they ascribed their false implication. As for Abhay Kumar Singh, explicit defence was that from writings evidenced by the seizure memo (exhibit 4), manipulations are writ large and would suggest that there had been insertion of his name along with details subsequent to signature of panch witnesses, and that smacks of fishy deal to suspect bona fide of the prosecution version. 4. Plethora of decisions were cited at Bar, and to appreciate the contentions raised, narratives of the prosecution case unfolded by the witnesses can be noticed at the threshold. 4. Plethora of decisions were cited at Bar, and to appreciate the contentions raised, narratives of the prosecution case unfolded by the witnesses can be noticed at the threshold. Though in his earliest version Uday Pratap Singh (PW 7) alleges seizure of ten packets of heroin from pocket of wearing apparel of Shekhar Kumar, which eventually followed seizure of heroin and also black coin along with Rs. 7120/- from his house, on disclosure made by him, evidence of witness during trial was about seizure of 38 grams of heroin from residential premises of the said appellant. There is no gain saying that no explicit averments were made in the earliest version of the witness about seizure of specified quantity of heroin from residential premises of Shekhar Kumar. Apart from other flaws, that have surfaced in the prosecution version, which rendered the seizure of alleged illicit article illegal, vitiating trial, evidence of the prosecution witnesses bristles with contradictions about quantity of illicit article allegedly seized from possession of the appellants. Taking the evidence of Harish Chandra Paswan (PW 4), there had been seizure of 53 grams of heroin along with Rs.7120/- from residential house of Shekhar Kumar. Raghubansh Kumar Bhanu (PW 5) would make omnibus statement about seizure of illicit liquor from the house of Shekhar Kumar without specifying the quantity. Worse was the case of Nand Kumar Mishra (PW 6), as if he is to be believed, there was seizure of 59 grams of heroin from residential house of Shekhar Kumar. As has been noticed, if Uday Pratap Singh (PW 7) was to be believed, 38 grams of heroin was seized from residential premises of Shekhar Kumar along with Rs.7100/-. Evidence of Rakesh Kumar Gupta (PW 8) too was not on better footing, as he too states that there was seizure of 53 grams of heroin along with Rs. 7120/- from residential house of Shekhar Kumar, though he would rather testify that out of 53 grams of heroin, seizure of 36 grams was from possession of Abhay Kumar Singh. Evidence of Rakesh Kumar Gupta (PW 8) too was not on better footing, as he too states that there was seizure of 53 grams of heroin along with Rs. 7120/- from residential house of Shekhar Kumar, though he would rather testify that out of 53 grams of heroin, seizure of 36 grams was from possession of Abhay Kumar Singh. Highlighting overwriting in the seizure memo (Exhibit 4), learned counsel appearing for the appellants would argue that mode of writing in case of alleged seizure from possession of Abhay Kumar would leave no doubt that his name was subsequently inserted in seizure memo after signature of the panch witness was obtained and sharing the view of the learned counsel, I can say that in the seizure memo much leaves to be desired. Admittedly, part of seizure of illicit article was made from possession of Shekhar Kumar, as subsequent seizure had been made from his residential premises. In case of Abhay Kumar Singh too, seizure of illicit article was made from possession of the appellant. Sections 41 and 42 of the NDPS Act postulates observance of certain procedures to ensure safeguard against mischief that possibly be committed during investigation by the investigating agency. In case search is made on prior information, vide sub-section (2) of Section 42, the Empowered Officer is required to take down information in writing or record the reasons on his belief under the provisions of sub-section (1), and shall forthwith send a copy of the same to his immediate officer superior, with regard to commission of an offence before conducting search and seizure. Requirement of this Section may not be mandatory in nature, hardly there is evidence on the record about Uday Pratap Singh (PW 7) recording such information and sending them to the immediate official superior to him. 5. Yet other serious infirmity which is writ large on the face of the prosecution version was failure of PW 7 to apprise the appellants of their legal right to exercise their choice or option for their search before a Gazetted Officer or the Magistrate. Though I am not oblivious of the assertions made in the written complaint of Uday Pratap Singh (PW 7) about the officer asking the appellants for their search before Gazetted Officer or Magistrate, when they answered in negative, that is not all, that is required under the statute. Though I am not oblivious of the assertions made in the written complaint of Uday Pratap Singh (PW 7) about the officer asking the appellants for their search before Gazetted Officer or Magistrate, when they answered in negative, that is not all, that is required under the statute. Though Uday Pratap Singh (PW 7) would not reiterate such assertion in his evidence, Harish Chandra Paswan (PW 4) would make such bald assertions, but that too was bereft of legal value in view of acknowledgement made by the witness that he cannot say as to which of the two appellants had answered their question in negative. 6. Though question of applicability of Section 50 of the NDPS Act has drawn attention of the Courts from time to time, judicial pronouncements made by the Apex Court on the issue can be traced to the year 1995 when broad observation made by the Apex Court in case reported in 1995 (1) East Cr C 374 (SC), State of Punjab V/s. Balbir Singh, was that on prior information, the empowered officer or authorised officer will act under provisions of Section 50 of the Act and before search of a person is required, he shall be produced before a Gazetted Officer or Magistrate. It is obligatory on part of such officer to inform the person to be searched, in presence of a Gazetted Officer or the Magistrate and failure to inform the person to be searched and if such person so desires, failure to take him to the Gazetted Officer or the Magistrate would amount to non-compliance of Section 50 of the Act which is mandatory and that would affect the prosecution case and violate the trial. Yet in case of Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, reported in 1995 (2) East Cr C 21 (SC) : (1995) 3 SCC 610 , the Apex Court held that on prior information, before a search is made, obligation of officer concerned is to inform the person to be searched, of his right to disclose that search be conducted in presence of Gazetted Officer or Magistrate illicit article illegal. Courts were ordained by that they must be satisfied about compliance of requirement of Section 50 of the Act. 7. Courts were ordained by that they must be satisfied about compliance of requirement of Section 50 of the Act. 7. Even if averments made in the written complain of Uday Pratap Singh (PW 7) and evidence of Harish Chandra Paswan (PW 4) about asking the appellants to exercise their option for their search before a Gazetted Officer or Magistrate is taken to be as it is, one cannot help feeling that there had not been scrupulous observance of the salutary provisions of the Act, as not only the accused to be searched is to be asked to exercise his option for his search before the Gazetted Officer or Magistrate, but he is to be apprised of his legal right to exercise his option for his search before a Gazetted Officer or before a Magistrate, and without multiplying the decisions, reliance can be placed on a decision of the Apex Court reported in 2000 SCC (Cri) 1228, K. Mohanan V/s. State of Kerala, in which stress was laid by the Court that if accused was merely asked as to whether he requires to be searched in presence of a Gazetted Officer or Magistrate, it would not be treated as informing the accused that he had a right under the law to be searched, as that would amount to just seeking opinion of the accused as to whether he liked that or not. In case of A. Ahmad V/s. State of Gujarat, 2000 (3) East Cr C 1006 (SC) : 2000 (4) PLJR 124 (SC), reiterating earlier views, the Apex Court held that even if the officer going to search the accused happens to be a Gazetted Officer, the accused to be searched has to be apprised of his legal right for his search before other Gazetted Officer or the Magistrate. Observance of the procedures mandated by Section 50 of the NDPS Act, was not a ritual or idle formality to be performed. It is extremely a valuable right which the law has given to the concerned person. 8. Having regard to the grave consequences that may entail the possession of illicit article under the NDPS Act, these guidelines amended by the Act have to be observed scrupulously by the concerned officer, as these provisions have been introduced in the Act which would impart much more authenticity and creditworthiness to the proceedings, while equally providing an important safeguard to the accused. Considering the evidences available, one cannot help feeling that the legislative intent of prescribing a duty on the part of the Empowered Officer as stipulated by Section 50 of the NDPS Act had been grossly violated and there has been breach of the provisions, and in that view of the matter, regard being had to the totality of evidences, breach of provisions, and other flaws surfaced in the prosecution evidence, I am of the view that the finding recorded by the Court below cannot be sustained in law. Finding and sentence recorded against the appellants by the Court below are hereby set aside and they are acquitted of the charges levelled against them. Appellants Abhay Kumar Singh alias Abhay Singh and Shekhar Prasad alias Shekhar Kumar, who are shown to be in custody, are directed to be set free forthwith, if not wanted in any other case. Both the appeals are accordingly allowed. 9. However, before parting with this judgment, my intense feeling is that though stringent measures have been taken by the legislature to implement the law ruthlessly to curb down the menace of trade in illicit article, which is hazardous for national health, for lapses and fault on part of the concerned police officer due to non-observance of the salutary provisions of law, object of the legislature gets frustrated. The officers of concerned department should be apprised by the Department, of the salutary observance during investigating, proceeding, else there would be no use of only carrying out the perfunctory investigation.