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2004 DIGILAW 362 (PAT)

Prahlad Singh v. State Of Bihar

2004-03-31

MRIDULA MISHRA, RAM NANDAN PRASAD

body2004
Judgment RAM NANDAN PRASAD, J. 1. The sole appellant has preferred this appeal against the judgment and order dated 30.9.2003/3.11.2003 passed by Special Judge, Buxar in N.D.P.S. Case No. 10/2000 whereby he has been convicted for the offence under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for 12 years and also to pay a fine of Rs. 1 lac and in default of payment of fine to undergo rigorous imprisonment for two years. 2. Karuna Kant Bose, Deputy Superintendent of Police, Buxar is the informant in the case. He recorded the fardbeyan on his own statement on 11.6.2000 at about 5.45 p.m. at the Line hotel of Mangala Rai at village Saranja that he received confidential information from the Superintendent of Police, Buxar that in the Line hotel of Mangala Rai some miscreants have assembled with heroin and are planning to conceal the same. On the af6resaid information he organised the raiding party of which Sub-Inspector, of Police, Vinay Kumar Sharma, Assistant Sub-Inspector of Police, Tirtharaj Tiwari of Buxar Police Station and armed forces were members, They proceeded at about 3 p.m. and reached the hotel of Mangala Rai at about 4 p.m. They surrounded the hotel and in presence of two independent witnesses, namely, Lal Saheb Upadhyaya and Ghanshyam Choudhary the raiding party gave their search. He disclosed to the owner of the hotel the reason for search and enquired whether he had any objection which he denied and stated that he had faith in them and there was no need of a Magistrate. In the hotel 15-16 persons were sitting. They started searching the persons sitting there. In course of search one person disclosed his name as Prahlad Singh, the appellant. On search a plastic water bottle was recovered from him. The weight of the water bottle was abnormal. He enquired about the contents of the water bottle from Prahlad Singh who disclosed that 400 gram heroin a polythene packet has been kept in the bottle. In presence of the independent witnesses the water bottle was opened and gray colour powder was found in three pockets kept in the water bottle. The weight of the water bottle was abnormal. He enquired about the contents of the water bottle from Prahlad Singh who disclosed that 400 gram heroin a polythene packet has been kept in the bottle. In presence of the independent witnesses the water bottle was opened and gray colour powder was found in three pockets kept in the water bottle. The said packets were marked as A, B and C. Prahlad Singh disclosed that he brought the heroin with the help of his friend Dan Singh of Rajasthan for selling the same. His friend ran away after seeing the police. The seized packets were weighed by the goldsmith and 402 gram heroin was found. From each packet two samples of about 5 gram heroin were prepared and kept in polythene and thereafter the samples were kept in 3 containers and were sealed. The seizure list was prepared on which the independent witnesses put their signatures. Prahlad Singh was asked as to whether he would like to go to a Magistrate which he denied. He kept the seized articles and the samples himself for producing the same in the Court and keeping it in the malkhana. A copy of the search and seizure list was also handed over to the accused Prahlad Singh. The place of occurrence i.e. the village Saranja is within the jurisdiction of Rajpura Police Station and as such information was given to the Officer-in-Charge of Rajpura Police Station through the choukidar. He thereafter proceeded with the accused and the seized articles for further enquiry with respect to co-accused Dan Singh. The fardbeyan was read over to accused Prahlad Singh and he put his signature on the fardbeyan. On the aforesaid fardbeyan. formal FIR was drawn, investigation was taken up by Manoranjan Bharti, the Officer-in-charge of Rajpura Police Station, on completion of investigation charge-sheet was submitted, on receipt of charge-sheet cognizance was taken and the appellant was put on trial. A supplementary charge-sheet was also submitted against one Kamlesh Rai who was discharged by the then Special Judge, Buxar by order dated 29.6.2001 holding that there was no legal evidence against him. However, the appellant was convicted as stated above. 3. The defence of the appellant was that mandatory provisions of law were not complied with. The appellant was not produced for search before a Magistrate or a Gazetted Officer. However, the appellant was convicted as stated above. 3. The defence of the appellant was that mandatory provisions of law were not complied with. The appellant was not produced for search before a Magistrate or a Gazetted Officer. The samples which were examined by the Forensic Science Laboratory were not the same which were allegedly recovered from the possession of the appellant. There was inordinate delay in sending the samples to Forensic Science Laboratory. 4. The prosecution in support of its case examined six witnesses. PWs 2 and 4 are seizure list witnesses and they have been declared hostile. PW 5 is member of the raiding party and PW 6 is the informant. PW 1 is Assistant Director of Forensic Science Laboratory who proved the report, Ext. 1. PW 3 is the Investigating Officer. 5. It is well established rule of law that the prosecution has to prove its case beyond all reasonable doubts. On suspicion no person can be convicted and even strongest suspicion does not constitute proof. PW 6 is informant and PW 5 is member of the raiding part. They are official witnesses. The independent witnesses PW 2 and PW 4 in whose presence the contraband articles were seized have been declared hostile and as such there is no independent witness in the case to corroborate the seizure of contraband articles. Learned counsel for the appellant however, contended that provisions of Section 50 of the N.D.P.S. Act have not been complied with as PW 6 did not inform the appellant about his right to be searched before a Gazetted Officer or a Magistrate nor search was conducted in presence of the Gazetted Officer or the Magistrate and as such the conviction of the appellant is bad in law. In this regard it would be necessary to consider the provision of Section 50 of the N.D.P.S. Act which reads as follows : "50. Conditions under which search of persons shall be conducted.(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 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 Section 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 sub-section (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 anyone excepting a female." It is obvious from the aforesaid provisions that if any search is to be made on a person under the provisions of the N.D.P.S. Act such person should be searched before a Gazetted Officer or the Magistrate. In the case of State of Punjab V/s. Baldeo Singh, 1999 (2) East Cr C 193 (SC) : (1999) 6 SCC 172 , a Constitution Bench of the Supreme Court held that it is obligation of the Empowered Officer and his duty before conducting the search on the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted, in the presence of a Gazetted Officer or a Magistrate. The failure to so inform the suspect of his right would render the search illegal because the suspect not be able to avail of the protection which is in built in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered Officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered Officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence of the accused based solely on recovery made during that search bad. Similarly in the case of T. Hamza V/s. The State of Kerala, 1993 (3) PLJR 10 (SC), the Apex Court has held that it is imperative for the officer empowered to search a person for contraband article on prior information, to inform the concerned person of his right to be searched before the Gazetted Officer or the Magistrate, and the failure to do may render the recovery of the contraband suspect and the conviction bad in law. In the case of K. Mohan V/s. State of Kerala, 2000 SCC (Cr) 1228, the Apex Court has held that before a person is to be searched, the Officer concerned must inform him of his right to be searched before a Gazetted Officer or a Magistrate and failure to do so would cause prejudice to such person. Where before conducting the search the Police Officer concerned merely asked the accused whether he required to be produced before a Gazetted Officer or a Magistrate for the purpose of search but did not inform him about his right under the law, the mandatory requirement of Section 50 was not complied with the acquitted the appellant. 6. It is thus, evident from the provisions and the decisions of the Apex Court as discussed above, that the empowered Officer has to inform the suspect/ person concerned that he has right to be searched under the law before a Gazetted Officer or a Magistrate and if no such information is given to the suspect about his right, it would render the search illegal and conviction based on such search bad in law. Keeping in mind the aforesaid well settled rule of law we proceed to examine the material and evidence of the witnesses. 7. In the fardbeyan it has been stated that on information from the Superintendent of Police the informant organised a raiding party consisting of PVV 5 and police force, reached the place of occurrence i.e. the Line Hotel of Mangala Rai at village Saranja at about 4 p.m., surrounded the hotel and gave their search in presence of PWs 2 and 4. He disclosed the reason of search to the hotel owner and enquired whether he has any objection which he denied and stated that he has faith in them and there is no need of Magistrate. He thereafter started search of the persons sitting in the Hotel and during the course of search one person disclosed his name was Prahlad Singh, the appellant. On search a plastic water bottle was recovered from him. He enquired about the contents of the water bottle and the appellant disclosed that 400 gram heroin in polythene packets has been kept in the bottle. He seized the contraband articles and also took two samples of about 5 gram heroin from each packet. On search a plastic water bottle was recovered from him. He enquired about the contents of the water bottle and the appellant disclosed that 400 gram heroin in polythene packets has been kept in the bottle. He seized the contraband articles and also took two samples of about 5 gram heroin from each packet. The seizure list was prepared and thereafter the appellant was asked as to whether he would like to go to a Magistrate which he denied. In the evidence PW 6, the informant stated that on the relevant date on information from the Superintendent of Police, Buxar that some unsocial elements with narcotic assembled in the Line hotel of Mangala Rai at village Saranja, P.S. Rajpura, he organised a raiding party and he along with the Officer-in-Charge Vinay Kumar Sharma, PW 5 and police force reached the hotel of Mangala Rai and found 15-16 persons sitting in the hotel. He informed them that he had received information that they are in possession of narcotics and as such he would search them. He requested them to take search of police force. However, they expressed confidence in them and requested to search. In course of search in presence of independent witnesses, PW 2 and PW 4 one plastic water bottle was recovered from the possession of the appellant. Its weight was abnormal. In presence of independent witnesses the water bottle was opened and three polythene packets containing grey colour powder were found kept in the bottle on inquiry the appellant disclosed that it is heroin. It was weighed and its weight was found more than 400 grams. In presence of the witnesses two samples from each packet were taken for examination by Forensic Science Laboratory. It was sealed and marked A, B and C and rest of the seized articles in three packets were sealed in one bag. A copy of the seizure list was given to the appellant. The witnesses and the appellant also put their signature over the same. The place of occurrence was within the jurisdiction of Rajpura Police Station and as such information was given to the Officer-in-Charge of Rajpura Police Station. Before they came there he along with the raiding party had left the hotel, The seized articles and the arrested accused were sent to the Rajpura Police Station. The place of occurrence was within the jurisdiction of Rajpura Police Station and as such information was given to the Officer-in-Charge of Rajpura Police Station. Before they came there he along with the raiding party had left the hotel, The seized articles and the arrested accused were sent to the Rajpura Police Station. The Officer- in-Charge of Rajpura Police Station came at the place of occurrence and he handed over the seized articles to him. Hov/ever, neither in examination- in-chief nOr in cross-examination the witness stated that he discharged his obligation as required under Section 50 of the Act that he informed the appellant about his right to be searched before the Gazetted Officer or the Magistrate. 8. PW 5 is Officer-in-Charge of Buxar Police Station. He was member of the raiding party. His evidence is that he received information on telephone from the PW 6. He along with ASI Tirthraj Tiwary and armed forces went to the office of PW 6 on a jeep. He along with PW 6 proceeded at 3 p.m. to village Saranja and reached there at about 4 p.m. at the hotel of Mangala Rai. They surrounded the hotel. The police gave their search in presence of two independent witnesses, PW 2 and PW 4. The hotel owner was informed about the reason of search. On search 402 gram heroin kept in three polythene packets inside the water bottle in possession of the appellant was recovered. The accused disclosed that with the help of his associate Dan Singh he had come to sell the heroin. PW 6 had recovered the heroin from the water bottle and prepared seizure list on which PW 2 and PW 4 and the appellant put their signatures. Two samples from each packet were taken for chemical examination. The sample taken was not weighed. At the place of occurrence itself the seized articles and the samples taken out from the seized articles were handed over to the Officer-in-Charge of Rajpura Police Station for producing the same in the Court. With the consent of the appellant, Prahlad Singh search was made. 9. The sample taken was not weighed. At the place of occurrence itself the seized articles and the samples taken out from the seized articles were handed over to the Officer-in-Charge of Rajpura Police Station for producing the same in the Court. With the consent of the appellant, Prahlad Singh search was made. 9. It is thus evident from the discussion of the materials/evidence on record that the informant neither in the fardheyan nor in his evidence stated that he discharged his obligation as required under Section 50 of the N.D.P.S. Act that prior to search of the appellant he was informed about his right to be searched before the Gazetted Officer or the Magistrate. The PW 5, member of the raiding party also did not say in this evidence that the requirement of Section 50 was complied with by PW 6 before conducting the search of the appellant. Moreover, PW 2 and PW 4, witnesses to the seizure, have been declared hostile and as such there is no corroboration of the search and seizure by any independent witness. Thus, it can safely be said that the provisions of Section 50 of the N.D.P.S. Act were not complied with and as such the search, seizure and the conviction become bad in law. 10. Thus on consideration as discussed above, we are of the view that the conviction of the appellant cannot be upheld. Accordingly, the appeal is allowed. The judgment and order of conviction is hereby set aside. The appellant is in jail. He is directed to be released forthwith, if not required in any other case.