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2004 DIGILAW 404 (RAJ)

Dashrath Singh v. The State of Rajasthan

2004-03-16

KHEM CHAND SHARMA

body2004
JUDGMENT 1. - Accused appellant Dashrath Singh has preferred this criminal appeal against the judgment of conviction and order of sentence dated 2nd August, 2000 passed by the Special Judge NDPS Act Cases, Jaipur whereby the learned Special Judge found the accused appellant guilty of having committed offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as 'the Act') and accordingly, convicted him for the said offence and sentenced him to undergo rigorous imprisonment for 10 years with a fine of Rs. one lac, in default thereof, to undergo simple imprisonment for two years. 2. On 24.6.2001, PW11 Dinesh Sharma, Station House Officer, Police Station, Sodala, Jaipur received secret information to the effect that the appellant is trying to sell smack and is in search of some customer and is standing at the corner of the road moving towards Sushilpura School. After recording the information in the Rojnamcha, and having sent copies thereof to the Circle Officer and the Superintendent of Police, the SHO along with police party and two motbirs left the Police Station and reached the place as informed by the informer. On seeing the police party, the appellant tried to escape. However, the police encircled him and warned him to stop. On being informed the appellant of his legal right to have his search conducted either in the presence of a Gazetted Officer or the Magistrate, the appellant gave his consent in writing to have his search conducted by the Circle Officer. Thereafter, under the instructions of Circle Officer PW4 Ramanand, Head Constable took the search of the person of appellant in the presence of Circle Officer and recovered one plastic packet from the right pocket of his trouser. The recovered packet was found to be contained with smack weighing 203 grams (along with plastic packets). He then took two samples of 10 grams each, prepared the search and seizure memo, and sealed the samples and remaining smack in separate packets. He arrested the appellant and recorded the statements of witness. 3. After completion of entire formalities as to the investigation, the appellant was charge sheeted. The learned trial court on the basis of the evidence and material collected during investigation and placed before it, framed charge under Section 8/21 of the Act. The accused denied the charge and claimed trial. 4. 3. After completion of entire formalities as to the investigation, the appellant was charge sheeted. The learned trial court on the basis of the evidence and material collected during investigation and placed before it, framed charge under Section 8/21 of the Act. The accused denied the charge and claimed trial. 4. The prosecution, in order to prove its case, examined 11 witnesses and also exhibited some documents. The accused appellant was examined under Section 313 Cr.P.C. In his explanation, the appellant has stated that he was preparing for competition for the post of Police Constable and had gone to the Police Station to find out the result and the police apprehended him. In defence, the appellant has examined DW 1 Bhanwar Lal, DW2 Kailash and DW3 Udai Ram. 5. At conclusion of trial, the learned Special Judge found the prosecution case as alleged, proved and accordingly convicted and sentenced the appellant as aforementioned. Hence the present appeal against conviction. 6. I have heard learned counsel for the parties and perused the judgment under appeal and the evidence and material on record. 7. In assailing the conviction, the first argument advanced by Mr. Suresh Sahni, learned counsel for the accused appellant is that there was complete non- compliance of the mandatory provisions of Section 50 of the Act. According to the learned counsel, the provisions of Section 50 of the Act makes it imperative and obligatory on the part of the officer empowered under Section 42 of the Act to ensure that the search of a suspect is conducted in the manner prescribed by Section 50 of the Act. Learned counsel argued that in the case at hand, the search of the person of s appellant was conducted by a Head Constable and that too under the instructions of Circle Officer, who was one of the members of the raiding party. Thus, the prosecution has breached the provisions of Section 50, which has resulted into vitiating trial against the appellant. 8. The controversy as to the effect of non-compliance of the provisions to of Section 50 of the Act has been set at rest by the Apex Court in series of judgments. Thus, the prosecution has breached the provisions of Section 50, which has resulted into vitiating trial against the appellant. 8. The controversy as to the effect of non-compliance of the provisions to of Section 50 of the Act has been set at rest by the Apex Court in series of judgments. Reference may be made to a decision of the Constitution Bench of the Apex Court in the case of State of Punjab v. Baldev Singh, AIR 1999 SC 2378 , wherein their Lordships have held that the provisions Section 50 of the Act implicitly makes imperative and obligatory and cast a duty on the Investigating Officer (Empowered Officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50 of the Act. 9. To proceed further, it would be beneficial to reproduce Section 50 of the Act, which runs as under: "Conditions under which search of persons shall be conducted:- (i) 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 required, 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. (ii) 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). (iii) The Gazetted Officer or the Magistrate before whom any person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (iv) No female shall be searched by anyone excepting a female. 10. Undisputedly, the provisions of Section 50 of the Act are mandatory in character and violation there of is fatal to the prosecution. When any Officer duly authorised under Section 42 of the Act, is about to search a person he is bound to inform the suspect that he had a right to be searched before the Gazetted Officer or a Magistrate. If the suspect makes a choice then, it is for the authorised officer to take him either before the Gazetted Officer or the Magistrate. If the suspect makes a choice then, it is for the authorised officer to take him either before the Gazetted Officer or the Magistrate. Sub-section 3 of the Section 50 empowers the Gazetted Officer or the Magistrate to direct either discharge of the person forthwith or the search be made. 11. Now coming to the question of compliance of Section 50 of the as Act, Keeping in view the above settled position of law, I shall now examine the evidence on record. 12. PW7 Padam Singh, Head Constable has stated that the In-charge (SHO) asked the appellant about the search either by the Circle Officer or by the Magistrate. A glance at the notice, Ex.P2 given to the accused as so required by Section 50 of the Act shows that the SHO Dinesh Sharma informed the accused appellant in writing of his legal right to have his search conducted either in the presence of any Gazetted Officer or in the presence Of nearest Magistrate. The SHO also informed the accused appellant that Shri Shanker Dutt Sharma, Deputy Superintendent of Police (Circle Officer) present at the spot is also a Gazetted Officer and, therefore, he should give his (appellant) consent in writing. Thereafter, appellant gave his consent in writing that he is willing to have his search conducted by the Circle Officer present at the spot and put his signatures to 'H' on the consent written at the end of the notice given to him. it is thus evident that accused was given three options, firstly that of a gazetted officer, secondly that of a Magistrate and thirdly that of a Circle Officer, who happened to be a member of the raiding party. 13. Thus from the evidence discussed above the question that emerges for consideration is whether the procedure adopted for giving option for search to the accused is in consonance with the provisions of Section 50 of the Act? 14. As stated above, PW11 Dinesh Sharma, SHO gave notice to the accused appellant as required by Section 50 of the Act and informed him of his legal right to be searched in the presence of a Magistrate, or a Gazetted Officer. 14. As stated above, PW11 Dinesh Sharma, SHO gave notice to the accused appellant as required by Section 50 of the Act and informed him of his legal right to be searched in the presence of a Magistrate, or a Gazetted Officer. The SHO further informed the appellant that PW10 Shanker Dutt Sharma, C.O. already present at the spot also happens to be a gazetted officer, meaning thereby that accused can also consent for his search to be taken in the presence of Circle Officer. 15. A bare perusal of the Section 50 of the Act makes it clear that search has to be taken by an officer duly authorised under Section 42 in the presence of either a Gazetted Officer or the Magistrate opted by the accused. The Gazetted Officer or the Magistrate before whom the accused is brought, if he sees no reasonable ground for search shall forthwith discharge the person, but otherwise shall direct that search be made. 16. In the case of Sukh Pal Singh @ Bala v. State of Rajasthan, 1996 (1) RCC 544 (Raj.) , similar question arose for consideration and it was observed that Section 50(3) of the Act provides that the Gazetted Officer or the Magistrate before whom the person to be searched is brought, shall, if he sees no reasonable grounds for the search, forthwith discharge the person to be searched. The Gazetted Officer of the search party would obviously normally not exercise the second option because after relying on the information of Mukhbir, he has required that person to be searched. A member of the raiding party, even if he is a Gazetted Officer cannot himself do the dual task of being a party to the search and arrive at a satisfaction that search is warranted or Not? Therefore, the Gazetted Officer performing the functions under Section 50 of the Act has to be different from the one, who is a member of the raiding party or who is the officer conducting the search. It is the duty of Gazetted Officer intending to take search on suspicion, to inform the accused that he has a right to be taken to a Gazetted Officer or a Magistrate for search. He cannot be exempted from giving the option with regard to the search before a Gazetted Officer other than himself. 17. It is the duty of Gazetted Officer intending to take search on suspicion, to inform the accused that he has a right to be taken to a Gazetted Officer or a Magistrate for search. He cannot be exempted from giving the option with regard to the search before a Gazetted Officer other than himself. 17. In the case of Nadeem v. State of Rajasthan, (1999) 1 Crimes 548 , it was held that the words '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' used in Sub-section (1) and the words 'any Gazetted Officer or Magistrate before whom any such person is brought' used in Sub-section (3) of Section 50 of the Act are of much -1 significance. The words 'take and brought' imply that search should be conducted by taking the person before the Gazetted Officer or a Magistrate and the said officer or Magistrate before whom the person is brought, shall, if he sees no reasonable ground for search discharge the person. but otherwise shall direct that search be made. But it appeared in the instant case that the investigating agency for its convenience has redrafted the solitary provisions of Section 50 of the Act by taking the Gazetted Officer, Circle Officer to the accused. When Circle Officer was brought before the accused, the accused volunteered that he may be searched before C.O. It to IA is held that it cannot, therefore, be said that Circle Officer was totally independent. Being a member of raiding party, he was having some interest in the success of raid. 18. In Bhanwar Lal v. State of Rajasthan, 2002 (3) WLC (Raj.) 235 , this court relying upon the aforesaid two decisions held that the search is having been conducted in the presence of a member of the raiding party, though he may be a gazetted officer, it must be concluded that the provisions of Section 50 of the Act have been breached. 19. The point involved in the case at hand is fully covered by the decisions referred to above. 19. The point involved in the case at hand is fully covered by the decisions referred to above. In reference to the options contained in the notice Ex.R2, the option opted by the appellant and accordingly the search conducted in the presence of PW10 Shankar Dutt Sharma C.O. who was a member of the raiding party cannot at all be said to be in consonance with Section 50 of the Act, though he was a gazetted officer. The solitary provision contained in Section 50 has been made keeping in view the heavy punishment which is likely to be imposed in case a person is found guilty under N.D.P.S. Act. The provision has been made to ensure fair investigation of the cases being brought under the Act. A search that complies with the requirements of Section 50 of the Act imparts much more authenticity and credit worthiness to the proceedings, while equally providing an important safeguard to the accused. The provisions confers an important and valuable right and intended to minimise the allegation of planting or fabricating by the prosecution. 20. Admittedly, PW11 Dinesh Sharma informed the accused of his rig-it to be searched either in presence of a Magistrate or a Gazetted Officer and in alternative in the presence of PW10 Shanker Dutt Sharma, Circle Officer, who happened to be on the spot in the capacity as a member of the raiding party and was a Gazetted Officer. Keeping in mind the law laid down in the aforesaid decisions, I am (on) of the considered opinion that in the present case the accused was misled by an option to give his consent to be searched in the presence of Circle Officer, who was a member of the raiding party. Thus, for the reason that the search having been conducted in the presence of a member of the raiding party, though he may be a Gazetted Officer, it must be held that the provisions of Section 50 of the Act have been breached and violation thereof is per se fatal to the prosecution case. It also need be observed that PW1 Mohan Lal and PW8 Jagdish Prasad Mehra have also not supported the search and seizure. 21. It is next contended by Mr. Sahni, counsel for the appellant that the e was absolute non-compliance of Section 50 of the Act. Mr. It also need be observed that PW1 Mohan Lal and PW8 Jagdish Prasad Mehra have also not supported the search and seizure. 21. It is next contended by Mr. Sahni, counsel for the appellant that the e was absolute non-compliance of Section 50 of the Act. Mr. Sahni arg red that search of the person of the accused was conducted by PW4 Rai ianand, Head Constable of Police and that too under the directions of Circle Officer. He submitted that search having been conducted by a person other than the person authorised by Section 42 of the Act is illegal and thus the unauthorised illegal search has resulted in vitiating trial against thee appellant. In support of his argument, Mr. Sahni, learned counsel for the appellant has relied upon a decision of this Court in Ayub Khan v. State of Rajasthan, 2002 (2) WLC (Raj.) 749 . 22. Undisputedly, search of the person of accused was conducted by PW4 Ramanand, Head Constable of Police under the directions of PW10 Shanker Dutt Sharma, Circle Officer. The question which now emerges for consideration is, whether the search conducted by a Head Constable under the directions of Circle Officer can be held to be in consonance with the requirements of the provisions of Section 50 of the Act. 23. In Ayub Khan's case (supra), this court having considered the effect of relevant provisions of the Act and the law propounded in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 held that "the search in the present case having been conducted by a Constable cannot be said to be in consonance with the provisions of Section 50 of the Act and I have no hesitation in holding that the search was effected by a person, namely PW4 Pokharmal Constable unauthorised to effect the search under the law, which has resulted in vitiating the trial against the accused appellant." 24. It is well settled that only the empowered officer or duly authorised officer as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. if such arrest or search is made under the as provisions of the NDPS Act by anyone other than such officers, the same would be illegal. It is well settled that only the empowered officer or duly authorised officer as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. if such arrest or search is made under the as provisions of the NDPS Act by anyone other than such officers, the same would be illegal. In the case at hand, undisputedly the search of the appellant was taken by PW4 Ramanand, Head Constable as is evident from the evidence of PW4 Ramanand himself, PW10 Shanker Dutt Sharma, C.O. and PW11 Dinesh Sharma, SHO. It is further fortified by search and seizure memo, Ex.P3 which speaks of search having been conducted by a Head Constable. Thus, in view of the mandatory character of Section 50 of the Act which provides for search of a suspect to be conducted by any officer duly authorised by Section 42 of the Act, it becomes crystal clear that search under the NDPS act if conducted by a person other than the person duly 36 authorised under Section 41 or 42 of the Act, the same would be unauthorised illegal search. In this view of the matter, the search in the present case having been conducted by PW4 Ramanand Head Constable cannot be said to be in consonance with the provisions of Section 50 of the Act and it must be held the search was effected by a person, namely PW4 Ramanand, Head Constable who was not authorised to effect the search under the law, which has resulted in vitiating trial against the accused appellant. 25. The upshot of the above discussion is that this appeal is allowed. The conviction of appellant Dashrath under Section 8/21 is set aside and he is acquitted of the charge. Appellant Dashrath is in jail and he be released forthwith, if not required in any other case.Appeal Allowed - Conviction Set Aside. *******