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Gauhati High Court · body

2005 DIGILAW 20 (GAU)

Phalkhunei Singson v. State of Manipur

2005-01-10

T.NANDAKUMAR SINGH

body2005
JUDGMENT T.N.K. Singh, J. 1. This Revision Petition is against the order of the learned Judge, Special Court, N.D.P.S. Act, Manipur, Imphal dated 24.8.1999 passed in special trial Case No. 1024 of 1995 (Ref: FIR No. 92 (7) 90 BAPS under Section 21 of the N.D.P.S. Act). 2. Heard Miss Sundari, learned Counsel for the Petitioner and Md. Jalal Uddin, P.P. (HC) for the Respondents. 3. The case of the Petitioner is that on 24.7.1990 one Shri N. Duidang, Sub-Inspector of BAPS, Manipur received a tip top information that one Ms. Hitting Kuki (28), daughter of Kongpu Kuki of Sugnu village had been selling narcotic drugs. On receipt of the said information Shri N. Duidang, SI, BAPS raided the house of Ms. Hitting Kuki at about 12.30 p.m. on 24th July, 1990 however no incriminating article could be found from the possession of Ms. Hitting Kuki. On short interrogation she disclosed that about 2/3 days back she had received about 80 gms of heroine powder from one Nengrom Kuki of Namphalong (Burma) and the same was kept in the custody of Ms. Phalkhunei Singson (present Petitioner) who was residing in a rented room at New Lambulane. Accordingly, Shri N. Duidang, SI, BAPS alongwith police party of BAPS conducted search of the room of Ms. Phalkhunei Singson (present Petitioner) at New Lambulane. Shri N. Duidang, SI found two packets containing 30 gms of heroine powder each and one packet containing 20 gms of heroine powder under the pillow of Ms. Phalkhunei Singson. Shri Duidang, SI, BAPS seized the said three packets containing heroine powder by preparing a seizure memo dated 24.7.1990 in the presence of three witnesses, namely, (1) Md. Rajen (28) S/o. (L) Md. Feroz of Khergao Awang Sabal Leikai, P.S. Imphal, (2) Md. Ashish Ali Shah (20) S/o Md. Amjad of Khergao Makha Leikei and (3) Md. Gaffar (35) S/o Md. Jenam of Khergao Awang Leikai, Imphal. But the seizure memo prepared by Shri N. Duidang, SI of BAPS does not bear the signatures of the said witnesses. In other words, the said three witnesses did not sign on the seizure memo prepared by Mr. N. Duidang, SI, BAPS. After the alleged seizure of the three packets containing heroine powder, Mr. N. Duidang, SI, BAPS had submitted report to the O.C. BAPS on the same day i.e. 24.7.1990. In other words, the said three witnesses did not sign on the seizure memo prepared by Mr. N. Duidang, SI, BAPS. After the alleged seizure of the three packets containing heroine powder, Mr. N. Duidang, SI, BAPS had submitted report to the O.C. BAPS on the same day i.e. 24.7.1990. The O.C., BAPS registered FIR case being No. 92 (7) 90 BAPS under Section 21 of the N.D.P.S. Act. After completing investigation, charge-sheet was submitted and the learned Special Judge under his impugned order dated 24.8.1999 had framed charge under Section 21 of the N.D.P.S. Act against the present Petitioner despite the fact that material irregularities committed by the Police Officers of BAPS in making the alleged seizure of the said three packets containing heroine powder from the room of the Ms. Phalkhunei Singson (present Petitioner) which vitiate the criminal proceedings. 4. The present revision petition is filed against the impugned order of the learned Judge, Special Court, N.D.P.S. Act dated 24.8.1999 on the reason of non-compliance of mandatory provisions of N.D.P.S. Act and Code of Criminal Procedure, 1973 by the Police Officers of BAPS in making the seizure of heroine powder from the possession of Ms. Phalkhunei Singson. 5. According to Section 21 of the N.D.P.S. Act, 1985, mere possession of narcotic drugs is an offence punishable for a sentence of (a) where the contravention involved small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; and (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Conditions under which search of a persons shall be conducted are prescribed in Section 50 of the N.D. and P.S. Act, 1985 which is quoted hereunder: Section 50.-Conditions under which search of person shall be conducted.-(1) When any officer duly authorized 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 Section42 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. (5) When an officer duly authorized under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure. 1973. (6) After a search is conducted under Sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a period seventy-two hours send a copy thereof to his immediate official superior. Section 4(2) of the Code of Criminal Procedure Code, 1973 clearly mention that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 51 of the N.D.P.S. Act also mention that provision of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. Section 51 of the N.D.P.S. Act also mention that provision of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. 6. The Apex Court in the case of State of Punjab v. Balbir Singh reported in (1994) 3 SCC 299 held that by combined reading of Sections 41, 42, 43 and 51 of N.D.P.S. Act and Section 4, Code of Criminal Procedure regarding arrest and seizure under Sections 41, 42 and 43, the provision of Code of Criminal Procedure namely, Section 100 and Section 165, Code of Criminal Procedure will be applicable to such arrest and search. In the present case, admittedly Section 50 of the N.D.P.S. Act had been violated inasmuch as, the present Petitioner was not searched by the female police official and not even a female police officials was present when searching the room of the present Petitioner by the police personnel of BAPS on 24.7.1990. Sub-section (5) of Section 50of the N.D.P.S. Act clearly mentions that when the officers duly authorized under Sub-section (42) reason to believe that it is not possible to take the persons to be searched to the nearest Gazetted Officers or Magistrate without possibility of the person to be searched parting with the possession of the narcotic drug of psychotropic substance or control substance or article or documents, he may, instead of taking such persons to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure. 1973. Sub-section (4) of Section 100 of the Code of Criminal Procedure clearly mentioned that before making a search under this chapter, officer or other persons about to make it shall call upon two or more independent and respectable individuals of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. Under Sub-section (5) of Section 100 of the Code of Criminal Procedure, it is mandatory that search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this Section shall be required to attend the Court as a witness of the search unless specially summoned by it. In the present case in violation of the mandatory requirements of Sub-section (5) of Section 100, Code of Criminal Procedure Mr. N. Duidang, SI, BAPS did not obtain the signature of the said three alleged witnesses on the seizure memo prepared by him on 24.7.1990. 7. It is now well-settled that if the empowered officer without any prior information as contemplated by Section 42 of the N.D.P.S. Act, 1985 made a search or causes arrest of a person during the normal course of investigation into an offence or specific offence on completion of the search, contraband under N.D.P.S. Act is recovered, the requirement of Section 50 of the Act are not attracted. In the case in hand, it is not the case of the prosecution that the empowered officer without any prior information as contemplated by Section 42 of the N.D.P.S. Act makes a search of the room of the present Petitioner on 24.7.1990. 8. The only question to be decided in the present revision petition is that whether or not criminal proceedings are initiated based on illicit materials collected on search and arrest which are per se illegal and vitiated not only the conviction and sentence based on such, materials but also the appeal itself, the proceeding cannot be allowed to go on as it cannot but amount to abuse of the process of the Court. The Apex Court in the case of State of Punjab v. Balbir Singh reported in (1994) 3 SCC 299 held that compliance with the conditions laid down in Section 50 of the Narcotic Act by the empowered and authorized officer is mandatory and the failure to comply the condition laid down in Section 50 of the N.D.P.S. Act will affect the prosecution case. In the case of State of Punjab v. Balbir Singh (supra) in para 16, the Apex Court observed thus: 16. In the case of State of Punjab v. Balbir Singh (supra) in para 16, the Apex Court observed thus: 16. One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the N.D.P.S. Act by the empowered or authorized officer while conducting the search, affects the prosecution case. The said provision (Section 50) lays down that any officer duly authorized under Section 42, who is about to search any person under the provisions of Sections 41, 42 and 43, shall, if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made by the person to be searched, the authorized officer concerned can detain him until he can produce him before such Gazetted Officer or the Magistrate. After such production, the Gazetted Officer or the Magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that the search be made. To avoid humiliation to females, it is also provided that no female shall be searched by anyone except a female. 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 authorized officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter 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 impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. 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 impart 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 authorized officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorized officer to inform the person to be searched of his right. The Apex Court in the case of State of Punjab v. Balbir Singh (supra) held thus in para-13: 13. Therefore, if an arrest or search contemplated under Sections 41 and Section 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorized, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial. 9. Learned P.P., Mr. Jalal, appearing for the Respondents have cited decision of the Apex Court in the case of State of Himachal Pradesh v. Pirthi Chanel and another reported in AIR 1996 SC 977 . The conclusion of the Apex Court in the case of State of Himachal Pradesh v. Pirthi Chand (supra) in para 7 may be extracted as hereunder: 7. It would thus be settled law that every deviation from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attracted to such evidence dependents on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon. The Apex Court in Roy V.D. v. State of Kerala reported in AIR 2001 SC 137 , in paras 18 and 20 held as under: 18. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon. The Apex Court in Roy V.D. v. State of Kerala reported in AIR 2001 SC 137 , in paras 18 and 20 held as under: 18. It is well-settled that the power under Section 482 of the Code of Criminal Procedure has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot be but amount to abuse of the process of the Court in such a case not quashing the proceedings would perpetuate abuse of the process of the Court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 of the Code of Criminal Procedure to quash proceedings in a case like the one on hand, would indeed secure the ends of justice. 20. It may be noticed that conclusion was reached by the Constitution Bench in the context of non-compliance of Section 50 of the N.D.P.S. Act. While emphasizing that it is imperative on the officer who is making search of a person to inform him of his right under Sub-section (1) of Section 50 of the N.D.P.S. Act, it was held that the recovery of the illicit article in violation of Section 50 of the N.D.P.S. Act would render the recovery of illicit article suspect and use of such material would vitiate the conviction and sentence of an accused. It is manifest that the recovery of illicit article in that case was by a competent officer but was in violation of Section 50 of the N.D.P.S. Act. In the instant case, however, the search and recovery were by an officer who was not empowered so to do. It is manifest that the recovery of illicit article in that case was by a competent officer but was in violation of Section 50 of the N.D.P.S. Act. In the instant case, however, the search and recovery were by an officer who was not empowered so to do. Further in Balbir Singh's case AIR 1994 SCW 1802 : AIR 1994 SC 1872 : 1994 Cri LJ 299 (supra) the Court took the view that arrest and search in violation of Sections 41 and 42 of the N.D.P.S. Act being per se illegal would vitiate the trial. Therefore, the said conclusion cannot called in aid to support the order under challenge. If the proceedings in the instant case are not quashed, the illegality will be perpetuated waiting in grave hardship to the Appellant by making him to undergo the ordeal of trial which is vitiated by the illegality and which cannot result in conviction and sentence. It is, in our view, a fit case to exercise power under Section 482 of Code of Criminal Procedure to quash the impugned proceedings. 10. For the reasons mentioned above, the present criminal proceedings which is initiated based on the collection of alleged three packets containing heroine powder from the possession of the Petitioner on 24.7.1990 by adopting a procedure which are per se illegal because of non-compliance of the mandatory conditions laid down in Sub-section (4) and Sub-section (5) of Section 50 of the N.D.P.S. Act, 1985 and Sub-section (5) of Section 100 of the Code of Criminal Procedure, 1973 shall vitiate not only conviction and sentence based on such material, but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the Court. According to my considered opinion if the impugned order dated 24.8.1999 is not quashed illegality will be perpetuated resulting in great hardship to the Appellant. Thus, the present case is a fit case to exercise revisional power of the Court to quash the impugned order dated 24.8.1999. 11. I, hereby, quash the impugned order dated 24.8.1999. In the result the revision petition is allowed. The Petitioner is already on bail. Her bail bond is cancelled and sureties discharged. Petition allowed.