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2005 DIGILAW 231 (GAU)

Dipu Ahmed v. State of Assam

2005-03-17

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Heard the learned Counsel for both sides. 2. Both the appeals have been heard together as they have arisen out of a common judgment and Order dated 12.10.2001 passed by the Sessions Judge, Golaghat in Special Case No. 4 of 2000 whereby the two accused Appellants were convicted under Section 17 of the NDPS Act, for short the Act and sentenced each of them to undergo Rigorous Imprisonment for 10 years each and to pay a fine of Rs. 1,00,000/- in default further RI for one year. 3. The prosecution case in brief is that on 23.9.2000 on receipt of certain information the Officer-in-Charge of Golaghat Police Station along with other staff went to the Golaghat Public Bus Stand and found the accused Appellant Chandra Shyam sitting in a bus. The person of the said accused was searched and 110 grams of opium was found in his possession and recovered the same. The accused was apprehended and thereafter the said accused Chandra Shyam alleged to have informed that he purchased the said opium from one Dipu Ahmed, the co-accused in Criminal Appeal No. 394 of 2001 for consideration of a sum of Rs. 500/- and on being led by Chandra Shyam, police searched the house of the accused Appellant Dipu Ahmed and they found 2 Kg. 800 Gms. of opium from the granary of accused Dipu Ahmed and both the accused Appellants were apprehended. The seized sample of opium was sent to the Forensic Science Laboratory who submitted a report that both the samples gave positive test for opium. 4. The two accused Appellants were tried by the Sessions Judge, Golaghat in Special Case No. 4 of 2000. During trial the prosecution has examined as many as seven witnesses. The two accused Appellants were examined under Section 313, Code of Criminal Procedure and the defence plea is of denial. On conclusion of the trial, the two accused Appellants were convicted and sentenced by the trial Court as aforesaid. 5. We have perused the evidence on record and find that on the date of occurrence 110 gms. of opium was recovered on search of the person of the accused Appellant Chandra Shyam. Two witnesses have stated that the said opium was carried by the accused Chandra Shyam and the same was recovered from the pocket of his long pant worn by the accused Appellant. of opium was recovered on search of the person of the accused Appellant Chandra Shyam. Two witnesses have stated that the said opium was carried by the accused Chandra Shyam and the same was recovered from the pocket of his long pant worn by the accused Appellant. The learned Counsel for the accused Appellant has submitted that the search of the person of the accused was in violation of Section 50 of the NDPS Act and as such the entire search is vitiated and no conviction can be based on such search. Nurul Islam (PW 1) and Arun Kumar Sahu (PW 2) are the two police officers and they have deposed that they had searched the person of the accused Chandra Shyam and found opium inside the pocket and thereafter it was seized. Both PWs 1 and 2 have categorically admitted that before making search of the person of Chandra Shyam, the accused was not informed that he has right to get himself searched in presence of the Magistrate. Thus, from the statement of PWs 1 and 2, we find that accused Chandra Shyam was not informed about his right of search made in presence of the Magistrate. 6. The law regarding the above subject was considered by the Apex Court in the case of State of Punjab v. Baldev Singh, reported in AIR 1999 SC 2378 , wherein the Apex Court held as follows: On the basis of the reasoning and discussion above, the following conclusions arise. (1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. However, such information may not necessarily be in writing. (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided under Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. The use of evidence collected in breach of the safeguards provided under Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from the Sub-section (1) of Section50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search. (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) That the judgment in Pooran Mal's Case, AIR 1974 SC 348 , cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search. (10) That the judgment in Ali Mustaffa's Case, 1994 AIR SCW 4393: AIR 1995 SC 244 , correctly interprets and distinguishes the judgment in Pooran Mal's Case, AIR 1974 SC 348 , and the broad observations made in Pirthi Chand's Case, AIR 1996 SCW 422: AIR 1996 SC 977 : 1996 Cri LJ 1354 and Jasbir Singh's case, are not in tune with the correct exposition of law as laid down in Pooran Mal's case. 7. During the course of argument it was submitted that the Officer-in-Charge of the Police Station (PW 1) was the Investigating Officer and as such there was no need to inform the accused about his right under Section 50 of the Act. The submission made was answered by the Apex Court in the case of Ahmed v. State of Gujarat, reported in 2000 Cri LJ 4008 wherein the Apex Court observed as follows: In view of the aforesaid conclusions of the Constitution Bench, the submission of Mr. M.N. Shroff, appearing for the State-Respondent, that the requirement of compliance of Section 50 will not arise, if a search is going to be made by an empowered officer, who happens to be a Gazetted Officer, is devoid of any substance inasmuch as this Court in no uncertain terms has held that when an empowered officer or a duly authorized officer, acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50of being taken to the nearest Gazetted Officer or the nearest Magistrate for marking the search. In view of the aforesaid position of law and in view of the evidence of PW 1, as indicated in the earlier part of this judgment, the accused himself having wanted to be searched before a Gazetted Officer or a Magistrate and the same having been denied, there cannot be any doubt that failure on the part of the prosecution in complying with the provisions of Section 50, renders the recovery of illicit article suspect and vitiates the conviction and sentence of the accused, since the conviction in the case in hand is based solely on the alleged possession of Charas, which was recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. 8. On perusal of the impugned Judgment, we find that the plea of non-compliance of the provisions of Section 50 of the Act so far the accused Appellant Chandra Shyam is concerned was raised before the trial Court and it was noted in the impugned judgment. However, the trial Court for the reasons best known to it, has not dealt with the above position and has not recorded any finding and accordingly the benefit was not extended to the accused. 9. In the present case, the conviction of the accused Appellant Chandra Shyam for his possession of 110 gms. of opium which is allegedly recovered from his person during a search conducted is in violation of the provisions of Section 50 of the Act. Hence, we allow Criminal Appeal No. 398 of 2001 and acquit the accused Appellant Chandra Shyam and he is set at liberty forthwith. The accused Appellant Chandra Shyam be released from the jail custody forthwith, if not wanted in connection with any other case. 10. Now coming to the case of accused Appellant Md. Dipu Ahmed, the prosecution evidence is that on the basis of the information received from the co-accused, the house and premises of the accused Dipu Ahmed was searched in presence of the witnesses. PWs 1 and 2 have stated about the recovery of 2 Kg. 800 gms. of contraband opium from the granary of the accused Appellant. The said granary was situated inside the campus of the accused having a distance of five feet from the living house. PWs 1 and 2 have stated about the recovery of 2 Kg. 800 gms. of contraband opium from the granary of the accused Appellant. The said granary was situated inside the campus of the accused having a distance of five feet from the living house. The location of granary is not in dispute and although PWs 1 and 2 have deposed about the recovery and seizure of the opium, PWs 3, 4 and 5 are the witnesses in respect of recovery from the co- accused Chandra Shyam. PWs 6 and 7 are the two witnesses who were allegedly present at the time of search of the house of the accused Appellant Dipu Ahmed. PW 6 has deposed that on the date of occurrence, police called him to the house of the accused Dipu Ahmed and he was shown the packet of opium and it was seized in his presence. The witness has been declared hostile by the prosecution. The evidence of the other witness PW 7 is also of the same vein. Both of these witnesses have deposed their presence at the time of seizure and their signature on the seizure list. 11. Relying on the evidence of PWs 6 and 7, it is submitted by Mr. Choudhury that the prosecution has failed to establish the seizure and that to from the conscious possession of the accused. In the present case, we find that the house of the accused Appellant Dipu Ahmed was searched by police in presence of PWs 6 and 7 and it has been well established and as a matter of fact this has been admitted by the accused in his statement under Section 313, Code of Criminal Procedure. The witnesses have deposed about their signatures on the seizure list and the accused has admitted that he put the signature on the inventory although the accused claimed that the signature was obtained by force. The evidence further shows that the search and seizure was conducted on the basis of the information given by the co-accused Chandra Shyam. PW 2 has also stated that granary was closed and they found the opium in polythine packet hidden under the paddy hatch. Merely because PW 7 has deposed that he has not fully supported the prosecution case, the evidence of PW 1 and PW 2 can not be thrown over board. PW 2 has also stated that granary was closed and they found the opium in polythine packet hidden under the paddy hatch. Merely because PW 7 has deposed that he has not fully supported the prosecution case, the evidence of PW 1 and PW 2 can not be thrown over board. Not to speak of any cross-examination, there was no suggestion that PW 1 and PW 2 had any animus with the accused Dipu Ahmed and as such we see no reason on the part of PWs 1 and 2 to depose falsely implicating the involvement of the accused in the crime. The trial Court also relied on the evidence of PWs 1 and 2 and there was no ground to disbelieve the testimony of PWs 1 and 2 and the seizure has been well established. In this case, the report of the Forensic Science Laboratory (Ext. 7) has not been challenged. Further we find that the co-accused had claimed to have purchased 110 gms. of opium by paying Rs. 500/- to Dipu Ahmed and the seized contraband was found in his possession. We, therefore, concur with the finding of the trial Court that 2 Kg. 800 gms. of opium was found in possession of the accused Dipu Ahmed. The accused Appellant has not given any explanation as regards the possession of the contraband and as such the presumption under Section 54 of the Act is available to the prosecution. 12. In view of what has been stated above, we hold that the conviction of the accused Appellant Dipu Ahmed under Section 17 of the NDPS Act stands well established and his conviction needs no interference. At this stage, the learned Counsel for the accused Appellant has submitted that considering the age of the accused Appellant the benefit under Section 33 of the Act may be extended to him. On perusal of the record, we find that at no stage, the accused claimed that he was 18 years of age at the relevant time. The seizure was made in the month of September, 2000 and the accused was examined by the trial Court in December, 2001, i.e. after one year of the incident and at that point of time, the accused claimed to be 21 years of age. The seizure was made in the month of September, 2000 and the accused was examined by the trial Court in December, 2001, i.e. after one year of the incident and at that point of time, the accused claimed to be 21 years of age. Thus we hold that the accused was 20 years at the relevant time and he was not a juvenile or below 18 years of age at the relevant point of time. There is no other oral or documentary evidence on record in support of the above statement and hence we hold that the accused is not entitled to any benefit under Section 33 of the Act. The sentence imposed on the accused Appellant Dipu Ahmed is the minimum under the law. 13. In the result, Criminal Appeal No. 398 of 2001 stands allowed and the other Criminal Appeal No. 394 of 2001 stands dismissed. Appeal allowed.