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Madhya Pradesh High Court · body

2006 DIGILAW 773 (MP)

BUDDHARAM v. STATE OF M. P.

2006-06-26

S.C.VYAS

body2006
S. C. VYAS, J. ( 1 ) THIS appeal is directed against the impugned judgment; order of conviction and sentence recorded by Special judge Neemuch in Special Case No. 50 of 2002, wherein and whereby appellant buddharam has been found guilty for commission of offence under Section 8/18 and in the alternative under Section 18 (B) and section 8/25 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter shall be referred to as the 'act') and sentenced him to undergo R. I. for ten years and fine of Rs. 1,00,000 in default to further undergo R. I. for two years. Appellant madhu has also been found guilty for commission of offence under Section 8/18 (B) and sentenced him to undergo R. I. for 10 years and fine of Rs. 1,00,000 in default to further under R. I. for two years. ( 2 ) THE prosecution case in short is that on receiving the secret information, on 12. 11. 2007 Supdt. Satyaveer and Sub-Inspector Nanakram along with preventive party reached at Ratangarh Singroli Naka at about 8. 30 a. m. Both the appellants were coming on a Motorcycle bearing registration no. RJ 22 IM 9671. They were intercepted by Sub-Inspector Nanakram; their names and addresses were ascertained. Sub-Inspector Nanakram informed both the appellants are in possession of opium and intend to take search. Both the appellants were also apprised with regard to their right to be searched in presence of a Magistrate or any Gazetted Officer and were also informed that Mr. Satyaveer, Supdt. of Narcotics is also a Gazetted Officer. Both the appellants gave their consent of their search. A memorandum of their consent was prepared and thereafter both the appellants were searched. Appellant Madhu was having a bag on his shoulder. When it was opened, it contained Opium in a plastic bag. On weighment it was found 4. 500 kg. Two samples of 24 gms. of seized opium were taken and sealed separately. The remaining opium was sealed and seized. Statements of both the appellants were recorded under Section 67 of the Act and they were arrested. Both the appellants have stated that they have equal share of the seized opium. Report Ex. P9 of the entire proceedings was sent by sub-Inspector to the Supdt. of Preventive party which has been treated as FIR. Statements of both the appellants were recorded under Section 67 of the Act and they were arrested. Both the appellants have stated that they have equal share of the seized opium. Report Ex. P9 of the entire proceedings was sent by sub-Inspector to the Supdt. of Preventive party which has been treated as FIR. One packet of sample was sent to the Opium and alkaloid Factory Neemuch for chemical examination. According to the examination report (Ex. P20) the seized contraband was found opium and opined that it contained 4. 90% Morphine. After completing usual investigation, charge-sheet was filed. Both the appellants were tried and convicted as aforesaid. ( 3 ) LEARNED Counsel for the appellants assailed the findings recorded by the Trial court mainly on the ground that the seized samples were not kept in the safe custody i. e. Malkhana. It has also been contended that provisions of Sections 42 and 50 of the act have not been complied with. Learned counsel has also argued that statements under Section 67 of the Act are of no avail to the prosecution and the statement given by appellant No. 2 Madhu cannot be used against appellant No. 1 Buddharam as a piece of evidence. It has also been contended that nothing has been recovered from the possession of appellant No. 1 Buddharam. The confession made by appellant Madhu before raiding party can only be used against appellant Madhu and not against appellant Buddharam. ( 4 ) PER contra, Learned Public Prosecutor mr. G. Chouhan appearing for respondents state has supported the findings recorded by the Trial Judge and argued that the Raiding Party was headed by Supdt. of Narcotics Department who himself was a Gazetted Officer. The evidence adduced by the prosecution shows that all the mandatory provisions of the Act have been fully complied with and there was no necessity of compliance of the provisions of Section 50 of the Act, as nothing has been recovered during personal search of any of the appellants. The alleged contraband was recovered from the bag which was carried by appellant Madhu on his shoulder. ( 5 ) I have anxiously gone through the statements of prosecution witnesses and the documents proved by prosecution during trial. Nanakram (PW1) Sub-Inspector has deposed in clear words that he had intercepted both the appellants who were coming on a motorcycle at Singroli Naka. ( 5 ) I have anxiously gone through the statements of prosecution witnesses and the documents proved by prosecution during trial. Nanakram (PW1) Sub-Inspector has deposed in clear words that he had intercepted both the appellants who were coming on a motorcycle at Singroli Naka. Their names and addresses were ascertained. It was found that both the appellants are the same persons regarding whom secret information was already received and recorded. Mr. Satyaveer, Supdt. of Narcotics has also corroborated PW1 Nanakram. He has deposed that secret information was received by him which was recorded as Ex. P13 and he was informed that two persons were coming by Motorcycle bearing registration No. RJ-22-IM-9671 carrying with them 5-6 kg. of Opium from Ratangarh. At Singroli Toll tax Naka they have been intercepted and alleged opium was found in their possession and recovered from them. The evidence of both these witnesses proved that provisions of Section 42 of the Act have been fully complied with. ( 6 ) SO far as the question of compliance of the provisions of Section 50 of the Act is concerned, it is well settled that when the contraband is not recovered in a personal search and it is recovered from a bag, then, it is not necessary to comply with the provisions of Section 50 of the Act. ( 7 ) THE provisions of Section 50 of the Act would not be applicable in the case in hand, because, this was not a case of personal search and the bag which was to be searched by SHO, which the appellant was carrying on his shoulder and the contraband was recovered from that bag. It is now well settled that in case of search of a bag or other article of the house of any person, it is not necessary to inform the person concerned that he may be taken to the nearest Gazetted Officer or to the Magistrate. In the matter of Kalema Tumba v. State of maharashtra the Apex Court has observed as under : "it was submitted by her that the appellant was not told before the search by the Officers of the Narcotic Control bureau that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate. In the matter of Kalema Tumba v. State of maharashtra the Apex Court has observed as under : "it was submitted by her that the appellant was not told before the search by the Officers of the Narcotic Control bureau that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate. This contention deserves to be rejected because only when the person of an accused is to be searched then he is required to be informed about his right to be searched in the presence of a Gazetted Officer or Magistrate. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. " ( 8 ) THUS, it is clear in the case in hand that in case of search of a baggage of a person, it is not necessary to comply with the provisions of Section 50 of the Act in full spirit as such search does not come in the category of search of a person. It is necessary when the personal search is required, then, the person was required to be apprised with ,his right under Section 50 of the Act and that too when the search was not being conducted by the Gazetted Officer himself. The provisions of Section 50 of the Act will apply in case of body search and when contraband is recovered from a bag which was carried on the shoulder of the accused, this provision does not apply. Therefore, this line of arguments of the learned Counsel also has no force. ( 9 ) LEARNED Counsel for appellant placed reliance on a judgment in the matter of State of Punjab v. Baldev Singh. Therefore, this line of arguments of the learned Counsel also has no force. ( 9 ) LEARNED Counsel for appellant placed reliance on a judgment in the matter of State of Punjab v. Baldev Singh. In the aforesaid matter, the Apex Court has held that: "the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (Empowered officer) to ensure that search of a person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted Officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of section 50 of the Act. The omission may not vitiate the trial as such, but, because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible-it cannot be disregarded by the prosecution except at its own peril". ( 10 ) SO far as the facts of present case are concerned vide panchanama Ex. P2 the appellant Madhu was fully apprised with his rights of Section 50 and thereafter appellant had given his consent that he is ready to give his personal search as well as the search of the bag which he was carrying on his shoulder to the SHO himself. Mr. Nanakram SI and other witnesses have also corroborated the same facts in their statements. The learned Trial Court has also dealt with this evidence and has rightly arrived at the conclusion that the I. O. has complied with the provisions of Section 50. Mr. Nanakram SI and other witnesses have also corroborated the same facts in their statements. The learned Trial Court has also dealt with this evidence and has rightly arrived at the conclusion that the I. O. has complied with the provisions of Section 50. Even, otherwise, looking to the facts of the case it was not necessary of the compliance of the provisions of Section 50, as the contraband was not recovered in personal search of the appellant, it was recovered from a bag which he was carrying on his shoulder. ( 11 ) THE learned Trial Court has discussed the evidence of S. I. Mr. Nanakram (PW1), satyaveer Supdt. of Narcotics (PW5), in detail who have given full description of the proceedings adopted by the Investigating officer at the spot. Though Panch witnesses akbar (PW2) and Yogesh (PW3) have been declared hostile as they do not support the prosecution case. But the statements of these hostile witnesses are not sufficient to discredit the evidence of Mr. Nanakram S. I. (PW1 ) and Mr. Satyaveer Chobe (PW5 ). ( 12 ) LEARNED Counsel appearing for appellants has argued that nothing has been recovered from the possession of appellant buddharam, according to the prosecution case itself. He was the person who was driving the motorcycle and appellant Madhu was the pillion rider and was carrying a bag on his shoulder. Except the statement recorded under Section 67 of the Act, there is nothing to show that appellant Buddharam was having knowledge that appellant madhu was in possession of the opium which was kept in the bag. Appellant buddharam and Madhu are residents of the same village. However, appellant Madhu in the statement (Ex. P4) recorded under Section 67 of the Act has stated that the alleged opium which was recovered from his possession belonged to both of them and having equal share. This statement given by appellant Madhu cannot be used against appellant Buddharam in the same trial in which he was tried with appellant buddharam. The statement recorded by narcotics Cell is not a confession before the police Officer. Therefore, this statement is admissible in evidence. Ex. P3 is the statement of accused appellant Buddharam recorded under Section 67 of the Act. Wherein, it has been stated that he is in the habit of consuming two grams (Tolas) of Opium per day. The statement recorded by narcotics Cell is not a confession before the police Officer. Therefore, this statement is admissible in evidence. Ex. P3 is the statement of accused appellant Buddharam recorded under Section 67 of the Act. Wherein, it has been stated that he is in the habit of consuming two grams (Tolas) of Opium per day. He has also stated that he was having 50% share in the seized opium which was recovered from Madhu and he has purchased the alleged opium, for his personal consumption. Had it been a true fact, then, nobody has prevented him to have the opium of his share in his personal possession. But nothing has been recovered from his personal possession and the entire alleged opium has been recovered from appellant Madhu. Therefore, in absence of other corroborative evidence his statement recorded under Section 67 of the Act cannot form sole basis of convicting the appellant buddharam, who was only driving the motorcycle at the time of alleged incident. ( 13 ) LEARNED Counsel for appellants was not able to establish that the evidence of nanakram S. I. and Mr. Satyaveer Chobe (PW5) Supdt. of Narcotics Department is unreliable. Nothing has been suggested or proved that they had any previous ill-will against appellant Madhu. The procedure prescribed under the Act have been fully complied with. The samples were duly sealed and sent for chemical examination on the very next day. The Chemical Examination found that the seal of the sample was found intact and was tally with the sample of the seal sent separately. ( 14 ) THE arguments advanced by, learned counsel for appellants with regard to the proper custody of the samples between the period of seizure to the period sending it to the chemical examination has no force. I have already discussed in earlier paras of the judgment in this context. ( 15 ) IN the result after examining the matter from all angles, I find that the Trial court has rightly recorded the finding of guilt against appellant Madhu for commission of offence under Section 8/18 of the Act and rightly convicted and sentenced thereunder. Therefore, the appeal of appellant madhu has no force and is hereby dismissed. ( 16 ) SO far as appellant Buddharam is concerned, there appears no evidence to prove that he was also having knowledge of the fact that appellant Madhu was carrying opium. Therefore, the appeal of appellant madhu has no force and is hereby dismissed. ( 16 ) SO far as appellant Buddharam is concerned, there appears no evidence to prove that he was also having knowledge of the fact that appellant Madhu was carrying opium. The prosecution has also not proved that he has conspiracy with appellant madhu for commission of the alleged offence. Therefore for want of reliable and cogent evidence, he deserves benefit of doubt. The Trial Judge erred in holding the appellant guilty of the offence as stated in para 1 of the judgment. The same finding deserves to be set aside. ( 17 ) CONSEQUENTLY, the appeal of appellant buddharam succeeds and is hereby allowed. The impugned finding of conviction and sentence, recorded against appellant buddharam are hereby set aside and he is acquitted of the charge under Section 8/18 or in the alternative under Section 8/29 and section 8/25 of the Act. The fine amount if already deposited, be refunded to the appellant. He be set at liberty forthwith, if not required in any other criminal case. Appeal allowed partly. .