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2007 DIGILAW 314 (DEL)

MAHABIR SINGH DAHIYA v. STATE THROUGH C. B. I.

2007-02-14

S.RAVINDRA BHAT

body2007
JUDGMENT S. Ravindra Bhat, J.-In these proceedings, the petitioners have sought for setting aside of an order dated 7.7.2006, by which the learned Additional Sessions Judge directed framing of charges under Section 18(c) of the Narcotic Drugs and Psychotropic Substances Act (the NDPS Act). 2. It was alleged that during the house search of Sh. A.S. Dahiya (son of accused), House No. 10834, Gali No. 18, Pratap Nagar. Delhi-110007 under Section 165, Code of Criminal Procedure in R.C. No.71(A)/95 ACB-1/DLI dated 21.8.1995 from 7 p.m. to 1.00 a.m. of 22.8.1995, one blue iron box was found lying under the dining table in the lobby of the first floor. On opening the iron box, it was discovered to contain one polypack of Rath Vanaspati of one litre wrapped in a poly bag of Sindhi Bharat Sweet. This polypack of Rath Vanaspati was found to contain a mass of black coloured material weighing about 750 gms. The material was sticky in nature with a pungent smell like opium, and was in the form of a lump. A the case was registered against Sh. Mahabir Singh Dahiya (accused No. 1) by FIR No. RC-06/95-SIU(XI) dated 22.8.1995 under Sections 8, 17, 18 and 25 of NDPS Act, 1985. The investigation was entrusted to Shri Hari Kumar, Inspector, CBI, SIU-XI. 3. The investigation officer submitted the final report under Section 173, Cr.P.C. in the Court on 15.2.1996 recommending closure of the case against accused for want of oral and documentary evidence indicating conscious possession and knowledge of opium in question, kept in the house, seized by Inspector, CBI, ACB-1, New Delhi on 22.8.1995, as against the accused persons. 4. The trial Court took cognizance against the accused Sh. M.S. Dahiya on 22.1.2000 and simultaneously ordered re-investigation of the case by CBI, requiring it to file a supplementary charge-sheet. The CBI reinvestigated the case and submitted the supplementary charge-sheet on 24.5.2000 by making Smt. Saroj Dahiya (wife of Sh. M.S. Dahiya) as Accused No.2 in this case. Aggrieved by the decision of the Additional Sessions Judge both the accused in this case filed a revision petition No. Crl. Rev. No. 20/2001 in this Court against the order dated 22.1.2000 and 24.5.2000 claiming the strained relations between distant relatives of the family of the Additional Sessions Judge and that of the accused. Aggrieved by the decision of the Additional Sessions Judge both the accused in this case filed a revision petition No. Crl. Rev. No. 20/2001 in this Court against the order dated 22.1.2000 and 24.5.2000 claiming the strained relations between distant relatives of the family of the Additional Sessions Judge and that of the accused. This Court, by order dated 31.10.2003 allowed the revision petition, and set aside the order of cognizance, taken by the trial Court and directed the Court to consider the question of taking cognizance and pass an appropriate order. 5. The Additional Sessions Judge took cognizance by order dated 10.2.2005. The petitioner, aggrieved by the decision, filed a revision petition Crl. Revision Petition No. 159/2005 against the order taking cognizance by the learned trial Court. The said revision petition was not accepted by this Honble Court. In the meanwhile, the trial Court framed the charges against both the petitioners by the order dated 7.7.2006. 6. It is contended that the safeguards prescribes under Sections 41-43 and 53-67 of the NDPS Act were not applied and. therefore, the prosecution cannot be allowed to continue. The recovery effected, as alleged, it is submitted, cannot be taken into account. It is submitted that as per the decision of the Supreme Court in Roy V.D. v. State of Kerala, VIII (2000) SLT 231 =IV (2000) CCR 236 (SC)= AIR 2001 SC 137 , unless an empowered officer under Section41 proceeds to collect materials or detains or arrests a person, or effects a seizure, the proceedings would be vitiated as inherently illegal. It was also submitted on behalf of the petitioners that the further safeguard prescribed under Section 50 of the Act was not followed; thus vitiating the seizure and the proceedings. 7. It was submitted by learned Counsel that even in the case of chance recovery (as is alleged to have occurred in the present case) only the empowered officer is entitled to proceed with the investigation and further stages. Reliance has been placed upon the judgment reported as State of Punjab v. Balbir Singh, I (1994) CCR 146 (SC)=1994 Cr. LJ 3702. Learned Counsel lastly submitted that the closure report of 15.2.1996 had clearly mentioned that the petitioners family were in occupation only of the ground floor and that the recovery was not effected from there. Reliance has been placed upon the judgment reported as State of Punjab v. Balbir Singh, I (1994) CCR 146 (SC)=1994 Cr. LJ 3702. Learned Counsel lastly submitted that the closure report of 15.2.1996 had clearly mentioned that the petitioners family were in occupation only of the ground floor and that the recovery was not effected from there. It was contended that in the absence of anything to link the possession of the substance with the petitioners, so as to establish their state of mind or domain as to constitute possession, they could not be implicated for the offence. Reliance was placed upon the judgment Avtar Singh v. State of Punjab, V (2002) SL T 331=IV (2002) CCR 36 (SC)= AIR 2002 SC 3343 . 8. Mr. R.C. Tewari, learned Counsel for the CBI relied upon a Notification dated 20.12.1985 of the Central Government for the submission that the Central Bureau of Investigation (CBI) was empowered to investigate certain offences under the NDPS Act. It was submitted that although the final report and the supplementary charge-sheet did indicate that the seizure Memo could not establish the recovery from the ground floor premises, yet on an overall assessment of the materials, the Court was justified in proceeding to frame charges. The Court took into consideration the fact that as per the report one Chander Bhan Solanki used to occupy the premises occasionally. He was the brother-in-law of the petitioner, and the son of one Smt. Lali Devi. Counsel contended that the question as to the legality of the recovery, ownership of the goods and even the premises from where they were recovered, were all materials that had to be considered at the stage of trial and the present case does not warrant interference under revisional jurisdiction. 9. The supplementary charge-sheet filed in Court after further directions reads, inter alia, is as follows: "During the course of further investigation, the copies of observation-cum-seizure memo, copy of charge-sheet in CBl case RC 67(A)/97-DLI against Mahabir Singh Dahiya under Section 13(2) read with Section 13(1)(e) of PC Act, 1988 and copies of papers relating to House No. 10834, Gali No. 18, Pratap Nagar, Delhi were collected from Delhi Branch. On scrutiny of the observations-cum-seizure memo of case RC 71(A)/95-DLI, it transpired that the said blue iron box from where 750 gms, of opium was recovered from the first floor of the Pratap Nagar house was not seized and no details of the said iron box was mentioned in the observation memo. Even the seizure meo relating to the proceedings of recovery of 750 gms, of opium on 22.S.1995 does not indicate any seizure of the said iron box from which opium was recovered. Even there is no indication about the ownership of the said iron box in the said seizure memo. The seizure memo prepared on the spot indicates that while the search proceedings in case RC 71 (A)/95-DLI were going on in the house No.1 0834, Gali No.18, Pratap Nagar, Delhi in possession of Sh. Mahavir Singh, one blue iron box was found lying under the dining table in the lobby on first floor of the said house. On opening this iron box, it was found to contain one poly bag of Rath Vanaspati of one litre wrapped in a poly bag of Sindhi Bharat Sweets. This poly bag of Rath Vanaspati was found to contain of mass of black coloured material weighing about 750 gms. This black coloured material was sticky in nature and had a pungent smell like opium and in the form of lump. From appearance and pungent odour, this sticky material seem to be opium. In absence of the seizure of the said iron box on the date of incident it could not be made possible to prove the ownership of the box as the other contents could not be established. Even the lone independent witness namely Mr. Raj Kumar, Messenger, FCI also could not recollect the other contents of the said iron box at this belated stage. However, Mr. Rajkumar, independent witness confirmed that during the search blue iron box lying under the dining table in the lobby of the first floor of house No. 10834, Gali No. 18, Pratap Nagar, Delhi was found containing opium which was recovered in his presence.” xxxxxxxxx “......During further investigation, it has also come on evidence that this house is a three storeyed structure and the ground floor was being occupied by Mahavir Singh Dahiya, Smt. Saroj Dahiya, Smt. Renu (second wife of Anup Dahiya along with her son Sarthak). The first floor was in occupation of Smt. Lali Solanki, mother-in-law of Mahavir Singh Dahiya, who was not permanently residing in this house and whenever she visited, she was occupying the first floor. Chander Bhan Solanki was also not permanently residing in the said house and he also used to stay in the first floor along with his mother as and when he visited the said house. The second floor was being occupied by a tenant namely Hari Singh Godara. After vacating the said portion of the house by Sh. Godara, the same was not rented out to anyone else. There is a inherent weakness in this case as the ownership of the iron box was not established at the time of seizure. There is also no evidence to fix the responsibility of keeping the opium inside the box or having the knowledge of opium being kept in the house on any particular person at this belated stage. In short, the conscious possession of the opium by any of the family members could not be proved during further investigation." 10. The facts here are that during the course of search by the CBI in the premises of the petitioner, seizure was effected of an iron box said to contain 750 gms of opium. The incident took place in 1995. The iron box was alleged to belong to one Chander Bhan Solanki, who along with his mother Smt. Lali Solanki, used to reside on the first floor. Smt. Lali originally owned the entire building namely, H-10834 - it was, however, apparently transferred to the second petitioner. Yet the petitioners were in possession only of the ground fllor. What has emerged from the materials before the Court are that the iron box was recovered from the first floor, and it bore the name of Chander Bhan Solanki. On the basis of these materials a cancellation report was filed. Yet, the Court directed filing of a further charge sheet. The supplementary charge sheet in my considered opinion has not brought out any new evidence; it has merely drawn fresh inferences. However, it has made certain crucial observations with regard to the recoveries. 11. The Supreme Court, in Roy. V.D. (supra) held as follows: "15. Yet, the Court directed filing of a further charge sheet. The supplementary charge sheet in my considered opinion has not brought out any new evidence; it has merely drawn fresh inferences. However, it has made certain crucial observations with regard to the recoveries. 11. The Supreme Court, in Roy. V.D. (supra) held as follows: "15. It is thus seen that for exercising powers enumerated under Subsection (1) of Section 42 at any time whether by day or by night a warrant of arrest or search issued by a Metropolitan Magistrate or a Magistrate of the I Class or any Magistrate of the II Class who has been specially empowered by the State Government in that behalf or an authorisation under Sub-section (2) of Section 41 by an empowered officer is necessary. Without such a warrant or an authorisation an empowered officer can exercise those powers only between sunrise and sunset. However, the proviso permits such an empowered or authorised officer to exercise the said powers at any time between sunset and sunrise if he has reason to believe that such a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender and he records the grounds of his belief. 16. Now, it is plain that no officer other than an empowered officer can resort to Section 41 (2) or exercise powers under Section 41 (1) of the NDPS Act or make a complaint under Clause (d) of Sub-section (1) of Section 36A of the NDPS Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41 (2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial. 17. To the same effect is the view expressed by the Court in State of Punjab v. Balbir Singh. (1994) 3 SCC 299 =(1994 AIR SCW 1802= AIR 1994 SC 1872 =1994 Cri LJ 3702). 17. To the same effect is the view expressed by the Court in State of Punjab v. Balbir Singh. (1994) 3 SCC 299 =(1994 AIR SCW 1802= AIR 1994 SC 1872 =1994 Cri LJ 3702). In para 13 Jayachadra Reddy, J. speaking for the Court observed thus (para 14 of AIR) : Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial. 18. It is wel1 settled that the power under Section 482 of the Cr.P.C. 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 Cr.P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice. 19. The learned Additional Solicitor General, however, relying upon conclusion No.3 in para 57 of Stale of Punjab v. Baldev Singh. (1999) 6 SCC 172 =( AIR 1999 SC 2378 , contends that a search and seizure in violation of Sections 41 and 42 of the NDPS Act does not vitiate the trial but would render the recovery of illicit article suspect and would only vitiate the conviction and sentence of the accused if the conviction has been recorded solely on the basis of such illicit article, so the High Court was right in not quashing the proceedings. We are afraid, we cannot accede to the contention of the learned Additional Solicitor General. We are afraid, we cannot accede to the contention of the learned Additional Solicitor General. The conclusion, referred to above, may be extracted here (Para 55 of AIR): 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 of 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. 20. It may be noticed that that conclusion was reached by the Constitution Bench in the context of non-compliance of Section 50 of the NDPS Act. While emphasising 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 NDPS Act, it was held that the recovery of the illicit article in violation of Section 50 of the NDPS 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 NDPS Act. In the instant case, however, the search and recovery were by an officer who was not empowered so to do. Further in Balbir Singhs case ( AIR 1994 SC 1872 ) (supra) this Court took the view that arrest and search in violation of Sections 41 and 42 of the NDPS Act being per se illegal would vitiate the trial. Therefore, the said conclusion cannot be called in aid to support the order under challenge. If the proceedings in the instant case are not quashed. the illegality will be perpetuated resulting 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. Therefore, the said conclusion cannot be called in aid to support the order under challenge. If the proceedings in the instant case are not quashed. the illegality will be perpetuated resulting 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 Cr.P.C to quash the impugned proceedings." 12. The expression conscious possession under the NDPS Act was explained in Madan Lal v. State of Himachal Pradesh, V (2003) SLT 94=IIII (2003) CCR 230 (SC)=2003 (109) CRLJ 3868 SC, as follows: "The expression possession is a polymorphous term which assumes different colours in different contexts. It may carry different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors., AIR 1980 SC 52 =1979 Cr. LJ 1390, to work out a completely logical and precise definition of "possession" uniformly applicable to all situation in the context of all statutes. The word conscious means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal v. The State of M.P., AIR 1972 SC 1756 =1972 Cr. LJ 1187, possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. The word possession means the legal right to possession [Health v. Drown (1972) (2) All ER 561 (HL)]. In an interesting case it was observed that where a person keeps his fire arm in his mothers flat which is safer than his own home, he must be considered to be in possession of the same [Sullivan v. Earl of Caithness, 1976 (1) All ER 844 (QBD)]. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition in low. Similar is the position of presumption available in law. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition in low. Similar is the position of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles." 13. The investigation had clearly stated that there is weakness in this case as the ownership of the iron box was not established at the time of seizure. There is also no evidence to fix the responsibility of keeping the opium inside the box or having the knowledge of opium being kept in the house by any particular person at this belated stage. The supplementary report itself stated that- ........1n short, the conscious possession of the opium by any of the family members could not be proved during further investigation." The preceding discussion on Section 41 clarifies that it is only an empowered official, in terms of Sections 41 and 42 of the Act that a search can be carried out. V.D. Roys decision is an authority on a proposition that unless the search and seizure conforms to the procedural safeguards, the trial or further proceedings would be vitiated, justifying exercise of jurisdiction under Section 482. There is no material on record to suggest that any empowered officer authorized the seizure, or that the matter was proceeded with as per provisions of the Act, after the recoveries were effected. Clearly therefore, the CBI proceeded with the case without following the procedure, mandatorily required to be followed. 14. On an overall conspectus of the facts of this case it is apparent that neither was the seizure effected in accordance with provisions of Sections 41 and 42 of the Act; even the materials on record do not justify a prima facie view that the petitioners could be said to have possession of the opium in question. It was apparently recovered from the premises where the petitioners were not residing and admittedly were not in possession of. Mere ownership of the residential premises, would not ipso facto lead to the conclusion that the box recovered was with the conscious knowledge so as to amount to possession within the meaning of the expression under the Act. 15. It was apparently recovered from the premises where the petitioners were not residing and admittedly were not in possession of. Mere ownership of the residential premises, would not ipso facto lead to the conclusion that the box recovered was with the conscious knowledge so as to amount to possession within the meaning of the expression under the Act. 15. For the above reasons, I am satisfied that the charges framed cannot be sustained. The revision petition is accordingly allowed. The orders of the Court below framing the charges the NDPS Act are hereby quashed. The petition is accordingly allowed. Petition allowed.