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Madhya Pradesh High Court · body

2007 DIGILAW 678 (MP)

Shamsuddin v. State of M. P.

2007-07-04

S.L.KOCHAR

body2007
JUDGMENT 1. The appellant has filed this appeal challenging his conviction under section 8/18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short "the Act") sentenced to RI for ten years and fine of rupees one lakh, in default whereof to undergo RI for three years, passed by learned Sessions Judge, Ratlam in Sessions Trial No. 94/1993, judgment dated 22.8.1994. 2. According to the prosecution case, SHO-Rohni Prasad Ahirwar (PW 8) received information from mukbir on 13.6.1993 that appellant was going having illegal possession of opium from Gandhi Nagar to Railway Station in Ratlam, SHO called the witnesses and informed about the mukbir information. He prepared panchnama. (Ex. P-9) and also sent information to superior officers, thereafter proceeded towards the place of information along with police force and the panch witnesses Shyam Tiwari (PW 5) and Kailash (PW 6). Rohni Prasad (PW 8) and the police force found the appellant near Dev Narayan Temple where they had also meeting with CSP Shri S.P. Singh, who was not examined. Appellant was stopped by them and Shri Singh disclosed the appellant about information and illicit possession of opium by him and also expressed his intention to search him. Appellant gave his consent to be searched by Shri Singh. Panchnama to this effect Ex. P-10 was prepared. In search, in the bag of appellant one kg opium was found. Shri Singh completed the sampling proceeding and arrested the appellant, thereafter brought him to the police station where FIR (Ex. P-12) was recorded. Seized opium in sealed condition was deposited in Malkhana of the police station and one sample was sent through constable for chemical analysis. Analyasis was done by Scientist Vinod Lohkare (PW 7) who issued analysis report (Ex. P-11). According to this report and the statement of Lohkare, sample was containing 1.78% morphin. After completion of the investigation, the appellant was charge-sheeted for the abovementioned offence. 3. The appellant abjured his guilt and his defence was that he was falsely implicated by his landlord who wanted him to vacate the house. The landlord was having acquaintance and visiting terms with the police personnels. He examined two witnesses in defence whereas prosecution has examined in all seven witnesses. The learned trial Court found the appellant guilty, convicted him as mentioned hereinabove. 4. The landlord was having acquaintance and visiting terms with the police personnels. He examined two witnesses in defence whereas prosecution has examined in all seven witnesses. The learned trial Court found the appellant guilty, convicted him as mentioned hereinabove. 4. The learned counsel for appellant has put forth only argument for consideration by this Court, that there is no compliance of mandatory provision of section 50 of the Act. According to the learned counsel, before taking search, appellant was not made aware of his right to be searched by the nearest gazetted officer or Magistrate. Therefore, the whole proceedings stand vitiated and appellant is entitled to be acquitted. 5. On the other hand, the learned counsel for State has supported the impugned judgment of conviction. According to him, the recital in document (Ex. P-10), consent panchnama is specifically disclosing the fact that appellant in his own handwriting gave his consent to CSP Shri S.P. Singh. 6. Having heard the learned counsel for the parties and after perusing the entire record, this Court is of the opinion that there is no compliance of mandatory provision of section 50 which reads as under: "50. Conditions under which search of persons shall be conducted.-- (1) 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 requires, 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. (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. (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 authorised 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 seventy-two hours send a copy thereof to his immediate official superior". 7. In view of Clause (1) of section 50, it is crystal clear that at the time of search of any person, officer duly authorised is under obligation to take the person if he desires for his search to the nearest gazetted officer or the nearest Magistrate. Provision under section 50 of the Act has been interpreted in catena of Supreme Court judgments and the law as stand today is that appellant/person is required to be informed about his right to be searched in presence of a Magistrate or a gazetted officer by the Investigating Officer or the police officer authorised as per provision under section 42 of the Act & if the accused is not apprised of his right to be searched in presence of gazetted officer or Magistrate, then his search and seizure of the contraband article is wholly illegal and in contravention of provisions of section 50 of the Act. (See 2000 CrLJ 3181 , C. Ali v. State of Kerala, AIR 2000 SC 733 , Kalayat Nassar v. State of Kerala, AIR 2000 SC 2790 , Ahmed v. State of Gujarat, 2001 (2) EFR SC 219, K. Mohanana v. State of Kerala, 2002 SCC (Cri) 791, Beckodan Abdul Rahiman v. State of Kerala and judgment dated 28th November, 2006 passed by this High Court in Manalal v. State of M.P.. 8. On perusal of Ex. 8. On perusal of Ex. P-10, consent letter prepared by CSP Shri Singh nowhere it is mentioned that appellant was apprised of his right to be searched by gazetted officer or Magistrate. The recital in Ex. P-10 said to be in the handwriting of CSP Shri Singh is as follows: ÞeSa uxj iqfyl v/kh{kd gw¡ ,l-ih- flag jktif=r gw¡A eq>s lwpuk feyh gS fd vki u"khys inkFkZ ysdj tk jgsa gSA eq>s vkidh ryk"kh ysuh gSAß 9. Abovementioned panchanama/memorandum is nowhere carrying the fact of giving information to the appellant that he was having right to be searched by Gazetted Officer or Magistrate. In this panchnama CSP Shri Singh has disclosed his identity as gazetted officer and information received about the appellant as well as expressed his intention to take search of the appellant. These contents are not fulfilling the requirement of section 50 of the Act as discussed hereinabove. 10. Ex. P-10 has been proved by Rohni Prasad Ahirwar (PW 8), SHO. This witness has also nowhere stated in his statement that appellant was made aware of his right to be searched by the gazetted officer or Magistrate. According to this witness, Ex. P-10 was prepared by him and CSP Shri Singh only signed on that, but signature has not been proved by him in the Court by marking the same on the documents. When appellant was not apprised of his right, then according of consent by him by his own handwriting on document Ex. P-10 to be searched by the police officer who trapped him, is of no avail. The consent given by the appellant in writing is not his consent to be searched by SHO or CSP. He has written his name, address and that he is ready to give search. The evidence further discloses that in pursuance of the consent given by the appellant on document Ex. P-10 appellant was not searched by CSP Shri Singh. He was searched by SHO who was not the gazetted officer and who had not expressed his intention to search the appellant. The intention was shown to the appellant as per memorandum Ex. P-10 by CSP Shri Singh and CSP Singh has not been examined. Seizure memo and search memo (Ex. P-5 and P-6) are in the handwriting of SHO R.P. Ahirwar (PW 8) and not in the handwriting of Shri Singh. The intention was shown to the appellant as per memorandum Ex. P-10 by CSP Shri Singh and CSP Singh has not been examined. Seizure memo and search memo (Ex. P-5 and P-6) are in the handwriting of SHO R.P. Ahirwar (PW 8) and not in the handwriting of Shri Singh. The signature of CSP Shri Singh on search and seizure (Ex. P-5 and P-6) are also not duly proved as per provision under section 67 of the Evidence Act, which reads as under: "67. Proof of signature and handwriting of person alleged to have signed or written document produced -- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleed to be in that person's handwriting must be proved to be in his handwriting." 11. On the documents, nowhere signature of CSP Shri Singh have I been marked. SHO Ahirwar (PW 8) has also nowhere stated in his statement that seizure memo (Ex. P-5) and search memo (Ex. P-6) were I prepared in presence of CSP Shri Singh and CSP Singh signed on both the documents. 12. In view of these serious legal infirmities in search and seizure of the appellant and clear breach of mandatory provision of section 50 of the Act, the conviction of the appellant is not sustainable. Consequently, this appeal is allowed. The impugned judgment of conviction and sentence of the appellant are hereby set aside. The appellant is on bail. His bail bond and surety bond stand discharged.