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Madhya Pradesh High Court · body

2007 DIGILAW 777 (MP)

Kailash S/O Tulsiram v. State Of M. P.

2007-07-23

S.L.KOCHAR

body2007
JUDGMENT : The appellant has challenged his conviction under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act) and sentence of R.I. for ten years and fine of Rs. 1,00,00/-, in default of payment of fine to suffer further additional R.I. for two years passed by the learned Additional Sessions Judge, Garoth District Mandsaur in Sessions Trial No. 66/91 by judgment dated 1-8-1994. 2. According to the prosecution case, on 18-11-1990, the Station House Officer of P. S. Bhanpura (PW-8) Shri R. S. Jhala received secret information from Mukhbir that the appellant was coming from Babulda in a bus having smack in his possession. The Station House Officer Shri Jhala prepared a Panchanama of Mukhbir information and sent the intimation to this effect to the senior officers. Thereafter, with police staff, weighing instruments and sealing material proceeded towards barrier of Lotkhedi village. He was also accompanied by two witnesses named PW-3 Bhupendra and PW-4 Madansingh. They were apprised of Mukhbir secret information. On Lotkhedi barrier, a bus owned by Jaiswal Bus Service reached and the appellant was apprehended and the Station House Officer disclosed him about receiving of information regarding appellant's being in illegal possession of smack/heroin. He was afforded opportunity of being searched in presence of Gazetted Officer or Magistrate as per provision under section 50 of the NDPS Act. The appellant disclosed his intention to be searched by the Station House Officer. Thereafter, he was searched and from his possession one gram and nine milligram smack was seized. A sample was sent to the Laboratory and the Chemical Examiner's report is Ex.P/24 showing that the sample was containing morphine. After due investigation, the appellant was charge-sheeted for the aforementioned offence. 3. The appellant refuted the charges and his defence was that the police was unnecessarily harassing him. He was sitting on his betel shop and was called by the police. Thereafter, his signature were obtained on 2/3 papers. He was not knowing as to for what purpose his signatures were taken. He did not examine any witness in his defence. Learned trial Court, on conclusion of trial, finding the appellant guilty, convicted and sentenced him, as indicated hereinabove. 4. Learned counsel for the appellant has submitted that the conviction of the appellant is based only on the statements of the police witnesses. He did not examine any witness in his defence. Learned trial Court, on conclusion of trial, finding the appellant guilty, convicted and sentenced him, as indicated hereinabove. 4. Learned counsel for the appellant has submitted that the conviction of the appellant is based only on the statements of the police witnesses. Both the panch-witnesses have turned hostile and have not supported the prosecution case. There is no compliance of mandatory provisions of section 50 of the NDPS Act. The appellant was not afforded any opportunity of being searched in presence of any Gazetted Officer or a Magistrate as is required under section 50 of the NDPS Act. On the other hand, learned counsel appearing for the respondent/State has supported the judgment and finding arrived at by the learned trial Court. He has submitted that the Constitution Bench of five Judges in the case of State of Punjab vs. Baldeosingh, (1996) 6 SCC 172 para 32 has not expressed any opinion as to whether the provisions of section 50 of the NDPS Act are mandatory or not. Learned State counsel has also submitted that the Court is required to see whether there is sufficient compliance of requirement of section 50 or not. 5. Having heard learned counsel for the parties and after perusing the entire record, this Court is of the view that there is no substance in this appeal and the same is liable to be dismissed. 6. There is no law that the statements of the police officers cannot be relied upon. The requirement is only to scrutinize their testimony with care and caution, if independent witnesses are not supporting the case. The Supreme Court in the case of Khalek Shaikh vs. State of West Bengal, (2006) 7 SCC 439 in para 9 has held as under :- "The first issue relates to non-examination of independent witnesses. The Courts below analyzed in detail the factual position and came to hold as to why it was not possible for the prosecution to examine any independent witness. There is no prohibition on a conviction being recorded on the basis of the testimony of official witnesses if they are found to be trustworthy." 7. In the instant case, though two independent witnesses namely, PW-3 Bhupendra and PW-4 Madansingh have been examined, but they have turned hostile although PW-3 Bhupendra admitted his signatures on the documents of search and seizure Ex.P/6 and P/7. In the instant case, though two independent witnesses namely, PW-3 Bhupendra and PW-4 Madansingh have been examined, but they have turned hostile although PW-3 Bhupendra admitted his signatures on the documents of search and seizure Ex.P/6 and P/7. He has also denied his case-diary statement Ex.P/8. This witness has also admitted presence of his signature on sealed packet (Article B) which was kept in sealed packet (Article A) and was opened in his presence by the Court. This witness has stated that the signatures were taken on blank papers though denied any kind of use of pressure or force by the police. More or less, same is the statement of PW-4 Madansingh. The testimony of both these witnesses is not at all helpful to the prosecution and the learned trial Court has rightly discarded it. 8. The statement of PW-8 R. S. Jhala Station House Officer who received the information from Mukhbir, thereafter called two panch-witnesses, proceeded towards the Lotkhedi barrier and conducted search and seizure, has stated that he was posted on 18-11-1990 as Station House Officer at Bhanpura Police Station. On receipt of information form Mukhbir, he prepared a panchnama, recorded the same in daily diary and sent one copy of information through Constable Madansingh (PW-9). Madansingh (PW-9) in his turn supported the version of Shri Jhala and stated that he was given a sealed envelop for its submission to the office of SDO (P), Garoth and he gave that envelop to Kailash Narayan, Reader in the said office and obtained acknowledgment Ex.P/2 from him. In cross-examination, he stated that the envelop was opened by Kailash Narayan and he returned one copy giving receipt thereof giving one copy and kept one copy with him. 9. PW-8 Shri R. S. Jhala has also stated that when the bus reached Lotkhedi barrier, the appellant alighted from it and was caught with the help of police force accompanying him. The appellant was made aware of Mukhbir information. Thereafter, he was given option to be searched by a Gazetted Officer or the Magistrate or by Shri Jhala himself. 9. PW-8 Shri R. S. Jhala has also stated that when the bus reached Lotkhedi barrier, the appellant alighted from it and was caught with the help of police force accompanying him. The appellant was made aware of Mukhbir information. Thereafter, he was given option to be searched by a Gazetted Officer or the Magistrate or by Shri Jhala himself. In presence of the panch-witnesses and police witnesses, the appellant gave consent of being searched by Shri Jhala and on search being made, from his possession one match box was found and on opening it, in a small packet powder was present which was confirmed by Shri Jhala and panch-witnesses as well as police personnel by taste, smell and burn. On weighing, it was one gram and 30, Mgs. It was seized and sealed in presence of the witnesses. The appellant was told the reason for his arrest and also gave one copy of the seizure memo. Shri Jhala proved the Mukhbir information-panchnama Ex.P/10, information whereof was sent to the SDO(P) Ex.P/2. Option given to the appellant regarding his search by the Magistrate of Gazetted Officer in writing and on the same he had given his consent to be searched by this witness (Shri Jhala) vide Ex.P/3. This Court has perused the document Ex.P/3 which is conveying the information in the following manner :- "I SHO received information that you are illegally having smack, therefore, you are required to be searched. If you wish to be searched in presence of a Gazetted Officer or Magistrate First Class, your search can be taken in their presence." After these recitals, the signature of the appellant at place C to C, thumb impression of Bhupendra (PW-3) at place A to A and signature of Shri Jhala at place B to B, were made. Thereafter, the appellant gave his consent in the following manner :- "I have no objection to be searched by you and voluntarily ready to be searched by you." After this, at place D to D there is signature of the appellant. 10. In view of the aforesaid notice given to the appellant, in the considered view of this Court, the Station House Officer PW8 R. S. Jhala has duly complied with the requirements of section 50 of the NDPS Act. 10. In view of the aforesaid notice given to the appellant, in the considered view of this Court, the Station House Officer PW8 R. S. Jhala has duly complied with the requirements of section 50 of the NDPS Act. The Supreme Court in the case of Prabha Shankar Dubey vs. State of M. P., (2004)(1) Crimes 102 (SC) has held in paras 7, 8, 9 and 10 as under :- (7) It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed or intended, the Court has to see that substance and not the form of intimation. Whether the requirements of section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula. (8) Section 50 does not involve any self-incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transparency in the process of search has been given the primacy in Raghbir Singh vs. State of Haryana, 1996(2) SCC 201 , the true essence of section 50 was highlighted in the following manner. "8. The very question that is referred to us came to be considered by a Bench of two learned Judges on 22-1-1996 in Manohar Lal vs. State of Rajasthan, Cri. M.P. No. 139/96 in SLP (Cri) No. 184/1996. One of us (Verma, J.) speaking for the Bench, held. "8. The very question that is referred to us came to be considered by a Bench of two learned Judges on 22-1-1996 in Manohar Lal vs. State of Rajasthan, Cri. M.P. No. 139/96 in SLP (Cri) No. 184/1996. One of us (Verma, J.) speaking for the Bench, held. "It is clear from section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused". 9. We concur with the view taken in Manohar Lal's case (supra). 10. Finding a persons to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contraventions of its provisions and it render him liable to severe punishment. It is, therefore, that the act affords the persons to be searched a safe guard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate, depending upon who is conveniently available. 11. The option under section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word "nearest" in section 50 is relevant. The search has to be conducted at the earliest and once the persons to be searched opts to be searched in the presence of such senior officer. It is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available. Gazetted Officer or Magistrate." 9. As has been highlighted in Baldev Singh's case (supra) it has to be seen and gauzed whether the requirements of section 50 have been met. Section 50 in reality provides for additional safeguards which are not specifically provided by the Statute. The stress is on the adoption of a reasonable, fair and just procedure. Gazetted Officer or Magistrate." 9. As has been highlighted in Baldev Singh's case (supra) it has to be seen and gauzed whether the requirements of section 50 have been met. Section 50 in reality provides for additional safeguards which are not specifically provided by the Statute. The stress is on the adoption of a reasonable, fair and just procedure. No specific words are necessary to be used to convey existence of the right. In the case at hand the information was conveyed in the following manner; "By way of this notice you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by any Gazetted Officer or by a Magistrate." In response to the aforesaid intimation each of the accused gave in writing as follows : Sir, I have no objection if you search me or my scooter. Sd/- Ram Vilas 3-11-1998 Sd/- Prabhashankar 3-11-1998 Sd/- at 14.20 P.M. Thana Shahjaibad at 14.25 P.M. ThanaShahjaibad 11. In the instant case P/3 notice given to the appellant vide Ex.P/3 is containing almost all similar kind of notice given in the case of Prabha Shankar Dubey (supra). Therefore, this Court is of the clear view that there is sufficient compliance of section 50 of the NDPS Act. 12. In the case of State of Punjab vs. Baldeo Singh (supra), the Supreme Court has not expressed any opinion as to whether the provisions of section 50 are mandatory or not, but held that the provisions of section 50 of the NDPS Act implicitly make it imperative and obligatory and caste a duty on the Investigating Officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by section 50. (See : paras 32 and 57). 13. The statement of Shri Jhala (PW-8) is fully corroborated by the statement of Head Constable PW-5 Vikaramsingh. He has admitted of preparation of Panchnama Ex.P/3. This witness has also stated about notice of search given to the appellant regarding his being searched by Gazetted Officer or in presence of any Magistrate. He has also proved the seizure memo and weight panchnama Ex.P/4. The next witness is PW-7 Rameshwar Dayal Sharma Constable. He has admitted of preparation of Panchnama Ex.P/3. This witness has also stated about notice of search given to the appellant regarding his being searched by Gazetted Officer or in presence of any Magistrate. He has also proved the seizure memo and weight panchnama Ex.P/4. The next witness is PW-7 Rameshwar Dayal Sharma Constable. Learned counsel for the appellant has pointed out that there is contradiction in the statement of PW-7 Rameshwar Dayal Sharma and PW-8 R. S. Jhala. According to Shri Sharma, the appellant was brought out from the bus whereas R. S. Jhala has stated that after reaching of bus, the appellant alighted from the bus and was caught by the force. 14. On consideration, in the opinion of this Court this is not a major contradiction which may attach vulnerability to the testimony of PW-8 R. S. Jhala, PW-7 Rameshwar Dayal Sharma and PW-5 Vikramsingh. There is no evidence on record as to why these three police personnel would falsely implicate the appellant. PW-8 R. S. Jhala in para 14 of his cross-examination has denied the defence suggestion that he prepared a false case for getting promotion and there was a quota fixed for making or preparing cases under the Narcotics Drugs and Psychotropic Substances Act. 15. No other point has been pressed into service before this Court. 16. Having regard to the aforesaid factual and legal discussion, the appeal is liable to be and is hereby dismissed. The appellant is on bail. He is directed to appear before the trial Court on 22-9-2007 where he shall surrender to his bail and surety bonds, for undergoing the remainder part of his sentence. On failure to such surrender by the appellant, the learned trial Court is directed to initiate legal action against him under intimation to this Court. A copy of this judgment be sent to the trial Court along with its record, for immediate compliance.