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Rajasthan High Court · body

2010 DIGILAW 1989 (RAJ)

Hussain Mohd. @ Bachha v. State

2010-12-02

MEENA V.GOMBER

body2010
JUDGMENT Hon'ble DR. GOMBER, J.—Since the two appeals No. 959/2005 and No. 913/2005 filed by (a) Hussain Mohd. @ Bachha S/o Mehmood Khan by (b) Kaleem @ Kallu @ Dedhu S/o Abdul Razak and Tanvir @ Bunty S/o Tokeer Ahmed respectively arise out of a common judgment dated 5.9.2005 passed by learned Special Judge, N.D.P.S. Cases, Baran in case No. 136/2001, hence are being decided by a common order. 2. Appellant Hussain Mohd. @ Bachha has been convicted for offences under Section 8/21, 8/25 and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as "the Act") and 5/180 of the Motor Vehicles Act; whereas accused/appellants (i) Tanvir @ Bunty and (ii) Kaleem @ Kallu @ Dedhu have been convicted for offences under Section 8/21 and 8/29 of the Act. The appellants were sentenced as under : (a) Hussain Mohammad 2 Bachha : (i) Ten years' Rigorous imprisonment and a fine of Rs. 1,00,000/-, in default where of two further undergo rigorous imprisonment of one year for the offence under Section 8/21 of the Act. (ii) Ten years' Rigorous imprisonment and a fine of Rs. 1,00,000/-, in default whereof two further undergo rigorous imprisonment of one year for the offence under Section 8/25 of the Act. (iii) Ten years' Rigorous imprisonment and a fine of Rs. 1,00,000/-, in default whereof to further undergo rigorous imprisonment of one year for the offence under Section 8/29 of the Act. (b) Tanveer @ Bunty : (i) Ten years' Rigorous imprisonment and a fine of Rs. 1,00,000/-, in default where of two further undergo rigorous imprisonment of one year for the offence under Section 8/21 & 8/29 of the Act. (c) Kaleem @ Kallu @ Dedhu : (ii) Ten years' Rigorous imprisonment and a fine of Rs. 1,00,000/-, in default where of two further undergo rigorous imprisonment of one year for the offence under Section 8/21 & 8/29 of the Act. 3. At the outset, challan was filed against six accused persons including the present appellants. However, the other three accused namely Pintu @ Jhandi, Abdul Shakur @ Guddu & Abdul Hakim @ Abdullah, although convicted for the offences under Sections 8/21 and 8/29 of the Act, are not before us. 4. 3. At the outset, challan was filed against six accused persons including the present appellants. However, the other three accused namely Pintu @ Jhandi, Abdul Shakur @ Guddu & Abdul Hakim @ Abdullah, although convicted for the offences under Sections 8/21 and 8/29 of the Act, are not before us. 4. the facts as culld out by the prosecution are that on receipt of a message from the Circle Officer of the area, PW-9 Bhim Singh Beeka, the then S.H.O. Police Sation Kotwali Baran, left the police station along with his police party at about 11.30 p.m. on 4.8.2003 for surveillance duty of checking the vehicles on the high-way. 5. At about 4.30 a.m. of 5.8.2003, the police party saw a Qualis bearing No. RJ-28C/1332 coming towards Ambedkar Circle. The vehicle was intercepted wherein appellant Kaleem @ Kallu @ Dedhu as found sitting on the driving seat, Hussain Mohd. 2 Bachha next to him and the other four persons were found sitting on the middle seat. On being asked as to where were they coming from, no satisfactory answer was given. 6. On suspicion, PW-9 sent PW-2 Brijesh Kumar to get the independent witnesses from the vicinity but on account of the very early hour of the day he could not find one and informed about the non-availability of any independent at that hour of the day. Thereupon PW-4 ASI Bhagwan Singh, and PW-1 Uttam Singh were taken as witnesses and after giving his own search, PW-9 Bhim Singh Beeka, first conducted personal search of Hussain Mohd. @ Bachha and found polythene pouch tied with a white cloth on his stomach containing a brown substance which appeared to be Smack. On weighing, it weighed 268 gms. fro which did not have any license. Two samples of 5 gms. each were taken, sealed and marked as A, A1 while remnant 258 gms. was sealed separately and marked as A2. The cloth used for lying the pouch on the stomach of Hussain Mohd @ Bachha was also sealed and marked as A3. 7. On personal search of accused Tanvir @ Bunty, he was also found possessing brown colour substance in his trousers' pocket which too smelt and appeared like Smack, for which he had no licence. The recovered substance weighted 10 gms. 7. On personal search of accused Tanvir @ Bunty, he was also found possessing brown colour substance in his trousers' pocket which too smelt and appeared like Smack, for which he had no licence. The recovered substance weighted 10 gms. out of which a sample of 5 gms was taken and sealed as Mark 'B' whereas remnant 5 gms was sealed and marked 'B1'. 8. On further search of the vehicle, a bag containing weights and measu-res was found lying on the seat, where Hussain Mohd. @ Bachha was sitting. 9. No incriminating substance was recovered from the accused Kaleem @ Kallu @ Dedhu. 10. Other three accused i.e. Pintu @ Jhandi, Abdul Shakur @ Guddu and Abdul Hakim @ Abdullah, are not before us, hence the discussion with regard to them is not being made here. 11. Accused were arrested and the SHO along with arrested accused and sealed packets came to the police station and registered case No. 518/03 under Section 8/21 of the Act and the sealed packets were deposited in the malkhana and investigation was handed over to the SHO Rajendra Kumar. 12. During the investigation, Investigating Officer examined witnesses, seized the vehicle, sent the necessary information under Section 57 of the Act of 1985 and also forwarded the sealed samples to Forensic Laboratory for examination and received the report. As per Ex.P/14 FSL report, the samples contained in each of the packets marked A and B gave positive tests for presence of diacetylmorphine (Heroin). 13. After completion of investigation, he filed the challan against all the six accused persons. 14. Learned Special Judge, after hearing the charge arguments, read over the charges under Sections 8/21, 8/25 and 8/29 of the Act and 5/180 of the Motor Vehicles Act, to the accused Hussain Mohammad @ Bachha whereas others were read over the charge under Sections 8/21 and 8/29 of the Act, to which they denied and claimed trial. 15. In order to substantiate its case, prosecution examined nine witnesses and exhibited certain documents. After completion or prosecution evidence, accused persons were examined under Section 313 Cr.P.C. They alleged false implication but did not lead any evidence. Learned Special Judge recorded judgment of conviction of the present appellants and sentenced them as mentioned hereinabove. 16. 15. In order to substantiate its case, prosecution examined nine witnesses and exhibited certain documents. After completion or prosecution evidence, accused persons were examined under Section 313 Cr.P.C. They alleged false implication but did not lead any evidence. Learned Special Judge recorded judgment of conviction of the present appellants and sentenced them as mentioned hereinabove. 16. The appellants have assailed the impugned judgment on various grounds : (i) The appellant Kaleem @ Kallu @ Dedhu has assailed the impugned order on the ground that no contraband was recovered from his possession and that he was simply driving the vehicle owned by Hussain Mohammad 2 Bachha and that he had no knowledge of other accused carrying contraband on their persons. Nor was he a party to any conspiracy or abetment. (ii) The argument on behalf of appellants Hussain Mohammad @ Bachha and Tanvir @ Bunty was that before conducting their personal search, mandatory provision of Section 50 of the Act was not complied. (iii) Relying on the judgment of Hon'ble Apex Court in the case of E. Micheal Raj, next argument of Hussain Mohammad 2 Bachha was that the FSL report did not show the percentage of diacetylmorphine. Therefore, for want of pure content of contraband, the appellants could not have been convicted under Section 21(c) of the Act. 17. Heard the parties, perused the record and considered the arguments advanced by both the sides. 18. First argument on behalf of appellant Kaleem @ Kallu was that no incriminating article was found in his possession and therefore no offence could be said to have been made out against him. As he was simply driving the vehicle owned by appellant Hussain Mohd. @ Bachha and that he had no knowledge of other appellants possessing the contraband on their persons. 19. In this regard, statements of PW-9 Bheem Singh Beeka are important. His statements clearly show that at the time of search of Kaleem @ Kallu, nothing was found on his person or in the vehicle except that he was sitting on the driving seat. Contraband is said to have been found tied on the stomach of Hussain Mohd. @ Bachha and also in the pockets of Tanveer @ Bunty (and other three who are not before us). No contraband has, admittedly been found in the vehicle or recovered from the person of appellant Kaleem @ Kallu. 20. Contraband is said to have been found tied on the stomach of Hussain Mohd. @ Bachha and also in the pockets of Tanveer @ Bunty (and other three who are not before us). No contraband has, admittedly been found in the vehicle or recovered from the person of appellant Kaleem @ Kallu. 20. Section 21 of the Act makes possession of contraband articles an offence. Sine qua non for attracting the penal provisions viz., Section 20 and 21 of the Act is that the appellant must be found in possession of the contraband. The term "possession" is not defined in the Act. However, the term has been judicially construed to mean in various decisions. 21. Appellant Kaleem has been convicted under Section 8/21 and 8/29 of the Act meaning thereby for possession of the contraband and for abetting the conspiring the commission of offence. It is to be seen as to whether these offences against him have been proved beyond doubt or not. In view of the fact that there is no evidence of physical possession of contraband, the question arises was there a constructive or a conscious possession or was he a party to any conspiracy or did he abet the offence and this can only be decided on the basis of facts and circumstances of the case. 22. The term 'possession' as construed from time to time, implies 'dominion' and 'consciousness' in the mind of the person having dominion over an object that he has it and that he can exercise it. "Possession" must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object. 23. In any disputed question of possession, specific facts submitted or proved can alone establish the existence of the defacto relation or control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. 24. If the evidence led by prosecution is examined in the light of the pronouncements made from time to time with regard to the term 'possession', the situation that emerges, is as under : 25. 24. If the evidence led by prosecution is examined in the light of the pronouncements made from time to time with regard to the term 'possession', the situation that emerges, is as under : 25. PW-9 Bheem Singh Bheeka claims that he had received a wireless message from his Circle Officer and during surveillance he saw the vehicle coming and on suspicion the police party intercepted the vehicle and made the occupants get down of the vehicle. It is thereafter that the personal search was made. 26. Ex.P/1 clearly mentions that no incriminating substance was found in the possession of appellant Kaleem @ Kallu and this fact is corroborated by the statements of PW-9. 27. Now the question is whether the prosecution has proved that Kaleem who was sitting on the driving seat had knowledge of the contraband being transported in that vehicle or that he was a party in the conspiracy or had abetted the offence. 28. There is no such evidence on record to prove that the appellant Kaleem @ Kallu was known to the other five persons sitting in the vehicle or that he had been a driver of Hussain Mohd. for a long time. This fact is important because there is an evidence to the effect that appellant Hussain Mohd. was a history sheeter of the police station. 29. Thus the first step to prove is the possession of the person. 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 of this position because 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. 30. But the pre-requisite for any presumption is that the possession should be established. 31. In the case of appellant Kaleem @ Kallu, "possession" has not been proved nor has the prosecution proved that the appellant Kaleem had knowledge of the contraband being exported in the vehicle or that he had conspired or abetted the commission of the crime. 32. The prosecution has to stand on its own legs. 31. In the case of appellant Kaleem @ Kallu, "possession" has not been proved nor has the prosecution proved that the appellant Kaleem had knowledge of the contraband being exported in the vehicle or that he had conspired or abetted the commission of the crime. 32. The prosecution has to stand on its own legs. It is true that law provides for a presumption against the accused vide Sections 35 and 54 of the Act but the pre-requisite is that first the possession must be proved then only the burden shifts on the accused to prove that it was not a conscious possession. 33. Since possession in the case of appellant Kaleem @ Kallu has not been established, therefore, the question of conscious possession or presumption under Sections 35 and 54 of the Act does not arise. 34. Besides, there is no evidence with regard to the conspiracy or abetment also against the appellant Kaleem. Therefore, the conviction of appellant Kaleem @ Kallu for the offence under Sections 8/21 and 8/29 cannto sustain. 35. The argument on behalf of appellants Hussain Mohd. 2 Bachha and Tanveer @ Bunty was that the appellants' personal search was conducted by PW-9 but mandatory provision under Section 50 of the Act was not complied with. 36. In this regard reliance was placed on a catena of judgments starting from the Constitution Bench judgment of Hon'ble Apex Court in the matter of State of Punjab vs. Baldev Singh- 1999(6) SCC 172 followed in later cases. 37. On the other hand learned Public Prosecutor relying on the Apex Court judgment in the matter of Bharat Bhai Bhagwanji Bhai vs. State of Gujarat-AIR 2003 SC 07, at p. 10, submitted that since at the time of effecting search, there was no knowing that an offence under Chapter IV of the Act has been committed by the accused, the provisions of Section 50 of the Act are not attracted. 38. Ex.P/1 as well as statements of PW-9 clearly show that on 4.8.2003 at about 9.30 p.m., he had received a wireless message from his Circle Officer with the directions to go for surveillance duty at the Highway. Pursuant thereto, he alongwith his patrolling party, left police station at 11.30 p.m. and checked all the vehicles on the highway. 39. 38. Ex.P/1 as well as statements of PW-9 clearly show that on 4.8.2003 at about 9.30 p.m., he had received a wireless message from his Circle Officer with the directions to go for surveillance duty at the Highway. Pursuant thereto, he alongwith his patrolling party, left police station at 11.30 p.m. and checked all the vehicles on the highway. 39. During the surveillance on Highway at about 4.30 a.m., they saw a Qualis coming from Ambedkar Circle which was stopped and on asking as to where were they coming from, the occupants, could not answer satisfactorily. Therefore, on suspicion he made all the occupants get down of the vehicle and sent his subordinate PW-2 Brijesh Kumar to bring the independent witnesses/panchas. After about ten minutes, PW-2 Brijesh Kumar came back and informed that none of the inhabitants living in the vicinity opened their doors and that all the shops were closed at that time as it was early hour of the day i.e. 4.30-5.00 a.m. According to PW-9 Bheem Singh Beeka, PW-4 ASI Bhagwan Singh and PW-1 Uttam Singh were taken as witnesses. PW-9 Bheem Singh Beeka, after giving his own search, conducted the personal search of the appellants. It is not out of the place to mention here that admittedly no notice under Section 50 of the Act as given by PW-9 Bheem Singh Beeka. 40. The argument advanced on behalf of Public Prosecutor was that since it was a chance recovery, the provisions of Section 50 of the Act were not attracted. He has placed reliance on the judgment of Hon'ble Apex Court in the matter of Bharat Bhai Bhagwanji Bhai's case (supra). 41. On the other hand, the arguments advanced on behalf of appellants' counsel was that the very beginning of the prosecution story is receipt of wireless message by PW-9 from the superior asking him to go to the highway along with raid party for surveillance. 42. Learned counsel vehemently argued that PW-9 Bheem Singh Beeka clearly states that he had received a wireless message at 9.30 p.m. on 4.8.2003 from his Circle Officer and he had been directed to go to the highway alongwith patrolling party for surveillance at the highway. He has used the word "Nakabandi". It is clear to suggest that it was not merely a general checking or chance recovery. He has used the word "Nakabandi". It is clear to suggest that it was not merely a general checking or chance recovery. His argument was that the wireless message received from the Circle Officer giving specific direction for surveillance clearly shows that the Senior Officer must have had some information. Therefore, the case in hand cannot be said to be a case of chance recovery but of a recovery on the basis of prior information and it can, by no stretch of imagination, be said to be a normal course of investigation because it is not a case wherein during the normal course of some investigation into an offence, a contraband was also recovered. If that was the case, the provisions under Section 50 would not be applicable. 43. I have considered the arguments of both the parties in this case. Admittedly, the provisions of Section 50 are mandatory as has been held by Hon'ble Apex Court in catena of judgments right from the case of State of Punjab vs. Baldev Singh- 1999(6) SCC 172 followed in later cases. The position of law in that regard remains the same. 44. The condition for applicability or non-applicability of Section 50 is not necessarily whether the search or seizure was made on the basis of prior information or not but the real test is whether the officer who was about to effect the search and seizure under Sections 41, 42 or 43 of the Act had a chance to comply with the provisions of Section 50 of the Act. It was observed in Mohinder Kumar vs. State of Pannaji, Goa- AIR 1995 SC 1157 that from the stage the Officer had reason to believe that the accused persons were in custody of Narcotic Drugs and sent for Panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of NDPS Act. In that case, the Court was of the view that his failure to comply, inter alia, with the requirements of Section 50, inasmuch as the accused was not informed and questioned about his choice to be searched before the Gazetted Officer or magistrate, a requirement which had been held to be mandatory, entitle the accused to be acquitted. 45. In that case, the Court was of the view that his failure to comply, inter alia, with the requirements of Section 50, inasmuch as the accused was not informed and questioned about his choice to be searched before the Gazetted Officer or magistrate, a requirement which had been held to be mandatory, entitle the accused to be acquitted. 45. As per Hon'ble Apex Court, the condition for application of the provisions of Section 50 is existence of reason to believe that the person is in possession of narcotic drugs or psychotropic substance. Their lordship of Hon'ble Apex Court retracted the law as enunciated in State of Punjab vs. Baldev Singh (supra) and the observations of their Lordship in Baldev Singh's case (supra) in themselves make clear that from the stage an officer had reason to believe that the accused persons were in possession of narcotic drugs, he is bound to comply with the provisions. 46. It is a settled position of law that the provisions of Section 50 are mandatory and non-compliance thereto vitiates the conviction. In the case in hand, the contraband is said to have been tied around the stomach of Hussain Mohd. and it was not discoverable except by body search. In these circumstances, the compliance of Section 50 of the Act was mandatory. 47. The Constitution Bench of Hon'ble Apex Court in State of Punjab vs. Baldev Singh (supra) had held that while conducting the search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safe-guards provided under the N.D.P.S. Act are also required to be followed. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of safeguards. In the case in hand, it was personal search of an article of the appellants, therefore, compliance of Section 50 of the Act was mandatory. In the factual back drop of the case also, the case in hand cannot be said to be a case of chance recovery, therefore, the principle of law laid down in Bharat Bhai Bhagwanji Bhai vs. State of Gujarat AIR 2003 SC 07 will not apply to the present case. 48. The words used in Section 50(1) of the Act are "When any officer ....... is about to search any person under the provisions of Section 41, Section 42 or Section 43 ........................ 48. The words used in Section 50(1) of the Act are "When any officer ....... is about to search any person under the provisions of Section 41, Section 42 or Section 43 ........................ or to the nearest Magistrate." 49. PW-9 along with his patrolling party was on surveillance duty as per wireless message received from his superior and on intercepting the vehicle, when the occupants did not answer satisfactorily, he had suspicion and made them get down of the vehicle and sent his subordinate to bring independent witnesses. This clearly shows that the authorized Officer was about to search under Section 43 of the Act. It was not a general investigation of any other offence during which the contraband was recovered, therefore, it cannot be termed as chance recovery and notice under Section 50 of the Act was mandatory. 50. In this case, the violation of mandatory provisions of Section 50 of the Act is writ large as is evident from the statements of PW-9 Bheem Singh Beeka. The provisions of Section 50 were attracted in the present case. Therefore, I am of the firm view that the mandate of Section 50 of the Act was attracted in this case and has not been complied with by the prosecution which render the case as not established. In view of violation of mandatory provisions of the Act, the appellants were entitled to be acquitted. 51. The last issue raised by the appellants was with regard to the forensic science report. The reliance was placed on the judgment of E. Michael Raj's case (supra). In view of the amendment in law, and in view of findings given hereinabove, I do not consider it necessary to go into that issue. 52. Accordingly, on the basis of discussion made hereinabove, both the appeals of the appellants were allowed by setting aside the impugned judgment. All the three appellants stand acquitted. 53. The appellant Hussain Mohd. @ Bachha is directed to be set at liberty forthwith unless required in any other case. 54. The bail bonds of appellants Kaleem @ Kallu and Tanveer @ Bundy are cancelled.