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Madhya Pradesh High Court · body

2012 DIGILAW 134 (MP)

Vishwanath Patel v. State of M. P.

2012-01-31

VIMLA JAIN

body2012
Judgment Vimla Jain, J.:-- 1. This appeal has been preferred against the judgment dated 4.2.1997 passed by the Court of Special Sessions Judge, Satna in S.T. No. 11/96, whereby the appellant has been convicted for the offence punishable under Section 8(c) read with Section 20(B)(1) of Narcotic Drugs & Psychotropic Substances Act, 1985, and sentenced to undergo RI for one year with fine of Rs. 1,000, in default of payment of fine further RI for six months. 2. The brief facts of the case are that on 9.1.1996, Sub-Inspector Vinod Kumar Singh, P.S. Tala, received an information that the appellant Vishwanath was selling the Ganja and was in possession of the plant of Ganja at his home. On receiving such information, Sub-Inspector Vinod Kumar Singh alongwith his staff and witnesses Brijlal and Ramnaresh went to the appellant’s house, searched the appellant’s body and his house and found and seized 80 grams Ganja, amount of Rs. 230 and a plant of Ganja. Vinod Kumar Singh sealed 20 grams Ganja, prepared the Dehati Nalish, arrested the accused/appellant and sent samples to Bhopal for chemical examination. After obtaining report of the chemical examination (Ex.P9), he filed charge-sheet. 3. The learned Special Judge framed the charges under Section 20(B)(1) read with Section 8 of the NDPS Act. The accused denied the charge and pleaded false implication. In his statement under Section 313 of the Criminal Procedure Code, he pleaded that Inspector Vinod Kumar Singh used to falsely implicate the villagers. Therefore, he went to police station with BSP workers to agitate. Due to this reason Inspector Vinod Kumar was annoyed with him. 4. Prosecution examined three witnesses and proved the documents Ex.P1 to Ex.P8. The appellant/accused did not examine any witness in defence. Brijlal (PW2) did not support the prosecution case. However relying on the evidence of Inspector Vinod Kumar Singh, learned Special Judge, found the appellant guilty, convicted him under Section 20(B)(1) of NDPS Act and sentenced him as mentioned above. Aggrieved by his conviction and sentence, accused/appellant has filed this appeal. 5. The appellant/accused did not examine any witness in defence. Brijlal (PW2) did not support the prosecution case. However relying on the evidence of Inspector Vinod Kumar Singh, learned Special Judge, found the appellant guilty, convicted him under Section 20(B)(1) of NDPS Act and sentenced him as mentioned above. Aggrieved by his conviction and sentence, accused/appellant has filed this appeal. 5. The learned Counsel for the appellant argued that the appellant was not informed about his right to be searched before a Gazetted Officer or a Magistrate as required under Section 50 of the Act and because of non-compliance of this mandatory provision, the seizure of contraband has been vitiated and consequently, the appellant’s conviction for the offence punishable under Section 20(B)(1) of the Act is also vitiated and deserves to be set aside. 6. On the other hand learned Counsel for the State supported the impugned judgment and argued that the prosecution proved the case beyond reasonable doubt against the appellant. The trial Court rightly convicted him for the aforesaid offence. Hence no interference is called for. 7. Heard the learned Counsel for the parties and perused the record. 8. Since the appellant has raised the ground of non-compliance of the provisions contained in Section 50 of the Act, before examining other aspects of the matter, this Court shall deal with the question as to whether there was compliance of Section 50 or not and if there was no compliance, the effect thereof on the impugned judgment. 9. Under Section 50(1) of the Act, an officer who is to search the accused is required to inform the person about his right to be searched before Gazetted Officer or a Magistrate. This requirement of law has been held to be mandatory in nature and non-compliance thereof vitiates the trial. 10. In the matter of Vijaysinh Chandubha Jadeja v. State of Gujarat, 2011 Cri. LJ 680, the Constitution Bench of the Supreme Court has held thus: “22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. LJ 680, the Constitution Bench of the Supreme Court has held thus: “22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the Authorised Officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re: Presidential Poll 14, it is the duty of the Courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. “The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole”. We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez, 2000 Cri LJ 3485 (supra) and Prabha Shankar Dubey, AIR 2004 SC 486 (supra) is neither borne out from the language of Sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh’s case 1999 Cri LJ 3672 (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.” 11. Brijlal (PW2) is the witness of seizure memo, after admitting his signature on the seizure memo (Ex.P3), he has turned hostile. 12. Vinod Kumar Singh (PW3) has stated that he received an information from the informer that the appellant/accused Vishwanath was selling the Ganja and was in possession of the plants of Ganja at his home. He has registered this information on Rojnamcha Sanha No. 219 and informed to his senior officer. This information was sent to D.S.P., Satna by wireless. Thereafter he went to spot alongwith three Constables. He further stated that he requested and submitted an application Ex.P4 to the Principal, Higher Secondary School to accompany him. He further stated that Acting Principal did not agree to go there, therefore, he had gone to appellant’s home with Ramnaresh and Brijlal. He served a notice before seizure to the appellant and informed him about his right to be searched before a Gazetted Officer or a Magistrate. He proved a letter Ex.P5 written by the appellant about his search. 13. On perusal of the record, the Ex.P5 shows that it is a consent letter. Such letter is being reproduced below: (Matter in other language) The Ex.P5 does not indicate that Vinod Kumar (PW3) informed to the appellant about his right to be searched before a Gazetted Officer or a Magistrate. There is no independent witness to support the statement made by Vinod Kumar Singh (PW3). He also stated that staff members, who accompanied him, were not examined as witnesses. 14. There is no independent witness to support the statement made by Vinod Kumar Singh (PW3). He also stated that staff members, who accompanied him, were not examined as witnesses. 14. There is no evidence on record to prove that the appellant was in possession of the house in which cannabis plant was found growing. No independent witness in this regard has been examined by the prosecution. In these circumstances, the only statement made by Vinod Kumar (PW3) about the fact that the house in which the plant was found growing was in possession of the appellant, does not appear trustworthy. Therefore, it was not established beyond doubt that the house belonged to appellant or he was in possession of the house from which the cannabis plant was seized. From the seizure of one plant, it cannot be presumed and held that the cannabis plants were being cultivated. For holding a person cultivator of cannabis plants, it has to be established that he deliberately prepared the land or soil for growing such crops/plants, cultivated, developed and maintained the plants by using agricultural techniques. In the absence of such material evidence, it cannot be held that cannabis plants were being cultivated. Mere seizure of only one plant of cannabis will not amount to cultivation of said plants. 15. The Apex Court has held in Vijaysinh Chandubha Jadeja (supra) that the provisions contained in Sub-section (1) of the Section 50 of the Act are mandatory and non-compliance thereof would render recovery of the illicit article suspect and vitiate conviction. In the present case also, there is non-compliance of the mandatory provisions contained in Sub-section (1) of Section 50 of the Act, therefore the present appeal deserves to be allowed. 16. In the aforesaid circumstances, I am of the view that the prosecution has failed to prove beyond doubt that the 80 grams of Ganja was seized from the possession of the appellant and the appellant cultivated cannabis plant. The trial Court did not appreciate the evidence in correct perspective and erred in holding the appellant guilty of the offence under Section 8(c) read with Section 20(B)(1) of the Narcotic Drugs and Psychotropic Substances Act. 17. Consequently the appeal is allowed. The conviction and sentence imposed upon the appellant under Section 8(c) read with Section 20(B)(1) of the Act are set aside and the appellant is acquitted from the said charge. 17. Consequently the appeal is allowed. The conviction and sentence imposed upon the appellant under Section 8(c) read with Section 20(B)(1) of the Act are set aside and the appellant is acquitted from the said charge. The appellant is on bail. His bail bonds are discharged. Fine amount, if any, deposited by him, shall be refunded. Appeal allowed.