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2012 DIGILAW 783 (RAJ)

Veer Singh alias Veeru v. State of Rajasthan

2012-03-28

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—Having been convicted for offence under Section 8/21(c), N.D.P.S. Act ('the Act', for short), having been sentenced to ten years of rigorous imprisonment, and having been fined with Rupees one lac, and further directed to undergo one year of rigorous imprisonment, the appellant Veer Singh alias Veeru, has approached this Court. 2. The brief facts of the case are that on 8.10.2005, at 7.00 a.m., the S.H.O., Hanumangarh Junction, received a secret information that Veer Singh alias Veeru, resident of Satipura, was standing on the corner of Fatehpur, turn; he is wearing a blue stripped shirt and is covered with a blue Chadar (bed sheet). According to the informant, he was carrying smack with him. In case he were intercepted, the police was likely to recover smack from him. Having received this information, the police took Gurdeep Singh alias Babee and Hakam Singh, as recovery witnesses. The S.H.O. also informed the higher offiers and left the police station. Around 8.30 a.m., the police saw a person, who matched the description given by the informant. When the person saw the police party, he started to run. However, the police intercepted him and asked his name. He informed the police party that his name is Veer Singh alias Veeru. n accordance with Section 50 of the Act, he was given two options of either being searched before a Gazetted Officer, or before a Magistrate. The appellant opted to be searched before a Gazetted Officer. Therefore, the Assistant Superintendent of Police, Dr. Nitindeep (P.W.10) was called since he was a Gazetted Officer. Before Dr. Nitindeep (P.W.10), the recovery proceedings were initiated. It was discovered that the Chadar worn by the appellant contained a plastic bag. When the plastic bag was opened, it was found to contain three transparent bags. Out of those three transparent bags, two bags contained brown coloured powder, and the third bag contained solid matter. using the D.D. Kit, the substance was tested; it was found to be smack. In total, 590 grams of smack was recovered from the personal search of the appellant. Subsequently, the police filed a charge-sheet against the appellant for offence under Section 8/21 of the Act. 3. In order to establish its case, the prosecution examined eleven witnesses and submitted seven documents. In total, 590 grams of smack was recovered from the personal search of the appellant. Subsequently, the police filed a charge-sheet against the appellant for offence under Section 8/21 of the Act. 3. In order to establish its case, the prosecution examined eleven witnesses and submitted seven documents. After going through the oral and documentary evidence, vide judgment dated 17.7.2010, the Special Judge, N.D.P.S. Cases, Hanumangarh convicted and sentenced the appellant as aforementioned. Hence, this criminal appeal before this Court. 4. Mr. V.K. Sharma, the learned counsel for the appellant, has raised the following contentions before this Court: firstly, that the mandatory provisions of Section 50 of the Act have not been followed. According to the testimony of Dr. Nitindeep (P.W.10), he had clearly admitted that a copy of the notice under Section 50 of the Act was not given to the appellant. Instead, the original copy of the notice was given to him, and the option given by him was recorded on the original copy itself. Thus, according to the learned counsel, it was apparent that the mandatory provisions of Section 50 have not been adhered to. Therefore, the entire trial stands vitiated. Secondly, the independent witness Gurdeep Singh (P.W.4) has turned hostile. Therefore, the prosecution case merely rests upon the testimonies of police officers. Thirdly, although according to the prosecution, the appellant was not arrested till 8.30 a.m. on 8.10.2005, but according to Ravinder Singh (D.W.6) when he had reached the Police Station, Hanumangarh around 7-8 a.m., he found that the appellant was already locked up. Moreover, the appellant had told him that he had been rounded up with by the police in connection with a murder case, which had occurred in Sarekha, and that he had been in the police station since 4.00 a.m. Moreover, Veer Singh had examined himself as a witness. According to him, he is a member of Bahujan Samaj Party, earlier he used to be the district President and had fought the Lok Sabha election. He further claimed that there is a land dispute between him and Dal Singh. Dal Singh happens to be related to high police officers. Therefore, he has been falsely implicated in the present case. he further claims that he was locked up with Richhpal (D.W.2) and Mohd. Salam (D.W.5). He further claimed that there is a land dispute between him and Dal Singh. Dal Singh happens to be related to high police officers. Therefore, he has been falsely implicated in the present case. he further claims that he was locked up with Richhpal (D.W.2) and Mohd. Salam (D.W.5). Thus, according to the learned counsel, the defence has been able to establish the fact that the appellant was falsely implicated in the present case due to animosity between the appellant and the police. However, this aspect of the case has been ignored by the learned Judge. Therefore, the learned Judge is not justified in convicting the appellant for the offence under Section 8/21 of the Act. 5. On the other hand, Mr. Mahipal Bishnoi, the learned Public Prosecutor, has vehemently contended that the learned Judge has meticulously examined the evidence and critically analyzed it. Secondly, that the purpose behind Section 50 of the Act is t ensure that the accused is informed of his right under the ct of being searched either before a Gazetted Officer, or before a Magistrate. This option was certainly given to the appellant. The appellant had given his opinion in writing in the main copy of the notice. He had claimed that he would like to be searched before a Gazetted Officer. Therefore, Dr. Nitindeep (P.W.10) was called for as he was a gazetted officer. Recovery proceedings were initiated only after the Assistant Superintendent of Police Dr. Nitindeep (P.W.10), had arrived at the place of recovery. The entire recovery proceeding was done before him. Therefore, the mandatory provision under Section 50 has been complied with. Secondly, merely because the independent recovery witness has turned hostile, it would not be fatal to the case of the prosecution. According to the learned counsel, the testimony of the police officers should not be doubted merely on the ground that they are the police officers. Therefore, it is not essential that the independent recovery witnesses must support the prosecution case. Thirdly, that the learned Judge has meticulously examined the defence evidence cannot be relied upon. Therefore, the learned Public Prosecutor has supported the impugned judgment. 6. Heard the learned counsel for the parties, examined the record and perused the impugned judgment. Section 50 of the NDPS Act is as under : 50. Thirdly, that the learned Judge has meticulously examined the defence evidence cannot be relied upon. Therefore, the learned Public Prosecutor has supported the impugned judgment. 6. Heard the learned counsel for the parties, examined the record and perused the impugned judgment. Section 50 of the NDPS Act is as under : 50. Conditions under which search of persons shall be conducted.—(1) When any officer duly authroised 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. (5) When an officer duly authorized under Section 21 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 seventy-two hours send a copy thereof two his immediate official superior. 7. The interpretation of provisions of Section 50 of the Act is no longer res integra as the said provision has been critically discussed by the Constitutional Bench in the case of State of Punjab vs. Baldev Singh ( (1999) 6 SCC 172 ). 7. The interpretation of provisions of Section 50 of the Act is no longer res integra as the said provision has been critically discussed by the Constitutional Bench in the case of State of Punjab vs. Baldev Singh ( (1999) 6 SCC 172 ). The Constitutional Bench has held as under : "On the basis of the reasoning and discussion above, the following conclusions arise : (1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) 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 or 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; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. the remedy cannot be worse than the disease itself. In every case the end result is important but the means to achieve it must remain above board. the remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, or prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirtni Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case. 8. Recently in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat ( (2011) 1 SCC 609 ), the Constitutional Bench has again meticulously discussed Section 50 of the Act in the light of the conflicting judgments by the Hon'ble Supreme Court rendered in the case of Jagdish Fernandez vs. State of Gao ((2001) 1 SCC 707) and Prabha Shankar Dubey vs. State of M.P. ( (2004) 2 SCC 56 ) on the one hand, and the case of Krishna Kanwar (Smt.) alias Thakuraeen vs. State of Rajasthan ( (2004) 2 SCC 608 ) on the other hand. While overruling the judgments of Joseph Fernandez (supra) and Prabha Shankar Dubey (supra), the Hon'ble Supreme Court has held as under : 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 minimize 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 in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the N.D.P.S. Act is concerned, it is mandatory and requires a strict compliance. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the N.D.P.S. 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, 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 (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-sec. (1) of Sec. 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Sec. 50 had been met, is a mater 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. 9. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. 9. Thus, according to both the judgments in the cases of Baldev Singh (supra) and Vijaysinh Chandubha Jadeja (supra), it is a matter of evidence to see whether the provisions of Section 50 of the Act have been adhered to or not? In the present case, admittedly a written notice was given to the accused. However, instead of giving him a copy of the notice, his option was noted down in the original copy of the notice. Merely because, a copy of the notice has not informed about the twin options given under Section 50 of the Act. What is essential and imperative is that the twin options have brought to the notice of the accused, and the option given by him, if any, is duly recorded in the notice. The recording of the option given by him clearly proves that the options were duly given; the accused exercised the option as per his free will. It is immaterial whether the option given by him is recorded in the original copy of the notice or in a copy of the notice. Since the options given by the present accused has been recorded in the original copy of the notice, obviously the options were given to him and were duly exercised by him. Hence, the requirement of Section 50 of the Act was fulfilled. 10. Moreover, Section 50 of the Act does not require that the accused has to be physically taken before a Gazetted Officer or a Magistrate. The requirement of Section 50 of the Act is that in case the accused gives an option, then the accused should be searched as per his option. In case, the accused cannot be taken physically to a gazetted officer or to a Magistrate, merely because the gazetted officer or the Magistrate is requested by the investigating agency to reach the place of recovery, such a course of action would not violate the requirement of Section 50 of the Act. Although, it is preferable that a gazetted officer connected with the investigating agency should not be procured, but even if a gazetted officer of the investigating agency is called and search is made before him, such a search is not illegal. In the present case, the Assistant Superintendent of Police, Dr. Although, it is preferable that a gazetted officer connected with the investigating agency should not be procured, but even if a gazetted officer of the investigating agency is called and search is made before him, such a search is not illegal. In the present case, the Assistant Superintendent of Police, Dr. Nitindeep (P.W.10) was requested to reach the place of recovery. According to his testimony, the entire recovery proceedings were carried out before him. In catena of cases, the Hon'ble Supreme Court has held that there is no reason to disbelieve the testimony of the police officer in the case of NDPS Act. Therefore, there is no reason to disbelieve the testimony of the Assistant Superintendent of Police, Dr. Nitindeep (P.W.10). Hence, the contention raised by the learned counsel for the appellant that the provisions of Section 50 have been violated is unacceptable. 11. In catena of cases, the Hon'ble Supreme Court has held that the testimony of the police officers should not be doubted merely on the ground that they are the police officers. Therefore, even if the independent recovery witnesses have turned hostile, it would not be fatal to the case of the prosecution. Moreover, in case of Surendra Singh vs. State of Haryana ( (2006) 9 SCC 247 ) the Hon'ble Supreme Court has expressed its view that in case the hostile witnesses were to admit their signatures on the document prepared before them, even if they have turned hostile during the trial, the contents of the documents should be believed to be true. In the present case, Gurdeep Singh (P.W.4) has admitted the fact that he has signed the recovery memo. Therefore, the proceedings recorded in the recovery memo shall be taken to be true, despite the fact that he has not supported the prosecution. Hence, merely because the independent witness has not supported the recovery, the same would not be fatal to the prosecution. Hence, the second contention raised by the learned counsel is without any merit. 12. As far as the third contention with regard to the discussion of the defence evidence is concerned, the bare perusal of the impugned judgment clearly reveals that the learned Judge has meticulously analyzed and discussed the defence evidence. The learned Judge has noted the fact that although the appellant has claimed hat he was locked up with Richhpal (D.W.2) and Mohd. The learned Judge has noted the fact that although the appellant has claimed hat he was locked up with Richhpal (D.W.2) and Mohd. Salam (D.W.5), no evidence has been submitted to establish this fact. Moreover, although the appellant claims that he was actually picked up in a murder case, no documentary evidence with regard to the existence of a murder case was submitted. Furthermore, although he claimed that he had certain disputes with one Dal Singh, who is said to be a relative of certain police officers, and therefore, he is being falsely implicated, but no documentary evidence has been produced to prove the fact that he and Dal Singh were litigating against each other. A difference has to be kept in mind between the statement of fact and a proof thereof. Although the defence need not prove its case beyond a reasonable doubt, but it must probabilise its case. Thus, it is not sufficient for the defence to merely make a statement of fact; it is duty bound to prove that fact. A fact is said to be proved when sufficient evidence has been produced to the extent that the court would believe that the fact exists. Since the facts narrated by the appellant could be proved by documentary evidence, the burden was on him to produce the necessary documentary evidence. However, he has failed to do so. Therefore, the learned Judge was certainly justified in concluding that the accused appellant has failed to probablise his defence. Hence, he was legally justified in rejecting the same. 13. A bare perusal of the impugned judgment clearly reveals that the learned Judge has not only critically analyzed the evidence, but most importantly he has dealt with each and every contention raised by the defence. After giving elaborate reasons and after critically analyzing the evidence, the learned Judge has convicted the appellant for the offence under Section 8/21 of the Act. Therefore, this Court does not find any illegality or perversity in the impugned judgment. This appeal being devoid of any merit, is hereby dismissed.