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2013 DIGILAW 1133 (PNJ)

Manoj Kumar v. State of Haryana

2013-08-22

JITENDRA CHAUHAN

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Judgment Jitendra Chauhan, J. The present appeal assails the judgment and order dated 17.11.2001, passed by the learned Additional Sessions Judge, Panchkula (Special Judge) (hereinafter referred to as the trial Court), whereby, the appellant, Manoj Kumar, has been convicted for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.20,000/- or in default of payment of fine, to further undergo rigorous imprisonment for a period of six months. 2. The brief facts of the present case as narrated in para 2 of the impugned judgment, are reproduced as under: “2. Brief facts of the case are that on 30.6.98 Tula Ram, SHO, P.S. Pinjore along with other police officials was present near Gurudwara HMT Pinjore. He received a secret information that a person was selling Charas and Opium near a dirty water drain. On this information a raiding party was formed. On reaching the spot accused Manoj was found at the spot having Thaila in his hand. He was apprehended on suspicion of having a narcotic substance. Accordingly legal notice under Section 50 of the NDPS Act was served on him. Thereafter his search was carried out in presence of DSP Raj Shree and 200 grams of charas was recovered from his Thaila. Consequently present case was got registered. On completion of investigation report under Section 173 Cr.P.C. was filed in the court.” 3. Upon presentation of challan, copies of the documents relied upon by the prosecution were supplied to the accused. The learned trial Court, after finding prima facie case against the accused, charged him for commission of offence punishable under Sections 20, of the NDPS Act, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as following five witnesses. PW1, Tarlok Singh, is a formal witness, who proved his affidavit Ex.PA and FIR Ex.PB. PW2, Constable Randhir Singh, is a formal witness, who proved his affidavit, Ex.PC. PW3, ASI Fateh Singh, is a recovery witness. PW4, Inspector Tula Ram, the Investigating Officer of the case, supported the prosecution story. PW5, DSP Smt. Raj Shree Singh, also supported the version of the prosecution. 5. During his examination under Section 313 Cr.P.C., the accused-appellant denied the prosecution allegations and pleaded false implication. PW3, ASI Fateh Singh, is a recovery witness. PW4, Inspector Tula Ram, the Investigating Officer of the case, supported the prosecution story. PW5, DSP Smt. Raj Shree Singh, also supported the version of the prosecution. 5. During his examination under Section 313 Cr.P.C., the accused-appellant denied the prosecution allegations and pleaded false implication. In defence, he examined DW1, Sadhu Singh, who deposed that on 27.06.1998, there was Kirya ceremony of the father of Harbans Singh, in the neighbourhood. At about 6.30 – 7.00 p.m., 45 persons came to the house of Manoj and took him to the Police Post, HMT. On the next date, he along with 1520 persons of the locality, moved an application, Mark 'A', to the DSP, Kalka, stating therein that the appellant was a poor man, bearing good character. On the next day, they came to know that the present case had been foisted upon the appellant. Similarly, DW2, Raju, the brother-in-law of abovesaid Harbans Singh, deposed on the similar lines. 6. After hearing learned counsel for both the parties and considering material/evidence on record, the learned trial Court convicted and sentenced the appellant, as detailed at the outset of this judgment. 7. Hence, the present appeal, which was admitted by this Court on 21.12.2001. 8. The learned counsel for the appellant contends that there is noncompliance of the provisions of Section 42 of the NDPS Act as the secret information received by Inspector Tula Ram, PW4, was neither reduced into writing, nor the information was supplied to the immediate superior officer. The learned counsel further contends that there is also noncompliance of Section 50 of the NDPS Act, as the offer made to the accused regarding search was defective. The learned counsel further contends that it is admitted case of the prosecution that the dirty water drain, alleged recovery spot, was empty but there is no allegation that the accused tried to flee away. The learned counsel further contends that no independent witness was joined in the instant case. 9. On the other hand, the learned State counsel has argued that the case against the appellant is proved beyond reasonable doubt and the impugned judgment passed by the learned trial court does not suffer from any infirmity. 10. I have heard learned counsel for the parties and perused the record with their able assistance. 11. 9. On the other hand, the learned State counsel has argued that the case against the appellant is proved beyond reasonable doubt and the impugned judgment passed by the learned trial court does not suffer from any infirmity. 10. I have heard learned counsel for the parties and perused the record with their able assistance. 11. The first question that arises for determination before this Court is whether or not the mandatory provisions of Sections 42 and 50 of the NDPS Act, have been complied with by the prosecuting agency. Section 42 of the NDPS Act, reads as under:- “42. 11. The first question that arises for determination before this Court is whether or not the mandatory provisions of Sections 42 and 50 of the NDPS Act, have been complied with by the prosecuting agency. Section 42 of the NDPS Act, reads as under:- “42. Power of entry search, seizure and arrest without warrant or authorization (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or for forfeiture under Chapter V A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset: (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 12. From the perusal of the record, it emanates that the alleged secret information received by the Investigating Officer, PW4, Tula Ram, was neither reduced into writing, nor transmitted by him to his senior officers. During his cross-examination, these facts have been admitted by PW4. Therefore, it can safely be inferred that there is noncompliance of the provisions of Section 42 of the NDPS Act. In Rajender Singh Vs. State of Haryana, 2011(3) R.C.R. (Criminal) 856, Hon'ble the Apex Court has observed thus: “5. It is therefore clear that the total noncompliance with the provisions of subsection (1) and (2) of Section 42 is impermissible but delayed compliance with a satisfactory explanation for the delay can, however, be countenanced. We have gone through the evidence of PW6 Kuldip Singh. He clearly admitted in his cross-examination that he had not prepared any record about the secret information received by him in writing and had not sent any such information to the higher authorities. Likewise, PW5 DSP Charanjit Singh did not utter a single word about the receipt of any written information from his junior officer Inspector Kuldip Singh. It is, therefore, clear that there has been complete noncompliance with the provisions of Section 42(2) of the Act which vitiates the conviction.” 13. The other vital aspect of the matter is regarding compliance or otherwise, of Section 50 of the NDPS Act, which reads thus: 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 Subsection (1). (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 Subsection (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 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 (2 of 1974). (6) After a search is conducted under Subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. 14. It has come in the statement of the Investigating Officer, PW4, Inspector Tula Ram, that he did not inform the accused regarding his right to be searched in the presence of a Magistrate. He only informed the accused regarding his right of search before a Gazetted Officer. The word 'Magistrate' was missing in the notice under Section 50 of the NDPS Act, Ex.PD, causing prejudice to the appellant, vitiating the process of recovery from the accused-appellant. 15. It was imperative upon the Investigating Officer to inform the accused of his right under Section 50(1) of the NDPS Act, of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search and failure thereof, would cause prejudice to the accused. Thus, in the present case, the offer, so made, under Section 50 of the NDPS Act, is defective, incomplete or no offer in the eyes of law. In Vijaysinh Chandubha Jadeja Vs. State of Gujarat, AIR 2011 SC 77 , Hon'ble the Apex Court has held as under: “22. Thus, in the present case, the offer, so made, under Section 50 of the NDPS Act, is defective, incomplete or no offer in the eyes of law. In Vijaysinh Chandubha Jadeja Vs. State of Gujarat, AIR 2011 SC 77 , Hon'ble the Apex Court has held as under: “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 in so far as the obligation of the authorised officer under Subsection (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 (1974) 2 SCC 33 , 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 Subsection (1) of Section 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 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.” The safeguards mentioned in Section 50 of the NDPS Act, are intended to serve dual purpose – to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the Police. 16. In his statement recorded under Section 313 Cr.P.C., the accused-appellant has clearly spelt out the circumstances in which he was implicated in the present case. It has been stated that on 27.06.1998, he was busy in the Bhog (Kirya) ceremony of the father of Harbans Singh, the neighbour of the appellant. At about 7.25 p.m., while he was sitting in his house, 34 persons came in civil dress and took him to the Police Post, HMT, where he was compelled to admit the recovery of Charas from him and made to sign certain blank papers. He has specifically mentioned that the police personnel were talking to each other for procuring such like cases as per the instructions received from the higher officers. His version is further strengthened from the testimonies of DW1, Sadhu Singh and DW2, Raju, who also withstood the test of cross-examination and corroborated the version of the accused-appellant. The document 'Mark-A', application submitted to the DSP by the local residents, was also ignored by the trial Court. 17. Another aspect of the matter is that the alleged place of recovery is a dried up dirty water drain. PW4, Inspector Tula Ram, has admitted in his examination-in-chief that there was no water in the drain and it was an open place. The accused could have run. 17. Another aspect of the matter is that the alleged place of recovery is a dried up dirty water drain. PW4, Inspector Tula Ram, has admitted in his examination-in-chief that there was no water in the drain and it was an open place. The accused could have run. However, there is not even a whisper in the entire prosecution story that the accused ever tried to flee. 18. The cumulative effect of the facts and circumstances discussed above, leads this Court to arrive at the obvious conclusion that the prosecution has miserably failed to prove its case against the accused-appellant, beyond reasonable doubt. 19. Accordingly, the present appeal is allowed; the impugned judgment of conviction and order of sentence, passed by the learned trial Court, on 13.11.2001, is hereby set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged.