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2013 DIGILAW 120 (GUJ)

STATE OF GUJARAT v. KISHANLAL JETHALAL SINDHI

2013-02-27

HARSHA DEVANI

body2013
JUDGMENT HARSHA DEVANI, J. 1. This appeal is directed against the judgement and order dated 31.5.1997 passed by the learned Second Joint District Judge, Rajkot in Sessions Case No.125 of 1996, whereby he has acquitted the respondents – accused of the offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). 2. The facts of the case stated briefly are that on 9.6.1996, Head Constable, Omkarnath Shivbahadur Tiwari as well as other police personnel of the Crime Detection Department, Rajkot were patrolling in the Rajkot city as well as in the rural areas. During that time, at about 8:30 hours at night, they came near the Ranuja temple at Kothariya Road, when the accused No.1 was going on foot carrying a cardboard box. On seeing the policemen, he immediately turned back and started walking fast. Considering his suspicious behaviour, he was stopped and the details of his name etc. were inquired. Two panchas were summoned and upon examining the contents of the cardboard box, it was found that the same contained three packets wrapped in an English daily newspaper and one white plastic bag containing four packets. Upon opening and examining the four packets, it was found that each of the packets contained loose ganja and the plastic bag contained 101 small plastic bags containing ganja. Upon inquiring from the accused No.1 whether he had any permit for possessing such ganja, he was not able to produce any such permit. Upon calling for weighing scales and weighing the four packets, the same totally weighed 2,100 grams. The estimated cost of the ganja was Rs.10,500/-. The three packets wrapped in English daily newspapers as well as the plastic bag were again placed in the cardboard box and the cardboard box was sealed and the slips bearing the signatures of the panchas were affixed thereon. The person of the accused was also searched and Rs.3,575/-were recovered from him. A panchnama of the scene of offence was drawn and the signatures of the panchas were obtained thereon and the accused were arrested. Pursuant thereto, a first information report came to be lodged by Head Constable Omkarnath Tiwari at Rajkot Taluka Police Station. The investigation came to be handed over to Head Constable Omkarnath Shivbahadur Tiwari, who thereafter carried out the investigation. Pursuant thereto, a first information report came to be lodged by Head Constable Omkarnath Tiwari at Rajkot Taluka Police Station. The investigation came to be handed over to Head Constable Omkarnath Shivbahadur Tiwari, who thereafter carried out the investigation. Upon conclusion of the investigation, a charge-sheet came to be submitted before the concerned court. 3. During the course of trial, the prosecution examined, in all, seven witnesses and produced certain documentary evidence on record. Upon conclusion of the trial, the trial court found that there were discrepancies in the depositions of the witnesses as regards the number of seals that has been affixed on the cardboard boxes. The trial court also found that the mandatory procedure envisaged under section 50 of the Act had not been followed prior to searching the person of the accused and accordingly, held that the prosecution had not established the charges levelled against the accused and acquitted them. 4. Mr. H. K. Patel, learned Additional Public Prosecutor vehemently assailed the impugned judgement and order by submitting that in the facts of the present case, the contraband viz., ganja had been recovered from the cardboard box which was carried by the accused. Under the circumstances, the provisions of section 50 of the Act would not be applicable. In support of his submissions, the learned Additional Public Prosecutor placed reliance upon the decision of the Supreme Court in the case of State of H. P. v. Pawan Kumar, (2005)4 SCC 350 , for the proposition that where a search of a bag, briefcase or any such article or container, etc., which is being carried by the accused is made, section 50 of the Act would not be applicable. The articles, namely, a bag, briefcase etc. cannot be treated as the body of a human-being and hence, would not come within the ambit of the word “person” occurring in section 50 of the Act. Reliance was also placed upon the decision of a Division Bench of this court in the case of Mahamad Parvezkhan Mahamad Faruqkhan Shaikh and another v. State of Gujarat, 2006 (2) G.L.R. 925 , wherein the court found that the contention that the difference in number of seals on samples taken would indicate that there was possibility of tampering with the same, and therefore, reasonable benefit of doubt should be accorded to the accused, had no substance. The court was of the opinion that before considering possibility of tampering with the muddamal, it is the duty of the court to ascertain whether sealing procedure adopted by the Police Officers concerned was fool-proof or was defective and whether the samples were kept in safe custody before they reached F.S.L. for analysis. It was submitted that in the facts of the present case, the F.S.L. report clearly indicates that the cardboard box bearing the seal of “Police Commissioner, Rajkot Shaher” (in Gujarati) was received by them and the seals were intact as per the specimen seal impression forwarded. It was submitted that the prosecution has, through the depositions of the witnesses, duly established that the seized goods had been kept in safe custody and that the same had been received in a sealed condition and were intact. Under the circumstances, the learned Judge was not justified in giving undue weightage to minor discrepancies in the depositions of the witnesses and coming to the conclusion that since there were discrepancies as regards the number of seals affixed on the cardboard box, the possibility of tampering could not be ruled out. It was submitted that the learned Judge has erred in holding that the entire trial is vitiated in view of the fact that the complainant himself was the Investigating Officer, inasmuch as, it is settled legal position that merely because the complainant is the Investigating Officer, the proceedings would not stand vitiated. Thus, the view taken by the learned Judge is contrary to the law laid down by this High Court as well as the Supreme Court. It was, accordingly, urged that both the grounds on which the learned Judge has held in favour of the accused, are not tenable and as such, the impugned judgement and order requires to be reversed and the accused are required to be convicted of the alleged offence. 5. Vehemently opposing the appeal, Mr. Mahendra Patel, learned advocate for the respondents invited the attention of the court to the depositions of the witnesses to submit that there are material discrepancies as regards the number of seals as well as the nature of the seals affixed on the cardboard box. It was further submitted that this is not an ordinary case where the complainant is the Investigating Officer. It was further submitted that this is not an ordinary case where the complainant is the Investigating Officer. The attention of the court was invited to the communication dated 9.6.1996 addressed by the Investigating Officer to the Police Station Officer, Rajkot Taluka Police Station, submitting a report for registration of the first information report as well as requesting him to entrust the investigation to him, to submit that the complainant himself had requested the Police Station Officer to entrust the investigation to him, which clearly shows that he was an interested person and hence, the learned Judge was justified in holding that the trial stood vitiated on the ground that the complainant and the Investigating Officer were one and the same. It was further submitted that in the facts of the present case, it is not only the cardboard box which was allegedly carried by the accused No.1 that was searched, the search party had also carried out search of the person of the accused No.1. Hence, it was incumbent upon them to comply with the provisions of section 50 of the Act. The learned Judge was, therefore, justified in holding that the proceedings stood vitiated on the ground of non-compliance of the mandatory provisions of section 50 of the Act. It was, accordingly, urged that the view taken by the learned Judge is a plausible view and and as such, there is no warrant for intervention by this court. 6. This court has considered the submissions advanced by the learned counsel for the respective parties and has also perused the record of the case. Though various contentions, as noted hereinabove, have been raised by the learned counsel for the respective parties, for the reasons that follow, it is not necessary to deal with the same. 7. At this juncture, it may be germane to refer to the decision of the Supreme Court in the case of Roy V. D. v. State of Kerala, (2000) 8 SCC 590 , wherein it has been held thus :- “8. The ground on which the proceedings are sought to be quashed is that search, seizure and the alleged recovery of Ganja are all in violation of Section 42(1) being by an Excise Inspector who was not empowered under Sections 41(2) of the said Act. 9. A reference to Sections 41 and 42 of the NDPS will be apposite. They read as under: 41. 9. A reference to Sections 41 and 42 of the NDPS will be apposite. They read as under: 41. Power to issue warrant and authorisation:- (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence of any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer 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 personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. (3) The Officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under subsection (2) shall have all the powers of an officer acting under Section 42. 42. (3) The Officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under subsection (2) shall have all the powers of an officer acting under Section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.- (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 or of the Border Security Force 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 personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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 Chapter IV relating to such drug or substance; 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 Chapter IV relating to such drug or substance: 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 sun set and sun rise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.” 10. Sub-section (1) of Section 41 of the NDPS Act enables a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class who is especially empowered by the State Government in this behalf to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV of the said Act. Such a warrant may also be issued for the search of any building, conveyance or place in which he has reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. Arrest or search under a warrant issued in this provision can be made at any time whether by day or by night. 11. Sub-section (2) of Section 41 of the NDPS Act entitles any officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force who has been empowered in that behalf by general or special order of the Central Government, or any officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in that behalf by general or special order of the State Government, to arrest a person or search a building, conveyance or a place or to authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night. 12. Sub-section (3) of Section 41 of the NDPS Act says that the Officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search and the officer who is so authorised under subsection (2) shall have all the powers of an officer acting under Section 42. 13. 12. Sub-section (3) of Section 41 of the NDPS Act says that the Officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search and the officer who is so authorised under subsection (2) shall have all the powers of an officer acting under Section 42. 13. Sub-section (1) of Section 42 of the NDPS enumerates the powers of any such officer as is specified therein and who is duly empowered by the Central Government or the State Government, as the case may be. If he has reason to believe either from personal knowledge or on information given by any person and taken down in writing, that (a) any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed; or (b) any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, he may exercise the following powers, between sunrise and sunset. They are: (i) enter into any building and search any such building, conveyance or place and if faced with any resistance, break open any door and remove any such obstacle to such entry; (ii) seize: (a) such drug or substance and other materials any other article or any animal or conveyance which he has reason to believe to be liable to confiscation under the Act; and (b) any document or other article which he has reason to believe may furnish evidence of the commission of any offence relating to such drug or substance; and (iii) detain and search and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance. The proviso to sub-section (1) says that an empowered officer may also enter into any building, conveyance or enclosed place at any time between sunset and sunrise if he 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 but in such a case before so proceeding he is enjoined to record the grounds of his belief. 14. 14. Sub-section (2) of Section 42 contains a procedural directive to the officer who takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto to send forthwith a copy thereof to his immediate official superior. 15. It is thus seen that for exercising powers enumerated under sub-section (1) of Section 42 at any time whether by day or by night a warrant of arrest or search issued by a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class who has been specially empowered by the State Government in that behalf or an authorisation under sub-section (2) of Section 41 by an empowered officer is necessary. Without such a warrant or an authorisation, an empowered officer can exercise those powers only between sunrise and sunset. However, the proviso permits such an empowered or authorised officer to exercise the said powers at any time between sunset and sunrise if he has reason to believe that such a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender and he records the grounds of his belief. 16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of Section 36A of the NDPS Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial. 17. To the same effect is the view expressed by this Court in State of Punjab Vs. Balbir Singh [ 1994 (3) SCC 299 ]. In para 13 Jayachandra Reddy, J. speaking for the Court observed thus: “13. 17. To the same effect is the view expressed by this Court in State of Punjab Vs. Balbir Singh [ 1994 (3) SCC 299 ]. In para 13 Jayachandra Reddy, J. speaking for the Court observed thus: “13. Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial.” 18. It is well settled that the power under Section 482 of the Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 of the Cr.P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.” 8. A perusal of the record reveals that in the present case, the search had been carried out by Shri Omkarnath Shivbahadur Tiwari, Police Head Constable, Crime Detection Department, Rajkot city. On a plain reading of section 42 of the Act, it is apparent that an empowered officer should be an officer of a rank superior to a peon, sepoy or constable. Evidently, therefore, the Investigating Officer in the present case was not an empowered officer. On a plain reading of section 42 of the Act, it is apparent that an empowered officer should be an officer of a rank superior to a peon, sepoy or constable. Evidently, therefore, the Investigating Officer in the present case was not an empowered officer. In Mohinder Kumar v. State, Panaji, Goa, (1998) 8 SCC 655 , the Supreme Court held that if a police officer, without prior information, makes a search and effects arrest of persons and if during such a search, he stumbles on a chance recovery of any narcotic drugs or psychotropic substance and if he happens to be a police officer who is not empowered officer under the Act to effect search and seizure, he should inform the empowered officer as required by the Act. If he himself happens to be the empowered officer, then from that stage onwards the investigation must be carried out in accordance with the provisions of the Act. In the facts of the present case, in the first place, there is no material on record to show that Shri Omkarnath Shivbahadur Tiwari or any of the police personnel accompanying him was an empowered officer as envisaged under the Act. Under the circumstances, the moment they stumbled upon a chance recovery of ganja, they should have informed the empowered officer as required under the Act. As held by the Supreme Court in Roy V. D. v. State of Kerala (supra), any collection of materials, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such, the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial. 9. Under the circumstances, in the facts of the present case, the arrest and search having been effected by an officer not being an empowered officer or an authorised officer under section 41(2) of the Act, the same lacks sanction of law and is inherently illegal and as such, cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act. 10. 10. Moreover, as rightly submitted by the learned counsel for the respondents, in the facts of the present case, it is not only the cardboard box which was allegedly carried by the accused that was searched, the person of the accused No.1 had also been searched. 11. In Dilip and another v. State of M. P., (2007) 1 SCC 450 , wherein before seizure of the contraband from the scooter, the personal search of the accused had been carried out and, admittedly, even at that time, the provisions of section 50 of the Act had not been complied with, the Supreme Court held that the provisions of section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the accused was also searched, it was obligatory to comply with the said provisions, which was not done. In the facts of the present case also, initially it was the cardboard box allegedly carried by the accused No.1 that was searched, at which point of time, it was not necessary to comply with the provisions of section 50 of the Act. Thereafter, the person of the accused No.1 was also searched in breach of the mandatory provisions of section 50 of the Act. Under the circumstances, in view of the fact that the mandatory provisions of section 50 of the Act had not been complied with, the entire proceedings stood vitiated. 12. In the light of the above discussion, this court does not find any infirmity in the impugned judgment and order warranting interference by this court. The appeal, therefore, fails and is, accordingly, dismissed.