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Himachal Pradesh High Court · body

2013 DIGILAW 127 (HP)

Amrik Singh v. State of Himachal Pradesh

2013-02-28

DEV DARSHAN SUD

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JUDGMENT Dev Darshan Sud, J The appellant challenges his conviction for offences under Section 18(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘ND&PS Act’). He has been sentenced to undergo imprisonment of five years and fine of Rs. 20,000/- and in default to suffer rigorous imprisonment for one year. 2. All the facts are not being considered in detail but only those necessary for adjudication for the points urged in this appeal. Mr.Rajiv Jiwan, learned counsel urges that the provisions of Section 50 of the ‘NDPS Act’ have not been complied with which fact per se entitles the appellant for acquittal (b) that the seal impression ‘A’ which was affixed on the contraband (opium weighting 50 grams) has not been produced in Court but only the seal sample of the packet after it was re-sealed. No evidence or explanation has been placed on the record as to why the first seal impression ‘A’ was not produced. 3. On the first point, learned counsel relies upon the Ext. PA to urge that the Investigating Officer has not complied with the provisions of Section 50 of the ‘NDPS Act’ and this document nowhere states that there is right vested in the appellant to have been searched conducted either by the police officer(s), gazetted officer or a Magistrate. He also refers to the evidence of PW9 Sh. Nardev Singh, Investigating Officer, who admits in his cross examination that: “Yaha Thik hai ki ish mukadmay kay record may yaha na leekah hai ki doshi ko option datay samay waha apnee talashi kishi rajpatrit adhikari ya magistrate kay pass daay sakta hai jo ushka kanuni adhikar hai yaha thik hai ki aisha furd wa gawahan kay bayan wa report jair dhara 57 of the Act kay bheji hai na leekhi hai.” “It is correct that in the record of the case I have not recorded while giving option to the accused to be searched before the Gazetted Officer, Magistrate or Police that he has legal right in this regard. It is correct that this omission is there in the memo, statements of witnesses and report sent U/S 57 of the Act.” 4. It is correct that this omission is there in the memo, statements of witnesses and report sent U/S 57 of the Act.” 4. Learned counsel submits that there is no evidence on the record to establish the compliance of Section 50 of the ‘NDPS Act’ and Ext.PA nowhere mentions that the accused has legal right and option to be searched either by the police officials, gazetted officers or a Magistrate. Learned counsel places reliance on the decision of this Court in State of H.P. Vs. Harish Thakur, Latest HLJ 2010 (HP) 1472, holding: 16. In our considered view, the law is well settled that in respect of personal search mere asking the accused in the presence of witnesses as to whether he wanted to be searched before a Magistrate or a Gazetted Officer or by the police official, is not the compliance of Section 50 of NDPS Act, but the accused must be informed that he has right to be searched. From the documents, we find that no such endeavour was made on the part of PW-9 SI Lal Singh to inform the accused that he has right to be searched. As such, there is non- compliance of Section 50 of the ‘NDPS Act’. So much so, merely taking consent of accused to be searched is not sufficient compliance of the provisions of Section 50 of the ‘NDPS Act’, rather the accused has to be very categorically and specifically be informed about his right to be searched. Such view has also been taken by the Division Bench of this Court in Fateh Singh (supra). (P.1476) 5. Learned counsel then urges that the Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609 holds: “29. 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 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. 30. As observed in Re: Presidential Poll, (1974) 2 SCC 33 : “13…..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.” 31. 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-section (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. 32. 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”. (P.622) 6. This judgment has been subsequently followed and applied in Narcotics Control Bureu Vs. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well”. (P.622) 6. This judgment has been subsequently followed and applied in Narcotics Control Bureu Vs. Sukh Dev Raj Sodhi, (2011) 6 SCC 392 , holding: “3. Now, the learned counsel for the appellant submits that in the instant case, from the search notice (at Annexure P-1), it will appear that the requirement of Section 50 of the NDPS Act has been complied with. From the said notice, it appears that the accused was informed that he has the option of being searched either in the presence of gazetted officer or Magistrate and it appears that the accused wanted to be searched in the presence of gazetted officer. The learned counsel for the appellant submits that by giving the option to the accused, the appellant has complied with the requirement under Section 50 of the NDPS Act. 4. The obligation of the authorities under Section 50 of the NDPS Act has come up for consideration before this Court in several cases and recently, the Constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [ (2011) 1 SCC 609 ] has settled this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed. 5. From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate. 6. 6. That being the law laid down by the Constitution Bench of this Court on interpretation of Section 50 of the NDPS Act, we do not think that the obligation under Section 50 of the Act has been discharged statutorily by the appellant in this case. We, therefore, find no reason to interfere with the finding made by the High court. The appeal is, accordingly, dismissed”. (P.393) 7. Submission made by learned Additional Advocate General that there has been compliance with the provisions of sub section(1) of Section 50 of the ‘NDPS Act’, cannot be accepted in the factual matrix and on the settled law. 8. Learned counsel submits that the evidence of the prosecution is that the seizure was made from the personal search of the accused appellant i.e. from the pocket of his trousers and the evidence of PW9 Nardev Singh is that two samples of 5 grams each were separated from the bulk of 50 grams opium and put into two separate parcels and sealed with seal impression ‘A’. The case property along with the accused and N.C.B forms etc. were produced before the Station House Officer. PW5 Harnam Singh, S.H.O. states that H.C. Nardev Singh (PW9) had produced two parcels, one bulk parcel of opium duly sealed with seal impression ‘A’ along with specimen seal and one parcel containing currency notes. But he does not produce the sample of the seal in Court. In these circumstances, the case of the prosecution cannot be accepted. 9. It is pointed out by learned counsel that the link evidence in the instant case is missing. On the scrutiny of the record, the facsimile of seal ‘A’ is not legible on Ext.P1 nor the same can be said to be properly affixed in order to facilitate its comparison with the seal on the sample. 10. Appraisal of the evidence on record as also the exhibits shows that the sample of seal ‘A’ was neither produced or placed on the record. 11. 10. Appraisal of the evidence on record as also the exhibits shows that the sample of seal ‘A’ was neither produced or placed on the record. 11. In the totality of the facts and circumstances of the case, I find that the judgment of the learned trial Court cannot be sustained as the provisions of Section 50 of the ‘NDPS Act’ have not been considered and the learned trial Court does not consider the fact that the sample of seal has not been produced and proved on the record and there is no explanation for its non production. Appeal is allowed. Bail bonds furnished by the appellant shall stand cancelled. Fine of Rs. 20,000/- which has been imposed on the accused shall be refunded to him.