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2013 DIGILAW 1451 (RAJ)

Ali Khan v. State of Rajasthan

2013-08-22

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeal has been preferred on behalf of the appellant Ali Khan challenging the judgment dated 29.6.1990 passed by the learned Addl. Sessions Judge, Barmer in Sessions Case No. 48/1989, whereby, the appellant was held guilty for the offences under Sections 20(ii) and 22 of the N.D.P.S. Act and was sentenced for ten years' R.I. along with a fine of rupees one lac and in default of payment of fine to further undergo 2½ years' R.I. 2. As nobody appeared on behalf of the appellant, the Court heard the appeal with the assistance of the learned Public Prosecutor. 3. Briefly stated the facts necessary for the disposal of this appeal are that the S.H.O., Police Station Sadar, Barmer Shri Vishnu Lal (PW-6) is said to have received an information on 27.4.1989 that the appellant would be carrying contraband charas on the Tirsingadi Road. The S.H.O. informed the Circle Officer, Barmer over phone and thereafter formed a raid party and kept vigil at the 'Harsani Fanta'. All the police officials conducted 'nakabandi' at a distance of about eight kilometers from the 'Harsani Fanta'. It is alleged that at about 11.30 A.M., a Muslim man was seen coming from the mud road of the village Tirsingadi. He was stopped by the S.H.O. and on enquiry he disclosed his name to be Ali Khan, the appellant herein. The S.H.O. allegedly gave an option to the accused to be searched before a Gazetted Officer, but, the accused replied that the S.H.O. could search him. Thereupon, the S.H.O. proceeded to conduct the search of the accused. On the search so being made, it was found that a terry-cotton cloth (Tahmal) was seeing over the left shoulder of the accused. The terry-cotton cloth was removed from the accused's person and on opening and searching the same, 200 gms. of 'charas' like contraband was found. A sample of 30 gms. was taken out from the recovered contraband and both the remaining contraband as well as the samples were sealed in a white cotton cloth. The accused was arrested and the seizure memo was prepared. Thereafter, the police party proceeded to the Police Station, Sadar, Barmer where, an F.I.R. No. 89/1989 was registered. 4. After the conclusion of the investigation, the Investigating Agency filed a charge-sheet against the appellant for the offences under Sections 20(ii) and 22 of the N.D.P.S. Act. The accused was arrested and the seizure memo was prepared. Thereafter, the police party proceeded to the Police Station, Sadar, Barmer where, an F.I.R. No. 89/1989 was registered. 4. After the conclusion of the investigation, the Investigating Agency filed a charge-sheet against the appellant for the offences under Sections 20(ii) and 22 of the N.D.P.S. Act. The case was committed to the Court of the learned Addl. Sessions Judge, Barmer where the charges were framed against the appellant for the aforesaid offences. The appellant pleaded not guilty and claimed trial. The prosecution examined six witnesses in support of its case. The accused in his statement recorded under Section 313 Cr.P.C. denied the allegations of the prosecution and examined one witness in defence. The learned trial Judge at the conclusion of the trial proceeded to hold the appellant guilty for the offences under Sections 20(ii) and 22 of the N.D.P.S. Act for being found in possession of contraband 'charas' weighing 200 gms. and proceeded to convict and sentence him as above. Hence, the instant appeal has been filed on behalf of the appellant challenging his conviction and sentence. 5. The principal argument which was raised on behalf of the appellant in the trial Court was regarding the non-compliance of the mandatory provisions of Section 50 of the N.D.P.S. Act. The evidence is thus to be appreciated in the light of the said argument. On a perusal of the Seizure Memo Ex.P-2, it is noticed that there is no recital in the Seizure Memo that the accused was given any intimation regarding his right to be searched before a Magistrate or a Gazetted Officer. The contraband was recovered from inside the clothes (tehmal) worn by the accused and as such, it can very well be held to be from his personal search. The S.H.O. Vishnu Lal (PW-6) admitted in his cross-examination that the 'tehmal' (an apparel used to cover the body), in which, the contraband 'charas' was tied was not seized because it was a part of the apparel worn by the accused and was left within the accused for the protection of his body. From the said admission of the S.H.O., it becomes apparent that the contraband which is claimed to have been seized in this case was recovered on a personal search of the accused. From the said admission of the S.H.O., it becomes apparent that the contraband which is claimed to have been seized in this case was recovered on a personal search of the accused. The Hon'ble Apex Court considered the scope of the phrase search of a person' in the case of State of Himachal Pradesh v. Pazuan Kumar, reported in AIR 2005 SC 2265 , held as below: "Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside Time's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear." 6. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear." 6. The Constitution Bench of the Hon'ble Apex Court in the case of Vijaysingh Chandubha Jadeja v. State of Gujarat reported in AIR 2011 SC 77 , held as below: "Provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, 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 the person during a search conducted in violation of the provisions of Section 50 of the N.D.P.S. Act. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him." 7. On testing the evidence available on the record in the light of the observations made by the Hon'ble Constitution Bench of the Apex Court in the case of Vijaysingh Chandubha jadeja (supra), it is evident that the prosecution evidence does not meet up to the standards required to be followed in the case of personal search. The Seizure Memo Ex.P-2 does not refer to any information of his right under Section 50 of the N.D.P.S. Act being given to the accused before conducting his personal search. The S.H.O. of-course claims to have given a notice Ex.P-10 to the accused before searching him, but the said notice also read that the accused could be taken to a Gazetted Officer if he so desired. The S.H.O. of-course claims to have given a notice Ex.P-10 to the accused before searching him, but the said notice also read that the accused could be taken to a Gazetted Officer if he so desired. Even during deposition, the S.H.O. Vishnu Lal (PW-6) stated that he heeded the accused that he could be taken to a Gazetted Officer before searching him. Thus, the requirement of the mandatory provisions of Section 50 of the N.D.P.S. Act for informing the accused of his right to be searched before a Magistrate or a Gazetted Officer was totally flouted in this case before conducting the personal search and as such, the conviction of the accused is vitiated because of the non-compliance of the said mandatory procedure. 8. Another infirmity noticed in the prosecution case is that the S.H.O. Vishnu Lal (PW-6) came with a case that he received an information that the accused would be transporting the contraband at 8.45 in the morning. The recovery proceedings were initiated at 11.30 A.M. Thus, there was ample time for the S.H.O. to have arranged for independent witnesses while conducting the proceedings of search and seizure. Despite availability of ample time, the S.H.O. made no efforts to procure the attendance of any of the independent witnesses before conducting the 'nakabandi'. Thus, the testimony of the Seizure Officer in this regard is highly suspect. The satisfaction recorded by the Seizure Officer regarding the reason of the failure to procure the presence of independent witnesses before conducting the search is absolutely unacceptable. Thus, in the facts and circumstances of the case, the search and seizure made from the appellant is vitiated as it was carried out in total non-compliance of the provisions of Sections 100(3) and 100(4) of the Cr.P.C. In view of the aforesaid facts, this Court is of the opinion that the judgment of conviction and sentence of the appellant as recorded by the learned trial Court cannot be sustained and deserves to be set aside. 9. As a result of the aforesaid discussion, this appeal is allowed. The judgment dated 29.6.1990 passed by the learned Addl. Sessions Judge, Barmer in Sessions Case No. 48/1989, whereby the appellant was held guilty for the offences under Sections 20(ii) and 22 of the N.D.P.S. Act is set aside. The appellant Ali Khan is acquitted from the charges levelled against him. He is on bail. He need not surrender. The judgment dated 29.6.1990 passed by the learned Addl. Sessions Judge, Barmer in Sessions Case No. 48/1989, whereby the appellant was held guilty for the offences under Sections 20(ii) and 22 of the N.D.P.S. Act is set aside. The appellant Ali Khan is acquitted from the charges levelled against him. He is on bail. He need not surrender. His bail bonds stand discharged.Appeal allowed. *******