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2013 DIGILAW 1471 (RAJ)

Dalip Soni v. State of Rajasthan

2013-08-27

SANDEEP MEHTA

body2013
JUDGMENT 1. - These three appeals have been filed on behalf of the appellants challenging the judgment dated 18.1.2012 passed by the learned Special Judge, N.D.P.S. Act Cases, Sri Ganganagar in Criminal Case No. 14/2009, whereby the appellants were convicted and sentenced as under: Appellant Dalip Soni Offence Sentence Under Section 8/21 of the N.D.P.S. Act Two years' R.I. and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo two months' additional R.I. Appellant Vishnu Soni Offence Sentence Under Section 8/21 of the N.D.P.S. Act Six months' R.I. and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo one and half months' additional R.I. Appellant Jai Singh Offence Sentence Under Section 8/21 of the N.D.P.S. Act Three years' R.I. and to pay a fine of Rs. 20,000/- and in default of payment of fine to further undergo four months' additional R.I. 2. Learned counsel for the appellants challenged the appellants' conviction on a solitary ground that the Recovery Officer did not comply with the mandatory provisions of Section 50 of the N.D.P.S. Act whilst conducting the search and seizure proceedings in this case. Referring to the statement of the Seizure Officer Vipin Sharma (PW-8), learned counsel for the appellants submitted that the Seizure Officer whilst deposing before the Court did not state that he intimated the accused regarding the existence of their right to be taken and searched before a Magistrate or a Gazetted Officer. Learned counsel submitted that the mandatory provisions of Section 50 of the N.D.P.S. Act have to be complied with strictly and a partial compliance of the provisions would vitiate the conviction of the accused. Learned counsel further submitted that two motbirs namely Prem Kumar and Sandeep were kept to witness the recovery proceedings. He urged that Sandeep was not examined by the trial Court and Prem Kumar did not support the prosecution story. He thus contended that the appellants' conviction in this case is vitiated. Learned counsel further submitted that the appellant Dalip Soni has served out a sentence of one year and ten months, appellant Vishnu Soni has served out a sentence of five months and 26 days and appellant Jai Singh has served out a sentence of one year and ten months. Learned counsel submitted that the appellants have served out a substantial period of their sentences. Learned counsel submitted that the appellants have served out a substantial period of their sentences. He submitted that the appellants have been convicted for being in possession of contraband smack below the commercial quantity and thus the offence does not entail a minimum punishment. He thus prayed that the instant appeals be allowed and the conviction and sentences awarded to the appellants by the learned trial Court deserve to be set aside. . 3. On the other hand, learned Public Prosecutor urged that the Recovery Officer gave notice under Section 50. of the N.D.P.S. Act to each of the three accused (Notice Ex.P-11 to the accused Jai Singh), (Notice Ex.P-12 to the accused Dalip Singh) and (Notice Ex.P-13 to the accused Vishnu Soni). She further submitted that it has specifically been mentioned in the notice that the accused have a legal right to be searched before a Magistrate or a Gazetted Officer. Learned Public Prosecutor referred to the Seizure Memo Ex.P-21 and urged that it has been specifically mentioned in the document that the accused were given notice mentioning that they had a legal right to be searched before a Magistrate or a Gazetted Officer. Learned Public Prosecutor thus submitted that merely because there was a minor omission in the statement of the Seizure Officer regarding the non-mentioning of the words (right to be searched), the accused cannot claim that the provisions under Section 50 of the N.D.P.S. Act had not been substantially complied with. Learned Public Prosecutor thus urged that the appellants' conviction as recorded by the learned trial Court does not call for any interference by this Court. 4. Heard and considered the arguments advanced by learned counsel for the parties at the bar, perused the judgment impugned as well as the record. 5. It is not in dispute that the seizure which has been effected in this case was from the personal search of the accused. As per the Seizure Memo Ex.P-21 and the statement of Seizure Officer Vipin Sharma (PW-8), on the search of appellant Jai Singh, 200 gms. of contraband styled to be smack was recovered from the right pocket of the shirt worn by him. Likewise, on the search of appellant Dalip Soni, 100 gms. of contraband styled to be smack was recovered from the kurta worn by him. Likewise, on the search of appellant Vishnu Soni, 60 gms. of contraband styled to be smack was recovered from the right pocket of the shirt worn by him. Likewise, on the search of appellant Dalip Soni, 100 gms. of contraband styled to be smack was recovered from the kurta worn by him. Likewise, on the search of appellant Vishnu Soni, 60 gms. of contraband styled to be smack was recovered from the trouser worn by him. Thus, the recovery having been effected from the personal search of the accused, the provisions of Section 50 of the N.D.P.S. Act would definitely apply in this case. The Seizure Officer was thus under an obligation to intimate the accused about their right to be searched before a Magistrate or a Gazetted Officer. 6. The Constitution Bench of the Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, reported in AIR 2011 SC 77 , held as below: "Provisions of sub-section (1) Section 50 makes it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so required, he shall be searched before a Gazetted Officer or a Magistrate. Failure to "inform" the suspect about 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 sentenced 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. In order to prove the strict compliance of Section 50 of the N.D.P.S. Act, it was imperative for the Seizure Officer to have stated in his deposition that he intimated the accused about the existence of their right to be searched before a Magistrate or a Gazetted Officer under Section 50 of the N.D.P.S. Act. In order to prove the strict compliance of Section 50 of the N.D.P.S. Act, it was imperative for the Seizure Officer to have stated in his deposition that he intimated the accused about the existence of their right to be searched before a Magistrate or a Gazetted Officer under Section 50 of the N.D.P.S. Act. The Seizure Officer whilst deposing in the Court stated as below: " fQj eSaus mijksDr rhuksa O;fDr t;flag] nyhi lksuh o fo".kq lksuh dks /kkjk 50 ,u0Mh0ih0,l0 dk uksfVl fn;k fd vkids ds ikl vius ikl LeSd gksuk crk;k gS blfy, vkidh ryk'kh yh tkuh gS vki viuh ryk'kh fdlh eftLV~sV@jktif=r vf/kdkjh ;k eu o`rvf/kdkjh dks ns ldrs gks ftl ij mu rhuksa us viuh&2 ryk'kh nsus dh fyf[kr lgefr nh eq>s nhA " 8. On a bare reading of this portion of the deposition of the Seizure Officer, it is evidence that the Seizure Officer did not testify that he intimated the accused about the existence of the right to be searched before a Magistrate or a Gezetted Officer. Though, it is true that the memos Ex.P-11, Ex.P-12 and Ex.P-13 refer to the fact that the accused were intimated of their right, but, the law is well settled that a memo is not a substantive piece of evidence in itself. The contents of the memo have to be proved by leading evidence. The best evidence to prove the contents of the memo would be that of the Seizure Officer. As has been noted above, the Seizure Officer did not state in his testimony that he intimated the accused of their right to be searched before a Magistrate or a Gazetted Officer. The two independent motbirs namely Prem Kumar and Sandeep were kept to witness the recovery proceedings. Prem Kumar was examined as PW-4 at the trial and he did not support the prosecution story in its entirety. Sandeep was not examined by the prosecution. The learned trial Judge whilst putting the circumstances appearing in the evidence to the accused did not put a specific question about the intimation given to them of their right to be searched before a Magistrate or a Gazetted Officer. Sandeep was not examined by the prosecution. The learned trial Judge whilst putting the circumstances appearing in the evidence to the accused did not put a specific question about the intimation given to them of their right to be searched before a Magistrate or a Gazetted Officer. It may be mentioned here that Nand Lal (PW-7), the Circle Inspector of-course alleged that the accused were informed of their right to be searched before a Magistrate or a Gazetted Officer but his testimony is inconsistent with the deposition made by the Seizure Officer Vipin Sharma (PW-8). A perusal of the statements recorded under Section 313 Cr.P.C. reveals that though a question regarding the deposition of Nand Lal (PW-7), wherein the witness claims that the accused were intimated of their right was put to the accused as question No. 14 but the notices Ex.P-11, Ex.P-12 and Ex.P-13 were not put to them. On perusing the notices purported to have been given to the accused under Section 50 of the N.D.P.S. Act, it be comes evident that the said notices do not bear Nand Lal's signatures. Thus, the best witness who could have proved the strict compliance of Section 50 of the N.D.P.S. Act was Seizure Officer Vipin Sharma (PW-8) and none else. 9. In view of the aforesaid discussion, this Court feels that the prosecution has failed to prove by proper evidence that the accused were intimated of their right to be searched before a Magistrate or a Gazetted Officer. As the mandatory provision of Section 50 of the N.D.P.S. Act was not complied with before conducting the personal search of the appellants, the search and seizure proceedings are vitiated. Thus, the appellants' conviction as recorded by the learned trial Court cannot be sustained. Otherwise also, as mentioned above, the accused have already served out a substantial period of their sentences awarded to them by the learned trial Court.Resultantly, these appeals are allowed. The judgment dated 18.1.2012 passed by the learned Special Judge, N.D.P.S. Act Cases, Sri Ganganagar convicting and sentencing the appellants for the offence under Section 8/21 of the N.D.P.S. Act is set aside. The appellants Dalip Soni and Jai Singh are in jail. They shall be released forthwith if not required in any other case. The appellant Vishnu Soni is on bail. His bail bonds stand discharged.Appeals allowed. *******