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2014 DIGILAW 62 (MAN)

Md. Nasim Ali v. State of Manipur

2014-05-15

N.KOTISWAR SINGH

body2014
JUDGMENT N. Kotiswar Singh, J. Heard Mr. M.I. Sharma, learned counsel for the appellant and Mr. R.S. Reisang, learned Sr. P.P. for the State respondent. 2. The present jail appeal has been filed against the judgment and order dated 19.8.2013 and sentence dated 29.8.2013 passed by the Special Court of ND & PS Manipur, by which the appellant was convicted under section 21(b) of the ND & PS Act and sentenced to undergo rigorous imprisonment of 5 years with fine of Rs. 20,000/- and in default of payment of fine, to undergo another two months simple imprisonment. 3. The relevant facts in brief may be stated as follows: As per prosecution, on 29.5.2000 at 9.30 am, the complainant, S.I. N. Kesho Singh lodged a written report stating that on the same day at around 7 am, he received a reliable information from a source that one person, namely, Md. Nasim Ali of Lilong Awang Leikai, the appellant, was trying to dispose of some quantity of Heroin powder at his house. Thereafter, after obtaining authorisation for search from SP/NAB, he along with a police team rushed to the said house and found the appellant, Md. Nasim Ali, trying to escape. He was, however, apprehended and his body search was conducted in presence of witnesses after observing all legal formalities, during which process one polythene packet containing some Heroin powder was recovered from the right side pocket of his trouser, weighing 15 gms. The same was seized by observing formalities and a regular case being FIR No. 7(5)2000 u/s. 21 ND & PS Act was registered against him. On completion of investigation, the accused appellant was charge-sheeted under Section 21(b) of the ND & PS Act and on his denial of the charges, the trial was conducted. 4. The prosecution examined as many as five witnesses and produced 18 documents/evidences in support of their case. The appellant was examined under section 313 of Code of Criminal Procedure and he took the plea of total denial and also did not prefer to lead any evidence in his defence. The learned Trial Court, convicted the appellant under Section 21(b) of ND & PS Act. The appellant was examined under section 313 of Code of Criminal Procedure and he took the plea of total denial and also did not prefer to lead any evidence in his defence. The learned Trial Court, convicted the appellant under Section 21(b) of ND & PS Act. In coming to the conclusion for convicting the appellant, the learned Trial Court found that the provisions of Section 50 of the ND & PS Act which deal with the procedure for searching of person were duly complied with and it was observed that the appellant was given due warning and option at the time of his search before a Gazetted Officer or a Magistrate. It was observed that the appellant preferred to be searched at the spot without the presence of Magistrate or Gazetted Officer. Accordingly, search was conducted on his body and about 15 gms. of heroine recovered from his possession. Necessary seizure was made in the presence of witnesses and accordingly the Trial Court was of the view that mandatory requirements of Section 50 were complied with. The learned Trial Court also observed that there was no legal lacuna in the chemical examination of the seized article. The Trial Court after being fully satisfied with the evidences on record was of the view that the charge against the appellant had been proved beyond reasonable doubt and accordingly convicted the appellant under Section 21(b) of the ND & PS Act. 5. At the time of hearing, the appellant has raised mainly the following grounds while challenging the judgment and conviction under Section 21(b) of the ND & PS Act. (i) It has been contended that mandatory provisions of Section 50 of the ND & PS Act had not been complied with nor the mandatory provisions of Section 55. (ii) It has been also contended that the heroin seized from the appellant was of small quantity. (iii) It was also contended that neither the Chemical Analyst was examined in the trial nor the Chemical Analysis mentioned about the quantity of heroin and in the absence of which, there cannot be any definitive finding that the amount recovered from the appellant was 15 gms. As neither the Chemical Analyst was examined nor the quantity mentioned by the chemical analyst, the appellant was denied the opportunity to cross examine on a very crucial issue. As neither the Chemical Analyst was examined nor the quantity mentioned by the chemical analyst, the appellant was denied the opportunity to cross examine on a very crucial issue. The prosecution has opposed these arguments and submitted that all the mandatory provisions of the Act had been duly complied with and there are substantial evidences to convict the appellant. 6. Mr. M.I. Sharma, learned counsel for the appellant by relying on the decision of the Supreme Court in Narcotic Control Bureau Vs Sukh Dev Raj : 2011 Crl.R (SC) 545 has submitted that the requirements of mandatory provisions of Section 50 relating to personal search cannot be said to have been complied by merely informing the accused of his option of search in the presence of a Gazetted Officer or before a Magistrate, and an endeavour should be made to produce the suspect before the nearest Magistrate. In the present case, it has been submitted that no attempt was made by the Police to produce the appellant before a Magistrate or a Gazetted Officer and as such, in view of the judgment of the Supreme Court rendered in Sukh Dev Raj Sodhi's case (supra) seizure made under Section 50 is illegal. In this regard we may refer to the relevant paragraphs in the aforesaid decision in Sukh Dev Raj Sodhi's case (supra) as follows: 4. 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 N.D.P.S. 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. 5. 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 Vs State of Gujarat, (2011) 1 SCC 609 has settled the controversy. 5. 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 Vs State of Gujarat, (2011) 1 SCC 609 has settled the 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. 6. 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. 7. 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. In the aforesaid case of Sukh Dev Raj Sodhi's case (supra) as evident from para-4 of the judgment, the accused wanted to be searched in the presence of a Gazetted Officer in lieu of a Magistrate and the Hon'ble Supreme Court relying in the case of Vijaysinh Chandubha Jadeja Vs State of Gujarat: (2011) 1 SCC 609 held that endeavour should have been made by the prosecuting agency to produce the suspect before the nearest Magistrate. However, in the present case, what is seen is that the appellant never wanted to be produced either before a Gazetted Officer or a Magistrate as evident from the exhibits P/4 and P/5. However, in the present case, what is seen is that the appellant never wanted to be produced either before a Gazetted Officer or a Magistrate as evident from the exhibits P/4 and P/5. By Ext P/4 the appellant was informed of his right to be searched in the presence of a Magistrate or a Gazetted Officer and he was asked whether he would like to be searched before a Magistrate or a Gazetted Officer. In Ext P/5 the appellant having been informed of such an option stated that he preferred to be searched on the spot without the presence of a Magistrate or a Gazetted Officer. In the statement made under Section 313, the appellant clearly stated that he consented to the search. Therefore, in the present case, as the appellant clearly preferred not to be searched either before a Magistrate or a Gazetted Officer, the question of bringing him before the nearest Magistrate did not arise. The aforesaid Ext P/4 and P/5 are reproduced hereinbelow. Ext. P/4. Duty of Searching Officer before conducting body search of the suspected person (u/s. 50 ND & PS Act) I (S.I.N. Kesho Singh BA PS) inform to person in writing about his right to be searched as provided under Section 50 ND & PS Act that ... You have a right to be searched your body in presence/before a Magistrate/Gazetted officer, I suspect you to have possessed heroin/contraband articles of ND & PS Act. Whether you would like to be searched in presence of Magistrate/Gazetted officer. Sd/- (N. Kesho Singh) SI/BA PS dt. 29.5.2000 Ext. P/5. Option of Mr. Md. Nashim (42) s/o Md. Ashrup Ali of Lilong Awang Leikai for conducting body search. I have been informed by the Police Officer of BA/PS in writing that I have a right to be searched in presence of a Magistrate or Gazetted officer. But preferred to be searched my body/luggage at the spot without the presence of Magistrate or Gazetted officer. Sd/- Md. Nashim, s/o Md. Asharab Ali, Dated 29.5.2000 The search and seizure after being informed of the option was also testified by PW. 4, an independent seizure witness who deposed that he was present when the option for body search as well as the conducting of body search was made. PW. Sd/- Md. Nashim, s/o Md. Asharab Ali, Dated 29.5.2000 The search and seizure after being informed of the option was also testified by PW. 4, an independent seizure witness who deposed that he was present when the option for body search as well as the conducting of body search was made. PW. 4 deposed, inter alia, that "Option for body search as well as in conducting body search, I along with my friend N. Nando were present and we both were witnesses to the said option given to the accused as well a body search." The testimonies of PW. 1 who conducted the body search and PW. 4, the independent seizure witness were not shaken as regards the procedure following in conducting search on the body of the appellant. Reading and considering the aforesaid evidences together would clearly show that the provisions of Section 50 were substantially complied with. Therefore, this Court is of the view that the judgment rendered by the Hon'ble Supreme Court in Sukh Dev Raj Sodhi's case (supra) referred to by the appellant is not applicable in the present case. 7. The appellant also contended that provisions of Section 55 had not been complied with inasmuch as the Officer in-charge of the police station where the seized heroin power was kept did not affix his seal with signature to such seized articles. However, the aforesaid contention cannot be accepted inasmuch as it is clear from the Ext P/13, which is the godown receipt, which shows keeping of seized articles with the police station and the seal and signature of the Officer in-charge of the police station had been appended to the said godown receipt. 8. It has been also contended that the heroin seized from the appellant was of small quantity and as such conviction of the appellant under Section 21(b) is not permissible. It may be mentioned that Section 21was amended in the year 2001. Before amendment of the said Section, it read as follows: 21. 8. It has been also contended that the heroin seized from the appellant was of small quantity and as such conviction of the appellant under Section 21(b) is not permissible. It may be mentioned that Section 21was amended in the year 2001. Before amendment of the said Section, it read as follows: 21. Punishment for contravention in relation to manufactured drugs and preparations.- Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State, or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be les than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. In the present case, seizure was made on 29.5.2000, that is, prior to amendment of Section 21 of the Act. Provisions of Section 21 before amendment provide for a harsher punishment and it does not distinguish between possession of commercial quantity or small quantity as has been made in the amended Section21. It may be also mentioned that the small quantity of heroin as per the notification issued by the Central Government in terms of Section 2 of the ND & PS Act, has been quantified as 5 gms. and commercial quantity as 250 gms. onwards. Under Section 21, before its amendment, punishment was up to not less than 10 years and with fine not less than one lakh irrespective of the quantity of heroin possessed. In the present case it has been proved that 15 gms. of heroin was recovered from the body of the petitioner which was more than small quantity, as mentioned above, and as such, this contention of the appellant does not serve his case. 9. It is also contended that since neither the Chemical Analyst was examined nor the chemical analysis mentioned about the quantity of heroin, finding of the learned Trial Court that 15 gms. of heroin was seized from the appellant is vitiated. 9. It is also contended that since neither the Chemical Analyst was examined nor the chemical analysis mentioned about the quantity of heroin, finding of the learned Trial Court that 15 gms. of heroin was seized from the appellant is vitiated. In this regard, the learned P.P. has relied on the decision of the Supreme Court in Rajesh Kumar & Anr. Vs State Government of NCT of Delhi: (2008) 4 SCC 493 , in which, the Supreme Court, while dealing with the case under the Punjab Excise Act, 1914 observed that provisions of Section 293 Cr.P.C. which deals with the report of the Government Scientific experts does not make it obligatory that the expert who furnished his opinion on the scientific issue of the chemical examination of substance, should be of necessity made to depose in proceedings before the Court. In the present case, though the expert had not been examined, the chemical analysis report had been duly proved and there is nothing on record to doubt it. As such, non examination of chemical analyst cannot be held to be fatal to the prosecution in the light of the decision of the Supreme Court in Rajesh Kumar (supra). 10. It was also not necessary to mention the quantity of the contraband article in the chemical analysis report as it was concerned with the examination of the nature/composition of the material/article seized and not with the quantity of the material seized. Seizure of 15 gms. from the possession of the appellant had been duly proved to be heroin and the sample taken from the seized material was also proved and since the chemical analyst was for the purpose of ascertaining as to whether seized material was heroin or not, this Court is of the view that non examination of the Chemical analyst nor mentioning of the quantity of the seized material in the chemical analysis report will not vitiate the trial. For the foregoing reasons and discussions, this Court is of the view that there is no merit in the appeal and the same stands dismissed.