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Himachal Pradesh High Court · body

2014 DIGILAW 645 (HP)

Bishan v. State of H. P.

2014-05-26

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. This appeal is directed against judgment dated 23.10.2013 passed by learned Special Judge (Forests), Shimla, H.P., in Sessions Case No.18-S/7 of 2013, whereby accused, who was charged with and tried for an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act” for the sake of convenience) was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.30,000/- and in default of payment of fine, to undergo simple imprisonment for three months under Section 20 of the Act. 2. The case of the prosecution, in a nutshell, is that the police party comprised of PW11 Subhash Chand, PW9 Bhupinder Singh, PW8 HC Lalit Kumar, P.S. Rajnish, Constable Bhupinder and Constable Vinod had gone in an official vehicle bearing registration No.HP-07A-0730 for checking at Seema vide rapat, Ext. PW4/A. Nakka was laid at about 11.15 P.M. The accused was noticed by the police party at about 2.30 A.M., coming from Ratnari to Rohru side. The accused on seeing the police party turned around and started walking briskly towards Chirgaon. He was nabbed on the basis of suspicion. His name and address was ascertained. The police party suspected that the accused was carrying some contraband. The police party gave their personal search to the accused vide memo, Ext.PW8/A. The accused was apprised of his legal right to be searched before Magistrate or some Gazetted Officer vide memo, Ext.PW8/B. The accused consented to be searched by the police party. A polythene bag was recovered from the right pocket of the upper of track suit worn by the accused. The charas weighed 350 grams. The charas was repacked in the same manner in a cloth parcel and was sealed with five seals of seal impression ‘T’. The seal impressions were also drawn on cloth pieces. The NCB form, in triplicate, was filled-in on the spot vide Ext.PW3/D. The seal after use was handed over to HC Lalit Kumar vide memo Ext.PW8/D. The Investigating Officer prepared Ruqua, Ext.PW3/B. The same was sent to the Police Station, Rohru through HC Bhupinder Singh, on the basis of which FIR, Ext.PW3/A was registered. Spot map, Ext.PW11/A was prepared. The Investigating Officer produced the case property before PW3 Inspector Amar Chand, who resealed the same with three seal impression of seal ‘P’. Spot map, Ext.PW11/A was prepared. The Investigating Officer produced the case property before PW3 Inspector Amar Chand, who resealed the same with three seal impression of seal ‘P’. Memo, Ext.PW2/A, was prepared to this effect. He took sample of seal ‘P’ on a plain cloth piece, Ext.PW3/C. He also filled-in NCB form in triplicate vide Ext. PW3/D. He deposited the case property with MHC, who made entries in the Malkhana register and sent case property to FSL for chemical analysis. The chemical examiner’s report was received vide Ext.PX and found that the case property was ‘charas’ and resin contents were found 25.96% w/w. The investigation was completed and thereafter, the challan was put up in the Court after completing all the codal formalities. 3. The prosecution examined as many as eleven witnesses in support of its case. The accused was examined under Section 313 Cr. P.C. He denied the case of the prosecution and claimed innocence. Learned Special Judge convicted the accused vide judgment dated 23/24.10.2013. Hence, the appeal. 4. Mr. Manoj Pathak, learned Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. M.A. Khan, learned Addl. Advocate General, has supported the impugned judgment dated 23.10.2013. 6. I have heard learned counsel for the parties and have gone through the impugned judgment and record carefully. 7. PW1 HC Vinod, testified that he remained posted as Reader to SDPO, Rohru. On 10.12.2012, he was present in the office. Constable Jai Singh No.2447 brought special report under Section 57 of the Act, Ext.PW1/A. The SDPO was also present in the office. He produced the special report before the SDPO, who after making entry, handed over the same to him. He then made an entry in this regard in his register and gave a copy to Constable Jai Singh. 8. PW2, Constable Nanak Chand No.1225, deposed that on 11.10.2012, at about 7.15 A.M., HC Subhash Chand produced before SHO/Inspector Amar Chand a sealed parcel sealed with five seal impressions “T”, stating to be containing 39 small and big sticks of charas, total weighing 350 grams, packed in transparent polythene bag along with sample seal and NCB-1 form in triplicate. The SHO resealed the parcel with three seals of seal impressions “P”. Memo Ext.PW2/A was prepared to this effect. The SHO resealed the parcel with three seals of seal impressions “P”. Memo Ext.PW2/A was prepared to this effect. Seal impression of ‘P” was also put on NCB-1 form in triplicate and sample seal was taken on a piece of plain cloth. Thereafter, at 7.45 A.M., parcel along with sample seals and NCB-1 form in triplicate were handed over to MHC Amrit Singh to be deposited in the malkhana of Police Station. 9. PW3, Inspector Amar Singh, testified that on 11.10.2012, HHC Bhupinder Singh brought a Ruqua prepared by HC Subhash Chand, on the basis of which FIR, Ext.PW3/A was registered. He made endorsement on Ruqua, Ext.PW3/B in red circle. On 11.10.2012, at about 7.15 A.M., HC Subhash Chand produced before him, a sealed parcel sealed with five seal impressions ‘T’, stated to be containing 39 small and big sticks of charas, total weighing 350 grams, packed in transparent polythene bag along with sample seal and NCB-1 form in triplicate. He resealed the parcel with three seals of seal impression “P” and also prepared memo, Ext.PW2/A to this effect. Sample seal “P” was taken on a piece of plain cloth vide Ext.PW3/C. Column Nos. 9, 10 and 11 of NCB-1 form in triplicate, Ext.PW3/D, were filled in by him and impressions of seal “P” were put on it. Thereafter, at 7.45 A.M., the parcel along with sample seals and NCB-1 form in triplicate were handed over by him to MHC Amrit Singh to be deposited in the malkhana of Police Station. In cross-examination, he deposed that he received Ruqua at 4.15 A.M. MHC had typed the FIR on the computer in his room. He took twenty minutes to type the same. 10. PW4, Constable Rajinder Singh, deposed that on 10.10.2012, report No.50 was entered in daily station diary by him vide Ext.PW4/A. 11. PW5, HC Amrit Singh, deposed that he was posted as MHC in Police Station, Rohru since March 2010. According to him, on 11.10.2012, the SHO, Police Station, Rohru, deposited with him a cloth parcel sealed with five seal impressions “T” and three seal impressions “P” along with NCB-1 form in triplicate and sample seals “T” and “P”. He made an entry in this regard in the malkhana register No.19 at Sr. No.506. According to him, on 11.10.2012, the SHO, Police Station, Rohru, deposited with him a cloth parcel sealed with five seal impressions “T” and three seal impressions “P” along with NCB-1 form in triplicate and sample seals “T” and “P”. He made an entry in this regard in the malkhana register No.19 at Sr. No.506. On 12.10.2012, he sent case property along with sample seals and NCB form in triplicate through Constable Harinder Singh No.303 to FSL Junga for analysis vide R.C.No.92/12, Ext.PW5/B. On 13.10.2012, Constable Harinder Singh handed over to him R.C. and receipt of deposit of the case property at FSL Junga. 12. PW6, Constable Jai Singh, deposed that on 12.10.2012, he had handed over the special report, Ext.PW1/A to the SDPO, Rohru through his Reader, HC Vinod Kumar. 13. PW7, Constable Desh Raj testified that on 30.10.2012, he brought a parcel sealed with four seal impressions of “FSL-II” from FSL Junga and deposited the same with MHC Amrit Singh same day. 14. PW8, HC Lalit Kumar, deposed the manner in which the accused was nabbed. According to him, in intervening night of 10/11.10.2012, at about 2.30 A.M., a person came from Rantadi road towards Rohru. On seeing the police party, he started briskly walking towards Chirgaon. He was nabbed at some distance by Constable Virender. On enquiry, he disclosed his name Bishan Singh. They suspected him to be carrying charas. All police officials gave their search to the accused vide memo Ext.PW8/A. The consent of the accused for his personal search was obtained vide memo, Ext.PW8/B. A transparent polythene packet containing black substance in the shape of sticks was recovered from the right pocket of track suit of the accused. It weighed 350 grams. Sealing process was completed as per law. According to him, Ruqua was prepared by HC Subhash Chand. It was sent through HHC Bhupinder Singh for registration of the FIR. In cross-examination, he deposed that it took about 10 to 15 minutes to reach the spot from Police Station. From samoli bridge it took hardly 2 to 3 minutes to reach the spot. Rohru Town starts from Samoli bridge. Rohru Town is thickly populated. Gazetted Officers and Executive/Judicial Magistrates reside at Rohru. According to him, firstly, Ext.PW8/B was written and they signed it. Thereafter, they asked the accused to write on it, who wrote that he wanted to give his search to the police officials. Rohru Town starts from Samoli bridge. Rohru Town is thickly populated. Gazetted Officers and Executive/Judicial Magistrates reside at Rohru. According to him, firstly, Ext.PW8/B was written and they signed it. Thereafter, they asked the accused to write on it, who wrote that he wanted to give his search to the police officials. Encircled portion “B” on Ext.PW8/B was in the hand of the accused. He denied the suggestion that encircled portion “B” was not written by the accused. After nabbing the accused, they had not checked the vehicles. Nakkabandi was done at point “A” in photograph Ext. DX. The hostel of Seema College was visible in the photograph. Boys and girls reside in the hostel. Seema is a locality having population in thousands. Ruqua was also written by the Investigating Officer. He admitted that spot map and Ruqua were in different handwriting. 15. PW9, HHC Bhupinder Singh No.1234, also deposed the manner in which the accused was nabbed at about 2.30 A.M. in the intervening night of 10/11.10.2012. According to him, on seeing police party, a person turned back and started briskly walking towards Chirgaon. He was nabbed at some distance by Constable Virender. They also reached the spot. They suspected him to be carrying some contraband. All the police officials gave their search to the accused vide memo, Ext.PW8/A. On inquiry, he disclosed his name Bishan Singh. Consent memo qua personal search of the accused was prepared vide Ext.PW8/B. It was signed by the accused. Charas weighing 350 grams, in a transparent polythene bag was recovered from the right pocket of upper of the track suit of the accused. Sealing process was completed in accordance with law. Ruqua was prepared, on the basis of which FIR was registered. In cross-examination, he deposed that the Ruqua was handed over to him at 3.00 A.M. He volunteered that it was handed over to him at 3.25 A.M. He had taken the Ruqua to the Police Station. He had taken the official vehicle to the Police Station. He did not know who had written encircled portion “B” on Ext.PW8/B. He also admitted that there was hostel in Seema College. He also admitted that Rohru town is thickly populated. 16. PW10, HHC Harinder Singh No.301 testified that on 12.10.2012, MHC Amrit Singh handed over to him case property of the case vide R.C. No.92/2012, Ext.PW5/B along with other documents. He also admitted that Rohru town is thickly populated. 16. PW10, HHC Harinder Singh No.301 testified that on 12.10.2012, MHC Amrit Singh handed over to him case property of the case vide R.C. No.92/2012, Ext.PW5/B along with other documents. He safely deposited the case property at FSL Junga and returned the receipt of deposit to MHC. 17. PW11, HC Subhash Chand, deposed the manner in which the constable Varinder overpowered the accused at about 2.30 A.M. in intervening night of 10/11.10.2012. Thereafter, the accused was apprised of his legal right to be searched either before the Magistrate or some Gazetted Officer vide memo Ext.PW8/B. Charas weighing 350 grams was recovered from the accused. Sealing process was completed in accordance with law. Ruqua was prepared and sent to the Police Station for registration of the case. In cross-examination, he admitted that he had not mentioned in consent memo that the accused could give his personal search to the police party also. He did not remember which of the police officials wrote encircled portion “B” on consent memo, Ext.PW8/B. He also admitted that it was his first case as Investigating Officer under the Act. 18. It has come in the statement of PW8 HC Lalit Kumar that hostel of Seema College was visible from the spot, where boys and girls reside. He also admitted that Seema is a locality having population in thousands. PW9, HHC Bhupinder Singh also admitted that Rohru Town is thickly populated. There was hostel in the Seema College. The police has not associated any independent witness at the time of personal search of the accused. It is not the case of the prosecution that they searched for the independent witnesses, but they were not available. If the police had made an effort, the independent witnesses could be associated either from Seema or hostel of Seema College or Rohru Town. It is true that conviction of the accused can be based on the basis of statements of the official witnesses. However, in the instant case, the police has not made at all any effort to join independent witness. According to Ruqua, Ext.PW3/B, the accused on seeing the police turned back and started walking towards Chirgaon. Thereafter, he was nabbed by Investigating Officer, Subhash Chand with the help of other police officials. According to PW8, HC Lalit Kumar, the accused was nabbed by Constable Varinder at some distance. According to Ruqua, Ext.PW3/B, the accused on seeing the police turned back and started walking towards Chirgaon. Thereafter, he was nabbed by Investigating Officer, Subhash Chand with the help of other police officials. According to PW8, HC Lalit Kumar, the accused was nabbed by Constable Varinder at some distance. According to the prosecution, the accused was nabbed on the basis of suspicion. PW9 HHC Bhupinder Singh also deposed that the accused was nabbed by Constable Varinder. The prosecution has not examined Constable Varinder. He was material witness to establish the manner in which the accused was nabbed by him. 19. Mr. Manoj Pathak, learned Advocate, has vehemently argued that there is no compliance of Section 50 of the Act. He has also referred to consent memo, Ext.PW8/B. 20. It is written in encircled portion “B” in consent memo, Ext.PW8/B, that the accused wanted to give search to the police. It was signed by the accused. According to the prosecution, encircled portion “B” was written by the accused. However, if handwriting in encircled portion “B” of consent memo, Ext.PW8/B is compared with Ext.PW3/B, it appears to be of one person. Ext.PW3/B was written by the Investigating Officer PW11 HC Subhash Chand. The word “Bishan” written in the encircled portion “B” on consent memo, Ext.PW8/B seems to be in the same handwriting the manner it was so written in Ruqua Ext.PW3/B. PW11 HC Subhash Chand deposed that he did not remember which of the police officials wrote in encircled portion “B” on consent memo, Ext.PW8/B. It is, thus, clear that the same has been written by some police official and not by the accused. The police has not complied with Section 50 of the Act in a letter and spirit. 21. Their Lordships of Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat, (2011) 1 Supreme Court Cases 609 have held 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. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. Their Lordships have further held that to prevent misuse of wide powers conferred on empowered office and false implication of innocent persons, observance of safeguards provided in the Act are to be strictly construed. Their Lordships have held as under:- “3. It would be expedient to extract the relevant portion of the order:- "When the matter came up before this Court, it was found that in some of the decisions rendered by this Court, a slightly different view was taken than what was expressed by the Constitution Bench with regard to interpretation of Section 50 of the NDPS Act. In the case Joseph Fernandez Vs. State of Goa, 2001 (1) SCC p.707, a Bench of three Hon'ble Judges held that even when the searching officer informed him that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate"; it was held that it was in substantial compliance with the requirement of Section 50 of the NDPS Act, and the Court observed that it did not agree with the contention that there was non-compliance of the mandatory provisions contained in Section 50 of the NDPS Act. In another decision of this Court in Prabha Shankar Dubey Vs. State of M.P. 2004(2) SCC p.56, the following information was conveyed to the accused: "By way of this notice, you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by a gazetted officer or by a Magistrate". This was held to be substantial compliance of Section 50 of the NDPS Act. In Krishan Kanwar (Smt.) Alias Thakuraeen Vs. State of Rajasthan, 2004(2) SCC p.608, the same question was considered and it was held that there is no specific form prescribed or initiated for conveying the information required to be given under Section 50 of the NDPS Act and it was held that: "what is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself. Since mode or manner is or no specific prescribed intended, the court has to see the substance and not the form of intimation. Whether the requirement of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or a straitjacket formula." ***** Thus, in a way, it all depends on the oral evidence of the officer who conducts search, in case nothing is mentioned in the search mahazar or any other contemporaneous document prepared at the time of search. In view of the large number of cases coming up under the provisions of the NDPS Act the interpretation of Section 50 of the Act requires a little more clarification as its applicability is quite frequent in many cases. In appreciating the law laid down by the Constitution Bench in Baldev Singh's case (supra), we have noticed that conflicting decisions have been rendered by this court. We feel that the matter requires some clarification by a larger Bench. The matter be placed before the Hon'ble Chief Justice of India for taking further action in this regard." That is how these appeals came to be placed before this Constitution Bench. 9. Mr. Siddharth Luthra, learned senior counsel appearing on behalf of State of Gujarat, on the other hand, submitted that the rigours of Section 50 of the NDPS Act are neither applicable to the officers who have been empowered by a warrant under Section 41(1); nor to the gazetted/empowered officers who order search or arrest under Section 41(2). It was argued that Section 41(1) of the NDPS Act grants the Magistrate the power to issue warrants for arrest or search, whether by day or night, inter alia, in relation to a person whom the Magistrate has reason to believe has committed an offence under the NDPS Act. It was urged that a reading of Sections 41(1), 41(3), 42, 43 and 50 of the NDPS Act shows that an officer acting under a warrant by a Magistrate under Section 41(1) would not fall within the ambit of Section 50(1) of the NDPS Act. 15. The NDPS Act was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances. 15. The NDPS Act was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances. The object of the said legislation has been explained time and again by this Court in a plethora of cases and, therefore, we feel that it is not necessary to delve upon this aspect all over again, except to re-emphasise that in order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered officers, the safeguards provided by the Legislature have to be observed strictly. Moreover, having regard to the terms of reference to the larger Bench, extracted above, it is equally unnecessary to extract extensively all the provisions of the NDPS Act to which reference was made by learned counsel appearing for the States, and a brief reference to these provisions would suffice. 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. 33. Accordingly, we answer the reference in the manner aforesaid. The appeals shall, now, be placed before the appropriate Bench for disposal.” 22. It has come in the statement of PW8 HC Lalit Kumar that Gazetted Officers and Executive/Judicial Magistrates were available nearby Town Rohru. The personal search of the accused conducted by the police in the present case is held to be vitiated. The prejudice has been caused to the accused. The prosecution has failed to prove the case against the accused. 23. Accordingly, the appeal is allowed and the judgment of conviction and sentence dated 23.10.2013, under Section 20 of the Act, is set aside. The accused is acquitted of the charge framed against him. The fine amount, if any deposited, is ordered to be refunded to accused. Since the accused is in jail, he be released forthwith, if not required in any other case. 24. The accused is acquitted of the charge framed against him. The fine amount, if any deposited, is ordered to be refunded to accused. Since the accused is in jail, he be released forthwith, if not required in any other case. 24. The Registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the Jail concerned in conformity with this judgment forthwith.