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Himachal Pradesh High Court · body

2015 DIGILAW 1201 (HP)

Aman Kumar v. State of H. P.

2015-08-31

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment : Justice Rajiv Sharma, J. This appeal is instituted against the judgment and order dated 25.6.2014 and 30.6.2014, respectively, rendered by the learned Special Judge, Solan, H.P, in Sessions Trial No. 16-S/7 of 2012, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 22.8.2012, SI/SHO, Police Station, Kasauli, Prabal Singh alongwith other police officials was on patrolling duty and checking traffic at Mini Bus Stand Kasauli. At about 8:15 PM, they saw accused coming from Military Hospital side towards Mini Bus Stand. On seeing the police, he turned back from the street light. He was carrying a bag in his right hand. They stopped him at some distance. They suspected some suspicious material in the bag carried by him. Amit Kumar came there in his vehicle. He was requested by the police officials to be a witness in the case. Another shopkeeper Brijesh Kumar was summoned by SI Prabal Singh through HC Sandeep Kumar. Thereafter, the police in the presence of these independent witnesses Amit Kumar and Brijesh Kumar gave in writing to the accused that he was being suspected of to be carrying some intoxicated material. The information under Section 50 of the ND & PS Act was reduced into writing vide memo Ext. PW-1/A. It was brought to the notice of the accused that he was free to get the carry bag searched from any Magistrate or Gazetted Officer or from the police officer at the spot. The information was given to the accused in the presence of Amit Kumar and Brijesh Kumar. The accused gave his consent to be searched by the police personnel. Thereafter, carry bag, red in colour Ext. P-2 was checked and inside it one blue coloured carry bag Ext. P-3 was taken out, which on checking was found to be containing black substance in the form of wicks. It was found to be charas. It weighed 1.3 kgs. The accused gave his consent to be searched by the police personnel. Thereafter, carry bag, red in colour Ext. P-2 was checked and inside it one blue coloured carry bag Ext. P-3 was taken out, which on checking was found to be containing black substance in the form of wicks. It was found to be charas. It weighed 1.3 kgs. The sealing process was completed on the spot. NCB forms in triplicate were filled in. Rukka Ext. PW-11/B was prepared and sent to the Police Station through Const. Mohd. Shahid. Thereafter, FIR Ext. PW-5/A was registered. The case property was handed over to MHC Bhupinder Singh for depositing in the malkhana. The case property was sent by HC Bhupinder Singh to FSL Junga through Const. Hem Raj. The FSL report is Ext. PW-10/A. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 12 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Pawan Kumar Sharma, Advocate, appearing on behalf of the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A.Khan, Addl. Advocate General for the State has supported the judgment/order of the learned trial Court dated 25/30.6.2014. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 Const. Mohd. Shahid deposed that on 22.8.2012, they were standing near the booth where street light is situated. The accused was coming on foot from Military Hospital side towards down side. He was carrying a carry bag in his hand. When he came near the street light and saw the police, he turned back and started walking. They apprehended him. One person from the vehicle was associated by the SHO in the party and another person was asked to join from the front Khokha (tea stall). The person who was associated from Khokha was Brijesh Kumar and the person who came in the vehicle was Amit Kumar. The accused was conveyed that there was chance of his carrying some contraband items. His consent for search was taken vide memo Ext. The person who was associated from Khokha was Brijesh Kumar and the person who came in the vehicle was Amit Kumar. The accused was conveyed that there was chance of his carrying some contraband items. His consent for search was taken vide memo Ext. PW-1/A. He was asked as to where and before whom he wanted to give his search. The accused disclosed that he was ready to give his search to the SHO. Again deposed that accused was given option to be searched either before the Magistrate or any Gazetted Officer or the SHO himself and he exercised the option for his search by the SHO. This memo was signed by the independent witnesses. The charas was recovered. It weighed 1 kg 300 gms. The charas was kept in the same bag which was sealed in cloth parcel by affixing seven seals of seal impression “A”. Separate seal impression of seal “A” was also taken on the piece of cloth vide Ext. PW-1/F. The charas was taken into possession vide memo Ext. PW-1/H. Rukka was prepared and handed over to him for taking it to the Police Station for registration of the FIR. He handed over the rukka to acting SHO ASI Hari Singh in the Police Station. 7. PW-2 Amit Kumar deposed that when he reached near Mini Bus Stand Kasauli, many people had assembled there. Some police people were also present on the spot. He also stopped his vehicle. Some arguments were going on in between some persons. There was one bag with the police at that time which was containing charas. At that time, one boy was there who was having some injury. The police told him that the bag containing charas was recovered by them from the accused. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, by the learned Public Prosecutor, he admitted that before searching the accused, he was given option by the police to get his search done either from the Magistrate or from any Gazetted Officer or from the SHO himself vide memos Ext. PW-1/A and PW-1/B. 8. PW-3 Naresh Kumar deposed that at about 8:00-8:30 PM, the police came to his shop and instructed him not to close the shop as the police was to do some work. PW-1/A and PW-1/B. 8. PW-3 Naresh Kumar deposed that at about 8:00-8:30 PM, the police came to his shop and instructed him not to close the shop as the police was to do some work. There were 2-3 persons with the police who came to his shop with a bag which was weighed in his shop. He did not remember the quantity of the charas weighed. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he admitted that in his presence “charas” was kept back in the blue bag which was again placed inside the red carry bag and the same was sealed in a cloth parcel outside his shop. 9. PW-5 HC Bhupinder Singh, deposed that on 22.8.2012, he was performing the duties of MHC. Constable Mohd. Shahid brought rukka to the Police Station, on the basis of which, FIR Ext. PW-5/A was registered. At about 2:30 AM, on the intervening night of 22nd and 23rd August, 2012, SHO Prabal Singh deposited one cloth parcel sealed with seal “A” with him alongwith the sample of the seal, NCB form in triplicate. The same were entered by him in the malkhana register at Sr. Nos. 314 and 315. He proved extract of the copy of malkhana register vide Ext. PW-5/C. 10. PW-8 HC Sandeep Kumar also deposed the manner in which the accused was apprehended, contraband was seized and sealing process was completed on the spot. He also deposed that the accused was told that as per his legal right, he was entitled to have his search from a Magistrate or any Gazetted Officer or from the police present there. The accused gave his consent for his search by the police party. 11. PW-11 SI Prabal Singh, testified the manner in which the accused was apprehended, contraband was seized and sealing process was completed on the spot. According to him, in the presence of the witnesses, he told the accused that he was likely to be searched for being suspected to be carrying some contraband item and that he was free to get his search done either from the Magistrate or from the Gazetted Officer or from him, being police officer at the spot. To this effect, memo Ext. PW-1/A was prepared. NCB forms in triplicate were filled in. The case property was taken into possession vide memo Ext. To this effect, memo Ext. PW-1/A was prepared. NCB forms in triplicate were filled in. The case property was taken into possession vide memo Ext. PW-1/H. He prepared the site plan and recorded the statements of the witnesses. The case property was deposited with the MHC, Police Station Kasauli. 12. PW-12 HHC Hem Raj, deposed that the case property was handed over to him by MHC Bhupinder Singh to be deposited in FSL, Junga. He deposited the same at FSL, Junga under receipt. 13. Mr. Pawan Kumar Sharma, Advocate appearing for the accused has drawn the attention of the Court to memo Ext. PW-1/A. It is evident from Ext. PW-1/A that the option was given to the accused for his personal search as well as of the carry bag, either before the Executive Magistrate or Gazetted Officer or SI/SHO. The accused gave his option to be searched by the SHO. Similarly, as per Ext. PW-1/B, the accused has given consent to personal search as well as the bag by the SI/SHO. Ext. PW-1/A and Ext. PW-1/B are not in conformity with Section 50 of the ND & PS Act. There are only two options which are to be given by the police to the accused to be searched either by the Executive Magistrate or the Gazetted Officer. There is no third option, as given to the accused vide memos Ext. PW-1/A and PW-1/B. The third option was given to the accused for his personal search as well as search of the bag. PW-1 Const. Mohd. Shahid deposed that the accused was given option to be searched either from the Magistrate or any Gazetted Officer or the SHO. Similarly PW-2 Amit Kumar has also admitted in his cross-examination that the accused was given option by the police to be searched either before the Executive Magistrate or Gazetted Officer or Police Officer, as per Ext. PW- 1/A. PW-8 Const. Sandeep Kumar has also deposed that the accused was told that as per his legal right, he was entitled to have his search from a Magistrate or any Gazetted Officer or from the police present there as per Ext. PW- 1/A. PW-8 Const. Sandeep Kumar has also deposed that the accused was told that as per his legal right, he was entitled to have his search from a Magistrate or any Gazetted Officer or from the police present there as per Ext. PW-1/A. PW-11 SI Prabal Singh deposed that he told the accused that he was likely to be searched for being suspected to be carrying some contraband item and that he was free to get his search done either from the Magistrate or from the Gazetted Officer or from him, being police officer at the spot. 14. Their lordships of the Hon’ble Supreme Court in the case of Suresh and others vrs. State of Madhya Pradesh, reported in (2013) 1 SCC 550 , have held that the accused were merely asked as to whether they would offer their personal search to the police officer concerned or to gazetted officer. Thus, Section 50(1) was not complied with in respect of recovery of contraband from the person of appellants. It has been held as follows: “16. The above Panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of their legal right provided under Section 50 of the NDPS Act to refuse/to allow the police party to take their search and opt for being searched before the Gazetted officer or by the Magistrate. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him, i.e., the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev singh’s case. 17. Further, a reading of the judgments of the trial Court and the High Court also show that in the presence of Panchas, the SHO merely asked all the three appellants for their search by him and they simply agreed. This is reflected in the Panchnama. 17. Further, a reading of the judgments of the trial Court and the High Court also show that in the presence of Panchas, the SHO merely asked all the three appellants for their search by him and they simply agreed. This is reflected in the Panchnama. Though in Baldev Singh’s case, this Court has not expressed any opinion as to whether the provisions of Section 50 are mandatory or directory but “failure to inform” the person concerned of his right as emanating from subsection (1) of Section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. In Vijaysinh Chandubha Jadeja’s case (supra), recently the Constitution Bench has explained the mandate provided under sub-section (1) of Section 50 and concluded that it is mandatory and requires strict compliance. The Bench also held that 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. The concept of substantial compliance as noted in Joseph Fernadez (supra) and Prabha Shankar Dubey (supra) were not acceptable by the Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly, in view of the language as evident from the panchnama which we have quoted earlier, we hold that, in the case on hand, the search and seizure of the suspect from the person of the appellants is bad and conviction is unsustainable in law. 18. We reiterate that sub-section (1) of Section 50 makes it imperative for the empowered officer to “inform” the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. We also reiterate that the said provision is mandatory and requires strict compliance.” 15. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand reported in (2014) 5 SCC 345 , have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. We also reiterate that the said provision is mandatory and requires strict compliance.” 15. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand reported in (2014) 5 SCC 345 , have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that Section 50 does not provide for third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. Their lordships have held as under: “15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 – Surajmal is stated to have signed for himself and for respondent No.1 – Parmanand. Respondent No.1 Parmanand did not sign. 17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. A common notice was given on which only respondent No.2 – Surajmal is stated to have signed for himself and for respondent No.1 – Parmanand. Respondent No.1 Parmanand did not sign. 17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. 18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parmanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated. 19. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parmanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated. 19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. 20. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court’s view is perverse. The appeal is, therefore, dismissed.” 16. The non-compliance with mandatory procedure under Section 50 of the N.D & P.S. Act, in the present case, has vitiated the entire proceedings initiated against the accused. 17. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. The appeal is, therefore, dismissed.” 16. The non-compliance with mandatory procedure under Section 50 of the N.D & P.S. Act, in the present case, has vitiated the entire proceedings initiated against the accused. 17. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment and order of conviction and sentence dated 25.6.2014 and 30.6.2014, respectively, rendered by the learned Special Judge, Solan, H.P., in Sessions trial No. 16-S/7 of 2012, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 18. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.