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Himachal Pradesh High Court · body

2015 DIGILAW 1344 (HP)

Changa Ram v. State of Himachal Pradesh

2015-09-22

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT RAJIV SHARMA, J. 1. This appeal is instituted against the judgment dated 26.12.2014, rendered by the learned Special Judge (II), Chamba, Himachal Pradesh in Sessions Trial Filing No. NDPS Act/195/2014 (regd. No. NDPS Act/26/2014), 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 12.1.2014 at about 8:00 AM, ASI Rajesh Kumar, I.O., ASI Bhupinder Singh, HHC Surinder Kumar, Const. Shaukat Ali, Const. Gargesh Kumar, Const. Avnish Kumar and Lady Const. Asha Kumar with the I.O. kit were present near Lilah Pranehrui. They saw a person coming from Lilah side and he was going towards Dharwala. He was holding a green and light brown coloured bag in his hand. The accused after seeing the police party tried to run away from the spot. He was apprehended. The Investigating Officer had suspicion that the accused might be possessing some contraband and asked the accused person as to whether he wanted to give his search in the presence of the Magistrate or Gazetted Officer or to the police official present on the spot. Memo Ext. PW-1/A to this effect was prepared in the presence of ASI Bhupinder Singh and Const. Shaukat Ali. It was also signed by the accused. No independent witnesses could be associated as the place was isolated and there was no abadi near the place of occurrence. The bag of the accused was searched and inside the bag, there was black coloured hard substance in the form of slides and it was found to be cannabis. It weighed 4 kg. 600 gms. Cannabis was put in the same bag and it was sealed in a white coloured pulinda with six seal impressions of “T”. It was taken into possession vide seizure memo Ext. PW-1/F in the presence of witnesses ASI Bhupinder Singh and Const. Shaukat Ali. Rukka was faxed to the Police Station, CID Bharari. The copy of rukka is Ext. Cannabis was put in the same bag and it was sealed in a white coloured pulinda with six seal impressions of “T”. It was taken into possession vide seizure memo Ext. PW-1/F in the presence of witnesses ASI Bhupinder Singh and Const. Shaukat Ali. Rukka was faxed to the Police Station, CID Bharari. The copy of rukka is Ext. PW-6/A. NCB forms in triplicate vide Ext. PW-8/C were filled in at the spot and seal impression “T” was also put on the NCB forms. The FIR was registered. 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 10 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. Vikas Rathore, 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 of the learned trial Court dated 26.12.2014. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 ASI Bhupinder Singh deposed that on 12.1.2014, he alongwith other police officials was on the spot at 8:00 AM alongwith the IO kit. In the meantime, accused came from Lihal carrying a bag in his left hand. The accused was asked that he might have some contraband in the bag and his search was to be conducted. The option was given in writing to the accused as to whether his search be conducted before a Magistrate of Gazetted Officer. To this effect consent memo Ext. PW-1/A was prepared by the IO on the spot. The accused gave his consent to the I.O that he wanted to give his personal search to the police officials present on the spot. He gave his consent in writing vide Ext. PW-1/B. NCB forms in triplicate were filled up by the I.O. on the spot and seal impression “T” was also affixed on the NCB forms. The rukka was prepared. In his cross-examination, he admitted that they have not associated any independent witnesses. He gave his consent in writing vide Ext. PW-1/B. NCB forms in triplicate were filled up by the I.O. on the spot and seal impression “T” was also affixed on the NCB forms. The rukka was prepared. In his cross-examination, he admitted that they have not associated any independent witnesses. He also admitted that at Dharwala, there are about 20 shops and 40-50 residential houses. He admitted that Paniharu is at a distance of 4 kms from Dharwala and 3 kms from Lihal. There were 4-5 tea shops situated near the bridge. 7. PW-2 Const. Shaukat Ali, also deposed the manner in which the accused was apprehended, contraband was seized and sealing proceedings were completed on the spot. In his cross-examination, he admitted that there were 20 shops and 40 residential houses situated at Dharwala. He also admitted that at 8:00 AM, vehicles use to ply on the way. He also admitted that Chamba Bharmour road is busy road though he denied that Dharwala Lihal road is a busy road. He also admitted that construction work of Hydro Projects was in progress between Lihal to Dharwala. 8. PW-3 LHC Asha Kumari has admitted in her cross-examination that there was no receipt annexed with the challan by which the fax was sent to the Police Station Bharari. 9. PW-5 Const. Ajay Singh deposed that ASI Rajesh Kumar had handed over to him one cloth parcel sealed with seal impression “T” (six in number) containing 4 kg. 600 gms. with seal impressions, NCB forms in triplicate for resealing the same. He handed over the same to SHO Varinder Chauhan, PS Bharari, Shimla. 10. PW-6 HC Prakash Chand, deposed that on 12.1.2014, copy of rukka was received through fax. On the basis of rukka, FIR Ext. PW-6/B was registered. He prepared the case file. On the same day at about 8:30 AM, the SHO deposited with him one sealed parcel with seal impression “T” (six in numbers) and of “N” (six in number) containing 4 kg. 600 grams cannabis alongwith sample of seal “T” and “N”, NCB forms in triplicate, copy of seizure memo and reseal certificate Ext. PW-6/C. He entered the same in malkhana register at Sr. No. 158. The charas alongwith seal impressions, NCB forms in triplicate, copy of seizure memo, copy of FIR, reseal certificate and docket were sent to FSL Junga vide RC No. 9/14 through HHC Bhagat Ram. PW-6/C. He entered the same in malkhana register at Sr. No. 158. The charas alongwith seal impressions, NCB forms in triplicate, copy of seizure memo, copy of FIR, reseal certificate and docket were sent to FSL Junga vide RC No. 9/14 through HHC Bhagat Ram. 11. PW-8 Insp. Varinder Chauhan, deposed that on the basis of rukka, he registered case vide FIR Ext. PW-6/B. In the presence of MHC Prakash Chand, he resealed the parcel with seal impression “N” (six in number) and filled up the relevant columns of NCB forms vide Ext. PW- 8/C. He handed over the same to MHC Prakash Chand alongwith the sample seals, NCB forms in triplicate, copy of FIR and seizure memo. In his cross-examination, he admitted that no fax number was mentioned in rukka Ext. PW-6/A. 12. PW-9 HHC Bhagat Ram has carried the parcel to FSL, Junga. He deposited it on the same day at FSL, Junga i.e. 13.1.2014. 13. PW-10 ASI Rajesh Kumar was the I.O. He also deposed the manner in which the accused was apprehended, contraband was seized and sealing proceedings were completed on the spot. In his cross-examination, he admitted that about 40 residential houses and near about 20 shops are situated at village Dharwala. He also admitted that at 8:00 AM, traffic starts moving. He also admitted that there was Hydro project at Bagga. He made efforts to associate independent witnesses but none was ready for the same. He has not initiated any action against those persons during the course of the investigation. 14. It has come in the evidence that the place where the accused was nabbed, there were houses and shops nearby. The police has not made any sincere efforts to associate independent witnesses to give credence to the seizure, search and sealing proceedings. It is not one of those places which was isolated and secluded. The traffic had also started plying on the road. The statement of PW-10 ASI Rajesh Kumar to the effect that he has tried to associate independent witnesses but none come forward is not worth credence. There is a detailed procedure, the manner in which the I.O can always ask the persons to be associated as witnesses. The I.O. has admitted in his cross-examination that he has not taken any action against the persons who had refused to be associated with him during the course of investigation. 15. There is a detailed procedure, the manner in which the I.O can always ask the persons to be associated as witnesses. The I.O. has admitted in his cross-examination that he has not taken any action against the persons who had refused to be associated with him during the course of investigation. 15. The charas was recovered from the bag but the personal search of the accused was also undertaken as per Ext. PW-1/A. We have gone through memo Ext. PW-1/A. The accused was asked whether he wanted to be searched before the Magistrate, Gazetted Officer or Police Officials present on the spot. In Section 50 of the ND & PS Act, the person has to be apprised of his legal right to be searched either before the Magistrate or the Gazetted Officer but not before the police officer. There are only two options. However, in the instant case, the accused has been given 3rd option also to be searched before the police officer present on the spot. It was in violation of Section 50 of the ND & PS Act. 16. Their lordships of the Hon’ble Supreme Court in the case of Suresh and Others vs. State of Madhya Pradesh, (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. 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. 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.” 17. We also reiterate that the said provision is mandatory and requires strict compliance.” 17. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan vs. Parmanand, (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. 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 Parnanand 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. 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.” 18. 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. 19. In the instant case, the prosecution has not associated the independent witnesses at the time of search, seizure and sealing proceedings, though available from the nearby bazaar and village or project site. It was early morning. The police could also easily associate independent witnesses to associate the driver/passengers of the vehicles plying on the road at 8:00 AM. 19. In the instant case, the prosecution has not associated the independent witnesses at the time of search, seizure and sealing proceedings, though available from the nearby bazaar and village or project site. It was early morning. The police could also easily associate independent witnesses to associate the driver/passengers of the vehicles plying on the road at 8:00 AM. The personal search of the accused has been carried out in violation of mandatory provisions of Section 50 of the ND & PS Act. 20. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 26.12.2014, rendered by the learned Special Judge (II), Chamba, Himachal Pradesh in Sessions trial filing No. NDPS Act/195/2014 (regd. No. NDPS Act/26/2014), is set aside. Accused is acquitted of the charges framed against him. 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. 21. 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.