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Himachal Pradesh High Court · body

2015 DIGILAW 1772 (HP)

Sanjay Kumar v. State of H. P.

2015-12-03

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 24.6.2015 rendered by the Special Judge, Chamba Division, Chamba in Sessions trial No. 24/2014/2010 whereby the appellant-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offences punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs. 1,00,000/- under section 20 (c) of the NDPS Act. 2. Case of the prosecution, in a nutshell, is that on 8.3.2010 at about 2.00 A.M. ASI Amar Nath, Incharge Police Post Nakrod alongwith other police officials, HC Deva Nand, HHC Subhash Singh, Constable Sandeep Kumar, Constable Som Parkash and SPO Tek Chand, was present at place Bear side road alongwith I.O. kit and emergency light. One person was found coming from Bear side. He got perplexed. He was carrying a rucksack on his back. He was nabbed. The police officials gave their personal search to the accused. Accused consented to be searched by the police party present at the spot and the memo in this regard was prepared. The place was secluded as there was no habitation in the area around 2 KMs. The rucksack was checked. It contained 1 kg 100 grams of charas. The recovered charas was put in the same bag and then it was packed in a cloth parcel which was sealed with seal impression ‘T’. Specimen seal impressions were retained separately. The charas was taken into possession vide seizure memo. NCB forms were filled in triplicate. Site plan was prepared. On the same day at about 2.30 P.M., HC Deva Nand handed over the case property and accused to ASI Roshan Lal. He resealed the case property. Resealed memo was prepared. The case property was deposited with MHC Bachan Singh. He entered the same in Malkhana register. Bachan Singh handed over the case property to Constable Som Prakash for being taken to F.S.L. Junga for analysis on 9.3.2010. The police investigated the case and the challan was put up in the Court after completing all the codal formalities. 3. Prosecution examined as many as 9 witnesses to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. His defence was of simplicitor denial. The police investigated the case and the challan was put up in the Court after completing all the codal formalities. 3. Prosecution examined as many as 9 witnesses to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. His defence was of simplicitor denial. Learned trial Court convicted and sentenced the accused as noticed hereinabove. Hence, this appeal. 4. Mr. Anoop Chitkara, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. P.M. Negi, Deputy Advocate General has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record meticulously. 7. PW-1 Subhash Singh has deposed that on 8.3.2010, he alongwith ASI Amar Nath, HC Deva Nand, Constable Sandeep Kumar, Constable Som Parkash and SPO Tek Chand was present at Bear side. On suspicion, ASI Amar Nath with the help of other police officials apprehended the accused. Option of the accused was obtained as to whether he wanted to be searched by the police party present on the spot. The accused consented to be searched by the police. Memo Ex.PW-2/B to this effect was prepared. The bag was searched. It contained hard black coloured substance (charas) in the shape of sticks. The sealing proceedings were completed on the spot. The specimen of seal was taken on a piece of cloth. In his cross-examination, he has deposed that on search of the bag, charas was found and all codal formalities were completed and thereafter personal search of the accused was conducted. He was not aware if second time option was given to the accused to be searched before a gazetted officer or a Magistrate. 8. PW-2 Sandeep Kumar has also deposed the manner in which the accused was apprehended, seizure and sealing proceedings were completed on the spot. The ruqua was handed over to SPO Tek Chand for being taken to Police Station, Tissa. In his cross-examination, he has admitted that he has not brought the seal. He has not lodged any report regarding the loss of seal nor the I.O. was informed regarding the loss of seal. 9. PW-4 H.C. Bachan Singh has deposed that SPO Tek Chand handed over to him Ruqua on the basis of which FIR Ext. PW4/A was registered. In his cross-examination, he has admitted that he has not brought the seal. He has not lodged any report regarding the loss of seal nor the I.O. was informed regarding the loss of seal. 9. PW-4 H.C. Bachan Singh has deposed that SPO Tek Chand handed over to him Ruqua on the basis of which FIR Ext. PW4/A was registered. On the same day, at about 2.30 p.m., H.C. Deva Nand produced the case property before him. He made the entry in the mallkhana register at serial No. 162. He has proved the abstract Ext. PW4/D. On 9.3.2010 he handed over the case property to Constable Som Prakash for being taken to FSL Junga vide RC No. 39/2010. 10. PW-5 Som Parkash has deposed that he had taken the case property to FSL Junga on 9.3.2010. 11. PW-7 Deva Nand has also deposed the manner in which the accused was apprehended, seizure and sealing proceedings were completed on the spot. According to him, the spot was lonely place. No independent witness was available and Constable Sandeep Kumar and HHC Subhash Singh were cited as witnesses and in their presence, the search of Pithu (bag) was carried out. The accused was given option of being searched vide memo Ext. PW1/B. The accused consented to be searched by the Police. Personal search of the accused was conducted by ASI Amar Nath on 8.3.2010. 12. PW-8 ASI Amar Nath has also deposed the manner in which the accused was apprehended and seizure and sealing proceedings were completed. He completed the codal formalities on the spot. 13. PW-9 ASI Roshan Lal has testified that he recorded FIR Ext. PW4/A. On 8.3.2010 at about 2:30 p.m., Head Constable produced before him the case property. He resealed the same vide memo Ext. PW4/B. 14. Mr. Anoop Chitkara, learned counsel for the accused has drawn the attention of the Court to Ext. PW1/B. According to the contents of Ext. PW1/B, the accused was asked whether he wanted to be searched before the Magistrate or Gazetted Officer or in the presence of the Police present on the spot. The accused was to be apprised of his right that if he so requires he shall be searched before a gazetted officer or a Magistrate. There are only two options required to be given to the accused. There is no provision for third option. 15. The accused was to be apprised of his right that if he so requires he shall be searched before a gazetted officer or a Magistrate. There are only two options required to be given to the accused. There is no provision for third option. 15. The charas was recovered from the bag. Section 50 of the NDPS Act was not required to be complied since the charas was recovered from the bag, but despite that the personal search of the accused was also carried out. The personal search of the accused was required to be carried out in conformity with the provisions of Section 50 of the NDPS Act. PW-1 Subhash Singh has categorically stated in his examination-in-chief that option of the accused was obtained as to whether he wanted to be searched by the police party present on the spot, on which accused consented to be searched by the Police. 16. The case property was produced while recording the statement of PW-1 Subhash Singh in the trial Court. There is no entry when the case property was taken out from the malkhana and produced in the Court. There is no DDR recorded when the case property was produced before the trial Court. Similarly, there is no entry when the case property after production in the trial Court was re-deposited in the malkhana register. It is necessary for the prosecution to prove that the case property was taken out from the malkhana for the production in the Court and also preparing DDR to this effect and the same process is to be undergone when the case property after its production in the Court is taken back and deposited in the malkhana. There has to be entry in the malkhana register when it is re-deposited and DDR is also prepared. The production of the case property in the Court is mandatory. There is doubt whether the case property which was produced in the Court was the same which was recovered from the accused and sent to FSL, Junga in the absence of any corresponding entries made at the time of taking it and redeposit in the malkhana register or it was case property of some other case. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing proceedings in the instant case are doubtful. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing proceedings in the instant case are doubtful. When the case property was produced in the Court, there is no reference as to who brought the case property to the Court from malkhana and by whom it was taken back. It is necessary to keep the case property in safe custody from the date of seizure till its production in the Court in ND & PS cases. 17. 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 sub-section (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.” 18. 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.” 18. 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 Parnanand 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 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. 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.” 19. 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. 21. 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.” 19. 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. 21. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case against the accused for offence under section 20 (c) of the NDPS Act, beyond reasonable doubt. 21. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 24.6.2015 rendered by the Special Judge, Chamba Division Chamba in Sessions trial No. 24/2014/2010 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case. 22. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.