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2016 DIGILAW 438 (HP)

State of Himachal Pradesh v. Amar Chand

2016-04-07

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. The State has come in appeal against Judgment dated 26.8.2009 rendered by learned Special Judge, Fast Track Court, Kullu, Himachal Pradesh in Sessions Trial No. 05 of 2009, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been acquitted. 2. “Key facts" necessary for the adjudication of the present appeal are that on 12.3.2008, at 6.20 PM, SI Om Parkash along with ASI Daya Ram, C. Nikka Ram and Home-guard Amar Singh reached near 15 Mile (name of place) on patrolling in official vehicle driven by C. Dinesh Kumar. Near the bridge on the National Highway 21, one young man was found standing. On seeing the police vehicle, he turned back and ran away towards village Batahar via bridge. He was apprehended. No independent witness was available. During the course of personal search of the accused one polythene envelope was recovered from the right pocket of his jacket. On checking of this polythene envelope, it was found containing charas in the shape of sticks. Recovered charas was weighed in the street light and it was found to be 400 grams. Two samples of charas, 25 grams each, were separated from the recovered charas and were sealed in separate parcels. Remainder of the charas was put back in the same polythene envelope and was sealed in separate parcel. Seal impression ‘T’ had been affixed on each parcel. NCB-I in triplicate was filled on the spot. Seal after use was handed over to ASI Daya Ram. Search and seizure memo was prepared. Rukka was prepared. It was sent to the Police Station, Manali through HG Amar Singh for registration of FIR. Site plan was prepared. SI Om Parkash went to the Police Station, Manali alongwith accused and case property. Case property was deposited with MHC Hem Raj at Police Station, Manali. Report of FSL Junga was received. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution examined as many as thirteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He denied the case of the prosecution. Accused was acquitted as mentioned above. Hence, this appeal. 4. Mr. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution examined as many as thirteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He denied the case of the prosecution. Accused was acquitted as mentioned above. Hence, this appeal. 4. Mr. M.A. Khan, Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Naveen K. Bhardwaj, Advocate, has supported the Judgment dated 26.8.2009. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 ASI Daya Ram deposed that on 12.3.2008, he alongwith SI Om Prakash, Constable Nikka Ram and HHG Amar Singh, reached at 15 Mile. They were on patrol duty. They had reached on the spot in the official vehicle being driven by Constable Dinesh Kumar. Near bridge at 15 Mile, one person was standing on the road. On seeing the police party, said person tried to flee away from the spot towards village Batahar side via bridge. Said person was chased and apprehended by SI Om Prakash. It was a secluded place. No independent witnesses were present. SI Om Prakash took personal search of accused in his presence as well as in the presence of Constable Nikka Ram. Accused was wearing blue jean jacket. During the checking of jacket, one polythene envelope was recovered from the right pocket of jacket. Polythene envelope was removed from the pocket of the jacket and was checked. polythene envelope was containing Bhang/Charas in the shape of sticks. The recovered Charas was weighed on the spot. It weighed 400 grams. . Two samples of charas 25 grams each were separated from the recovered charas and were sealed in separate parcels. Remainder of Charas was put back in the same polythene envelope and was sealed in separate parcel. Three seal impressions of ‘T’ were fixed on each sample parcel and five seal impressions of ‘T’ had been affixed on bulk parcel. NCB form in triplicate was filled on the sot by SI Om Prakash. Case property was produced in the Court during the examination of PW-1 Daya Ram. In his cross-examination, he deposed that the proceedings were conducted at the spot underneath the street light. They sat on parapet in order to prepare memo and conduct the proceedings. NCB form in triplicate was filled on the sot by SI Om Prakash. Case property was produced in the Court during the examination of PW-1 Daya Ram. In his cross-examination, he deposed that the proceedings were conducted at the spot underneath the street light. They sat on parapet in order to prepare memo and conduct the proceedings. SI Om Prakash handed over Rukka to Amar Singh. 8. PW-2 Inspector Om Prakash deposed the manner in which accused was apprehended, contraband was recovered from him. According to him, 5 seal impressions of ‘T’ were affixed on the bulk parcel. NCB form in triplicate was filled up from column No. 1 to 11. Sample of seal ‘T’ was prepared separately by him. In his cross-examination, he has admitted that the proceedings were conducted near the shed, on the road. 9. PW-3 HC Hem Raj deposed that on 12.3.2008, one sealed bulk parcel and two sample parcels, NCB form in triplicate, samples of seal ‘T’, search and seizure memo had been deposited with him by SI Om Prakash. He deposited the same in the Malkhana and necessary entry was made in the Malkhana Register. On 13.3.2008, he sent one sealed sample parcel, NCB-I Form in triplicate, copy of FIR, seizure memo, sample of seal ‘T’ to FSL Junga through C. Prakash Chand vide RC No. 250/08. He deposited the same at FSL Junga. In his cross-examination, he has admitted that the bulk parcel was not bearing three seal impressions of ‘T’. 10. PW-4 HHC Prakash Chand deposed that on 13.3.2008, MHC Hem Raj had handed over one sealed sample parcel alongwith relevant documents to him with the directions to deposit the same at FSL Junga vide RC No. 250/08. He took the same to FSL Junga and deposited the same in the laboratory. 11. PW-6 HHG Amar Singh testified the manner in which accused was apprehended at 15 Mile, search, seizure and sealing proceedings were conducted at the spot. Accused was subjected to personal search by SI Om Prakash. During the course of personal search, Charas was recovered from the pocket of jacket of accused. Rukka was handed over to him. He took it to Police Station, Manali. In his cross-examination, he has admitted that they had crossed the bridge while chasing the accused. Accused was questioned on the other side of the bridge where he was apprehended. 12. During the course of personal search, Charas was recovered from the pocket of jacket of accused. Rukka was handed over to him. He took it to Police Station, Manali. In his cross-examination, he has admitted that they had crossed the bridge while chasing the accused. Accused was questioned on the other side of the bridge where he was apprehended. 12. Case of the prosecution, in a nutshell, is that the accused was apprehended near the bridge at 15 Mile. His personal search was carried out and one polythene envelope was recovered from right pocket of the jacket. The polythene envelope was removed from the pocket of the jacket and was checked. It contained charas. It weighed 400 grams. 13. According to PW-1 Daya Ram, personal search of the accused was carried out in the presence of Nikka Ram. PW-2 Om Parkash also deposed that accused was subjected to personal search by him. PW-6 Amar Singh also testified that accused was subjected to personal search by Om Prakash and during the personal search, contraband was recovered. Since personal search of the accused had been carried out, he should have been apprised of his legal right to be searched before a gazetted officer or a Magistrate. Section 50 is mandatory. 14. Their Lordships of the Hon'ble Supreme Court in State of Delhi v. Ram Avtar reported in (2011) 12 SCC 207 have held that merely asking accused whether he wished to be searched by a Magistrate or a Gazetted Officer without informing that he enjoys a right in this behalf, is no compliance of Section 50 of the Narcotic Drugs & Psychotropic Substances Act. Their Lordships have held as under: “ 9. One of the earliest and significant judgments of this Court, on the issue before us is the case of State of Punjab v. Balbir Singh, [ (1994) 3 SCC 299 ] where the Court considered an important question i.e., whether failure by the empowered or authorized officer to comply with the conditions laid down in Section 50 of the Act while conducting the search, affects the prosecution case. In para 16 of the said judgment, after referring to the words "if the person to be searched so desires", the Court came to the conclusion that a valuable right has been given to the person, to be searched in the presence of the Gazetted Officer or Magistrate if he so desires. In para 16 of the said judgment, after referring to the words "if the person to be searched so desires", the Court came to the conclusion that a valuable right has been given to the person, to be searched in the presence of the Gazetted Officer or Magistrate if he so desires. Such a search would impart much more authenticity and creditworthiness to the proceedings, while equally providing an important safeguard to the accused. It was also held that to afford this opportunity to the person to be searched, such person must be fully aware of his right under Section 50 of the Act and that can be achieved only by the authorized officer explicitly informing him of the same. The statutory language is clear, and the provisions implicitly make it obligatory on the authorized officer to inform the person to be searched of this right. Recording its conclusion in para 25 of the judgment, the Court clearly held that non-compliance with Section 50 of the Act, which is mandatory, would affect the prosecution case and vitiate the trial. It also noticed that after being so informed, whether such person opted for exercising his right or not would be a question of fact, which obviously is to be determined on the facts of each case. 10. This view was followed by another Bench of this Court in the case of Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, [(1994) 6 SCC 569], wherein the Court stated that the searching officer was obliged to inform the person to be searched of his rights. Further, the contraband seized in an illegal manner could hardly be relied on, to the advantage of the prosecution. Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act, and that factor has to be established beyond any reasonable doubt. The Court further indicated that articles recovered may be used for other purposes, but cannot be made a ground for a valid conviction under this Act. 11. In the case of Saiyad Mohd. Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act, and that factor has to be established beyond any reasonable doubt. The Court further indicated that articles recovered may be used for other purposes, but cannot be made a ground for a valid conviction under this Act. 11. In the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, [(1995) 3 SCC 510], the Court followed the principles stated in Balbir Singh's case (supra) and also clarified that the prosecution must prove that the accused was not only made aware of his right but also that the accused did not choose to be searched before a Gazetted Officer or a Magistrate. 12. Then the matter was examined by a Constitution Bench of this Court, in the case of State of Punjab v. Baldev Singh [ (1999) 6 SCC 172 ], where the Court, after detailed discussion on various cases, including the cases referred by us above, recorded its conclusion in para 57 of the judgment . The relevant portions of this conclusion are as under: "57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. XXX XXX XXX (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. XXX XXX XXX (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that 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." 13. Still in the case of Ahmed v. State of Gujarat, [ (2000) 7 SCC 477 ), a Bench of this Court followed the above cases including Baldev Singh's case (supra) and held that even where search is made by empowered officer who may be a Gazetted Officer, it remains obligatory for the prosecution to inform the person to be searched about his right to be taken to the nearest Gazetted Officer or Magistrate before search. In this case, the Court also noticed at sub-para (e) at page 482 of the judgment that the provisions of Section 50 of the Act, which afford minimum safeguard to the accused, provide that when a search is about to be made of a person under Section 41 or Section 42 or Section 43 of the Act, and if the person so requires, then the said person has to be taken to the nearest Gazetted Officer of any department mentioned in Section 42 of the Act or to the nearest Magistrate. 14. 14. In the case of K. Mohanan v. State of Kerala, [ (2010) 10 SCC 222 ] another Bench of this Court while following Baldev Singh's case (supra) stated in unambiguous terms that merely asking the accused whether he wished to be searched before a Gazetted Officer or a Magistrate, without informing him that he enjoyed a right under law in this behalf, would not satisfy the requirements of Section 50 of the Act. 15. We may also notice here that some precedents hold that though a right of the person to be searched existed under Section 50 of the Act, these provisions are capable of substantial compliance and compliance in absolute terms is not a requirement under law. Reference in this regard can be made to Joseph Fernandez v. State of Goa, [ (2000) 1 SCC 707 ], Prabha Shankar Dubey v. State of Madhya Pradesh, [ (2004) 2 SCC 56 ], Krishna Kanwar v. State of Rajasthan, [ (2004) 2 SCC 608 , Manohar Lal v. State of Rajasthan, [ (1996) 11 SCC 391 ], Karnail Singh v. State of Haryana, [ (2009) 8 SCC 539 ]. 16. In the case of Prabha Shankar Dubey (supra), this Court while referring to Baldev Singh's case (supra) took the view that Section 50 of the Act in reality provides additional safeguards which are not elsewhere provided by the statute. As the stress is on the adoption of reasonable, fair and just procedure, no specific words are necessary to be used to convey the existence of this right. The notice served, in that case, upon the person to be searched was as follows: '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 any gazetted officer or by a Magistrate?' Keeping the afore-referred language in mind, the Court applied the principle of substantial compliance, and held that the plea of non-compliance with the requirements of Section 50 of the Act was without merit on the facts of that case. 17. The Court held as under: "12. 17. The Court held as under: "12. The use of the expression "substantial compliance" was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations. 13. Above being the position, we find no substance in the plea that there was non-compliance with the requirements of Section 50 of the Act." 18. Similarly, in Manohar Lal's case (supra) the option provided to the accused, not to go to a Magistrate if so desired, was considered to imply requirement of mere substantial compliance; and that strict compliance was not necessary. 19. In the case of Union of India v. Satrohan, [ (2008) 8 SCC 313 ] though the Court was not directly concerned with the interpretation of the provisions of Section 50 of the Act, the Court held that Section 42(2) of the Act was mandatory. It also held that search under Section 41(1) of the Act would not attract compliance to the provisions of Section 50 of the Act. To that extent this judgment was taking a view different from that taken by the equi-Bench in Ahmed's case (supra). This question to some extent has been dealt with by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [ (2011) 1 SCC 609 ] (hereinafter referred to as 'Vijaysinh Chandubha Jadeja'). As this question does not arise for consideration before us in the present case, we do not consider it necessary to deliberate on this aspect in any further detail. 20. In the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, [ (2007) 1 SCC 433 ], a three Judge Bench of this Court had taken the view that the accused must be informed of his right to be searched in presence of a Magistrate and/or a Gazetted Officer, but in light of some of the judgments we have mentioned above, a reference to the larger bench was made, resulting. Accordingly, a Constitution Bench was constituted and in the case of Vijaysinh Chandubha Jadeja (supra) of this Court, referring to the language of Section 50 of the Act, and after discussing the above-mentioned judgments of this Court, took the view that there was a right given to the person to be searched, which he may exercise at his option. The Bench further held that substantial compliance is not applicable to Section 50 of the Act as its requirements were imperative. The Court, however, refrained from specifically deciding whether the provisions were directory or mandatory. 21. It will be useful to refer the relevant parts of the Constitution Bench in Vijaysinh Chandubha Jadeja (supra). In para 23, the Court said 'In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh case'. After further referring to the conclusions arrived at by the Constitution Bench in Baldev Singh's case (supra) (which have been referred by us in para 9 of this judgment) and reiterating the same the Constitution Bench in Vijaysinh Chandubha Jadeja (supra) this case concluded as under: "31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf." 22. An analysis of the above judgments clearly show that the scope of the provisions of Section 50 of the Act are no more res integra and stand concluded by the above judgments particularly the Constitution Bench judgments of this Court in the cases of Baldev Singh (supra) and Vijaysinh Chandubha Jadeja (supra). 23. In the present case, we are concerned with the provisions of Section 50 of the Act as it was, prior to amendments made by Amending Act 9 of 2001 w.e.f. 2.10.2001. 23. In the present case, we are concerned with the provisions of Section 50 of the Act as it was, prior to amendments made by Amending Act 9 of 2001 w.e.f. 2.10.2001. In terms of the provisions, in force at the relevant time, the petitioner had a right to be informed of the choice available to him; making him aware of the existence of such a right was an obligation on the part of the searching officer. This duty cast upon the officer is imperative and failure to provide such an option, in accordance with the provisions of the Act, would render the recovery of the contraband or illicit substance illegal. Satisfaction of the requirements in terms of Section 50 of the Act is sine qua non prior to prosecution for possession of an unlawful narcotic substance. 24. In fact, the Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), in para 25, has even taken a view that after the amendment to Section 50 of the Act and the insertion of sub-section 5, the mandate of Section 50(2) of the Act has not been nullified, and the obligation upon the searching officer to inform the person searched of his rights still remains. In other words, offering the option to take the person to be searched before a Gazetted Officer or a Magistrate as contemplated under the provisions of this Act, should be unambiguous and definite and should inform the suspect of his statutory safeguards. 25. Having stated the principles of law applicable to such cases, now we revert back to the facts of the case at hand. There is no dispute that the concerned officer had prior intimation, that the accused was carrying smack, and the same could be recovered if a raid was conducted. It is also undisputed that the police party consisting of ASI - Dasrath Singh, Head Constable-Narsingh, Constable - Manoj Kumar and lady constable-Nirmla had gone in a Government vehicle to conduct the raid. The vehicle was parked and the accused, who was coming on a scooter, had been stopped. He was informed of and a notice in writing was given to him of, the suspicions of the police, that he was carrying smack. They wanted to search him and, therefore, informed him of the option available to him in terms of Section 50 of the Act. He was informed of and a notice in writing was given to him of, the suspicions of the police, that he was carrying smack. They wanted to search him and, therefore, informed him of the option available to him in terms of Section 50 of the Act. The option was given to the accused and has been proved as Ex. PW-6/A, which is in vernacular. The High Court in the judgment under appeal has referred to it and we would prefer to reproduce the same, which reads as under : "Musami Ram Avtar urf Rama S/o late Sh. Mangat Ram R/o 71/144, Prem Nagar, Choti Subzi Mandi, Janakpuri, Delhi, apko is notice ke tehat suchit kiya jata hai ki hamare pas itla hai ki apko kabje me smack hai aur apki talashi amal mein laye jati hai. Agar ap chahen to apki talashi ke liye kisi Gazetted officer ya Magistrate ka probandh kiya ja sakta hai." 26. The High Court while relying upon the judgment of this Court in the case of Baldev Singh (supra) and rejecting the theory of substantial compliance, which had been suggested in the case of Joseph Fernandez (supra), found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression 'duly' used in Section 50 of the Act connotes not 'substantial' but 'exact and definite compliance'. Vide Ex.PW-6/A, the appellant was informed that a Gazetted Officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside. 27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed. As already held by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), the theory of 'substantial compliance' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.” 15. There are discrepancies in the statements of witnesses where the accused was apprehended, whether it was before the bridge or beyond the bridge. According to PW-2 Om Prakash, all the memos were prepared by him on the spot. However, PW-6 HHG Amar Singh deposed that the memos were scribed by Daya Ram or Nikka Ram. PW-1 Daya Ram deposed that the proceedings were conducted on the spot underneath street light. However, PW-6 Amar Singh deposed that the memos were prepared by Om Prakash inside the vehicle. 16. Thus, the prosecution has failed to prove that the Charas was recovered from the exclusive and conscious possession of the accused. Section 50 of the Act has not been complied with. There are major contradictions in the statements of the witnesses as discussed herein above. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court. 17. Thus, we find no merit in the appeal, which is accordingly dismissed. Pending applications are also disposed of. Bail bonds of accused are discharged.