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2017 DIGILAW 2197 (RAJ)

Sikandar Khan Pathan v. State Of Rajasthan

2017-10-12

SANDEEP MEHTA

body2017
JUDGMENT Sandeep Mehta, J. - By way of this appeal, the appellant herein has approached this Court for challenging the judgment dated 28.06.2017 passed by the learned Special Judge, N.D.P.S. Act Cases, Pratapgarh in Sessions Case No. 05/2010 whereby, the appellant was convicted for the offence under Section 8/21(b) of the NDPS Act and was sentenced to 6 years'' R.I. and a fine of Rs. 60,000/- in default of payment of fine, to further undergo 1 year''s R.I. 2. Facts in brief are that the SHO, Police Station Pratapgarh, Pratap Singh (PW-15) allegedly received a source information on 26.05.2009 that the appellant herein, who is a disabled person would be procuring illicit brown sugar from Akkhepur and would be proceeding to Banswara via Pratapgarh Zero Mile Circle. The information was considered reliable and was taken down in writing and forwarded to the superior officials and thereafter a Nakabandi was laid on the Pratapgarh Banswara road. At about 08.40 pm., a person, whose features tallied with those of the appellant, was seen standing near the Rajeev Gandhi Park. He was confronted by the police party and identified himself to be Sikandar. He was given a notice under Section 50 of the NDPS Act and then his personal search was conducted. A power like substance packed in polythene was found tied with a white cloth on the abdomen of the accused which upon opening was suspected to be brown sugar. The recovered contraband weighed 250 gms. with the polythene packing. The requisite procedure of sampling, sealing, etc. was conducted on spot. The accused was arrested and thereafter, the police party returned to the police station Pratapgarh where FIR No. 168/2009 was registered and investigation commenced. The sample collected from the suspected contraband was forwarded to the Forensic Science Laboratory from where a positive report regarding presence of brown-sugar was received. After investigation, a charge-sheet was filed against the appellant herein for the offence under Section 8/21 of the NDPS Act and against the co-accused Wasim for the offence under Section 8/29 of the NDPS Act. Charge was framed against the accused in these terms. Both the accused pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses in support of its case. The accused, upon being examined under Section 313 Cr.P.C. 1973 denied the prosecution allegations. Charge was framed against the accused in these terms. Both the accused pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses in support of its case. The accused, upon being examined under Section 313 Cr.P.C. 1973 denied the prosecution allegations. The accused Sikandar himself appeared as a defence witness and a witness Ganeshlal was also examined in defence. At conclusion of proceedings, the trial court proceeded to acquit the co-accused Wasim from the charge under Section 8/29 of the NDPS Act but convicted and sentenced the accused appellant as above by the impugned judgment dated 28.06.2017. Hence this appeal. 3. Shri Pitaliya learned counsel representing the appellant raised a solitary contention to challenge the appellant''s conviction. He urged that alleged recovery of contraband was effected during the personal search of the appellant. Before searching him, the seizure officer, allegedly gave a notice (Ex.P/8) to the accused under Section 50 of the NDPS Act. He urged that the notice contains three options with the third option being that the accused could get himself searched by the SHO himself. He urged that apprising the accused of the third option that the police officer could himself search the accused is contrary to the mandatory requirement of Section 50 of the NDPS Act as has been held in the judgment rendered by Hon''ble the Supreme Court in the case of State of Rajasthan v. Parmanand & Anr., reported in 2014(2) Criminal Court Case 077 (SC) : AIR 2014 SC 1384 . He further urged that the I.O. did not record the option selected by the accused on the notice and without recording the consent of the accused, he himself proceeded to conduct personal search of the accused. He thus contended that the entire proceedings of search and seizure are vitiated as having been carried out in gross contravention of mandatory requirement of Section 50 of the NDPS Act and therefore, implored the Court to set aside the impugned judgment and acquit the accused of the charges. 4. Learned Public Prosecutor, on the other hand, vehemently opposed submissions advanced by the appellant's counsel. However, he too does not dispute the fact that the recovery of contraband brown sugar was made from a cloth tied to the abdomen of the accused and thus following the mandatory procedure of Section 50 of the NDPS Act clearly governs the search proceedings. Learned Public Prosecutor, on the other hand, vehemently opposed submissions advanced by the appellant's counsel. However, he too does not dispute the fact that the recovery of contraband brown sugar was made from a cloth tied to the abdomen of the accused and thus following the mandatory procedure of Section 50 of the NDPS Act clearly governs the search proceedings. It is also not disputed that the notice, which was given to the accused under Section 50 of the NDPS Act before conducting his personal search, contains three options (a) that the accused had a right to be searched by a Magistrate or (b) a gazetted officer or (c) the seizure officer himself could carry out the search. The language of the notice as given to the accused is relevant for deciding the controversy at hand which is a follows: uksfVl vUrxZr /kkjk 50¼1½ ,uŒMhŒihŒ,lŒ ,DV eqfrZck ,lŒ,pŒvksŒ Fkkuk Árkix<+ fnukad 26-05-2009 le; 8-45 ceqdke thjks ekbZy pkSjkgk ihŒthŒ,pŒ :c: ekSrchjku %& ¼1½ Jh gfjvkse iq= rqylhjke th 'kekZ mez 35 o"kZ fuoklh pqiuk Fkkuk vjuksn ftyk Árkix<+A ¼2½ useh pUn iq= xV~Vw th rsyh fuoklh ek.kd pkSd Árkix<+ Fkkuk Árkix<+A mijksDr ekSrcjhu ds le; vki Jh fldUnj [kku firk v[rj 'kkg iBku eqlyeku mez 35 lky fuoklh v[ksiqj Fkkuk Árkix<+ dks tfj;s gktk fy[kk tkrk gS fd vkt fnuakd 26-06-2009 dks eq>s ,lŒ,pŒvksŒ Árkiflag pq.M+kou Fkkuk Árkix<+ dks tfj;s eq[kchj lwpuk feyh gS fd voS/k czkmu&'kqxj ysdj v[ksiqj ls vk;s o ;gka ls cl es cSBdj ckalokM+k gksrs gq, vgenkckn czkmu&'kqxj cspus tkosxsA eq[kchj dh lqpuk vfr fo'oluh; gSA vkidh viuh ryk'kh th tkuk gSA vkidk ;g dkuwuh vf/kdkj gS fd vki mDr tkek ryk'kh fdUgh fudVre eftLVªsV ;k l{ke jktif=r vf/kdkjh ds le{k fyok ldrs gSA vki pkgs rks eSa mUgsa ;gka cqykus dh O;oLFkk d:aA ;fn vki pkgs rks mDr tkek ryk'kh eq>s ,lŒ,pŒvksŒ Árkiflag pq.M+kou ls Hkh fy;k ldrs gSA vr% vki viuh lgefr nsosA QnZ gktk eqfrZc dh tkdj gktjhu dks i<+dj lqukbZ lqu lgh eku gLrk{kj fd;sA 5. A bare perusal of the notice itself reveals that the seizure officer apprised the accused that he had a right of being searched before the nearest Magistrate, competent gazetted officer or by the seizure officer SHO Pratap Singh himself. A bare perusal of the notice itself reveals that the seizure officer apprised the accused that he had a right of being searched before the nearest Magistrate, competent gazetted officer or by the seizure officer SHO Pratap Singh himself. The notice does not bear the consent of the accused that he was ready to be searched by the seizure officer and with recording such consent, search of the accused was taken by Pratap Singh SHO. The seizure officer tried to supplement this aspect in his evidence but obviously the notice does not meet the mandatory requirement of Section 50 of the NDPS Act. This aspect of the controversy was considered in detail by Hon''ble the Apex Court in Parmanand''s case (supra) and it was held that offering the third option that the accused could be searched by the seizure officer himself is contrary to the mandatory requirement of Section 50 of the NDPS Act. 6. In this background, I am of the firm opinion that the conviction of the appellant cannot be sustained because the seizure officer failed to ensure strict compliance of mandatory requirements of Section 50 of the NDPS Act vitiating the search and seizure of the contraband narcotic substance effected during personal search of the accused. 7. Resultantly, the instant appeal deserves to be and is hereby allowed. The impugned judgment 28.06.2017 passed by the learned Special Judge, N.D.P.S. Act Cases, Pratapgarh in Sessions Case No. 05/2010 is grossly illegal and thus quashed and set aside. The accused appellant Sikandar Khan Pathan is acquitted of the charge. He is in custody. He shall be released from prison forthwith if not wanted in any other case. 8. Record be returned to the court below.