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2017 DIGILAW 471 (GUJ)

Ghelabhai Govindbhai Rabari v. State of Gujarat

2017-02-28

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. The original accused No. 1 has challenged the judgment of the Sessions Court dated 10.6.2005 in Special NDPS Case No. 5/2002 by which he was convicted for offence punishable under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act" for short) and sentenced to rigorous imprisonment of 15 years. Fine of Rs. 1,50,000/- was also imposed. 2. Briefly stated, the prosecution version was that on 23.9.2002 at about 10:15 at night, the appellant was travelling on his motorcycle. He was intercepted by the police party. Search of the motorcycle revealed that the appellant was carrying about 5 kg and 50 grams of opium. The substance was seized and sent for forensic testing. The appellant was arrested. Case of the prosecution is that the appellant had purchased such substance from one Rameshbhai Narayanlal Sharma accused No. 2. Both the accused were therefore, charged under Exh.7 for offence under section 17 read with section 29 of the Act. Accused No. 1, as noted, was convicted. However, for want of evidence, accused No. 2 was acquitted. The State has not preferred appeal against such acquittal. 3. We may refer to the gist of the evidence. Vishrambhai Dhanjibhai Kharadi, PW-1, Exh.12, was the Police Inspector of LCB Anand, at the relevant time. He deposed that on 23.9.2002, he along with the Police Sub-inspector Shri V.J. Raval and other police officers were carrying out night patrolling duty. They were waiting on a road near Hanuman temple when one motorcyclist came on his Hero Honda motorcycle from Anand side. On suspicion, he was stopped. The witness introduced himself as Inspector of LCB and called two panch witnesses. He offered the motorcyclist whether he wanted the search to be carried out in presence of another gazetted officer but he refused for the same. The motorcyclist was Ghelabhai Govindbhai, accused No. 1 i.e. the present appellant. Upon his refusal to opt for being searched by another gazetted officer, the members of the police party and the panch witnesses were first searched, upon which, nothing objectionable was found. Afterwards, first the accused was searched from whom Rs. 510/- was recovered. After that Hero Honda motorcycle was searched. From its dicky, in a bag, a solid object was found. Afterwards, first the accused was searched from whom Rs. 510/- was recovered. After that Hero Honda motorcycle was searched. From its dicky, in a bag, a solid object was found. Upon taking out the object from the plastic bag, it was found to be blackish thick substance which appeared to be opium from the smell. The substance was weighed in presence of the panchas. The weight came to 5 kg and 50 grams. It was packed, sealed and recovered for further investigation. This person did not have permit to carry such substance. His motorcycle and the substance were both seized under the panchnamas and the accused was placed under arrest. The sealed packet of the substance was handed over by him to PSO of Anand police station. The witness identified the accused before the Court as well as the substance recovered during the raid from him. He further deposed that on 25.9.2002, PSI Shri Jadav of Anand Rural police station had told him that the Forensic Science Laboratory had returned the parcel conveying that only sample may be sent for analysis and not the whole quantity. In the cross examination, he admitted that on Hanuman temple road, many vehicles and people continuously pass. He did not remember how many of such vehicles he had checked on that night. He agreed that the motorcycle of accused No. 1 was stopped on the suspicion of the offence under the Prohibition Act. They were stopping vehicles on the basis of suspicion. After stopping the motorcycle on the basis of suspicion, he had called the panch witnesses. He denied that the panch witnesses were called after checking the dicky of the motorcycle. He had offered the search in presence of another gazetted officer in connection with the narcotic substance but denied that such offer was made after the search was carried out. He was shown muddamal article No. 1, the seized quantity of opium. He stated that on the slip containing the seal, his signature was not found. He however, clarified that the portion of the slip containing his signature seem to have been torn. 4. In the FIR, Exh.13, lodged by this very officer, he had given a similar version of the events of the night of 23rd September. He had stated that while on patrolling duty, the motorcycle was stopped. In presence of the panchas, the motorcyclist and the motorcycle was searched. 4. In the FIR, Exh.13, lodged by this very officer, he had given a similar version of the events of the night of 23rd September. He had stated that while on patrolling duty, the motorcycle was stopped. In presence of the panchas, the motorcyclist and the motorcycle was searched. From the dicky of the motorcycle, a substance possibly opium was found. The substance and the motorcycle were both seized. The panchnama of the search was produced at Exh.14. As per this panchnama, the motorcyclist was first offered search in presence of another gazetted officer if he so wanted though the Police Inspector of LCB himself was a gazetted officer. The motorcyclist had refused to opt for the search by another officer. 5. The prosecution had produced the arrest memo at Exh.16 which showed the time of arrest as 22:15 and the place of arrest at Anand Labhvel road, opposite Hanuman temple. Learned counsel for the appellant would draw our attention to the fact that this arrest memo contained name of the police station as well as C.R. number to contend that contrary to what the prosecution projects, the appellant was arrested at the police station after the registration of the FIR. To this aspect, we would advert to at a later stage. 6. Baldevbhai Sanabhai Jadav, PW-2, Exh.53, was the PSI of Anand Rural police station. He had carried out the investigation. He deposed that the offence was registered before the said police station by PSO Ramilaben Dineshbhai who had handed over the investigation to him. She had also accepted the sealed packet of the seized substance and sent it to the FSL through Police Constable Pravinkumar Manilal on 25.9.2002. However, Pravinkumar returned in the evening of the same day and conveyed to him that the FSL laboratory refused to accept such large quantity of the substance and asked that a sample from the parcel may be forwarded. He had taken the charge of the returned parcel. He then spoke to PI Shri Kharadi about this who told him that as an investigating officer, he had to carry out the further procedure. The witness thereupon called the very same panchas who were parties to the seizure panchnama. In their presence, he had opened the sealed parcel and taken out two samples of approximately 50 grams each before resealing the remaining quantity. The witness thereupon called the very same panchas who were parties to the seizure panchnama. In their presence, he had opened the sealed parcel and taken out two samples of approximately 50 grams each before resealing the remaining quantity. On 26.2.2002, along with the forwarding note, he had sent the sealed sample to FSL through Police Constable Pravinkumar Manilal which was received by the FSL under a receipt. He produced before the Court at Exh.153, a report of the FSL which showed that the seized substance was morphine. In the cross examination, he was questioned on no documentary proof of entire parcel being first sent to FSL which was returned with an insistence on sending only a sample thereof. 7. The procedure for opening the sealed seized substance for taking out the samples and resealing the same was documented under panchnama Exh.54, as per which, in presence of the very same original panchas, the seals were opened in two separate plastic bags. The substance weighing about 50 grams each was placed. The original remaining quantity was sealed and two plastic bags were also sealed. 8. Ramilaben Dineshbhai Mistry, PW-8, Exh.98, was the PSO, Anand Rural police station, at the relevant time. She deposed that the FIR was registered by her. She had also received the sealed quantity of opium and handed over to Crime Writer head Bhaijibhai Muljibhai. 9. Bhaijibhai Muljibhai Brahmbhatt, PW-9, Exh.115, was the ASI at the said police station. He had already left the police station when he was called back by Ramilaben for taking charge of the seized substance. He was handed over the sealed packet of 5 kg and 50 grams by Ramilaben in a sealed condition. He also described the manner in which the sealed packet was opened in presence of the panchas and 50 grams each of this substance was separately sealed for being sent to FSL through constable Pravinkumar Manilal before the remaining original quantity was resealed and handed over to him. 10. Pravinkumar Manilal Variya, PW-10, Exh.126, was the police constable at the said police station. He deposed that he was instructed to carry the seized substance to FSL Ahmedabad. He received such substance from the Writer head Bhaijibhai Muljibhai. He went to the laboratory on 25.9.2002. 10. Pravinkumar Manilal Variya, PW-10, Exh.126, was the police constable at the said police station. He deposed that he was instructed to carry the seized substance to FSL Ahmedabad. He received such substance from the Writer head Bhaijibhai Muljibhai. He went to the laboratory on 25.9.2002. The officers at the FSL who received such articles told him that FSL would not receive the entire quantity of seized material and that he should come only with samples of it. He thereupon returned to the police station and informed PSI Shri Jadav about it. He also returned the sealed packet in the same condition to the PSI. Later, on 27.9.2002, he had carried one sample of this substance in a plastic bag to the FSL and deposited the same and obtained a receipt thereof. 11. Both the panch witnesses to the seizure panchnama PW-3, Vishnubhai Chimanbhai Patel Exh.86 and PW-4 Rohitbhai Manibhai Patel Exh.87 turned hostile. They however admitted their signatures on the panchnama. Ishwarbhai Ramabhai Rathod, PW-5, Exh.88, who had helped the investigating agency to weigh the substance also turned hostile. Bhagubhai Bachubhai Jadav, PW-6, Exh.90, who had a provision store near the place of the incident and was supposed to be an eyewitness also turned hostile. Arvindbhai Khodabhai Parmar, PW-7, Exh.82, also an eyewitness turned hostile. This in the nutshell is the evidence on record. 12. On the basis of such evidence, learned counsel for the appellant raised the following contentions: (1) The procedure laid down under section 50 of the Act was not followed. The police had searched not only the motorcycle but also the accused himself. Mere questioning whether he wanted to be searched by another gazetted officer without making him aware that he had such a right, was not sufficient compliance of the requirement of section 50 of the Act. (2) The evidence led by the prosecution is confined to a solitary police witness Shri Kharadi PW-1. The independent witnesses including panch witnesses had turned hostile. There were many other members of the raiding party, none of them were examined. Even otherwise, the prosecution case was not reliable. The fact that the arrest memo recorded the name of the concerned police station and the FIR number would indicate the possibility of manipulation. (3) Counsel contended that the movement of the seized substance raise a grave suspicion. There were many other members of the raiding party, none of them were examined. Even otherwise, the prosecution case was not reliable. The fact that the arrest memo recorded the name of the concerned police station and the FIR number would indicate the possibility of manipulation. (3) Counsel contended that the movement of the seized substance raise a grave suspicion. There is nothing on record to suggest that the FSL had first refused to accept the entire quantity insisting on sending only the samples. According to the prosecution, two samples were drawn whereas only one was sent to the FSL. It is not clear what happened to the second sample since it has not been accounted for in any register. (4) Counsel lastly contended that in any case sentence of rigorous imprisonment of 15 years and fine of Rs. 1,50,000/- was harsh. The accused has no criminal antecedents and came from poor background. In support of his contentions, counsel relied on several decisions of the Supreme Court to which reference would be made at an appropriate stage. 13. On the other hand, learned APP Ms. Chetana Shah for the State opposed the appeal contending that proper procedure was followed. The police witnesses were reliable. Merely because the panch witnesses did not support prosecution would not make the deposition of the police witnesses unreliable. She submitted that in narcotic cases, it is always difficult to ensure a favourable deposition of independent as well as panch witnesses. Being a serious offence, the evidence on record should be minutely examined. 14. Before entering into the assessment of evidence, we may first examine the question whether the procedure under section 50 of the Act was required to be followed and if yes, was there a proper compliance? 15. In this respect learned counsel for the appellant drew our attention to the decision in case of Dilip and Another vs. State of M.P. (2007) 1 SCC 450 , the facts were that when a police officer was trying to arrest one Shivraj Meena, he found the two persons came out at a fast speed on a scooter. They were stopped. A search of their person was conducted. Nothing was found from such search but on the search of the scooter, a black coloured liquid contained in six plastic bags was found. It was thought to be opium weighing more than 5 kgs. They were stopped. A search of their person was conducted. Nothing was found from such search but on the search of the scooter, a black coloured liquid contained in six plastic bags was found. It was thought to be opium weighing more than 5 kgs. On the basis of evidence on record, learned Sessions Judge opined that the likelihood of the police officer having prior information cannot be ruled out. In the cross examination, the said officer had accepted that he entertained doubts that the accused had been in possession of contraband goods and, therefore, he intended to comply with the provisions of section 50 of the NDPS Act. It was noticed that FIR did not contain any statement that provisions of section 50 of the Act were complied with. On such basis, the Sessions Court acquitted the accused. The High Court reversed the acquittal upon which the matter reached the Supreme Court. However, the prosecution introduced two notices informing the accused about their role to get themselves searched either before a magistrate or some gazetted officer. In such background, the Supreme Court observed as under: "12. Before seizure of the contraband from the scooter, personal search of Appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with. 16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the persons of the appellants were also searched, it was obligatory on the part of PW-10 to comply with the said provisions. It was not done." 16. In case of Ashok Kumar Sharma vs. State of Rajasthan, (2013) 2 SCC 67 , it was observed as under: "The above statement of PW1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person." 17. In case of State of Rajasthan vs. Parmanand and Another, (2014) 5 SCC 345 , it was held and observed that if merely a bag carried by a person is searched without there being any search of his person, section 50 of the Act will have no application but if bag carried by him is searched and his person is also searched, section 50 will apply. 18. In case of State of Delhi vs. Ram Avtar alias Rama, (2011) 12 SCC 207 , the two Judge Bench of the Supreme Court referred to various judgments on the issue and reiterated that it is imperative for the authority concerned to inform the accused of the choice available to him and failure to do so renders the recovery of contraband illegal. While discharging the onus of section 50, the prosecution has to establish that the information regarding existence of such a right had been given to the suspect. It was further held and observed as under: "29. Now, we come to discuss the argument raised on behalf of the State, that in the present case, generally and as a proposition of law, even if there is apparent default in compliance with the provisions of Section 50 of the Act, a person may still be convicted if the recovery of the contraband can be proved by statements of independent witnesses or other responsible officers, in whose presence the recovery is effected. To us, this argument appears to be based upon not only a misconstruction of the provisions of Section 50 of the Act but also on the misconception of the principles applicable to criminal jurisprudence. To us, this argument appears to be based upon not only a misconstruction of the provisions of Section 50 of the Act but also on the misconception of the principles applicable to criminal jurisprudence. Once the recovery itself is found to be illegal, being in violation to the provisions of Section 50 of the Act, it cannot, on the basis of the statement of the police officers, or even independent witnesses, form the foundation for conviction of the accused under Section 21 of the Act." 19. It would thus emerge that while carrying out a search of a person by a person authorised under section 42 of the Act, under the provisions of sections 41, 42 or 43 of the Act, it is incumbent that provisions of section 50 are complied with. Though a mere search of a bag, container or vehicle of such a person would not invite the requirement of section 50, when such search is coupled with the search of a person, requirement of section 50 would kick in. Mere offer to be searched in presence of a magistrate or another gazetted officer would not be sufficient compliance of the requirement under section 50, unless the person about to be subjected to search is also made aware about his right to be so searched in presence of another gazetted officer or a magistrate. If therefore, the procedure of section 50 was required to be undertaken, in the present case, there was a clear breach thereof. The evidence of Shri Kharadi PW-1 as well as the reading of the FIR Exh.13 would show that the search did not confine to the vehicle of the appellant herein but the appellant himself was searched. Before such search, he was offered whether he desired to be searched in presence of a magistrate or another gazetted officer. Apparently, he declined such an offer. Significantly, there is nothing to suggest that the accused was made aware about his right that he can insist that such search should take place in presence of a magistrate or another gazetted officer. Combined effect of the ratio laid down by various decisions noted above would therefore, be that the procedure under section 50 of the Act was not followed in the present case. 20. Learned APP Ms. Chetana Shah however, strenuously urged that section 50 of the Act in the present case had no application. Combined effect of the ratio laid down by various decisions noted above would therefore, be that the procedure under section 50 of the Act was not followed in the present case. 20. Learned APP Ms. Chetana Shah however, strenuously urged that section 50 of the Act in the present case had no application. She would point out that this was not a case of search pursuant to prior intelligence. The police party were merely on night patrolling duty. During such patrolling they randomly stopped the vehicles on suspicion not necessarily for carrying contraband goods. It was therefore, not necessary for the police to follow the procedure under section 50 of the Act. 21. The distinction that section 50 procedure would apply when an authorised officer referred to under section 42 is about to search a person under sections 41, 42 and 43 but would not apply in ordinary cases of raid or search, is well laid down. If without prior tip-off, intelligence or information or even reason to believe that a person is carrying on his person or any vessel, vehicle or container contraband goods, a general search is carried out, section 50 would obviously have no application. This distinction was brought out by the Supreme Court in case of State of Punjab vs. Balbir Singh, (1994) 3 SCC 299 in which it was held and observed as under: "25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements there under would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act." 22. If therefore, a police officer without any prior information as envisaged under the provisions of the NDPS Act, makes a search or arrests a person in the normal course of investigation into an offence, as provided in the Code of Criminal Procedure, in connection with such a search, the procedure envisaged under section 50 of the Act would not be attracted. 23. The crucial question in the present case therefore, would be did the police officer carrying out such search had information or reason to believe that the accused was carrying contraband goods? This would in all cases necessarily be a question of fact. It was in this background we may recall the Supreme Court in case of Dilip and Another (supra) had reinstated the judgment of the learned Sessions Judge who on the basis of the evidence on record came to the conclusion that the likelihood of the police officer having prior information about the suspects carrying contraband goods could not be ruled out. It was a case in which the police officer finding the two scooterists passing at a high speed were stopped and searched under suspicion of carrying contraband goods. It was therefore, held that the procedure under section 50 of the Act was required to be followed. 24. With this background if we revert to the evidence on record, Vishrambhai Dhanjibhai Kharadi, PW-1, the Police Inspector, of LCB Anand was on night patrolling duty along with other officers when they stopped Hero Honda motorcycle of the present appellant on the basis of suspicion. As per this witness, he offered the motorcyclist an option of being searched in presence of another gazetted officer though he himself was a gazetted officer. As per this witness, he offered the motorcyclist an option of being searched in presence of another gazetted officer though he himself was a gazetted officer. In the cross examination, the witness agreed that after stopping the vehicle he had suspicion that the motorcycle contained opium or some narcotic substance and, therefore, he had made an offer to the motorcyclist whether he wanted to be searched in presence of another gazetted officer. 25. Few things emerge from the evidence of this witness. First, that the police party did not have any prior intelligence or tip-off that a person of certain description or on a certain vehicle is likely to pass from the area carrying contraband goods. The police party comprised of officers engaged in general night patrolling duty. They were randomly stopping and checking the vehicles on suspicion. If this be so, there was no reason for Shri Kharadi to have offered the motorcyclist the choice of being searched in presence of another gazetted officer. The motorcyclist was not a repeated offender of narcotics. Shri Kharadi had no reason to suspect that motorcycle may be carrying contraband goods. Nevertheless, Shri Kharadi did offer the motorcyclist a choice of being searched in presence of another gazetted officer, clearly indicating that whatever be the source of his suspicion, he had reason to believe that the vehicle carried contraband goods. If that be so, the search ceased to be one under normal state of suspicion of breach of prohibition law, stolen property or carrying unauthorised arms or weapons. The search was on a suspicion of the motorcyclist carrying contraband goods. The officer present thus had a reason to believe that the motorcyclist was likely to be carrying the contraband substance. The case would therefore, not fall within the parameters laid down by the Supreme Court in case of State of Punjab vs. Balbir Singh (supra) in clause (1) of paragraph 25 noted above. It was a case where the police officer himself was proceeding on the basis that there was every likelihood of motorcyclist on his person or in the motorcycle carrying contraband goods. He admitted in so many words in the cross examination when he agreed that the offer for being searched in person of another gazetted officer was in connection with the offence of NDPS Act. Requirement of section 50 of the Act applied with full force. He admitted in so many words in the cross examination when he agreed that the offer for being searched in person of another gazetted officer was in connection with the offence of NDPS Act. Requirement of section 50 of the Act applied with full force. The fact that the motorcyclist himself and the motorcycle both were searched is beyond doubt. The fact that offer was merely one for being searched in presence of another gazetted officer without indicating that he had a right to insist on the same, is also beyond doubt. By virtue of judgments of the Supreme Court in case of Dilip and Another (supra), Ashok Kumar Sharma (supra), State of Rajasthan vs. Parmanand and Another (supra) and State of Delhi vs. Ram Avtar alias Rama (supra), the mandatory requirements of section 50 of the Act were not followed. 26. That being the case, entire search and resultant seizure of the objectionable material would be rendered illegal. Judgment of the trial Court was vitiated. The conviction of the accused is therefore, set aside. When we find that the very foundation of the search and seizure have been rendered illegal, it is not necessary, in fact, not proper on our part to examine the other contentions of the appellant. 27. In the result, the judgment dated 10.6.2005 passed by learned Additional Sessions Judge, Nadiad in Special NDPS Case No. 5/2002 is set aside. The appellant is acquitted. He shall be released forthwith, if not required in connection with any other criminal case. Appeal is allowed and disposed of. R & P may be transmitted back to the concerned trial Court. Appeal Allowed.