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2020 DIGILAW 594 (RAJ)

Kanhaiya Lal Nath v. State

2020-08-11

PUSHPENDRA SINGH BHATI

body2020
JUDGMENT Pushpendra Singh Bhati, J. - In wake of onslaught of COVID-19, abandon caution is being taken while hearing the matters in Court. 2. The petitioner has been arrested in connection with FIR No.VIII(IO)05/NCB/JZU/2017 registered at Police Station N.C.B., Jodhpur for the offence punishable under Sections 8, 15 & 25 of the N.D.P.S. Act. He has preferred this second bail application under Section 439 Cr.P.C. 3. The facts as noticed by this Court are that on 17.4.2017, the Information Officer received a secret information that on 18.4.2017, a person named Kanhaiya Lal s/o Tarachand Nath will be coming towards Jodhpur town driving a Tata Truck No. GJ-18-AV-5511 and the truck in question shall be utilised for transporting Poppy Straw (Doda Post). The information further revealed that the owner of the truck Ravi Prakash Sharma s/o Radheyshyam Sharma will be escorting the saidtruck in a Swift Dzire car. Upon this information, the N.C.B. team reached at Dangiyawas Bye-pass on 18.4.2017 and while they were looking for the truck in question, at about 3:00 AM, the same arrived and was stopped. The container of the truck was having a seal of Hitachi 12916 which was broken and when the container was searched by the NCB team, 87 bags of Poppy Straw were found beneath the AC kits boxes. After usual formalities of search and seizure, the petitioner was arrested. Thereafter, challan was filed against the petitioner under Section 8, 15, 25 & 29 of the NDPS Act. Thereafter, charges were framed under Section 8/15 and 8/15 r/w 29 of the NDPS Act. 4. The petitioner moved his first bail application before the learned trial Court which was dismissed on 20.11.2017. Thereafter, some of the prosecution witnesses were examined and the petitioner moved a second bail application before the learned trial Court which was also dismissed on 11.6.2019. The petitioner being aggrieved by dismissal of his bail application vide order dated 11.6.2019, moved first bail application before this Court but the same was dismissed as not pressed on 18.6.2019. Thereafter, the statement of PW2 Rameshwar Das (Seizure Officer) was recorded and the petitioner moved his third bail application before the learned trial Court which was dismissed on 20.12.2019. 5. Thereafter, the statement of PW2 Rameshwar Das (Seizure Officer) was recorded and the petitioner moved his third bail application before the learned trial Court which was dismissed on 20.12.2019. 5. 5.1 Learned counsel for the petitioner Dr.H.S. Shekhawat vehemently submitted on video conferencing that the petitioner had no knowledge of the cargo in question and was merely a driver in the truck for transporting the AC kits on the instructions of the owner Ravi Prakash Sharma. He has taken this Court through the journey and time schedule of the petitioner and has tried to demonstrate that the petitioner was travelling at a very usual speed and no conduct of his, including sleeping overnight at previous station, would reflect that he was aware of the contraband being carried in the truck. He further submitted that the petitioner was not in conscious possession of the contraband in question and furthermore, on 16.4.2017, the owner Ravi Prakash Sharma took the truck from the petitioner on the pretext of loading some spare parts and kept the truck in his exclusive custody and handed over the truck after four hours. 5.2 Learned counsel for the petitioner further submitted that the seizure officer served a notice under Section 50 of the NDPS Act (Ex.107) upon which the petitioner has given his written consent of being searched to the seizure officer but that would not legalise the search in question as the same was not conducted in the presence of a Gazetted Officer or Magistrate. He has thus submitted that there is gross violation of Section 50 of the N.D.P.S. Act which is a strict law and thus, the petitioner is entitled to be released on bail. In this connection, he has relied upon the judgments of Hon'ble Supreme Court in the case of : (1) Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) AIR SC 2123 , relevant paras no.28 & 30 whereof read as under :- 28. In this connection, he has relied upon the judgments of Hon'ble Supreme Court in the case of : (1) Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) AIR SC 2123 , relevant paras no.28 & 30 whereof read as under :- 28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer. 30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal. (2) S.K. Raju @ Abdul Haque @ Jagga vs. State of West Bengal, (2018) AIR SC 4255 , relevant paras no.10 & 11 whereof read as under :- 10 Section 50 of the Act deals with conditions under which search of persons shall be conducted. It states: "50. (2) S.K. Raju @ Abdul Haque @ Jagga vs. State of West Bengal, (2018) AIR SC 4255 , relevant paras no.10 & 11 whereof read as under :- 10 Section 50 of the Act deals with conditions under which search of persons shall be conducted. It states: "50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." According to Section 50(1), an empowered officer should necessarily inform the suspect about his legal right, if he so requires, to be searched in the presence of a gazetted officer or a magistrate. In Vijaysinh Chandubha Jadeja v State of Gujarat ("Vijaysinh"),10 a Constitution Bench of this Court interpreted Section 50 thus: "The mandate of Section 50 is precise and clear, viz. In Vijaysinh Chandubha Jadeja v State of Gujarat ("Vijaysinh"),10 a Constitution Bench of this Court interpreted Section 50 thus: "The mandate of Section 50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. 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. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision ... 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 (supra) and Prabha Shankar Dubey (supra) 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's case (supra)." The principle which emerges from Vijaysinh is that the concept of "substantial compliance" with the requirement of Section 50 is neither in accordance with the law laid down in Baldev Singh, nor can it be construed from its language. [Reference may also be made to the decision of a two judge Bench of this Court in Venkateswarlu]. Therefore, strict compliance with Section 50(1) by the empowered officer is mandatory. Section 50, however, applies only in the case of a search of a person. In Baldev Singh, the Court held "on its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises, etc." In State of Himachal Pradesh v Pawan Kumar ("Pawan Kumar"),11 a three judge Bench of this Court held that the search of an article which was being carried by a person in his hand, or on his shoulder or head, etc., would not attract Section 50. It was held thus: "In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act After the decision in Baldev Singh, this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him." In Parmanand, on a search of the person of the respondent, no substance was found. However, subsequently, opium was recovered from the bag of the respondent. A two judge Bench of this Court considered whether compliance with Section 50(1) was required. This Court held that the empowered officer was required to comply with the requirements of Section 50(1) as the person of the respondent was also searched. [Reference may also be made to the decision of a two judge Bench of this Court in Dilip v State of Madhya Pradesh]12. It was held thus: "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. [Reference may also be made to the decision of a two judge Bench of this Court in Dilip v State of Madhya Pradesh]12. It was held thus: "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." Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate or before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. The Court held that the search of the respondent was not in consonance with the requirements of Section 50(1) as the empowered officer erred in giving the respondent an option of being search before the Superintendent, who was not an independent officer. It was held thus: "We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the 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 the nearest Magistrate or the 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. 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." The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person. Further, if the first question is answered in the affirmative, whether the requirements of Section 50 were strictly complied with by PW-2 and PW-4. 11 As evidenced by Exhibit-3, a first option was given to the appellant. PW- 2 informed him that it was his legal right to be searched either in the presence of a magistrate or in the presence of a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him again, whether he wanted to be searched in the presence of a gazetted officer or in the presence of a magistrate. The appellant reiterated his desire to be searched in the presence of a gazetted officer. Before the search of the appellant commenced, the gazetted officer asked the appellant whether he wanted to search PW-2 before his own search was carried out by PW-2. The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongings of PW-2 were found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongings of PW-2 were found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash in the denomination of 24 notes of Rs. 100/- each was found in the left pocket of the appellant's trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas. PW-2 conducted a search of the bag of the appellant as well as of the appellant's trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant's person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. From Exhibit-3, it can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer, PW-4 inquired of the appellant whether he wished to search PW-2 before his own search was conducted by PW-2. The appellant agreed to search PW-2. Only the personal belongings of PW-2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. The appellant agreed to search PW-2. Only the personal belongings of PW-2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant's search was conducted, both PW- 2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a 'third' alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh." 5.3 Learned counsel for the petitioner has taken this Court to the statement of the seizure officer PW2 Rameshwar Das and has tried to impress upon this Court that the casualness in which seizure has been made with improper dates and timings, renders the documents of seizure memo, site plan etc. as of no consequence. He further submitted that the mandatory provisions have not been adhered to and a bare reading of the statement of seizure officer shows that the prosecution story is being concocted just for the purpose of implicating the petitioner who otherwise has no case. 5.4 Learned counsel for the petitioner has submitted that strict compliance of Section 57 of the NDPS Act has not been adhered to. He has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Mohan Lal vs. State of Punjab, (2018) AIR SC 3853 . 5.4 Learned counsel for the petitioner has submitted that strict compliance of Section 57 of the NDPS Act has not been adhered to. He has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Mohan Lal vs. State of Punjab, (2018) AIR SC 3853 . He has thus prayed that the petitioner be released on bail. 6. 6.1 Learned Special Public Prosecutor Mr.M.R. Pareek has taken this Court to Section 37(2) of the N.D.P.S. Act which lays down that there ought to be reasonable grounds for believing that the accused is not guilty of the offence, to grant him bail in this special law. He has placed reliance upon the judgment of Hon'ble Supreme Court in the case of Than Kunwar vs. State of Haryana in Criminal Appeal No.2172/2011, decided on 2.3.2020 and as per him, all the previous case laws including Baljinder Singh has been discussed in Than Kunwar's judgment (supra). 6.2 Learned Spl. P.P. submitted that the impact of Section 50 of the NDPS Act would arise only if the search was made on the body of the accused alone and this is specifically a case where the search in question had taken place in the vehicle driven by the accused. He further submitted that the case of Than Kunwar (supra) is very clear in its mandate and the search made apart from the body of the accused i.e. in a bag or vehicle, shall not require the rigors of Section 50 i.e. having search in the presence of a Magistrate or Gazetted Officer. 6.3 Learned Spl. P.P. has also referred to the judgment of Hon'ble Supreme Court in the case of Madan Lal & Anr. vs. State of Himachal Pradesh in Criminal Appeal No.786/2002, decided on 19.8.2003, relevant para whereof reads as under :- "Now comes the question whether there was noncompliance of Section 50 of the Act. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr, (1999) 8 JT 293 ) , The State of Punjab v. Baldev Singh, (1999) 4 JT 595 ) , Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 ) . It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr, (1999) 8 JT 293 ) , The State of Punjab v. Baldev Singh, (1999) 4 JT 595 ) , Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 ) . The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding noncompliance of Section 50 of the Act is also without any substance." 7. After hearing the learned counsel for the parties and after perusing the material available on record, this Court finds that in the ambit of Section 37(2), bail can be granted only if the Court is satisfied that there were reasonable grounds for believing that the accused is not guilty of such offence. Further this Court also finds that a bare reading of Section 50 makes it clear that it applies only on the personal search of the accused and the Hon'ble Supreme court in the cases of Than Kunwar and Madan Lal (supra) has clarified this issue. The language of Section 50 is explicit for the personal search of an accused and the same parameter cannot be made applicable upon the search of premises, vehicle or articles. A bare reading of statement of seizure officer does not lead to a one sided conclusion that no offence is made out against the petitioner as he has confirmed the offence and stood by it and if there are any lacuna in the statement of seizure officer, they may be useful for the accused during trial. This Court also finds that the arguments pertaining to Section 57 of the NDPS Act do not cut the ice in the mind of the court to grant bail to the petitioner particularly, when the offence in question pertains to a huge quantity of contraband being recovered in 87 bags weighing about 1747 kgs. in the truck being driven by the petitioner. 8. In view of the above, the present second bail application, having no force, is hereby dismissed.