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Madhya Pradesh High Court · body

2022 DIGILAW 1128 (MP)

Central Narcotic Bureau v. Taj Khan

2022-09-13

ANIL VERMA

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JUDGMENT 1. The appellant has preferred this appeal under section 378(2) of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the judgment dated 23/06/1998 passed by II Additional Sessions Judge, Neemuch, District Mandsaur (M.P.) in Special Case No.144/1996, whereby both the respondents have been acquitted from the charges under section 8/18 and 8/21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). 2. Brief facts of the case are that on 16.8.1996 at about 03:00 PM a general search was conducted by the RTO Check post, Nimbahera, whereby a Roadways Bus of Rajasthan was stopped and searched. At that time, co-accused Kalusingh and Jafar @ Tikku were found in possession of 230 gram brown sugar. They were arrested and during the investigation they have disclosed that the said brown sugar was given to them by the Iqbal Bohra, who generally kept their contraband with the present respondents No.1 and 2 Taj Khan and Sabir Khan. Act upon the said information NCB party raided on the spot and found that in the partnership of the Sabir Khan, Iqbal kept drugs in a drum of the Galla Mandi, Neemuch. Sabir Khan took out the keys from his pocket and open the locked drums in which a bag was found which contains brown sugar weight 140 grams and 30 grans opium. Necessary proceedings regarding sampling, seizing, etc. was done. Accused persons / respondents were arrested. According, offence has been registered against them. 3. After completion of investigation, charge sheet was filed against the respondents and both the respondents were charged with Section 8/18 and 21 of the NDPS Act. They have absurd their guilt and claim for trial. After completion of trial on the basis of the evidence available on record, the trial Court has acquitted both the accused persons / respondents from the aforesaid charges. 4. Learned counsel for the appellant contended that the trial Court has erred in holding that the provisions of sections 42, 50, 52, 55 and 57 were not complied with, whereas in the instant case as the recovery was made in public place, hence, compliance of section 50 was not all required. The trial Court has erred in holding that the report of the chemical examination related to the same drug, which was seized from the respondents is doubtful. The trial Court has erred in holding that the report of the chemical examination related to the same drug, which was seized from the respondents is doubtful. The trial Court has also erred in not relying upon the statement given by the respondents to the officers of NCB which are admissible in evidence. The trial Court has overlooked the fact and statement of Jafar, whose statement was first recorded by the seizing officer and thereafter, the Investigating Officer and the said recovery was made after the information of Jafar. The judgment of the learned trial Court is bad both in law and facts. Therefore, he prayed that the appeal be allowed and the judgment passed by the trial Court be set aside and the respondents be convicted and punished according to law. 5. Per contra, learned counsel for the respondents opposed the same and prays for its rejection by submitting that as per the evidence available on record, no offence is made out against the respondents. The trial Court has rightly acquitted the respondents from all the charges. 6. Heard learned counsel for both the parties at length and perused the impugned judgment as well as record of the trial Court. 7. It is relevant to mention here that before the learned Special Judge it was contended on behalf of the accused / respondents that since the NCB personnel searched the Galla Mandi, Neemuch only on account of receipt of information given by the co-accused Kalusingh and Jafar. It was necessary for the concerned NCB Officers to have forwarded the said information to his senior officers as per the provisions of Section 43 of NDPS Act, but Inspector Ashwini Kumar Mishra (PW-9) admits in his crossexamination that he did not obtained any written consent of the accused person regarding the search and also he did not inform him that they have right to search before any gazetted officer. Nothing has been found in the statement of Ashwini Kumar Mishra (PW-9) that he sent any information to his higher officers. However, the above mandatory compliance of section 42 of NDPS Act was not done in the instant case. Thus, there has been a violation of mandatory provision of section 42 of NDPS Act. 8. Nothing has been found in the statement of Ashwini Kumar Mishra (PW-9) that he sent any information to his higher officers. However, the above mandatory compliance of section 42 of NDPS Act was not done in the instant case. Thus, there has been a violation of mandatory provision of section 42 of NDPS Act. 8. From perusal of the record it is found that time was not mentioned in the proceeding of seizure and search, which are the documents Exhibit-P/1, P/2 and P/8. Inspector Ashwini Kumar Mishra (PW-9) stated that accused Sabir Khan took out a key from his pocket and opened the drum by that key but he did not make any separate seizure memo regarding the seizure of the said key from accused Sabir Khan. 9. From perusal of the seizure memo (Exhibit-P/9) it appears that the Investigating Officer did not seized any relevant document regarding the ownership, possession or allotment of the said drum in which the contraband was recovered. It is also noteworthy to mention here that charges were framed against the accused / respondents regarding the illegal possession of 'brown sugar', but as per the analysis report of the contraband, sample was identified as 'heroin'. The same fact was also mentioned in the Test Memo (Exhibit-P/17) and order of Superintendent (Exhibit-P/13). Brown sugar and heroin are not the same derivatives, therefore, in view of the material difference regarding the seized contraband, the entire case of the prosecution became doubtful. 10. Inspector Ashwini Kumar Mishra (PW-9) admits in paragraph No.3 of his cross-examination that seals of article 'E' and 'B' were broken and envelope 'E' was found in torn condition but as per the analysis report of Government Opium and Alkaloid Works, Neemuch the aforesaid sample was returned in a properly sealed packet, therefore, the case of the prosecution became very doubtful on the basis of the aforesaid broken seal of some articles. 11. Nawab Kha (PW-2) and Labhchand ((PW-3) who are the witnesses of seizure memo, arrest memo, sampling and other proceeding have turned hostile and they have not supported the case of the prosecution. Hence, it is clear that no independent witness has supported the case of the prosecution and case of the prosecution is entirely based on the official witnesses. 12. Nawab Kha (PW-2) and Labhchand ((PW-3) who are the witnesses of seizure memo, arrest memo, sampling and other proceeding have turned hostile and they have not supported the case of the prosecution. Hence, it is clear that no independent witness has supported the case of the prosecution and case of the prosecution is entirely based on the official witnesses. 12. Inspector Ashwini Kumar Mishra (PW-9) stated that on the basis of the statement of co-accused Jafar he made a search at the house of Mangtu guard, but aforesaid statement of Jafar has not been produced and proved by the prosecution. I have gone through the evidence regarding this aspect of the matter and feel no difficulty in holding that the prosecution has miserably failed to prove beyond reasonable doubt that seal affixed on the sample remain intact when this packets were firstly deposited in the Maal Khana and thereafter, in the trial Court. 13. Devilal (PW-7) could not make a note regarding the particulars of the seal affixed on the sample packet which were sent through the registered post to Chemical Examiner. Hence, I hold that the prosecution has miserably failed to prove that seal on the sample packets were remain intact. Thus, on this count also accused / respondents cannot be convicted for the aforesaid offence. 14. Adverting to the facts of the case in hand, I find that no written notice was given to the respondents under section 50 of the NDPS Act requiring the accused / respondents to be searched either by a Magistrate or by a Gazetted Officer. In search memo (ExhibitP/3) it has been mentioned that accused Sabir Khan and Taj Khan both have given consent that they are agreed to be searched before the SPS Yadav, Superintendent who is a Gazetted Officer, but the said consent was not endorsed by both the respondents in their writing and put only their signatures. Independent witness Nawab Khan (PW-2) and Labhchand ((PW-3) did not supported the prosecution case and they have been declared hostile. It is evident from perusal of the search memo (Exhibit-P/3) that respondents were not informed regarding their valuable right of the search before the Magistrate or the Gazetted Officer. 15. Independent witness Nawab Khan (PW-2) and Labhchand ((PW-3) did not supported the prosecution case and they have been declared hostile. It is evident from perusal of the search memo (Exhibit-P/3) that respondents were not informed regarding their valuable right of the search before the Magistrate or the Gazetted Officer. 15. Prior to incorporation of sub-section (5) in section 50, the authorized officer himself could not search the suspect but with effect from 2.10.2001 the authorised officer in an emergent situation ma effect the search and seizure subject to the checks provided in sub-section (6). These amended provisions are not applicable to the search and seizure effected in the instant case. From the written notice itself, it is evident that the accused / respondents agreed to be searched either by the Magistrate or the Gazetted Officer and the Inspector has no authority to conduct search and seizure. 16. Hon'ble the apex Court in the case of Punjab v. Balbir Singh reported in (1994) 3 SCC 299 indicated that section 50 of the NDPS Act confers a valuable right on the person to be searched in the presence of Gazetted Officer or Magistrate if he so requires, since such a search would impact much more authentic and creditworthiness to the proceedings while equally providing an important safeguard to the accused and that, therefore, the safeguard conferred under section 50 is to be taken as an important requirement and as a legislative imperative and non-compliance would vitiate the trial. 17. It is clear that section 50 applies to the personal search. Anything carried by the suspect in his hands, shoulder or head would also be on his person. A purse or packet if is on his person would not become luggage in his hands. A sling bag handling on the body of the suspect is of on his person would not become luggage if it is carried in the hand. Something on the person of the suspect cannot be taken search of unless provisions of section 50 are observed. If a bag is carried by the suspect then it is on the person of the suspect and not otherwise. It was essential for the SHO to scrupulously follow the legislative safeguards contained in section 50. Conviction of respondents under sections 8/18 and 8/21 of NDPS Act thus cannot be sustained. 18. If a bag is carried by the suspect then it is on the person of the suspect and not otherwise. It was essential for the SHO to scrupulously follow the legislative safeguards contained in section 50. Conviction of respondents under sections 8/18 and 8/21 of NDPS Act thus cannot be sustained. 18. So far as the compliance of section 57 of the NDPS Act is concerned, Inspector Ashwini Kumar Mishra (P-9) did not state anything that any detail report under Section 57 of the NDPS Act was sent by him to any higher officers. No other witness has been examined to establish that he took the said report to any higher officials. Therefore, the provision of section 57 of the NDPS Act have not been complied, therefore, the trial Court has rightly acquitted the accused / respondents from all the charges. 19. In support of his contention, learned counsel for the applicant placed reliance upon the various judgments delivered in the case of State of Punjab v. Baljinder Sing and Another reported in (2019) 10 SCC 473 , State of Rajasthan v. Daul Alias Daulat Giri reported in (2010) 1 SCC (Cri) 1382 and Karnail Singh v. State of Haryana reported in (2009) 3 SCC (Cri) 887. The judgments relied upon by the learned counsel for the appellant are distinguishable on facts and cannot be applied in the facts and circumstances of the present appeal. 20. Since there is no evidence to corroborate the statement made by the respondents / accused under section 67 of the NDPS Act and the mandatory provision regarding sections 42, 50, 55 and 57 of the NDPS Act have not been complied, therefore, conviction of the accused / respondents is not possible on the basis of the evidence available on record. The trial Court has rightly acquitted the accused / respondents from all the charges. The impugned order passed by the trial Court does not require any interference by this Court. 21. Consequently, the appeal stands dismissed and the impugned judgment dated 23.6.1998 passed by the trial Court is hereby maintained.