Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 1247 (JHR)

Govind Sao, S/o Dhanuki Sao v. State of Jharkhand

2022-10-18

AMBUJ NATH, RONGON MUKHOPADHYAY

body2022
JUDGMENT : Heard Mr. Arwind Kumar, learned counsel for the appellant in Criminal Appeal (D.B.) No. 758 of 2016, Mr. Amit Kr. Choubey, learned counsel for the appellant in Criminal Appeal (D.B.) No. 1153 of 2016 and opposed by Mrs. Nehala Sharmin, learned A.P.P. for the State. 2. Since both these appeals arise out of a common judgment and order of conviction and sentence the same are being disposed of by this common order. 3. These appeals are directed against the judgment of conviction dated 16.07.2016 and order of sentence dated 20.07.2016 passed by Sri Anil Kumar Mishra, learned Additional Sessions Judge-XIV, Hazaribag in G.R. Case No. 33 of 2010, whereby and whereunder the appellants have been convicted for the offences punishable u/s 17 and 22 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act) and have been sentenced to undergo R.I. for 10 years along with a fine of Rs. 1,00,000/-for the offence u/s 17 of the NDPS Act and R.I. for 10 years along with a fine of Rs. 1,00,000/-for the offence u/s 22 of the NDPS Act. Both the sentences are to run concurrently and in case of default in payment of fine they are to undergo R.I. for a further period of six months. 4. The self statement of Md. Rustam was recorded on 05.01.2010, in which, it has been stated that today i.e. 05.01.2010 at about 10:15 A.M. an information was received that from Rasoyiya Dhamna village three persons on a Hero Honda CD Deluxe motorcycle bearing registration no. JH-02-H-4496 were to go from Rasoyiya Dhamna to Dhanbad. After entering a station diary, he along with other Police officials had proceeded for village Rasoyiya Dhamna. They stationed themselves in front of Devi Mandap at GT road. At about 11:00 A.M., he saw a Hero Honda CD Deluxe motorcycle coming from Rasoyiya Dhamna and going towards Dhanbad. A signal was given to the riders to stop but they sped away and were followed by the Police party. After a chase all the persons started fleeing by leaving the motorcycle towards Rasoyiya Dhamna village and on chase one person was apprehended while the other two managed to flee away. A signal was given to the riders to stop but they sped away and were followed by the Police party. After a chase all the persons started fleeing by leaving the motorcycle towards Rasoyiya Dhamna village and on chase one person was apprehended while the other two managed to flee away. On being asked the apprehended person disclosed his name as Raju Prasad Sao (appellant in Criminal Appeal (D.B.) No. 1153 of 2016) and had disclosed the names of the persons who had fled away as Govind Sao (appellant in Criminal Appeal (D.B.) No. 758 of 2016) and Bablu Sao. In presence of two independent witnesses the dickey of the motorcycle was searched and from a bag five white plastic polythenes were recovered and each bag contained 1 Kg. of liquid opium. No papers were produced with respect to the recovered opium. The apprehended accused had also disclosed that Govind Sao is the owner of the motorcycle. The seizure list was prepared in which the seizure list witnesses as well as the accused had put their signatures. Based on the aforesaid allegations Barhi P.S. Case No. 09/2010 was instituted against three named accused persons for the offences punishable u/s 341, 323, 504/34 of the IPC and Sections 19, 20, 21 and 22 of the NDPS Act. On completion of investigation separate charge-sheet were submitted against Raju Prasad Sao and Govind Sao. Cognizance was taken on 20.03.2010 by the learned Special Judge for the offences u/s 341, 323, 504/34 of the IPC and Sections 19, 20, 21 and 22 of the NDPS Act. Charge was framed against both the accused u/s 17(b) and 22(b) of the NDPS Act which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as seven witnesses in support of its case. 6. P.W.1 (Md. Rustam) was posted as an Officer-in-Charge, Barhi Police Station. On 05.01.2010 at about 10:15 A.M. he had received a telephonic information that three persons on a Hero Honda CD Deluxe motorcycle bearing registration no. JH-02-H-4496 were going towards Dhanbad for selling opium. After entering a Sanha he proceeded with a Police force and after reaching Rasoyiya Dhamna they waited near Devi Mandap in anticipation of the said three persons. On 05.01.2010 at about 10:15 A.M. he had received a telephonic information that three persons on a Hero Honda CD Deluxe motorcycle bearing registration no. JH-02-H-4496 were going towards Dhanbad for selling opium. After entering a Sanha he proceeded with a Police force and after reaching Rasoyiya Dhamna they waited near Devi Mandap in anticipation of the said three persons. At about 11:00 A.M. a motorcycle was seen coming speedily from the side of Rasoyiya Dhamna with three persons boarding on the same. They did not stop in spite of giving a signal by the Police and on a chase they left the motorcycle and tried to flee away but one person was apprehended who disclosed his name as Raju Prasad Sao. On a search of the dickey of the motorcycle five plastic polythenes each containing 1 Kg. of liquid opium was recovered and seized. No papers relating to the seized opium was produced by Raju Prasad Sao. He has identified his handwriting and signature on the seizure list which has been marked as Exhibit-1. He has proved his self statement which has been marked as Exhibit-2. He has also proved his endorsement on his self statement which has been marked as Exhibit-3. He has proved the formal First Information Report which has been marked as Exhibit-4. In cross-examination, he has deposed that the information was received at 10:15 A.M, they reached the place of occurrence on 10:35 A.M. and they had remained at the place of occurrence for 20-25 minutes. 7. P.W.2 (Arjun Yadav) was posted as A.S.I. in Barhi P.S. and on 05.01.2010 he was given the charge of investigation of Barhi P.S. Case No. 09/2010. He had recorded the restatement of the informant and had thereafter proceeded to the place of occurrence. The place of occurrence is at a distance of about 3 Km. from Barhi P.S. near the Devi Mandap at village Rasoyiya Dhamna. There was no witness present at the place of occurrence. He had recorded the statement of the seizure list witnesses and of the members of the raiding party. In cross-examination, he has deposed that he was also a member of the raiding party. He has stated that the motorcycle was being driven by Raju. He was the owner of the motorcycle. He had not investigated as to from where the opium was obtained and for whom it was destined. 8. In cross-examination, he has deposed that he was also a member of the raiding party. He has stated that the motorcycle was being driven by Raju. He was the owner of the motorcycle. He had not investigated as to from where the opium was obtained and for whom it was destined. 8. P.W.3 (Ranjan Kumar Ram) was one of the members of the raiding party which had gone to Rasoyiya Dhamna. He has stated that three persons on a motorcycle were coming from Rasoyiya Dhamna but in spite of signaling them they did not stop and while one person namely, Raju Prasad Sao was apprehended the other two persons managed to flee away. From the dickey of the motorcycle 5 Kg. of opium was recovered. In cross-examination, he has deposed that the accused was arrested near a Mandir which is situated 200 meters from GT road. He does not know as to who had prepared the seizure list. 9. P.W.4 (Dadan Paswan) was a member of the raiding party which had apprehended Raju Sao and on checking of the motorcycle 5 Kg. of opium was recovered. In cross-examination, he has stated that two persons had managed to flee away. He has further stated that the opium was kept in five packets. 10. P.W.5 (Sanjay Kumar Paswan) has proved his signature on the seizure list which has been marked as Exhibit-1/1. He has no knowledge about the incident. This witness has been declared hostile by the prosecution. 11. P.W.6 (Ajay Kumar) was also a member of the raiding party who has deposed that a CD Deluxe motorcycle was intercepted and 3-4 plastic packets were recovered from the dickey of the motorcycle. He has also stated that one person was apprehended while two managed to flee away. In cross-examination, he has deposed that he does not know the contents in the white plastics. 12. P.W.7 (Manoj Kumar Ram) was posted as an Inspector in Barhi P.S. On 05.01.2010 the Officer-in-Charge of Barhi P.S. and other Police officials had gone to Rasoyiya Dhamna village. The Officer-in-Charge had disclosed that one person namely Raju Prasad Sao was apprehended while Govind Sao and Bablu Sao had fled away. He had also disclosed that on checking the motorcycle 5 Kg. of opium was recovered. The Officer-in-Charge had disclosed that one person namely Raju Prasad Sao was apprehended while Govind Sao and Bablu Sao had fled away. He had also disclosed that on checking the motorcycle 5 Kg. of opium was recovered. He has identified the signature of Raju Prasad Sao made in his presence upon the seizure list which has been marked as Exhibit-1/2. In cross-examination, he has deposed that it was Govind Sao who was driving the motorcycle. 13. The statement u/s 313 Cr.P.C. were recorded in which both the accused denied their involvement in the offence. The appellant in Criminal Appeal (D.B.) No. 758 of 2016 has in his 313 Cr.P.C. statement admitted that the motorcycle belongs to him but about three days prior to the date of occurrence somebody had taken away his motorcycle though he does not know the said person. 14. The defence has examined one witness. 15. D.W.1 (Shashi Bhusan Kumar) has stated that he is a permanent resident of village Rasoyiya Dhamna. He claims to know Raju and Govind. On the date of occurrence when he was coming out from the Mandir he saw Raju Sao being apprehended by the Police. Raju Sao was going with a container when the Police had apprehended him. Govind Sao was not present there. In cross-examination, he has deposed that Govind is his uncle in relation while Raju is his nephew. 16. Mr. Arwind Kumar, learned counsel for the appellant in Criminal Appeal (D.B.) No. 758 of 2016 has submitted that the appellant was not apprehended at the spot and has been implicated on the disclosure made by Raju Prasad Sao. He has submitted that though the motorcycle from which 5 Kg. of opium was recovered belongs to him but in his 313 Cr.P.C. statement he had given a suitable explanation to the effect that the motorcycle was taken away from him by someone. Moreover, no incriminating articles were recovered from this appellant. 17. Mr. Amit Kr. Choubey, learned counsel for the appellant in Criminal Appeal (D.B.) No. 1153 of 2016 has submitted that the mandatory provision of Section 41 and 42 of the NDPS Act has not been complied with. It has been submitted that the learned trial court has failed to take into consideration that the opium was recovered from a private vehicle and, therefore, Section 43 of the NDPS Act will not be applicable. It has been submitted that the learned trial court has failed to take into consideration that the opium was recovered from a private vehicle and, therefore, Section 43 of the NDPS Act will not be applicable. He has also submitted that the Police had also not complied with the mandatory provisions of Section 50 of the NDPS Act. 18. Mrs. Nehala Sharmin, learned A.P.P. has submitted that the motorcycle was searched at a public place during transit and, therefore, the mandatory requirement of Section 42 of the NDPS Act was not required to be complied with. She has also submitted that Section 50 of the NDPS Act is not applicable as the recovery of the opium was made not from the personal possession of the appellant Raju Prasad Sao but from the dickey of the motorcycle. She, therefore, submits that the judgment and order of conviction and sentence does not warrant interference. 19. We have heard the learned counsel for the respective sides and have also perused the Lower Court Records. 20. The genesis of the case is the apprehension of Raju Prasad Sao and on check of the dickey of the motorcycle recovery of 5 Kg. of opium was made and the material recovered was opium was corroborated by the FSL report (Exhibit-5). The motorcycle from which the opium was recovered belongs to the appellant Govind Sao which he has fairly admitted in his 313 Cr.P.C. statement though a lame excuse has been sought to be put in place to the effect that three days back somebody had taken away his motorcycle but as is apparent that he had not taken any steps for retrieval of the same. 21. The learned trial court has concluded that Section 43 of the NDPS Act and not Section 42 of the NDPS Act is applicable to the facts of the present case, the reason being the search which has made in a public place and the recovery was effected in transit as well as from a public place. Section 42 of the NDPS Act reads as follows: “42. Section 42 of the NDPS Act reads as follows: “42. Power of entry, search, seizure and arrest without warrant or authorisation.—(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” 22. Section 43 of the NDPS Act envisages the following: “43. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in Section 42 may— (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.—For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.” 23. Section 42(2) of the Act mandates that when any information is taken down in writing under Sub-section (1) by an Officer or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate superior official. Section 43 of the Act is with respect to power of seizure and arrest in public place and the explanation of a “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 24. In the case of “Boota Singh and Others versus State of Haryana” reported in 2021 SCC OnLine SC 324, it was held as follows: “15. The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. 24. In the case of “Boota Singh and Others versus State of Haryana” reported in 2021 SCC OnLine SC 324, it was held as follows: “15. The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa, the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act.” 25. In the present case also the vehicle in question was a private vehicle belonging to the appellant Govind Sao. It would, therefore, be excluded from the expression “public place” as depicted in Section 43 of the NDPS Act. The case would, therefore, fall u/s 42 of the NDPS Act. 26. In the case of “Rajasthan versus Jagraj Singh alias Hansa” reported in (2016) 11 SCC 687 , it was held as follows: “24. After referring to a large number of cases, this Court in Balbir Singh case recorded the conclusion in para 25 which is to the following effect: (SCC pp. 320-22) “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 CrPC 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 thereunder 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. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act, etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance with this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC, namely, Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the Magistrate, would amount to non-compliance with Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the Magistrate, would amount to non-compliance with Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay, etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.” 25. A three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat after elaborate consideration of the provisions of the NDPS Act including Section 50 had endorsed the judgment of this Court in Balbir Singh case.” 27. In the light of the judgments referred to above, we find that the learned trial court has committed an error in not considering the mandatory provisions u/s 42(1) and 42(2) of the NDPS Act. The proviso to Section 42(1) of the NDPS Act cast a duty upon the officer empowered to record the grounds of his belief if a search warrant or authorization cannot be obtained without affording for the concealment of evidence or facility for the escape of an offender and he may enter such building conveyance or enclosed space at any time between sunrise and sunset. The grounds for his belief or recording of an information in writing in terms of the proviso to Section 42(2) of the NDPS Act has to be sent within seventy-two hours to his immediate superior authority. 28. As per the self statement of the informant (P.W.1) on a telephonic information which was entered in the station diary a raid was conducted and one of the appellants was apprehended. P.W.1 in his evidence has also reiterated what has been written down in his self statement. 28. As per the self statement of the informant (P.W.1) on a telephonic information which was entered in the station diary a raid was conducted and one of the appellants was apprehended. P.W.1 in his evidence has also reiterated what has been written down in his self statement. The station diary entry has not been exhibited by the prosecution which would have indicated the grounds of his belief if any as envisaged under the proviso to Section 42(1) of the NDPS Act. There is also no evidence on record to show that the information taken down in writing or the grounds of belief were sent to the immediate superior of P.W.1 within 72 hours. Even if there is a delayed compliance with satisfactory explanation considering the emergency or expediency of the situation which may lead to the escape of an offender the same is acceptable but in absence of any explanation thereof the same would be in violation of Section 42 of the NDPS Act. 29. Regard being had to the discussions made hereinabove, we come to the conclusion that the learned trial court had committed an error of law in not considering the fact that the entire facets of the case fall within the ambit of Section 42 of the NDPS Act and not Section 43 of the NDPS Act and since the mandatory provisions of Section 42 of the NDPS Act have not been followed, we hereby set aside the judgment of conviction dated 16.07.2016 and order of sentence dated 20.07.2016 passed by Sri Anil Kumar Mishra, learned Additional Sessions Judge-XIV, Hazaribag in G.R. Case No. 33 of 2010, whereby and whereunder the appellants have been convicted for the offences punishable u/s 17 and 22 of the NDPS Act and have been sentenced to undergo R.I. for 10 years along with a fine of Rs. 1,00,000/-for the offence u/s 17 of the NDPS Act and R.I. for 10 years along with a fine of Rs. 1,00,000/- for the offence u/s 22 of the NDPS Act. 30. Both these appeals are allowed. 31. Since the appellants are in custody, they are directed to be released immediately and forthwith, if not, wanted in any other case. 32. Pending I.As., if any, stand disposed off.