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2022 DIGILAW 1991 (RAJ)

State Of Rajasthan v. Karniya

2022-07-11

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - The appellant-prosecution (hereinafter referred to as the 'appellant') has preferred the instant appeal against the order dated 07.03.1990 passed in Sessions Case No. 19/1988 (hereinafter referred to as the 'impugned judgment') by learned Sessions Court, Balotra (hereinafter referred to as the 'Trial Court), whereby the respondent-accused (hereinafter 'respondent') was acquitted of the charge under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act of 1985'). Facts: 2. On 16.12.1987, the S.H.O. Police Station-Siwana-Sh. Vishnulal upon receipt of information from an informant around 10:30 p.m. proceeded along with the police party and two independent witnesses, namely, Sh. Jesaram and Sh. Pukhraj who they picked from the Bus Stand-Siwana. Thereafter, they took a private vehicle to reach the Mokalsar Chauraha where they left the private vehicle and set up a barricade on the road that goes to the Agriculture Department to intercept the suspected person who was reported to be carrying opium. 3. Around 11:40 a.m. a train arrived from Jalore and shortly thereafter the police intercepted a man coming from the railway station carrying a handbag in his right hand. Upon search the man (accused-Karniya S/o. Shri Chuna Ram Vishnoi R/o. Foolan) was found carrying three polythene bags out of which two polythene bags contained opium milk and the third polythene bag was covered with opium milk. 4. Upon demand for a license to possess opium, the Respondent failed to produce any such license. 5. 1.63 kg, 1.27 kg, and 630 grams of opium milk was found in the three polythene bags respectively. 30 grams of the opium milk was taken from each bag as a sample which was sealed and packed. The accused-respondent was arrested and a case u/s. 17 and 18 of the Act of 1985 was registered as C.R. No. 158 dated 17.12.1987. Whereafter he was committed to the trial court u/s. 18 of the Act of 1985 and while denying the charges framed against him, he sought to be tried. 6. The respondent took a plea that a false case has been registered against him at the instance of one Sh. Mangla Vishnoi as a part of a conspiracy because the Respondent had lodged a case against Sh. Mangala Vishnoi in the past. 7. 6. The respondent took a plea that a false case has been registered against him at the instance of one Sh. Mangla Vishnoi as a part of a conspiracy because the Respondent had lodged a case against Sh. Mangala Vishnoi in the past. 7. The trial court upon hearing both sides framed two points for determination: (i) Has the prosecution succeeded in establishing guilt of the accused beyond reasonable doubt? (ii) If yes, then what punishment should be given to the accused? 8. The appellant-State had submitted before the trial court that opium milk had been recovered from the respondent and as per the test report the seized articles were confirmed to be opium. Hence, as per the police investigation the respondent should be declared guilty. Per contra the counsel for the respondent submitted that the procedure prescribed under section 50 read with section 52 and section 57 read with section 42(2) of the Act of 1985 was not followed by the police and hence the entire investigation is botched up. Therefore, the charges framed against the respondent should be dropped. 9. The following witnesses came in the witness box to prove the prosecution's case: PW Name Designation/Occupation 1. Herajram S/o Tagaramji Constable-P.S. Siwana 2. Sawai Singh S/o Roop Singh ji Constable-P.S. Siwana 3. Majid Khan S/o Jalal Khan Constable-P.S. Siwana 4. Jesa Ram S/o Sawaji Farmer - Independent witness 5. Pukhraj S/o Mangla Labourer - Independent witness 6. Jethu Singh S/o Lakh Singh Constable-S.P. Office Barmer (Crime Branch) 7. Vishnulal S/o Daulalji Station House Officer- P.S. Siwana 8. Jethu Singh S/o Nakht Singh Constable-P.S. Siwana 10. P.W. 1-Herajram testified that on 16.12.1987, he was posted as a constable in Police Station-Siwana. On the night of 16.12.1987 at or around 10:30 pm based on the information of the informant, he along with other police personnel started from the police station for the bus stand Siwana where they requested independent witnesses namely, one (Sh. Jesaram and Sh. Pukhraj) to accompany them in a private vehicle. Around 11:30 pm they set up a barricade on the road going to the agriculture department to intercept a suspect carrying opium milk illegally on the train arriving from Jalore. The SHO intercepted a man holding a bag and found three black and brown coloured polythenes contained some solid substance. Based on the smell and taste, it was concluded that the said substance was opium milk. The SHO intercepted a man holding a bag and found three black and brown coloured polythenes contained some solid substance. Based on the smell and taste, it was concluded that the said substance was opium milk. Upon weighing, the substance was found to be 1 kg and 630 gms; 1 kg and 270 gms and 630 gms opium in three bags (total amounting 3 kgs and 530s gm). 30 gms of opium was taken as a sample from each polythene bag and kept separately for chemical testing in a sealed package. The rest of the opium was put back in polythene and the said polythene bags were put back into the handbag which was sealed for evidence. 11. P.W. 3-Majid Khan testified that on 19.12.1987 he was working as a Constable in Police Station-Siwana. On 19.12.1987 H.M. Jethu Singh gave three sealed packets marked B, D, F of C.R. No. 158 dated 17.12.1987 to be submitted to FSL Jaipur. The said sealed contents through road number 169/19.12.1987 were sent to S.P. Office, Barmer where Constable Jethu Singh got three sealed packets checked and the documents in relation to the sealed contents prepared, to be sent to Jaipur. The said documents are exhibit P-3. After getting the sealed contents checked and documents prepared P.W. 3 left for Jaipur and reached there on 20.12.1987. Due to the Office being shut on account of a Sunday, the sealed contents could not be deposited which is why the said contents were deposited with FSL Jaipur on 21.12.1987. Upon submission a receipt was issued, which is exhibit P4. As long as the sealed content was with P.W. 3 it remained sealed. 12. P.W. 4-Jesaram who was witness to seizure and arrest of the accused turned hostile and deposed that police officers had asked him to give thumb impression on certain documents, while he was traveling by the bus. The seizure memo which is exhibit P1 and arrest memo which is exhibit P2 were not recited to him; the police did not take his statement; parts 'A' to 'B'; 'C' to 'D' and 'E' to 'F' of police statement, which is exhibit P.5, were not given by him to the police. He denied the fact that the accused was arrested or caught in front of him so also the recovery of 3 kg 530 gms of opium in his presence and then samples were taken. He denied the fact that the accused was arrested or caught in front of him so also the recovery of 3 kg 530 gms of opium in his presence and then samples were taken. He, however, accepted to have given his thumb impression on the documents without protest to the police. 13. P.W. 5-Pukhraj also testified that the police took his thumb impression, between 8 to 10 am in the morning. While denying the fact that the seizure was made in his presence, he stated that the documents were not recited to him and he simply gave his thumb impression as directed by the police. 14. P.W. 6-Jethu Singh another Constable in the Office of Superintendent of Police, Barmer (Crime Branch) stated to be in charge of checking the articles sent to FSL. According to him, on 19.12.1987 Majid Khan of police station Siwana brought three sealed packets marked as 'B', 'D' and and 'F' which P.W. 6 checked and sent through road number 169 dated 19.12.1987. After checking, he returned the articles in sealed condition to Majid Khan. As long as the contents were with him they remained sealed. 15. The trial Court held that firstly, the respondent was not informed during his search that the search could take place before a Gazetted Officer or a Magistrate. Secondly, the Investigating Officers could not point out to the location where the independent witnesses were located at the time of the search. Thirdly, the respondent while being searched was not informed of his legal rights by the Investigating Officers. The trial Court noticed the discrepancy in narrative of the weighing scale used to measure the quantity of the opium milk seized from the respondent inasmuch as Jethu Singh (P.W. 8) had testified that a steel weighing scale was used to weigh the seized articles, whereas Herajram (P.W. 1) stated that a brass weighing scale was used. Further, P.W. 2 testified that the respondent was wearing a shirt and a loincloth (Dhoti) whereas all other witnesses testified that the respondent was wearing a shirt and a pant. Further, P.W. 2 testified that the respondent was wearing a shirt and a loincloth (Dhoti) whereas all other witnesses testified that the respondent was wearing a shirt and a pant. In light of a catena of decisions of the Hon'ble High Court holding that the requirement of informing the accused of his rights u/s. 50 r/w 52 and 57 r/w 42(2) of the Act of 1985 is indispensable; the independent witnesses not supporting the version of the Appellant; and the differences in the testimonies of the police officers in relation to the same events, the trial Court concluded that the prosecution has failed to prove the charge against accused and thus, held the accused as not guilty. Appellant's Argument(s): 16. Mr. Bhati, learned counsel for the appellant, inter-alia submitted that the trial Court erred in concluding that the respondent was not informed of his rights u/s. 50 r/w 52 and 57 r/w 42(2) of the Act of 1985. He pointed out that P.W.-7 had informed the accused that if the accused wished then he can be searched before a Gazetted Officer or a Magistrate. He argued that the testimony of P.W.-7 clearly reveals that offence of possessing and transporting contraband substance has been committed by the accused and considering that the quantity of opium in question was commercial, the trial Court ought to have adopted subjective approach and instead of acquitting the accused of the offences alleged against, should have convicted him. 17. He contended that the trial Court has erred in acquitting the Respondent on a technical ground i.e., non-compliance of the provisions of Section 50, 52, 57 & 42(2) of the Act of 1985. Analysis: 18. Heard learned counsel and perused the material available on record. 19. The crux of appellant's argument is that the procedure prescribed u/s. 50 r/w 52 and 57 r/w 42(2) of the Act of 1985 was followed by the investigating officers and the trial Court has wrongly concluded the same to have not been followed by not appreciating the testimony of P.W.-7. 20. A perusal of the testimony of P.W.-7 reveals that he informed the respondent about his right to be searched before a Gazetted Officer or a Magistrate but the respondent refused to avail such right. However, testimony of P.W.-1 and P.W.-2 does not support such stand. 20. A perusal of the testimony of P.W.-7 reveals that he informed the respondent about his right to be searched before a Gazetted Officer or a Magistrate but the respondent refused to avail such right. However, testimony of P.W.-1 and P.W.-2 does not support such stand. They do not claim to have informed the accused that he could appear before a Gazetted officer or a Magistrate. There is glaring inconsistency between the testimonies of the Investigating Officers (wherein while P.W. 7 testified that the respondent was informed of his legal rights to be searched before a Gazetted Officer or a Magistrate) vis-a-vis. P.W. 1 and P.W. 2 (who testified that the accused was not informed of such right). 21. P.W.-4 and P.W.-5, independent witnesses, totally changed their version and gone to the extent of saying that search and seizure did not take place before them and upon being asked by the police officers to mark their thumb print on a statement that was neither read out to them nor shown, they simply complied with the directions of the police. 22. P.W.-8 supported the testimony of P.W.-7 but could not point out on the site plan the location of the independent witnesses during the search and seizure of the respondent. 23. Apart from the above mentioned inconsistencies, it is pertinent to note that the testimonies of the Police Officers is also inconsistent in relation to the very basic facts such as the source of information which compelled the action of the police and the arrival time of the train. To this effect, the testimonies of P.W. 1, P.W. 2, P.W. 7 and P.W. 8 reveal that while all of the above witnesses testified that the train from Jalore arrived at 11.30 pm, but P.W. 2 testified that the said train arrived at 10.30 pm. Further, while P.W. 2 has testified that ASI-Bakhtawar Singh was informed about the accused carrying opium by the informant and thereafter P.W. 2 and the said ASI informed the SHO-Vishnulal about the same, the other witnesses have testified that it was the SHO-Vishnulal who had been informed about the accused by the informant and it was the said SHO who in turn informed them about the accused. 24. 24. In order to ascertain as to whether there was violation of mandatory statutory provisions, it would be appropriate to refer to the relevant provisions for adjudicating upon the argument of the appellant, namely, sections 42(2) and section 50 of the Act of 1985, which are reproduced hereunder: 42. 24. In order to ascertain as to whether there was violation of mandatory statutory provisions, it would be appropriate to refer to the relevant provisions for adjudicating upon the argument of the appellant, namely, sections 42(2) and section 50 of the Act of 1985, which are reproduced hereunder: 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 VA 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 VA 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 in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further 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. xxxxxxxx 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. Emphasis Supplied (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 sub-section (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. 3[(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 section 100 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." 25. A perusal of section 42 of the Act of 1985 reveals that any officer that is superior in rank to a peon, sepoy or constable, has the power to conduct search and seizure without a warrant or authorization between sunrise and sunset if he has reason to believe either from personal knowledge or from information received from any person that an offence punishable under the Act of 1985 has been committed. A perusal of Section 50(1) of the Act of 1985 reveals that where a duly authorised officer conducts a search and seizure under section 42 of the Act of 1985, he must take the person apprehended without unnecessary delay to nearest Gazetted Officer of any of the departments contained in section 42 of the Act of 1985 or to the nearest Magistrate, if the apprehended person so requires. 26. In the facts of the present case, it is evident from the testimony of the witnesses that the procedure prescribed under section 50(1) of the Act of 1985 was not complied with. Therefore, the trial court did not make an error in arriving at the finding that the procedure prescribed under section 50(1) of the Act of 1985 was not complied with. Having settled the factual question of compliance of procedure prescribed under section 50 of the Act of 1985, this Court can now delve into the legal consequence of such non-compliance. 27. Hon'ble the Supreme Court in its judgment rendered in the case of Vijaysinh Chandubha Jaedja v. State of Gujarat reported in (2011) 1 SCC 609 , has held that the obligation of the authorised officer under section 50(1) of the Act of 1985 is mandatory in nature and non-compliance whereof would render any purported recovery suspect and vitiate the conviction if the same is made on the basis of such recovery. The relevant portion of the judgment rendered in the case of Vijaysinh Chandubha Jaedja (supra) is extracted hereunder: "22. 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. 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..." 28. In so far as the contention of the appellant that the trial court has wrongly concluded that the procedure prescribed under section 50 of the Act of 1985 was not followed is concerned, this court finds the same to be factually incorrect. Secondly, any pleas or averments made by the appellant for conviction of the Respondent on the basis of such suspect recovery is without merit and substance as the proceedings and conviction based on such recovery would be vitiated. 29. This Court, therefore, does not find any merit and substance in the present appeal, for which it is dismissed.