Allahabad High Court
Guru Saran Singh @ Gulshan vs State Of U.P. on 28 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- CRIMINAL APPEAL No. - 227 of 1998 Appellant :- Guru Saran Singh @ Gulshan Respondent :- State of U.P. Counsel for Appellant :- G.N.Mishra,Krishna Kumar Vishwakarma,Pradeep Kumar Srivastava,Shivam Gupta Counsel for Respondent :- Govt. Advocate Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Shivam Gupta, learned counsel for the appellant as well as learned AGA for the State and perused the record.
The instant appeal has been filed against the judgement and order dated 7.2.1998 passed by the Additional District and Sessions Judge (Ayodhya Matter), Lucknow in Sessions Trial No. 306/1993 'State Vs. Guru Saran Singh @ Gulshan', under Section 8/21 N.D.P.S. Act, Police Station Krishna Nagar, District Lucknow, whereby the trial court has convicted the appellant for committing offence under Section 8/21 N.D.P.S. Act and sentenced him to undergo rigorous imprisonment of 10 years and also with fine of Rs. 1,00,000/- and in default of fine to undergo further imprisonment for two years.
In nutshell the case of the prosecution is that on 2.9.1993 Station House Officer, Police Station Sarojani Nagar, namely, Deo Dutt Singh Rathaur along with Sub Inspector Siddharth Tomar, Vinod Kumar Singh and Constable Suresh Mishra and Subhash Chandra were deputed at Lucknow Kanpur Road where they saw a person who was walking at Lucknow Kanpur Road from Chillawa and on witnessing the police party attempted to walk away. On becoming suspicious he was interrogated and arrested at 2.15 P.M. and told his name as Guru Saran Singh @ Gulshan and informed to the police party that he is possessing 'morphine' which is kept in the hand bag of black colour which he was carrying in his right hand. A consent memo was prepared separately and personal search of the accused Guru Saran Singh @ Gulshan was made and from the bag which he was holding in his right hand one polythene bag was recovered along with the material which was smelling as morphine and was of gray colour. On being weighed the weight of recovered 'morphine' was found 500 grams and he could not show any licence to carry this morphine and thus was arrested and a recovery/ arrest memo was accordingly prepared on spot. The accused also informed that he had purchased this contraband from a shop situated at Khadaha, however, he is not conversant with the name of the person from whom he had purchased morphine. Attempt was made to procure independent public witness but nobody consented to become witness and thereafter the recovered contraband and the accused was taken to the Police Station.
The First Information Report was lodged by Deo Dutt Singh Rathaur and the case was registered at Case Crime No. 239/993, under Section 8/18/20 N.D.P.S. Act at 14.45 hours on 2.9.1993 at Police Station Sarojani Nagar, Lucknow. The substance of the same was entered in the general diary Ext. Ka-7 and the investigation of the case was entrusted to Sub Inspector R.K. Singh Yadav and the investigation was entrusted to Sub Inspector Satya Prakash Sachan as the earlier Investigating Officer had gone on leave.
The Investigating Officer after recording the statement of the witnesses and after preparing the site plan and also after taking a sample from the recovered contraband and after sending the sample to the Forensic Lab submitted charge sheet against the accused/ appellant (Ext. Ka-4). Thereafter after receiving the result of Forensic Lab wherein recovered substance was found diacetylmorphine the report of the FSL was also submitted to the court.
The trial court after taking cognizance framed charges against the appellant/ accused under Section 8/21 NDPS Act. The accused/ appellant denied the charge and claimed trial.
The prosecution in order to prove its case presented before the trial court P.W.1- Siddharth Tomar, P.W. 2 Investigating Officer of the case, namely, Satya Prakash Sachan and apart from the oral evidence has also relied upon the following documentary evidence:-
I. Consent letter written by the accused/ appellant (Ext. Ka-1) II. Seizure Memo (Ext. Ka-2) III. Site Plan (Ext. Ka-3).
IV. Charge sheet ( Ext. Ka-4) V. Report of Forensic Lab (Ext. Ka-5).
VI. Chik FIR (Ext. Ka-6).
VII. Kayami G.D. (Ext. Ka-7).
After conclusion of the evidence of the prosecution the statement of the accused/ appellant was recorded under Section 313 Cr.P.C. wherein he denied the fact that any contraband was recovered from his possession and also to have not executed any consent letter and that he has been falsely implicated.
The trial court after appreciating the evidence available on record found the case of the prosecution proved beyond reasonable doubt and convicted the accused/ appellant for committing offence under Section 8/21 and sentenced in the manner shown in the second paragraph of this judgement.
Learned counsel for the appellant submits that the trial court has committed manifest illegality in appreciating the evidence available on record and has convicted the appellant on the basis of insufficient evidence. To elaborate his submission further he submits that before the trial court only one prosecution witness of the fact, who was allegedly part and parcel of the arresting police party namely S.I. Siddharth Tomar has been produced and no other prosecution witness of fact has been produced before the trial court and the Investigating Officer of the case namely Satya Prakash Sachan was produced as P.W. 2 and on the basis of the evidence of these two witnesses the trial court had convicted the appellant.
It is further submitted that the police personal who got the FIR lodged and also prepared the recovery/ arresting memo namely Deo Dutt Singh Rathaur the then S.H.O. of Police Station Sarojani Nagar, Lucknow and other witnesses of the fact were not produced without any reason and therefore the case of the prosecution was not proved before the trial court.
It is next submitted that there is complete absence of link evidence as admittedly at the place of alleged arrest no sample was prepared and it is stated by the Investigating Officer that it was on 9.11.2013 the sample was taken before the Magistrate when the accused was produced for remand, however, the trial court in its judgement has not discussed at any place whether the sample was taken in the presence of the Magistrate and therefore there is complete absence of link evidence pertaining to the taking of sample and keeping it at a safe place as no Malkhana register of the concerned police station was presented before the trial court, which may show as to when seized morphine was taken out for being taken to the court and when it was again placed in the Malkhana of the concerned Police Station. Thus in all probability the sample allegedly sent to forensic lab was tampered and the report so submitted by the Forensic Lab could not be taken into consideration.
It is also submitted that compliance of mandatory provision of Section 50 of N.D.P.S. Act has also not been complied in letter and spirit as the consent memo allegedly signed by the accused has not been proved as the same was bearing the signature of the then S.H.O., Sarojani Nagar, namely, Deo Dutt Singh Rathaur and therefore in absence of any evidence of S.H.O. Deo Dutt Singh Rathaur the consent letter could not be proved and the trial court has committed manifest illegality in accepting the secondary evidence.
It is also submitted that no effort has been made by the police party to procure independent public witnesses, while the arrest of the accused as shown was made at 2.45 P.M. in the month of September from a busy city crossing and it is admitted to the police party in the first information report and in recovery/ arresting memo that there were many persons who had accumulated at the place from where the accused/ appellant was arrested. however, according to the first information report no body had dared to become a witness.
It is next submitted that no criminal history of the appellant has been proved before the trial court during the course of trial and therefore all the contention of the prosecution are patently false and prosecution had miserably failed to prove its case beyond reasonable doubt and thus the judgment and order of the trial court is liable to be quashed/ set aside and the appellant is entitled to be acquitted of the charges framed against him.
Learned counsel for the appellant has also placed reliance on the following case laws:-
I. Khet Singh Vs. Union of India reported in (2002)4 SCC 380;
II. Ram Pratap Vs. The State of U.P. reported in MANU/UP/1008/2020.
III. Amarjit Singh Vs. State of Haryana reported in (2009)16 SCC 649.
Learned AGA on the other hand submits that it is not a case whether the information was already available with the police party pertaining to the accused/ appellant and it was by chance / all of sudden the police had arrested the instant appellant and therefore it was not obligatory on the part of the police party to comply under Section 50 of N.D.P.S. Act.
It is also submitted that the appellant is a dreaded criminal and nobody was ready to become a witness against him. Therefore non procurement of the independent public witness could not affect otherwise reliable case of the prosecution.
It is also submitted that the appellant was found possessing 500 grams of the morphine with him and a consent letter was also signed by him and it was only after the consent letter signed by the appellant the police party has proceeded to search his person and thus the mandatory requirement of the section 50 N.D.P..S. Act was complied by the police party and having regard to the quantum of morphine recovery from the possession of appellant he has been proportionately punished The prosecution in order to prove its case before the trial Court has presented only one witness of fact i.e. PW1- Siddarth Tomar in order to prove arrest and seizure of contraband from the appellant as well as for compliance of section 50 of NDPS Act and apart from this witness only investigation Officer has been produced. Thus so far as arrest seizure and compliance of section 50 of NDPS Act is concerned the evidence of only one witness was available before the trial court.
In the case Vadivelu Thevar Vs. The State of Madras MANU/SC/0039/1957 : AIR 1957 SC 614 : [1957] 1 SCR 981, in paragraph Nos. 13, 14 and 15, while enunciating the law relating to appreciation of evidence in a case based on ocular evidence, the Supreme Court has held as under:-
"13. It is not necessary specifically to notice the other decisions of the different High Courts in India in which the court insisted on corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases. On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
14................. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.
Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
15. In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses."
In the case Sudip kr. Sen and Ors vs. State of West Bengal and Ors. MANU/SC/0013/2016 : AIR 2016 SC 310 : (2016) 3 SCC 26, in paragraph Nos. 11 and 12, while enunciating the law relating to appreciation of evidence in a case based on ocular evidence, the Supreme Court has held as under:-
"11. It is well-settled that the court may act on a testimony of a single witness though uncorroborated, provided that the testimony of single witness is found reliable. Trial court which had the opportunity of seeing and hearing PW-6 found him wholly reliable and trustworthy and held that evidence of Sandipan Majumdar-PW6 cannot be doubted as far as the role attributed to A-1 to A-6 except Jishu Jain is concerned, which was affirmed by the High Court. We find no ground to interfere with the concurrent finding recorded by the Courts below as to the reliability of PW-6 and to record the conviction.
12. Observing that there is no impediment for recording conviction based on the testimony of a single witness provided it is reliable in Prithipal Singh and Ors. v. State of Punjab and Anr. MANU/SC/1292/2011 : (2012) 1 SCC 10, it was observed as under:
49. This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. [See Vadivelu Thevar v. State of Madras MANU/SC/0039/1957 : AIR 1957 SC 614, Sunil Kumar v. State (Govt. of NCT of Delhi MANU/SC/0815/2003 : (2003) 11 SCC 367, Namdeo v. State of Maharashtra MANU/SC/7215/2007 : (2007) 14 SCC 150 and Bipin Kumar Mondal v. State of W.B. MANU/SC/0509/2010 : (2010) 12 SCC 91]."
Thus it is seen that Hon'ble Supreme Court has stressed the sound and well established rule of law that the Court is concerned with the quality and not the quantity of the evidence for proving or disproving a fact and especially in the case based on the sole testimony of a single witness, the sole witness must be wholly reliable.
Now the question remains whether the provisions of Section 50 of the NDPS Act were complied with by the police party. The learned counsel appearing for the appellant had contended that the notice under Section 50 of the NDPS Act was served on the appellant was defective as the option of search was given to the accused appellant on the ground that no gazetted officer or magistrate was present at the spot of arrest and that the search was not conducted before a Magistrate or a Gazette Officer as required by the law laid down by Hon'ble Supreme Court in Arif Khan Vs. State of Uttarakhand, MANU/SC/0467/2018.
Perusal of the notice, a copy of which was given to the appellant by the police party in compliance of section 50 of the NDPS Act , reveals that it is written therein that "as at this time any Magistrate or Gazetted Officer is not present, whether appellant on his own free will may permit himself to be searched by the S.H.O. or any Gazetted Officer or Magistrate be called upon ?". To this querry appellant is shown to have replied that as calling of Magistrate or Gazetted Officer may consume time, he with his free will and wish is ready to be searched by him (S.H.O.). and there is no benefit in wasting time . He is a drug addict and is carrying about 500 gm. of morphine in the bag."
The perusal of seizure memo would also reveal that on being apprehended appellant informed that he is carrying morphine with him in a bag which he was holding in his right hand and on getting this information memo of consent was prepared separately and the police party after taking search of each other had taken the search of appellant which has yielded 'morphine' from a bag which he was holding in his right hand. On being weighed the weight of the morphine has been shown as 500 gm.
To the utter surprise of this court only one prosecution witness of fact namely PW1- Siddarth Tomar was produced by the prosecution before the trial Court who was a member of police party which has arrested the appellant and also recovered the contraband. He in his statement recorded before the trial court has stated that when asked about the reason of his running away from the police party the appellant has stated that he is carrying 500 gm. morphine in the plastic bag. On this S.O. sahib had prepared the consent letter and S.O. sahib had asked the apellant whether he want to be searched before any gazetted officer , magistrate or infront of him i.e. S. H.O..The Appellant however had given his consent to be searched by the police party. He further stated that the consent memo was prepared by the S.H.O. Devidutt Rathore himself. Thereafter the accused appellant was searched and from the bag which he was holding in his right hand, morphine was recovered and on being weighed it was found 500 gm.
Interestingly S. H.O. Devidutt Rathore who had allegdly prepared the consent memo and had given the option of being searched to the apellant either before any Gazetted Officer , Magistrate or in front of him has not been produced as a witness in the Court nor any reason has been shown of his non production. The signature and handwriting of the S.H.O. Devidutt Rathore on seizure memo and consent letter has been proved by presenting the secondary evidence i.e. by PW1- Siddarth Tomar who has stated to have seen him writing and stated to be conversant with his signature and handwriting and proved it so. Thus the prosecution has tendered sole witness PW1- Siddarth Tomar in order to prove arrest and seizure of contraband from the appellant as well as to prove the compliance of section 50 of NDPS Act. As stated earlier the SHO Devidutt Rathore who had given option to the appellant and also prepared the consent letter has not been produced before the trial court and no reason of his non availability has been shown. Thus the secondary evidence has been produced to prove consent memo and Fard Baramdagi without showing as to why the primary evidence is not available.
It is not disputed that the provisions of Section 50 of the NDPS Act are mandatory and must be strictly complied. The Supreme Court in The State of Punjab v. Baldev Singh: MANU/SC/0981/1999 : 1999 6 SCC 172 had explained that it is imperative that a person proposed to be searched be informed of his right under Sub-Section (1) of Section 50 of the NDPS Act of being taken to the nearest Gazetted Officer or the nearest Magistrate for conducing his/her search.
Before proceeding further, it would be relevant to refer to Section 50 of the NDPS Act, which is set out below:-
"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 the 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 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.
(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.
(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."
In State of Punjab v. Baldev Singh: MANU/SC/0981/1999 : 1999 6 SCC 172, the Constitution Bench of the Hon'ble Supreme Court opined as under: -
"57. On the basis of the reasoning and discussion above, the following conclusions arise:
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search.
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.
(9) That the judgment in Pooran Mal case [MANU/SC/0055/1973 : (1974) 1 SCC 345] cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search.
(10) That the judgment in Ali Mustaffa case [MANU/SC/0050/1995 : (1994) 6 SCC 569 : 1995 SCC (Cri.) 32] correctly interprets and distinguishes the judgment in Pooran Mal case [MANU/SC/0055/1973 : (1974) 1 SCC 345 : 1974 SCC (Tax) 114] and the broad observations made in Pirthi Chand case [MANU/SC/0259/1996 : (1996) 2 SCC 37 : 1996 SCC (Cri.) 210] and Jasbir Singh case [MANU/SC/0987/1996 : (1996) 1 SCC 288 : 1996 SCC (Cri.) 1] are not in tune with the correct exposition of law as laid down in Pooran Mal case [MANU/SC/0055/1973 : (1974) 1 SCC 345 : 1974 SCC (Tax) 114]."
There can not be any dispute in the proposition that it was necessary for an authorized officer to inform the person concerned, before he is searched, about his right that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate. Failure to comply with the same would render the recovery of the contraband and vitiate the conviction of the accused, if he is convicted only for possessing the contraband which has allegedly recovered during the search conducted without informing him of his rights.
Constitution Bench of Honble Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat: MANU/SC/0913/2010 : (2011) 1 SCC 609 opined as under :-
"29. In view of the foregoing discussion, we are of the firm opinion that the object with which the 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 insofar 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 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.
30. As observed in Presidential Poll, In re [MANU/SC/0047/1974 : (1974) 2 SCC 33]: (SCC p. 49, para 13) "13. It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole."
31. 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 [MANU/SC/1202/1999 : (2000) 1 SCC 707 : 2000 SCC (Cri.) 300] and Prabha Shankar Dubey [MANU/SC/0987/2003 : (2004) 2 SCC 56 : 2004 SCC (Cri.) 420] 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 case [MANU/SC/0981/1999 : (1999) 6 SCC 172 : 1999 SCC (Cri.) 1080]. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.
32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.
33. Accordingly, we answer the reference in the manner aforesaid. The appeals shall, now, be placed before the appropriate Bench for disposal."
In terms of Section 50(1) of the NDPS Act where an officer is about to search a person under the provisions of Sections 41, 42 or 43 of the NDPS Act, he shall, if such person requires, take such person without unnecessarily delay to the nearest Gazetted Officer or the nearest Magistrate. Whilst it is clear that the authorized officer is required to take the person concerned to the nearest Magistrate/Gazetted Officer if the person so requires; it is difficult to interpret Section 50(1) of the NDPS Act to read that it is mandatory that in all cases, search must be conducted before a Gazetted Officer or a Magistrate. Clearly, if Section 50(1) of NDPS Act is read to mean that it is necessary in all cases that a search be conducted before a Magistrate or a Gazetted Officer, there would be no purpose in informing the suspect of his right to be searched before such officers. The entire object of informing the suspect, who is proposed to be searched, about his/her right is to enable him to exercise this right - the right to be searched before a Magistrate or a Gazette Officer. In Vijaysinh Chandubha Jadeja (supra), the Supreme Court had also observed that the obligations of the authorized officer under Section 50(1) of the NDPS Act is mandatory and requires strict compliance. Failure to comply with the said provision would render the recovery of the illicit article suspect and vitiate the conviction. However, the Court had also observed that "Thereafter, the suspect may or may not choose to exercise the right provided to him under the said proviso".
In Ashok Kumar Sharma v. State of Rajasthan: (2013)2 SCC 67: MANU/SC/0019/2013 , a case where the authorized officer had merely informed the accused / appellant that he can be searched before any Magistrate or Gazetted Officer, if he so wish, Hon'ble Supreme Court held that the same is not in compliance with the mandatory procedure as laid down in Section 50 of the NDPS Act.It was emphasized that the accused was only informed that he could be searched before a Magistrate or a Gazetted Officer if he so wish but the fact that the accused is having a right to be searched before the Gazetted Officer or a Magistrate under Section 50 of the NDPS Act was not communicated to him. The Court thus opined as under : -
"7. We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the NDPS Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five-Judge Bench. This Court in Vijaysinh Chandubha Jadeja [MANU/SC/0913/2010 : (2011) 1 SCC 609 : (2011) 1 SCC (Cri.) 497] answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a gazetted officer or a Magistrate. This Court also held that it is mandatory on the part of the authorised officer to make the accused aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer is concerned, an obligation is cast on him under Section 50 of the NDPS Act to apprise the person of his right to be searched before a gazetted officer or a Magistrate. The question, as to whether this procedure has been complied with or not, in this case the deposition of PW 1 assumes importance, which reads as follows:
"He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any gazetted officer if he wished. He gave his consent in written and said that I have faith on you, you can search me. Fard regarding apprising and consent is Ext. P-3 on which I put my signature from A to B and the accused put his signature from C to D. E to F is the endorsement of the consent of the accused and G to H is signature, which has been written by the accused."
The above statement of PW 1 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. 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.
8. We may, in this connection, also examine the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Undisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various laws laid down in this country, leave aside the NDPS Act. We notice that this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorised officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a gazetted officer or a Magistrate warranting strict compliance with that procedure."
The above decisions are sufficient to demonstrate that the mandate of Section 50(1) of the NDPS Act is to ensure that the authorized officer informs the person proposed to be searched about his right to be searched before a Magistrate or a Gazetted Officer. The authorized officer is also obliged to take the accused person to the nearest Gazetted Officer or to the nearest Magistrate, if such person so requires. In Vijaysinh Chandubha Jadeja (supra), the Supreme Court had also observed that though Section 50 of the NDPS Act gives the option to the empowered officer to take the person suspect either before the nearest Gazetted Officer or to a Magistrate; in the first instance, an endeavor should be made to produce the suspect before the nearest Magistrate. This, obviously, would follow only 'if the person so requires'. There is also no ambiguity as to manner in which Section 50 of the NDPC Act is required to be complied. Plainly, there is no requirement to conduct the search in the presence of a Magistrate or Gazetted Officer, if the person proposed to be searched did not so desire, after being informed of his right in this regard. The words "if such person so requires" as used in Section 50(1) of the NDPS Act make it amply clear that the person to be searched would be taken before a Magistrate or a Gazetted Officer, only if he so requires. In terms of Sub-section (2) of Section 50 of the NDPS Act, the Authorised Officer is empowered to detain the person proposed to be searched until he can bring him before the Gazetted Officer or Magistrate, as referred to in Sub-section (1) of Section 50 of the NDPS Act. The words "such requisition", as mentioned in the opening sentence of Sub-section (2) of Section 50 of the NDPS Act, refers to the person proposed to be searched electing to exercise his right to be searched before a Gazetted Officer or Magistrate.Thus the person proposed to be searched if requires his search before a Gazetted Officer or a Magistrate, the authorized officer is required to take such person to the nearest Gazetted Officer or Magistrate.
In State of Rajasthan vs Parmanand and Ors.MANU/SC/0158/2014, (2014)5SCC345 Hon'ble Supreme Court after considering Kalema Tumba v. State of Maharashtra MANU/SC/0662/1999 : (1999) 8 SCC 257,State of Himachal Pradesh v. Pawan Kumar MANU/SC/0272/2005 : (2005) 4 SCC 350, Dilip and Anr. v. State of Madhya Pradesh MANU/SC/8711/2006 : (2007) 1 SCC 450, Union of India v. Shah Alam MANU/SC/1065/2009 : (2009) 16 SCC 644 opined in para 12 of the report as under :-
"12. 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. In this case, Respondent No. 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent No. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
In the case at hand there is no doubt that the person of the appellant was also searched and this has also been admitted by the sole witness of arrest and recovery PW-1 Siddarth Tomar.
It is now necessary to examine whether in this case, Section 50 of the NDPS Act is complied or not. The sole witness of fact PW-1 Siddarth Tomar has stated that on being informed that appellant is carrying morphine in his bag, S.H.O Sahib had prepared the consent letter and S.O. sahib had also asked the apellant whether he want to be searched before any gazetted officer , magistrate or in front of him i.e. S. H.O..The Apellant had consented to be searched by the police party. He further stated that the consent memo was prepared by the S. H.O. Devidutt Rathore himself. Thereafter the accused appellant was searched and from the bag he was holding in his right hand morphine was recovered and on being weighed it was found 500 gm. As stated earlier in the notice which was given to the appellant by the S. H.O. Devidutt Rathore in compliance of section 50 of the NDPS Act, it is written that as at that time any Magistrate or Gazetted Officer is not present, whether appellant, on his own free will, may permit himself to be searched by the S.H.O. or any Gazetted Officer or Magistrate be called. Apellant however shown to have replied that as lot of time would be consumed in calling the Magistrate or Gazetted Officer he is ready to be searched by S.H.O. In my considered opinion at first the consent memo has not been properly proved, as the witness who prepared it has not been produced before the trial Court as a witness and secondary evidence has been led without showing as to why and how the primary evidence is not available. The witness who has communicated the option (to be searched before any Gazetted Officer or Magistrate) namely S.H.O. Devidutt Rathore has also not been produced before the trial Court. The communication of the right available under Section 50(1) of the NDPS Act to the accused appellant appears to have not been communicated as required by the mandate of Section 50(1) of the NDPS Act. Communication of this right to the person who is about to be searched is not a mere formality. It has a purpose and objective as the offences under the NDPS Act carry stringent punishment, more so the offences pertaining to the commercial quantity of any contraband. Therefore, the prescribed procedure has to be followed in letter and spirit. This is minimum safeguard available to an accused against the possibility of his false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right if not communicated clearly and specifically would be of no significance if the accused is not able to exercise it for want of mis communication or knowledge about its existence. Significantly while communicating his right to be searched before Magistrate. Gazetted Officer the SHO who had allegedly communicated to the appellant about the option, has also included his name in the list of those officers before him accused may be searched. Thus in the considered opinion of this Court the right of the appellant to be searched by Gazetted Officer/ Magistrate has been diluted by S.H.O. Devidutt Rathore and was not communicated in clear terms. The accused must be clearly and specifically informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate.
Therefore, in my considered opinion, the right of the accused to be searched before Gazetted Officer/ Magistrate has not been properly communicated to the appellant accused. The search of the bag as well as of the person of the appellant is, therefore, vitiated and the conviction of appellant is also vitiated. One more glaring illegality appears to have been committed by the Investigating Officer is to the tune that initially the whole allegedly seized contraband was sent for forensic lab examination and thereafter the Joint Director forensic Lab, Lucknow returned the whole of the seized material(heroin) to the Investigating Officer with the endorsement that only 10 grams of the seized material should be sent for investigation and in this scenario in presence of the Magistrate 10 grams of heroin was allegedly taken out from the seized material and was sent to the Forensic Lab. An endorsement of the Joint Director Forensic Lab, Mahanagar, Lucknow available on record of date 9.11.1993 would reveal that the said packet of sample allegedly containing 10 grams of heroin was returned with the endorsement that no seal was affixed on the sewing/ stitched portion of the packet. However, there is nothing on record as to whether the same packet was again sent for forensic examination or a new sample was taken out from the seized material, the link evidence in this regard is thus completely missing. However, there is an endorsement of receiving the sample of 10.11.1993 at Forensic Lab Mahanagar, Lucknow, there is also no evidence produced with regard to the safe custody of the material allegedly seized from the accused/appellant. No Malkhana Register has been produced neither Malkhana Incharge was produced in order to show that the material allegedly seized from the appellant/ accused was kept in safe custody and in the considered opinion of this Court the sole evidence of P.W. 1- Siddharth Tomar is not wholly reliable. So far as the preparation of the consent letter and communication of the right of being searched before a Magistrate or Gazetted Officer is concerned. Therefore the case of the prosecution appears to be doubtful and the prosecution has failed to prove its case beyond reasonable doubt. The trial court appears to have committed patent illegality in convicting the appellant on the basis of insufficient and unreliable evidence. The trial court also appears to be ignorant of his duty to use his powers as conferred under Section 311 of the Cr.P.C. to procure witnesses if the prosecution or defence is not willing so and has convicted the appellant on the basis of unreliable testimony of sole witness of fact. Resultantly the instant appeal is allowed and the impugned judgment and order dated 7.2.1998 is set aside. The appellant/ accused Guru Saran Singh @ Gulshan is acquitted of the charges framed against him under Section 8/21 of N.D.P.S. Act.
Appellant is stated to be confined in prison. He shall be released from the prison immediately unless required in any other case.
The appellant before his release from the prison shall execute a personal bond and two sureties of 25000/- as required under section 437 A of the Code Of Criminal Procedure.
Record of the trial Court be sent to the trial Court along with a copy of this judgment for compliance forthwith by fastest mode of communication.
Order Date :- 28.11.2022 Muk