Madhya Pradesh High Court
Munna Khan vs The State Of Madhya Pradesh on 6 March, 2018
1 Cr. A. No.478/2010
IN THE HIGH COURT OF MADHYA PRADESH : AT
JABALPUR
Criminal Appeal No.478/2010
Munna Khan S/o Gani Khan,
aged about 30 years,
R/o Maatwaan Muhalla,
Chhatarpur,
District-Chhatarpur(M.P.) Appellant
-V/S-
State of Madhya Pradesh
through Police Station Kotwali,
District-Chhatarpur(M.P.)
Respondent
..............................................................................................................
Present:- Hon'ble Shri Justice C.V. Sirpurkar
...............................................................................................................
Sushri (Dr.) Vijay Bhatnagar, counsel for the appellant.
Shri Manish Soni, Government Advocate for the
respondent-State.
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JUDGMENT
(06.03.2018)
1. This Criminal Appeal against conviction under section 374 (2) of the Code of Criminal Procedure, 1973, filed on behalf of accused Munna Khan, is directed against the judgment dated 21.12.2009 passed in Special Case No.01/2007 by Special Judge (N.D.P.S. Act) Chhatarpur; whereby accused Munna Khan has been convicted of the offence punishable under Section 8 read with Section 21(b) of the Narcotic Drugs 2 Cr. A. No.478/2010 and Psychotropic Substances Act, 1985 (hereinafter referred to in the judgment as "the Act") and has been sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine in the sum of Rs.10,000/-. In default of payment of fine, he has been directed to undergo rigorous imprisonment for a further period of 6 months.
2(a). As per the prosecution case, at about 04:00 p.m. on 28.01.2007, S.H.O. of P.S. Kotwali, Chhatarpur Arun Dubey, received an information from an informant to the effect that accused Munna Khan consumes and sells heroin/smack; therefore, SHO Arun Dubey called panch witnesses Mohammad Abid and Sanjay Mishra, who were going from in front of the police station and informed them regarding the information. He sent intimation of aforesaid information to C.S.P. Chhatarpur through constable Malkhan. Thereafter, he took the members of police force available in the police station namely constables Rahat Khan, Shiv Kumar and Kishore Kumar and panch witnesses Mohammad Abid and Sanjay Mishra along with the material required for investigation and proceeded to the spot as per information. When they reached the trifurcation in front of Dr. Sood's house, they spotted Munna Khan going towards Sagar. Arun Dubey called him and inquired regarding consumption and sale of heroin by him. He was asked whether he wanted to be searched by Arun Dubey or by any Gazetted officer or Magistrate; whereon, accused Munna Khan consented to his search by Arun Dubey. After that members of the police force allowed the accused to search them in front of panch witnesses. Subsequently, Arun Dubey duly searched the accused; whereon, a small box contained a polythene sack was 3 Cr. A. No.478/2010 found inside the underwear of the accused. There was a powder inside, which weighed 14 grams. Arun Dubey tested the powder on and smelt it and detected that the powder was heroin. Thereafter, the powder was duly seized and sealed. The accused was arrested. The spot map was prepared. Arun Dubey brought accused and the seized contraband to the police station. First information report was lodged and Crime No.62/2007 was registered. The contraband seized from the possession of the accused was duly kept in safe custody in the Malkhana. The entries in Malkhana Register were duly made. The matter was entrusted for further investigation to ASI U.S. Mishra, who recorded the statement of constables Rahat Khan, Shiv Kumar Mishra, Kamta Singh, Jairam Tiwari, Rajesh and also the statements of panch witnesses Mohammad Abid and Sanjay Mishra. The contraband was sent to FSL Sagar. As per the report of FSL Sagar, the powder contained 13.75% of diacetylmorphine (heroin/smack).
2(b). A charge under Section 8 read with Section 21(b) of the Act was framed. The accused abjured the guilt and claimed to be tried. In his examination under Section 313 of the Code of Criminal Procedure he claimed that he has been falsely implicated in the case.
3. After the trial, the Court concluded that the prosecution has been able to prove beyond reasonable doubt that on the information received from an informant, regarding possession of heroin by the accused, a written intimation was sent to the City Superintendent of Police by SHO Arun Dubey. He has duly authorized under Section 42 of the Act. He proceeded to the spot and informed accused Munna Khan regarding his right to be searched either by SHO or by a Gazetted Officer or a 4 Cr. A. No.478/2010 Magistrate. The accused opted to be searched by SHO Arun Dubey.Thereafter, his person was duly searched and from his underwear, a small box contained 14 grams of heroin was duly seized in presence of the panch witnesses and other police personnel after observing the lagal formalities. It was duly deposited in the Malkhana, from where it was properly sent to FSL Sagar. As per the report of FSL Sagar, it contained 13.75% of diacetylmorphine. Consequently, the accused was convicted and sentenced as hereinabove stated.
4. Learned counsel for appellant has challenged the conviction and sentence mainly on the ground that panch witnesses namely Mohammad Abid and Sanjay Mishra have turned hostile. Sanjay Mishra has even denied his signatures upon panchnamas. Constables Kishore Kumar (PW-3) and Shiv Kumar Prajapati (PW-6) have omitted several material particulars in their deposition. It has principally been argued that SHO Arun Dubey (PW-10) has failed to depose that the accused was duly informed about his right to be searched by a Gazetted Officer or a Magistrate. As such, compliance of mandatory provisions of Section 50 of the Act has not been satisfactorily proved. Therefore, appellant Munna Khan deserves to be acquitted. It has further been submitted that he has already undergone 3 years 3 months and 14 days of actual imprisonment. Therefore, it has been prayed that in case his conviction is maintained, his sentence be reduced to the period already undergone by him in custody.
5. Learned Government Advocate for the respondent/State on the other hand has supported the impugned judgment contending that the officer making seizure namely Arun Dubey (PW-10), has withstood the cross-examination well; therefore, 5 Cr. A. No.478/2010 his statement should not be disbelieved merely because he is a Police Officer and panch witnesses have turned hostile. It has further been contended that it has been mentioned in panchnama (Ex.P/13) that the accused was given the option of being searched either by a Gazetted Officer or a Magistrate. As such, substantial compliance with the provisions of Section 50 was made. Therefore, it has been prayed that the appeal be dismissed.
6. On perusal of the record and due consideration of rival contentions, the Court is of the view that this appeal must succeed for the reasons hereinafter stated:
7. As per the prosecution case, the police party which allegedly made seizure, was led by SHO Arun Dubey (PW-10). He was accompanied by panch witnesses Mohammad Abid (PW-7) and Sanjay Mishra (PW-5) and constables Kishore Kumar, Shiv Kumar and Rahat. Out of them, Kishore Kumar (PW-3) and Shiv Kumar (PW-6) have been examined by the prosecution. Panch witnesses Sanjay Mishra (PW-5) and Mohammad Abid (PW-7) have turned totally hostile and have not supported the prosecution case at all. Sanjay Mishra (PW-
5) has gone to the extent of claiming that he never witnessed any such seizure and was not even acquainted with accused Munna Khan. None of the panchnamas from Ex.P/8 to Ex.P/19 contained his signatures; whereas, other panch witness Mohammad Abid (PW-7) has claimed that he never witnessed any seizure from the appellant and the police used to frequently call him to the police station and obtain his signatures on blank papers. However, it is true that the testimony of Inspector cannot be viewed with suspicious simply because panch witnesses have turned hostile or because 6 Cr. A. No.478/2010 he is a police officer, especially in the case where his testimony is corroborated by other police witnesses. In such a situation, the Court will have to carefully scrutinize the depositions of police witnesses and ascertain whether they have withstood the test of cross-examination and whether compliance with mandatory provisions of the Act has been proved.
8. The main thrust of the arguments of learned counsel for the appellant is that compliance with mandatory provisions of Section 50 of the Act has not been satisfactorily proved. SHO Arun Kumar Dubey (PW-10) has stated in his examination-in- chief (paragraph no.6) that appellant Munna Khan was informed regarding the conditions of search of the person and was asked by whom he wanted to be searched; whereon, appellant Munna Khan consented to being searched by this witness. In this regard, panchnama (Ex.P/13) was prepared. Constable Kishore Kumar Nayak (PW-3) has stated that SHO Arun Dubey had asked the appellant whether he wanted to be checked by SHO Arun Dubey. Constable Shiv Kumar Prajapati (PW-6) is silent on the point. He has simply stated that appellant Munna Khan was intercepted and was asked his name and address. Thereafter, Town Inspector Arun Dubey searched him and in his search, the contraband was found from the pocket of his Kurta. Though, in the cross-examination, he clarified that the contraband was actually seized from inside the elastic band of his underwear.
9. Thus, it appears from the statement of Shiv Kumar Prajapati (PW-6) that no compliance with the provisions of Section 50 of the Act was made. Kishore Kumar Nayak (PW-3) fleetingly refers to the fact that the appellant was asked as to 7 Cr. A. No.478/2010 by whom he wanted to be searched and the officer making seizure namely Arun Dubey (PW-10), simply states that the appellant was informed regarding general conditions of body search and was asked as to by whom he wanted to be searched.
10. In this regard, learned Government Advocate for the respondent/State has contended that Arun Dubey (PW-10) has stated that panchnama (Ex.P/13) was made by him for this purpose. The panchnama has been signed by the appellant. It has been mentioned in the panhnama that the appellant was told whether he wanted to be searched by a Gazetted Officer or by a Magistrate; whereon, appellant Munna Khan consented to be searched by Arun Dubey and he was granted full freedom and opportunity to take a decision. Therefore, substantial compliance with the provisions of Section 50 of the Act was made and no prejudice has been caused to the appellant.
11. In the light of aforesaid evidence, the question that arises for consideration is whether provisions of Section 50 of the Act are mandatory or directory ? Whether absolute compliance with those provisions is necessary or substantial compliance is sufficient ? and whether question of prejudice is relevant ?
12. Answers to all of aforesaid questions is to be found in the judgment of the Supreme Court in the case of Kishan Chand vs. State of Haryana, AIR 2013 SC 357 wherein it has been held that:
18. Following the above judgment, a Bench of this Court in the case of Rajinder Singh (supra) took the view that total non-compliance of the provisions of sub-
sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with a satisfactory explanation for delay can, however, be countenanced.
19. The provisions like Sections 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in the case of Karnail Singh (2009 AIR 8 Cr. A. No.478/2010 SCW 5265) (supra) carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.
20. While dealing with the requirement of complying with the provisions of Section 50 of the Act and keeping in mind its mandatory nature, a Bench of this Court held that there is need for exact compliance without any attribute to the element of prejudice, where there is an admitted or apparent non-compliance. The Court in the case of State of Delhi v. Ram Avtar alias Rama [(2011) 12 SCC 207 : (AIR 2011 SC 2699 : 2011 AIR SCW 4316)], held as under:-
26. The High Court while relying upon the judgment of this Court in Baldev Singh (AIR 1999 SC 2378 : 1999 AIR SCW 2494) and rejecting the theory of substantial compliance, which had been suggested in Joseph Fernandez (AIR 2000 SC 3502 : 2000 AIR SCW 2431), found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression "duly" used in Section 50 of the Act connotes not "substantial" but "exact and definite compliance". Vide Ext. PW 6/A, the appellant was informed that a gazetted officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside.
27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja (AIR 2011 SC 77 : 2010 AIR SCW 6800), the theory of "substantial compliance" would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured.
The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non- compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.
21. When there is total and definite non-compliance of such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance.
22. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, the Court has to 9 Cr. A. No.478/2010 examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance of the provision.
13. Thus, it is clear that the provisions like 42 and 50 of the Act are mandatory in nature. The punishment is harsh and certain safe guards have been provided for protection of the accused; therefore, exact and definite compliance, as contra- distinguished from substantial compliance is required in such cases. The element of prejudice would be irrelevant.
14. Now the question that remains for consideration is whether in the present case, exact and definite compliance of provisions of Section 50 has been satisfactorily proved ?
15. It has to be noted at the outset that mere grant of an option to the accused to be searched either by a Magistrate or a Gazetted Officer is not enough. He must be informed regarding his right to be searched by a Magistrate or a Dazetted Officer in clear and unambiguous terms. As observed above, none of the Police Officials including the officer making seizure namely Arun Dubey, have stated in their depositions that the appellant was informed regard this right. All Arun Dubey states is that he was informed regarding the general terms of search and a panchnama (Ex.P/13) was prepared. It may be noted that several panchnamas were prepared on the spot which contained the signatures of the accused but unless the witness deposes that the appellant was clearly informed regarding his right to be searched by a Magistrate or by a Gazetted Officer, it cannot be said that Section 50 of the Act was definitely and exactly complied with. In this regard, reliance can be placed upon the judgment 10 Cr. A. No.478/2010 rendered by a three judge bench of the Supreme Court in the case of Saiyad Mohd. Saiyad Umar Saiyed and others vs The State of Gujarat, 1995(3) SCC 610; wherein, it has been held that:
7. Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114, Illustration (e) of the Indian Evidence Act, 1872. By reason of Section 114 a court "may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case". It may presume "(e) that judicial and official acts have been regularly performed". There is no room for such presumption because the possession of illicit articles under the NDPS Act has to be satisfactorily established before the court. The fact of seizure thereof after a search has to be proved. When evidence of the search is given all that transpired in its connection must be stated. Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the NDPS Act was not established.
8. We are unable to share the High Court's view that in cases under the NDPS Act it is the duty of the court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by Section 50, that he had in fact done so. When the officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty-bound to conclude that the accused had not had the benefit of the protection that Section 50 affords; that, therefore, his possession of articles which are illicit under the NDPS Act is not established; that the precondition for his having satisfactorily accounted for such possession has not been met; and to acquit the accused.
9. The High Court relied upon the fact that the argument that Section 50 had not been complied with had not been made before the trial court and held that a point of fact could not be taken for the first time in appeal. The protection that Section 50 gives to those accused of being in possession of illicit articles under the NDPS Act is sacrosanct and cannot be disregarded on the technicality that the point was not taken in the court of first instance.
10. Finding a person to be in possession of articles which are illicit under the provisions of the NDPS Act has, as we have said, the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to punishment which can extend to 20 years' rigorous imprisonment and a fine of Rupees two lakhs or more. It is necessary, therefore, that courts dealing with offences under the NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the officer concerned that he had a right to choose to be searched before a 11 Cr. A. No.478/2010 Gazetted Officer or a Magistrate. It need hardly be emphasised that the accused must be made aware of this right or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirement and drug-pedlars do not go scot-free due to non-compliance thereof. Such instructions would be of great value in the effort to curb drug trafficking. At the same time, those accused of possessing drugs should, however heinous their offence may appear to be, have the safeguard that the law prescribes.
11. For the reasons aforestated, the conviction of the appellants under the NDPS Act and the sentence imposed upon them for the same must be set aside.
(Emphasis supplied)
16. Thus, it is obvious that it has to be proved to the satisfaction of the Court on the basis of the deposition of the officer making seizure that the right available to the accused under Section 50 of the Act, was duly communicated to the accused, which in the case at hand if at all done, was not done in a satisfactory manner.
17. Moreover, the Supreme Court has also observed in the case of State of Punjab Vs. Baldev Singh, 1999(6) SCC 172 , that it is not necessary to give information regarding right under section 50 of the Act to the person to be searched in writing and it is sufficient if such information is communicated to the person concerned orally but compliance of Section 50 should be made as far as possible in the presence of some independent and respectable person. This requirement has also not been fulfilled in the present case.
18. In aforesaid circumstances, the Court is of the view that the prosecution has failed to prove beyond reasonable doubt that the accused was found to be in possession of heroin. Therefore, he deserves the benefit of doubt. The trial Court erred in convicting him under Section 8 read with Section 21(b) of the Act.
12 Cr. A. No.478/201019. In the result, this appeal against conviction succeeds. Appellant Munna Khan is acquitted of the charge under Section 8 read with Section 21(b) of the Act.
b (C.V. Sirpurkar)
Judge
Digitally signed by BIJU
BABY
Date: 2018.03.06
04:16:41 -08'00'
13 Cr. A. No.478/2010