Karnataka High Court
State By Panambur Police Station vs Sri.Mohammed Asheef on 25 September, 2023
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NC: 2023:KHC:34883
CRL.A No. 1489 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO.1489 OF 2015 (A)
BETWEEN:
STATE BY PANAMBUR POLICE STATION,
MANGALURU, REPRESENTED BY
STATE PUBLIC PROSECUTOR.
Digitally
574 014.
signed by N ...APPELLANT
UMA
Location: (BY SRI. RAHUL RAI. K, HCGP)
HIGH
COURT OF
KARNATAKA AND:
SRI. MOHAMMED ASHEEF,
S/O H. MOHAMMED,
AGED 28 YEARS,
M.J.M. NO.631,
NEAR ANGANAWADI, KASABA BENGRE,
MANGALURU - 575 001.
...RESPONDENT
(BY SRI. ASHOK KUMAR SHETTY, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO
a) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 09.09.2015 PASSED BY THE
JMFC (II COURT), MANGALURU IN C.C.NO.2787/2008
ACQUITTING THE RESPONDENT FOR THE OFFENCE P/U/S
20(b)(ii)(A) OF NDPS ACT.
THIS CRIMINAL APPEAL, COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:34883
CRL.A No. 1489 of 2015
JUDGMENT
1. This appeal is filed against the impugned judgment of acquittal dated 09.09.2015 in C.C. No.2787/2008 on the file of the JMFC (II Court) at Mangalore, Dakshina Kannada, wherein the Trial Court acquitted the respondent for the offences punishable under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). Being aggrieved by the same, the State has preferred this appeal.
2. The rank of the parties in the Trial Court henceforth will be considered accordingly for convenience.
3. It is the case of the prosecution that, on 28.03.2008 at about 8.15 a.m., PW1 said to have received the credible information through his higher official that the respondent/accused was selling ganja near Mercury Light Tower in Panambur Beach, Mangalore. After receiving the said information, he has secured the panch witnesses namely PWs.2 and 3 went to the spot along with his staff. It is further stated that PW.1 was standing little distance away and was observing about the activities of the accused. After confirming the -3- NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 involvement of the accused in selling the contraband, apprehended the accused. On enquiry, it is found that, the accused was in possession of 260 grams of ganja. Thereafter, it was seized in the presence of panchas and conducted investigation and submitted the charge sheet for the offences under Sections 20(b)(ii)(A) of NDPS Act, 1985.
4. To prove the case of the prosecution, the prosecution examined eight witnesses as PWs.1 to 8 and got marked 14 documents as Exs.P1 to P14 and also identified five material objects as M.O.1 to M.O.5. The Trial Court after appreciating the oral and documentary evidence on record opined that the mandatory provision under Section 50 of the NDPS Act has not been complied by the Investigating Officer and recorded the acquittal.
5. Heard Sri.Rahul Rai.K, learned High Court Government Pleader for the appellant-State and Sri.Ashok Kumar Shetty, learned counsel for the respondent.
6. It is the submission of the learned HCGP for the appellant - State that the judgment and order of acquittal passed by the Trial Court is erroneous and illegal and also -4- NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 against the facts and evidence on record. Hence, the same is liable to be set aside.
7. It is further submitted that Ex.P12 is the document which indicates that the mandatory requirement in conducting the search which has been communicated to the accused is in accordance with law. However, the Trial Court ignored in considering the said document and proceeded to hold that Section 50 of NDPS Act has not been complied which is erroneous and the same is liable to be set aside.
8. The Trial Court not considering the evidence of police witnesses and opined that in the absence of independent witnesses, the evidence of the official witnesses cannot be believed which appears to be erroneous and perverse. The Trial Court should have considered the evidence of official witnesses if it inspires the confidence of the Court. The Court always not required to look for corroboration when the evidence of official witness is believable and acceptable. The Trial Court failed to consider the said aspect and also failed to take note of the settled principles and recorded the acquittal for want of corroboration by ignoring the evidence of official witnesses -5- NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 which is perverse and illegal and therefore, the impugned judgment is liable to be set aside. Making such submission, the learned HCGP for the appellant-State prays to allow the appeal.
9. Per contra, the learned counsel for the respondent justified the judgment and order of acquittal and submitted that the respondent/accused is an illiterate person and he was not informed the mandatory requirement regarding the search to be made before the Magistrate. Even though Ex.P12 stated to have been given to the respondent, the respondent is an illiterate person and not aware about the rights which was provided under Section 50 of the NDPS Act. Therefore, it cannot be construed that the mandatory provision has been complied. Non compliance of the said mandatory provision rendered the said search and seizure to be illegal. The Trial Court rightly considered the said aspect and recorded the acquittal which requires no interference. Having submitted thus, the learned counsel for the respondent prays to dismiss the appeal.
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10. After having heard the learned counsel for the respective parties and perused the findings of the Trial Court, the points which arise for my consideration are:
(a) Whether the findings of the Trial Court in recording the acquittal of the respondent considering that the mandatory provision under Section 50 of the NDPS Act has not been complied is justified?
(b) Whether the appellant-State made out grounds to interfere with the said findings?
11. Before adverting to the facts of the case, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of CHANDRAPPA AND OTHERS v. STATE OF KARNATAKA1, paragraph No.42 read thus:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the 1 (2007) 4 SCC 415 -7- NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further -8- NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
12. On careful reading of the above said dictum, it makes it clear that ordinarily the Appellate Court cannot interfere in a case of appeal against acquittal as matter of routine. The Court can interfere only where it appears that the findings of the Trial Court in recording the acquittal appear to be perverse and illegal.
13. In the present case, the Trial Court opined that the investigating officer has not followed the procedure contemplated under Section 50 of the NDPS Act and recorded the acquittal. Now, it is relevant to refer to the provision of law for better understanding. Section 50 of the NDPS Act which reads thus:
"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 -9- NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 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 (2 of 1974).
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NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 (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.]"
On careful reading of the above said provision, it makes it clear that when a person is searched in respect of the said offences, he has to know the reason for his search and also to be informed that he has right to be searched in front of the gazetted officer.
14. Now, it is also relevant to refer to the judgment of the Hon'ble Supreme Court in the case of STATE OF PUNJAB v. BALBIR SINGH2, paragraph No.16 reads thus:
"16. One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised officer while conducting the search, affects the prosecution case. The said provision (Section 50) lays down that any officer duly authorised under Section 42, who is about to search any person under the provisions of Sections 2 (1994) 3 SCC 299
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NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 41, 42 and 43, shall, if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made by the person to be searched, the authorised officer concerned can detain him until he can produce him before such Gazetted Officer or the Magistrate. After such production, the Gazetted Officer or the Magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that the search be made. To avoid humiliation to females, it is also provided that no female shall be searched by anyone except a female. The words "if the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search would be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be
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NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right."
15. It is also refer to the judgment of the Constitution Bench of the Hon'ble Apex Court in the case of STATE OF PUNJAB v. BALDEV SINGH3, paragraph No.57 read thus:
"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 3 (1999) SCC Cri 1080
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NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 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.
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NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 (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
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NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 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
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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 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
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NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 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 correctly interprets and distinguishes the judgment in Pooran Mal case and the broad observations made in Pirthi Chand case and Jasbir Singh case are not in tune with the correct exposition of law as laid down in Pooran Mal case."
16. On conjoint reading of the provision and also the dictum of the Hon'ble Supreme Court, it makes it clear that the compliance of Section 50 of NDPS Act is mandatory and it is not directory. The communication of the said right to a person who is about to be searched is not an empty formality, it has a purpose. Under the NDPS Act, most of the offences carry stringent punishment and therefore, the prescribed procedure has to be meticulously followed. The object of enacting the said provision is only to safeguard the accused against the possibility of false involvement. It is needless to say that the said right is available to the accused when his body to be
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NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 searched. Whereas in case if search is required to be conducted other than the body of the accused, such right cannot be availed.
17. In the instant case, PW.1 was working as PSI of Pamambur Police Station and on 28.03.2008 at about 7.30 p.m., he has received the information from Additional Superintendent of Police that one person was selling contraband near Panambur beach. The said officer has informed the complainant about the description of the person who was selling the ganza. It is further stated that he secured the panchas and his staff and had been to the place where the accused was selling the ganja and apprehended him and also stated that the accused was informed about the right to be searched in front of the Gazetted officer. As per the evidence of the complainant, the accused has consented for the search in the absence of the Gazetted officer. Therefore, the search was conducted and contraband was seized along with the amount of Rs.170/-. Further it is noticed that PW.1 said to have took sample of 50 grams and sent it for FSL.
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18. It is settled principle of law that the evidence of official witnesses has to be accepted if it inspires the confidence of the Court and it is not always necessary that the evidence of police witnesses must be corroborated by independent witnesses. The prosecution come up with a story that the search and seizure conducted in presence of the panch witnesses. However, the panch witnesses who are examined as PWs.2 and 3 have not supported the case of the prosecution.
When the search and seizure which is marked as Ex.P2 is not supported by the independent witness, the evidence of official witness cannot be accepted without independent corroboration.
19. It is also noticed in this case that Ex.P12 is a notice issued to the accused informing him about his right to be searched in front of the Gazetted officer. However, the contents thereof has been subsequently denied by the accused and contended that he is an illiterate person and was not aware about the contents thereof and it was not read over to him.
Unless, the provision of Section 50 of the NDPS Act is followed, it cannot be held that the recovery of the contraband is in accordance with law and it is legal. If the search and seizure is in contravention of Section 50 of the NDPS Act, the said
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NC: 2023:KHC:34883 CRL.A No. 1489 of 2015 recovery is bad in law and it cannot be used as evidence of proof. Therefore, the findings recorded by the Trial Court in respect of the offence appears to be appropriate and interference with the said findings is not warranted.
20. In the light of the observations made above, the points which arose for my consideration stated above are answered as:
Point No.(i) in the "Affirmative"
Point No.(ii) in the "Negative"
21. Hence, I proceed to pass the following:
ORDER
i) The Criminal Appeal filed by the appellant -
State stands dismissed.
ii) The judgment and order dated 09.09.2015 passed in C.C. No.2787/2008 by the Court of JMFC (II Court) at Mangalore, Dakshina Kannada, is confirmed.
Sd/-
JUDGE SNC/UN