Rajasthan High Court - Jaipur
Sardar Singh @ Jawant Singh vs State Of Rajasthan on 8 October, 2001
JUDGMENT Garg, J.
1. This appeal has been filed by the accused appellant against the judgment and order dated 4.9.1999 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. (101/93) (48/94) 111/97 by which he convicted the accused appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred ,to as the NDPS Act) and sentenced him to undergo rigorous imprisonment for ten years' and to pay a fine of Rs. one lac, in default of payment of fine, to further undergo RI for six months.
2. The facts giving rise to this appeal, in short, are as follows:-
On 27.10.1991 at about 7.45 p.m., PW-8 Bhanwarlal, SHO, Police Station Kotwali, Bhilwara prepared a parchakayami Ex.P/9 stating inter-alia that on that day as per telephonic message received from PW3 Jagdish Chandra, Head Constable, he alongwith PW1 Umrao Singh, ASI and PW6 Dhanraj proceeded towards the Roadways Bus Stand, Bhilwara from the Police Station Kotwali and when he reached Roadways Bus Stand, he found PW3 Jagdish Chandra, who pointed out to PW8 Bhanwarlal that the person, who was sitting on the bench, had contraband opium and upon this, PW-8 Bhanwarlal made motbirs, namely, PW1 Umrao Singh, ASI and PW3 Jagdish Chandra, Head Constable and enquired from the person, who was sitting on the Bench and that person told his name as Sardar Singh (present accused appellant) and PW8 Bhanwarlal further asked accused appellant that he had suspicion that he had contraband opium with him and for that he wanted to make his search and the accused appellant was informed whether he wanted to be searched before the Magistrate or Higher Officer and upon this, he replied that since PW8 Bhanwarlal had come to know that he had contraband opium, therefore, search could be taken by PW8 Bhanwarlal had come to know that he had contraband opium, therefore, search could be taken by PW8 Bhanwarlal himself. Thereafter, PW8 Bhanwarlal in presence of motbirs PW1 Umrao Singh and PW3 Jagdish Chandra conducted the search of the accused appellant and during his search, a resign hand-bag was recovered from him and on opening that hand bag, two polythene bags containing black substance were found in it and on seeing and being tasted, it was assessed that it was nothing, but contraband opium. Thereafter, it was weighed and its weight was found to be 1 kg. 500 gms., out of which, two samples of 50 grms. each were taken and sealed separately on the spot and marked as A and B and the remaining opium was also sealed separately on the spot and marked as C. On being asked, the accused appellant told that he did not possess any valid license to keep that opium. Thus, he has committed the offence under Section 8/18 of the NDPS Act. PW8 Bhanwarlal prepared the fard of search and seizure on the spot and the same is Ex.P/1 and he also investigated the case himself and prepared site plan Ex.P/2 and arrested the accused appellant through arrest memo Ex.P/3. On that parchakayami, a regular FIR Ex.P/10 was registered at Police Station City Kotwali. PW8 Bhanwarlal handed over the seized articles and samples to the Malkhana Incharge PW2 Chandra Prakash, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/4. Thereafter, vide letter Ex.P/5 one sample marked A was sent to SP, Bhilwara through PW4 Radhey Shyam for sending it to FSL, Jaipur and PW4 Radhey Shyam handed over the sample to PW7 Laxman Singh, who was working in Chemical Branch, SP Office, Bhilwara and PW7 Laxman Singh sent the sample to FSL, Jaipur vide forwarding letters Ex.P/7 through PW7 Ratan singh and PW5 Ratan Singh deposited that sample in FSL, Jaipur on 19.11.1991 and obtained receipt Ex.P/6. The FSL report is Ex.P/11, where it was reported that the sample contained in the packet marked A gave positive tests for the chief constituents of the coagulated juice of opium poppy having 3.78% (three point seven eight percent) morphine.
After usual investigation, police submitted challan for the offence under Section 8/18 of the NDPS Act against the accused appellant in the Court of Session, Bhilwara.
On 16.3.1994, the learned Special Judge, NDPS Cases, Bhilwara framed charge for the offence under Sections 8/18 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial.
During trial, the prosecution in support of its case examined as many as 8 witnesses and got exhibited several documents. Thereafter, statement of the accused appellant under Section 313 Cr.P.C. was recorded. No evidence in defence was produced by the accused appellant.
After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 4.9.1999 convicted the accused appellant for the offence under Section 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding inter alia that the prosecution has proved its case beyond all reasonable doubt against the accused appellant for the said offence.
Aggrieved from the said judgment and order dated 4.9.1999 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant.
3. In this appeal, the following submissions have been raised by the learned counsel for the accused appellant:-
(1) That as per the fard of search and seizure Ex.P/1, it is well established that PW8 Bhanwarlal while conducting search of the accused appellant made PW1 Umrao Singh, who was ASI and PW3 Jagdish Chandra, who was Head Constable in the same Police Station, as motbirs and no independent persons were taken as motbirs and since both of mem were police officials and members of the raiding party party, therefore, it creates doubt on the prosecution story, as independent witnesses though available had not been taken by PW8 Bhanwarlal intentionally and purposely.
(2) That mandatory provisions of Section 50 of the NDPS Act have not been fully complied with, as no notice under the provisions of Section 50 of the NDPS Act has been given to the accused appellant and furthermore, the option which was given to him, was not in accordance with the provisions of Section 50 of the NDPS Act, as the word "Gazetted Officer" was not put to him and only the word "Higher Officer" was put to him and furthermore, among the statements of PW1 Umrao Singh, PW3 Jagdish Chandra and PW6 Dhanraj, who were members of the raiding party, there is no uniformity in their statements on point of compliance of Section 50 of the NDPS Act and thus, it cannot be said that compliance of mandatory provisions of Section 50 of the NDPS Act has been fully made in the present case and the accused appellant is entitled to acquittal on this ground alone.
(3) That as per fard of search and seizure, Ex.P/l two samples of 50 gms. each were taken and sealed separately on the spot and marked as A and B, but in the Malkhana Register Ex.P/4, they are entered as A/1 and B/1 and furthermore, the sample which was sent to FSL, Jaipur is marked A and in these circumstances, it cannot be ruled out that sample was not tampered with or was not the same which was taken from the material seized from the accused appellant. Apart from this, forwarding letter Ex.P/7 alleged to have been prepared by PW7 Laxman Singh, was not prepared by him and it does not bear the signatures of SP, Bhilwara and from this point of view also, the link evidence is in-complete in this case.
Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Bhilwara.
5. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case.
Points No. 1 and 2.
6. For deciding points No. 1 and 2, evidence oral as well as documentary produced by the prosecution in this case has to be looked into.
7. So far as point No. 1 is concerned, there is no dispute in this case that no independent witnesses were taken by PW8 Bhanwarlal while conducting search of the accused appellant and preparing fard of search and seizure Ex.P/1. The two witnesses mentioned in the fard of search and seizure Ex.P/1 as motbirs are PW1 Umrao Singh and PW3 Jagdish Chandra, both are police officials and members of the raiding party.
8. From the statement of PW3 Jagdish Chandra, it further appears that he received the secret information to the effect that one person, who was sitting on the platform Bench, had contraband opium and thus, he informed PW8 Bhanwarlal about this fact. However, no such recorded information is produced in the Court. On that information, PW8 Bhanwarlal proceeded towards the Roadways Bus Stand, Bhilwara alongwith PW1 Umrao Singh and PW6 Dhanraj.
9. PW8 Bhanwarlal, who conducted the search and seizure in the present case, has submitted in cross examination that it is correct to say that there is Roadways Bus Stand, Bhilwara, where there are many tea shops and other shops and all the shops were opened at the relevant time and passengers were coming and going. He further admitted that staff of the Roadways was also there. Meaning thereby there were many persons on the spot, but none of them has been made as motbir by PW8 Bhanwarlal.
10. Before proceeding further, legal aspect between the provisions of Cr.P.C. and the provisions of NDPS Act has to be seen in respect of making motbir independent witnesses.
11. For convenience, Section 51 of the NDPS Act is quoted here:-
"51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.- The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply in so far as they are not inconsistent with the provisions of this Act; to all warrants issued and arrest, searches and seizures made under this Act.
12. The legal position in this respect as is found by the observations made by the Hon'ble Supreme court in State of Punjab v. Balbir Singh (1) may be summarised as follows:-
(1) That by a combined reading of Sections 41, 42, 43 & 511 of the Criminal Procedure regarding arrest and search under Sections 41, 42 and 43, the provisions of the Code of Criminal Procedure, namely, Sections 100 and 165 would be applicable to such arrest and search.
(2) That the violation of the provisions particularly that of Sections 100, 102, 103 or 165 strictly per se does not vitiate the prosecution case. If there is such violation, what the courts have to see is whether any prejudice was caused to the accused and in appreciating the evidence and other relevant factors, the Courts should bear in mind that there was such a violation and from that point of view evaluate the evidence on record.
(3) That non-compliance of provisions of Section 100 & 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance.
It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the Courts look for independent corroboration. This again depends on the question whether the official has deliberately failed to comply with these provisions of failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions.
13. In Kabul @ Khudia v. State of Rajasthan (2) where no independent witnesses were joined when recovery of heroin and charas was made and it was held by this Court that as independent witnesses were available and investigating agency deliberately withheld and calling of independent witnesses from public is not an idle formality, recovery of heroin and charas was not free from doubt.
14. Thus, it can be concluded that the law is of course well settled that the testimony of a witness is not to be doubted or looked upon with suspicion merely because he happens to be a police official but it is, at the same time, a very well recognised rule of caution adopted by the courts to look for corroboration of the testimony of such witnesses particularly when the time, place and circumstances are such that independent witnesses were easily available.
15. In the present case, when as per the statement of PW8 Bhanwarlal, many persons were available on the spot and the case is being started a the information received by PW3 Jagdish Chandra, who has been made motbir in the present case and apart from him. PW1 Umrao Singh, ASI, who was subordinate to PW8 Bhanwarlal and attached with the same Police Station, has been made motbir, all these facts go to show that PW8 Bhanwarlal intentionally and purposely did not take independent witnesses as motbirs while conducting search of the accused appellant and preparing fard of search and seizure Ex.P/1 and from this point of view, a doubt has arisen in respect of conducting proceedings of search and seizure by PW8 Bhanwarlal.
16. Now, it is to be seen whether in the present case compliance of Section 50 of the NDPS Act has been made or not.
17. . Before proceeding further, it may be stated here that Hon'ble Supreme Court in so many cases has held that the provisions of Section 50 of the NDPS Act are mandatory in nature and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial.
18. There is no dispute in the present case that no separate fard under the provisions of Section 50 of the NDPS Act has been prepared by PW8 Bhanwarlal or in other words, no notice under Section 50 of the NDPS Act was given to the accused appellant before making his search.
19. From the fard of search and seizure Ex,P/1, it appears that the option which was given to the accused appellant by PW8 Bhanwarlal is that whether he wanted to be searched before the Magistrate or Higher Officer and upon this, accused appellant gave his consent that he could be searched by PW8 Bhanwarlal.
20. PW1 Umrao Singh, who was one of the members of the raiding party and who was ASI in the Police Station, City Kotwali, Bhilwara, has stated that PW8 Bhanwarlal gave option to the accused appellant in the following words:-
"Magistrate or Gazetted Officer"
Thus, this witness does not use the word "Higher Officer".
This witness further admits in cross-examination that he cannot say whether accused appellant was asked before making his search as to whether he wanted to be before making his search as to whether he wanted to be searched before the Magistrate or Gazetted Officer and furthermore, whether separate fard for compliance of Section 50 of the NDPS Act was prepared or not, he cannot say, but entry was made in the fard of search and seizure Ex.P/1.
21. PW3 Jagdish Chandra is another witness, who was present at the time of search and seizure with PW8 Bhanwarlal. He states that accused appellant was asked by PW8 Bhanwarlal whether he wanted to be searched before the Higher Officer or Magistrate.
22. PW8 Dhanraj is another witness, who was present at the time of search and seizure and he states that option was given to the accused appellant whether he wanted to be searched before the Gazetted Officer or Magistrate. Thus, this witness does not use the word "Higher Officer". However, in cross-examination, this witness admits the following facts:-
(1) That notice under Section 50 of the NDPS Act was given by PW8 Bhanwarlal to the accused appellant, but that notice did not bear his signatures.
(2) That in the fard of search and seizure Ex.P/1, two motbirs are PW1 Umrao Singh and PW3 Jagdish Chandra.
(3) That notice under Section 50 of the NDPS Act was given to the accused appellant, but the same is not in the Court file.
23. PW8 Bhanwarlal, who conducted the search and seizure in the present case, has stated that option, which was given by him to the accused appellant was whether he wanted to be searched before the Magistrate or Gazetted Officer. But, in cross-examination, he admits that it is correct to say that in the fard of search and seizure Ex.P/1, the word "Gazetted Officer" is missing. Meaning thereby PW8 Bhanwarlal still sticks to his statement that option which was given by him to the accused appellant was whether he wanted to be searched before the Magistrate or Gazetted Officer.
24. A bare perusal of the statements of PW1 Umrao Singh, PW3 Jagdish Chandra, PW6 Dhanraj and PW8 Bhanwarlal on point of compliance of Section 50 of the NDPS Act clearly reveals that there is no uniformity in their statements. In the fard of search and seizure Ex.P/1, the word "Higher Officer" is mentioned, while some of the witnesses have stated that option was given in the word "Gazetted Officer" and not in the word "Higher Officer", but PW8 Bhanwarlal adheres to his statement that option was given to the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer, but in the fard of search and seizure Ex.P/1, the word "Gazetted Officer" is missing. PW6 Dhanraj, who was with the raiding party, has stated that notice under Section 50 of the NDPS Act was given to the accused appellant, but the same is not in the file and PW1 Umrao Singh also admits in cross-examination that he cannot say whether separate fard for compliance of Section 50 of the NDPS Act was prepared or not.
25. Thus, there is no uniformity in the statements of PW1 Umrao singh, PW3 Jagdish Chandra, PW6 Dhanraj and PW8 Bhanwarlal on the point of compliance of Section 50 of the NDPS Act from the statements of these witnesses, it cannot be concluded that compliance of mandatory provisions of Section 50 of the NDPS Act has been made by PW8 Bhanwarlal in the manner that accused appellant was asked whether he wanted to be searched before the Magistrate or Gazetted Officer.
26. No doubt notice under Section 50 of the NDPS Act may not be necessary in writing and even orally before search the accused can be informed of his right given to him under the said section, but that exercise should be made sincerely and keeping in mind the mandatory provisions of Section 50 of the NDPS Act.
27. In the present case, looking to the entire facts and circumstance of the case and the fact that there are contradictory statements about the words "Gazetted Officer" or "Higher Officer" among the prosecution witnesses, it transpires that no option under the provisions of section 50 of the NDPS Act was given by PW3 Bhanwarlal to the accused appellant before making his search and what was done by PW8 Bhanwarlal was nothing, but mere formality and if this aspect is considered keeping in mind that PW1 Umrao singh and PW3 Jagdish Chandra, who are motbirs of the fard of search and seizure Ex.P/1, are police officials, the requirements of independent witnesses becomes more significant and from this point of view, when no independent witnesses were taken by PW8 Bhanwarlal, compliance of Section 50 of the NDPS Act cannot be said to be proved.
28. For the reasons stated above, it is held that in the present case, compliance of mandatory provisions of Section 50 of the NDPS Act in strict sense has not been made and non-compliance of these mandatory provisions vitiates the entire trial against the accused appellant and he is entitled to acquittal on this ground alone.
Point No.3
29. So far as point No. 3 is concerned, from the statement of PW2 Chandra Prakash, who was at the relevant time Malkhana Incharge, it appears that he received articles and samples from PW8 Bhanwarlal and deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/4, where there is specific mention that the samples, which were received by him were marked as A/1 and B/l and there is also mention of the fact at portion C to D in the Malkhana Register Ex.P/4 that he gave one sample marked A/1 to PW4 Radhey Shyam, who took the same to SP office Bhilwara alongwith letter Ex.P/5 and handed over the same to PW7 Laxman Singh, who was working in the SP Office, Bhilwara. From the letter Ex.P/5, it appears that sample was marked A and not A/1.
30. From the statement of PW7 Laxman Singh it further appears that he received one sample from PW4 Radhey Shyam and thereafter, he prepared the letter Ex.P/7 and sent the sample to FSL, Jaipur through PW5 Ratan Singh. In cross-examination, this witness admits the following facts:-
(1) That forwarding letter Ex.P/7 is not the same which was got prepared by him.
(2) That forwarding letter Ex.P/7 does not bear the signatures of SP.
(3) That it is also correct to say that in the original letter, he got the signatures of SP.
31. Thus, from the statement of PW7 Laxman Singh, it appears that the forwarding letter which has been produced by the prosecution is not the same through which sample was sent to FSL, Jaipur through PW5 Ratan Singh.
32. PW5 Ratan Singh states that from the office of the SP, Bhilwara, he was given one sample and the same was deposited by him in the FSL, Jaipur on 19.11.1991 and he obtained the receipt Ex.P/6, but by whom it was given to him, he does not know the name.
33. From the FSL report Ex.P/11, it appears that the sample which was received in the FSL was marked as A.
34. Thus, from the above evidence, it appears that samples which were received by PW2 Chandra Prakash as Malkhana Incharge from PW8 Bhanwarlal were got entered in the Malkhana register Ex.P/4 and they were, according to PW2 Chandra Prakash, were marked as A/1 and B/1. However, from the fard of search and seizure Ex.P/1, it appears that the samples were marked as A and B. Not only this, PW2 Chandra Prakash gave one sample marked A/1 to PW4 Radhey Shyam, but in the letter Ex.P/5, the sample which was given to PW4 Radhey. Shyam was marked as A. Apart from this, from the statement of PW7 Laxman Singh, it appears that forwarding letter which has been produced by the prosecution is not the same through which sample was sent to FLS, Jaipur through PW5 Ratan Singh. PW7 Laxman Singh has clearly stated that the forwarding letter Ex.P/7 is not the same, which he got prepared. In these circumstances, it cannot be ruled out that the sample was not tampered with or was not the same which was taken from the material seized from the accused appellant. Hence, the accused appellant is entitled to benefit of doubt.
35. For the reasons stated above, the findings of the learned Special Judge convicting the accused appellant for the offence under Section 8/18 of the NDPS Act are liable to be set aside and the accused appellant is entitled to acquittal and this appeal deserves to be allowed.
Accordingly, the appeal filed by the accused appellant Sardar Singh @ Jaswant Singh is allowed and the judgment and order dated 4.9.1999 passed by the learned Special Judge, NDPS Cases, Bhilwara are set aside and the accused appellant is acquitted of the charge for the offence under Section 8/18 of the NDPS Act. Since he is in jail, he be released forthwith, if not required in any other case.