Madhya Pradesh High Court
Shyam Bihari vs The State Of M.P. on 18 January, 2018
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE MR. S. C. SHARMA, J
CRIMINAL APPEAL No. 774 / 1997
SHYAM BIHARI
Vs.
THE STATE OF MADHYA PRADESH
*****
Mr. L. C. Patne, learned counsel for the appellant, appointed by the
M.P. High Court Legal Services Committee.
Mr. Pushyamitra Bhargava, learned Dy. Advocate General for the
respondent - State.
*****
ORDER
(18/01/2018) The present appeal has been filed u/S. 374 of the Code of Criminal Procedure, 1973 against the judgment of conviction dated 04/08/1997 passed by the learned Additional Sessions Judge, Indore in Session Case No. 545/1993 - State of Madhya Pradesh Vs. Shyam Bihari, convicting the appellant for an offence u/S. 8/21 of the Narcotics Drugs & Psychotropic Substances Act, 1985. The appellant has been sentenced to undergo 10 years RI and fine has been imposed to the tune of Rs.5.00 lacs with a default clause to undergo 3 years RI on account of non payment of fine.
As per the prosecution case, on 3/3/1993 at about 17:35, Sub Inspector posted at Police Station Pandrinath
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namely; R. V. Dahima received an information through some informant that one person whose name is Shyam Bihari is roaming near Jagran Press Macchi Bazar Masjid along with Brown Sugar. Based upon the information of the informant, an entry was made in the Rojnamcha Sanha at No.281 and after verifying the information secretly, as it was found to be true, another entry was made in the Rojnamcha Sanha at No. 282 on 3/9/1993, the police party along with two independent witnesses Ashok and Bherulal went to the spot in a police vehicle and accused appellant Shyam Bihari was found at the spot with a plastic bag. He was nabbed at the spot in front of panch witnesses and a specific question was asked, as required under the Act, whether he wants his search to be done by a Gazetted officer or by the Police Officer who has conducted the search. The appellant, as per the prosecution case, gave his consent to be searched by the Police Officer and upon search a packet was recovered from him which was smelling like Brown Sugar. Total weight of the brown sugar seized from the appellant was 500 Grams and the FSL Unit was also informed on wireless. The technical officer of the FSL Mobile Unit reached the spot and after preliminary examination / analysis, it was informed to the Police Officer that it is prima facie brown sugar. The appellant was not having any license for keeping the brown sugar with him nor for selling brown sugar and out of 500 grams of brown sugar, 100
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grams was kept in a small plastic packet and it was sealed at the spot only. The appellant was arrested and again entries were made in Rojnamcha Sanha. The C.S.P. was informed on wireless. The seized brown sugar was handed over to Head Moharir M.P. Singh for depositing in the Malkhana and a crime was registered at Crime No. 165/1993 for offence u/S. 8/18 of the NDPS Act, 1985.
The prosecution has produced as many as 12 witnesses. Constable Mulayan Singh (PW 1), Constable Nahar Singh (PW 2), Head Constable Ramashankar Shukla (PW 3), Devnath Pandey (PW 4), Radholal (PW 5), Ashok (PW 6), Bherulal (PW 7), Sub Inspector R. V. Dahima (PW
8), Head Constable Santosh (PW 9) Crime Branch, Asstt. Chemical Analyst Prakash Chandra Dubey (PW 10), Constable Rajlalan Mishra (PW 11) and Constable Pannalal (PW 12). After examination of the witnesses, the trial Court has arrived at a conclusion that the article recovered from the appellant is Brown Sugar. The statement of the prosecution witness Asstt. Chemical Analyst Prakash Chandra Dubey (PW 10) are on record. The Chemical Analyst Report is also on record as Ex.P/13 and the same establishes that it was brown sugar only. The statement of witnesses and the chemical analyst report has established it to be brown sugar.
The trial Court has again in respect of recovery of brown sugar, examined large number of witnesses namely;
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Constable Mulayan Singh (PW 1), Head Constable Ramashankar Shukla (PW 3), Devnath Pandey (PW 4), Sub Inspector R. V. Dahima (PW 8), Head Constable Santosh (PW 9) Crime Branch, Constable Rajlalan Mishra (PW 11) and Constable Pannalal (PW 12) who have supported the prosecution case. The seizure of brown sugar, the arrest of the appellant has been established, however, the two independent witnesses namely; Ashok (PW 6) and Bherulal (PW 7) have not supported the case of the prosecution in respect of seizure. They have categorically stated that no brown sugar was recovered in front of them from the appellant and they were called to the Police Station and were forced to sign the seizure memo.
The learned Court below, based upon the statement of aforesaid witnesses has held the seizure to be proved and also arrived at a conclusion that there was substantial compliance of Sec. 42 and Sec. 50 of the NDPS Act, 1985.
Section 42 and 50 of the NDPS Act, 1985 reads as under :
1[42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-
military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State
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Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]
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
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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. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.] Mr. L. C. Patne, learned counsel for the appellant has vehemently argued before this Court that compliance of Sec. 42 and Sec. 50 have not been done and on account of non compliance of the mandatory provision, as contained u/S. 42(1)(2) and Sec. 50 of the Act, the entire trial stands vitiated and the conviction deserves to be set aside. Learned counsel for the appellant has drawn attention of this Court towards Ex.D/1 which is Rojnamcha Sanha and it certainly does not contain the fact that senior officers of the Department were informed before conducting search and seizure.
Learned counsel for the appellant has placed reliance
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upon the judgment delivered in the case of Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539 and again upon the judgment delivered by the Hon'ble Supreme Court in the case of Darshan Singh Vs. State of Haryana reported in (2016) 14 SCC 358. Learned counsel for the appellant has also placed reliance upon the judgment delivered by the Chattisgarh High Court in the case of Nasir Khan Vs. State of Chattisgarh reported in 2013 (2) MPHT 43 (CG) and heavy reliance has been placed upon paragraphs 14 and 15 of the aforesaid judgment. Paragraphs 14 and 15 reads as under:
14. I have gone through the evidence of Sub Inspector T. Khakha (PW 7) and Head Constable Sundarlal Gorle (PW
1). It appears that Sub Inspector T. Khakha (PW 7) recorded the secret information received by him in writing, but he did not send it to any superior Officer. It is, therefore, clear that there was complete non compliance of Section 42 of the Act, 1985.
15. Mere writing the secret information is not sufficient for compliance of provision of Section 42(2) of the Act, 1985 in view of the law laid down by the Hon'ble Supreme Court in Karnail Singh V. State of Haryana (supra). In the instant case, Sub Inspector T. Khakha (PW 7) did not comply with the provision of Section 42 of the Act, 1985.
Therefore, there is no illegality or irregularity in the finding recorded by the learned Special Judge that the prosecution did not comply with the provision of Section 42 of the Act, 1985. It is, therefore, clear that there has been complete non compliance with the provision of Section 42 of the Act, 1985 which vitiates the conviction.
Learned counsel for the appellant has again placed reliance upon the judgment delivered by the Hon'ble Supreme Court in the case of Rajinder Singh Vs. State of
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Haryana reported in (2011) 8 SCC 130 and in the case of State of Karnataka Vs. Dondusa Namasa Baddi reported in (2010) 12 SCC 495. After taking into account the Rojnamcha entry as there was no communication to any senior officer, as reflected from the Rojnamcha entry, it can be safely gathered that there was no compliance of Sec. 42 of the NDPS Act keeping in view the judgment delivered by the Hon'ble Supreme Court, as referred above.
Learned counsel for the appellant also argued that there was no compliance of Sec. 50 of the Act. Learned counsel for the appellant has placed reliance upon the judgment delivered by the Hon'ble Supreme Court in the case of State of Punjab Vs. Balbir Singh reported in (1994) 3 SCC 299. Paragraphs 16, 18 and 25 reads as under :
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 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 * See Brett v. Brett (1 826) 3 Addams 210, 216 16 (1975) 2 SCC 482: AIR 1976 SC 263 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
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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 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.
18. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. It is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to chock the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted.
25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer
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who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
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(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
Learned counsel for the appellant has also placed reliance upon the judgment delivered in the case of State of Punjab Vs. Baldev Singh reported in (1999) 6 SCC 172; in the case of State of Rajasthan Vs. Parmanand and another
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reported in (2014) 5 SCC 345; and in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in (2011) 1 SCC 609. The judgment delivered in the case of State of Rajasthan Vs. Parmanand and another (supra), was delivered in almost similar circumstances. The Officers therein who went to search the accused therein gave him an option of search by one of the officers of the Department as well as by Magistrate and or by a Gazetted Officer and search was carried out by the Officer of the raiding party and in those circumstances the Hon'ble Supreme Court has held that the offer made to the accused for search by an officer of the search party was not in consonance with Sec. 50 of the Act.
In the present case, similar offer was given to the accused to be searched by a Gazetted officer or by the Officer who went for the search and it was the Officer who went for search has searched the accused. In the light of the aforesaid, it can safely be gathered that there was total non compliance of Sec. 50 of the Act.
The other important aspect of the case is in respect of seized brown sugar. The Malkhana register was not marked as Exhibit, nor the statement of any witness in respect of Brown Sugar which was kept in Malkhana has been brought on record (has not been examined). In almost identical case, the learned Single Judge in the case of Bhadar Vs. State of Madhya Pradesh reported in 2009 (I) MPWN 58 in
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paragraph 12 has held as under :
12. There is evidence that sample was sent to Government Opium and alkaloid works, Neemuch for chemical analysis and as per the report Ex.P/10, sample was found to be Charas. Though, it has been mentioned in Ex.P/9-C that sample seized from the appellant, Bhadar was sent for analysis and it was analysed. It is clear from Ex.P/7-
C that on the same day two persons were apprehended and from them contraband articles were seized. One of them was Bhadar and the name of the second person was Athar Ali. It is also clear from Ex.P/7-C that samples were prepared from alleged seized contraband articles from both these persons. This fact is also clear from the evidence of S.J.Zafrin. There is no evidence that seized articles and sample was kept in custody of Malkhana Moharir of Kotwali Bhopal and the same sample which was prepared from the seized contraband article from the appellant Bhadar was sent for chemical analysis. There is no evidence that alleged seized contraband article and sample were kept in Malkhana Moharir from 4/8/1991 to 22/8/1991. Malkhana Moharir of Kotwali, Bhopal has not been examined. Copy of register of Malkhana Kotwali, Bhopal in which entries being made has not been produced and proved in evidence. There is no evidence that seized contraband article and sample were kept in safe custdoy from 4/8/1991 to 22/8/1991 hence, only on the basis of evidence of S.J.Zafrin and documents Ex.P/9-C and Ex.P/10, it cannot be held beyoud reasonable doubt that same sample which was prepared from alleged seized contraband article from the appellant, Bhadar was sent for chemical analysis and report Ex.P/10 pertains to the same sample. Consequently prosecution has failed to prove beyond reasonable doubt that seized article from the appellant was Charas. S.J.Zafrin seized the contraband article from the appellant and he conducted the investigation and lodged the FIR Ex.P/8 C. In Megha Singh Vs. State of Haryana (AIR 1995 SC 2339), it has been held that being a complainant, the same police should not have proceeded with the investigation of the case which suspects the fair and impartial investigation.
In the light of the aforesaid, in the present case also there is no evidence that the alleged seized article was kept in Malkhana. Malkhana Mohorir has not been examined.
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Copy of Malkhana register has not been produced establishing that there is no evidence that the seized article and sample were kept in safe custody and, therefore, the benefit has to be given to the appellant only.
A coordinate Bench of this Court in the case of Santosh @ Surajpal Khalsa Vs. State of Madhya Pradesh (Criminal Appeal No. 6/2005, decied on 5/12/2017) in paragraphs 7 to 17 has held as under :
07. The point for consideration is whether the impugned judgment is contrary to the law and evidence on record ? The main thrust of the arguments raised by learned counsel for the appellant has been alleged non-compliance of Section 50 of 'the Act'. In this regard, attention of this Court is invited to memo Ex.D/1 as well as the testimony of Ranjitsingh Bhadoria (P.W.9) so also Constable-Rajendra Singh (P.W.1), who, as per prosecution, was a member of the trap party.
08. Section 50 of 'the Act' to the extent it is relevant 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 perCr. A. No.6/2005 (Santosh vs. State of M.P.) 6 son under the provisions of Section 42 or Section 43, he shall, if such person as 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 subsection (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.
xxx xxx xxx"
09. Section 50 (supra) clearly provides that when any officer duly authorized under Section 42 of 'the Act' is about to search any person under the provisions of Section 44 or
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Section 43 of 'the Act, he shall, if such person requires, take such person without unnecessary delay to the nearest Gazetted Officer of any departments mentioned in Section 42 or to the nearest Magistrate. The provisions of Section 50 were interpreted by a Constitution Bench of the apex Court in State of Punjab vs. Baldev Singh, 1999(6) SCC 172. The relevant observations run as under :
"(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 concerned person 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. Cr.A. No.6/2005 (Santosh vs. State of M.P.) However, such information may not necessarily be in writing;
(2) That failure to inform the concerned person 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;
xxx xxx xxx (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 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
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express any opinion whether the provisions of Section 50 are mandatory or directory, but, Cr.A. No.6/2005 (Santosh vs. State of M.P.) hold that failure to inform the concerned person 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."
10. The matter was again considered by another Constitution Bench in the case of Vijaysingh Chandhubha Jadeja (supra), wherein it was held that Section 50 of 'the Act' casts a duty on the empowered officer to inform the suspect of his right to be searched in the presence of a gazette officer or a Magistrate, if he so desires. Answering the question as to whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazette officer can be said to be due compliance with the mandate of the said section; the apex Court held that provisions of Section 50(1) of 'the Act' make it imperative for the empowered officer to inform the person concerned about the existence of his right that if he so requires, he shall be searched before a gazette officer or a Magistrate, that failure to inform the suspect about the existence of his said right would cause prejudice to him, and Cr.A. No.6/2005 (Santosh vs. State of M.P.) in case he so opts, failure to conduct his search before a gazette 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 the person during a search conducted in violation of the provisions of Section 50 of 'the Act'. The Constitution Bench further held that the concept of substantial compliance with the requirement of Section 50 of 'the Act' is neither borne out from the language of Section 50(1) nor it is in consonance with the dictum laid down in Baldev Singh's case.
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11. In K. Mohanan vs. State of Kerala, 2001(2) EFR Page-21, the apex Court held as under :
"6. If the accused, who was subjected to search was merely asked, whether he required to be searched in the presence of a gazette officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with."
12. In State of Rajsthan vs. Parmanand & Anr., 2014 CRLJ 1756, the apex Court considered that if a bag carried by the suspect is searched and his person is also searched, Cr.A. No.6/2005 (Santosh vs. State of M.P.) whether Section 50 of 'the Act' will have application. The apex Court relying on Dilip & Anr. Vs. State of MP, (2007) 1 EFR (SC) 207, and Union of India vs. Shah Alam & Anr., (2009) 16 SCC 644, held in this regard 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."
13. In Parmanand's case (supra), the suspect was given an option of being searched before the Superintendent, who was a part of the raiding party. The apex Court held that it cannot be said to be proper compliance of Section 50. Relevant observations run as under:
"15. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazette officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding
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party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Cr.A. No.6/2005 (Santosh vs. State of M.P.) Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act."
14. The plea raised on behalf of the appellant requires to be examined in the light of aforementioned legal position. Ranjitsingh Bhadoria (P.W.9) has deposed in para-9 that he informed the appellant that he has a right to be searched by gazetted officer or Magistrate or he can opt for being searched by himself i.e. Ranjitsingh Bhadoria (P.W.9). It has further been deposed that in this regard memorandum Ex.D/1 was prepared and that the appellant has given consent for being searched by him. The phraseology used in Ex.D/1 for eliciting consent of appellant is as under:-
"vkidks lwpuk nh tkrh gS A eq> P.S.I. j.kthrflag HknkSfj;k dks eq[kfcj } kjk lwpuk feyh gS fd vkids ikl voS/k plZ gS A bl ckor vkidh ryk'kh yh tkuk gS A vkidks fof/kuqlkj vf/kdkj gS fd vki viuh ryk'kh fdlh jktif=r vf/kdkjh ;k eftLVsªV ls fyok ldrs gS D;k vki ejs s }kjk ryk'kh fy;s tkus ds fy;s lger gS A"
15. From the aforesaid, it is vividly clear that Ranjitsingh Bhadoria (P.W.9) had put before the appellant 3 options. One is with regard to search before the Magistrate, second is search before the gazetted officer and third option is search before himself. The third option given by Ranjitsingh Bhadoria (P.W.9) to the appellant in the light of the aforesaid legal position cannot be said to be in-conformity with legal position explained by Hon'ble apex Court with regard to compliance of Section 50 of 'the Act', therefore, it cannot be said that in the instant case Section 50 of 'the Act' was Cr.A. No.6/2005 (Santosh vs. State of M.P.) complied with in letter and spirit. In absence of compliance of Section 50 of 'the Act', the conviction recorded against the appellant cannot be sustained because the entire accusation against the appellant is based on the recovery of alleged 'Charas' from the possession of the appellant in personal search carried out by Ranjit Singh Bhadoria (P.W.9).
16. As regards compliance of Section 57 of 'the Act' Ranjitsingh Bhadoria (P.W.9) has admitted in para-63 that he has not sent any report under Section 57 of 'the Act' to the superior officer. Though in para 22, 23, this witness has stated that report Ex.P/23 was sent by the Station House Officer to Additional S.P. and C.S.P. Pandrinath, Indore, however, nothing in this regard has been deposed by Sachin Singh
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Chouhan (P.W.6), the then Station House Officer, Police Station-Chandan Nagar. Again there is no evidence on record that in fact Ex.P/23 was as a matter of fact delivered to Additional S.P. and C.S.P. In these premises, it cannot be said that Section 57 of 'the Act' was complied with.
17. In view of the non-compliance of Section 50 of 'the Act', the conviction and sentence recorded against the appellant cannot be maintained. Accordingly, this appeal is hereby allowed. Appellant is in jail. If not required to be detained in any other case, he should be released forthwith from the custody.
In the light of the aforesaid judgment also the accused therein was searched by the Inspector of Police and he was a member of the search party, an option was given to the accused to be searched by a Gazetted Officer or by a Sub Inspector of Police and in those circumstances it has been held that the third option given to the accused can never be said to be in conformity with the statutory provisions as contained u/S. 50 of the Act.
Mr. Pushyamitra Bhargava, learned Dy. Advocate General has vehemently opposed the contention of the learned counsel for the appellant. Learned counsel for the respondent has read out the statement of each and every witnesses before this Court. He has argued that there was compliance of Sec. 42 and Sec. 50 of the NDPS Act and mere deviation in respect of compliance of Sec. 42 and Sec. 50 of the Act will not give any benefit to the appellant as there was recovery of brown sugar weighing about 500 grams from the appellant which was recovered from him in front of independent witnesses. He has also argued that during trial there was no defence taken by the appellant in respect of Sec. 42 and Sec. 50 of the NDPS Act. He has prayed for
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dismissal of the appeal.
This Court, in the light of the fact that non-compliance of Sec. 42 and Sec. 50 of the NDPS Act has been established, is of the considered opinion that the conviction of the appellant deserves to be set aside and is accordingly set aside. He is already on bail. The bail bonds stands discharged. The fine amount, if any, deposited be refunded back to the appellant.
Before parting, this Court would like to appreciate the hardwork done by Mr. L. C. Patne, Advocate, who has appeared in the matter on behalf of the appellant as he was engaged by the Legal Services Authority. It has also been brought to the notice of this Court that he does not accept the remuneration given by the M. P. Legal Aid Services Authority while doing such cases. This Court really appreciates the gesture shown by the learned counsel who is otherwise a very busy counsel and who has taken all pains by preparing the matter and has argued the matter finally before this Court.
(S. C. SHARMA) JUDGE KR Kamal Rathor 2018.02.05 11:13:01
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