Rajasthan High Court - Jaipur
Mushtaq Shah vs State Of Rajasthan on 5 September, 2000
Equivalent citations: 2001(4)WLC592, 2001(1)WLN262
JUDGMENT Sunil Kumar Garg, J.
1. The above named accused appellant has preferred this appeal against the judgment and order dated 23.12.1995 passed by the learned Sessions Judge, Pratapgarh Camp, Chittorgarh in Sessions Case No. 107/1994 by which he convicted the accused appellant 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 ten years' rigorous imprisonment and fine of Rs. 1 lac, in default of payment of fine, to further undergo two years' R.I.
2. The facts giving rise to this appeal, in short, are as follows:
On 5.5.1994 at about 7.30 AM, PW4 Bhagwat Singh, SHO, Police Station Nikum, Distt. Chittorgarh received a secret information that Khalasi of Meenaxi Bus, which goes from Sangaria to Arnoda, would carry contraband opium in a gunny bag. That information was reduced in writing by PW4 Bhagwat Singh in Ex.P/8.
Thereafter, PW4 Bhagwat Singh alongwith PW5 Balwant Singh, PW6 Prahlad Singh and other police officials proceeded in a Jeep and reached Village Kalander Khera. At about 8.45 AM, Meenaxi Bus bearing No. RJ 27P 0020 came and it was stopped and two independent witnesses, namely PW1 Hasan Khan and PW8 Bhanwaroo were taken and one person was found sitting on the seat of Khalasi and on being enquired, he told his name as Mushtaq Shah S/o Gafoor Shah, resident of Ranikheda presently Arnoda, Police Station, Nimbahera (accused appellant). A gunny bag beneath the seat of accused appellant was found and on being asked about the said gunny bag, accused appellant told that it belonged to him. Thereafter, accused appellant was asked to come down from the Bus and gunny bag was also taken down from the Bus. It is further stated that thereafter, PW4 Bhagwat Singh gave a notice Ex.P. 1 under Section 50 of the NDPS Act to the accused appellant informing him whether he wanted to be searched before a Gazetted Officer or Magistrate. After receiving the said notice, he gave his consent and, thereafter, PW4 Bhagwat Singh, in the presence of motbirs PW1 Hasan Khan and PW8 Bhanwaroo, opened the said gunny bag and on opening, a polythene bag of green colour containing opium was found and on weighing, its weight was found to be lkg. 900 grams, out of which, two samples of 30 grams each were taken and marked as A/1 and A/2 and rest of the opium was marked as 'A' and they were sealed on the spot. The Fard of search and seizure was prepared by PW4 Bhagwat Singh and the same is Ex.P/2. The accused appellant was arrested through Ex.P/5. Thereafter, the articles were recovered and accused appellant were brought by PW4 Bhagwat Singh to the Police Station and Parcha Kayami Ex.P/9 was prepared by him and on the basis of that Parcha Kayami, FIR No. 52/94 Ex.P/10 under Section 8/18 of the NDPS Act was chalked out. Specimen seals were also taken separately on Ex.P/3 and articles recovered from the accused appellant alongwith samples were handed over by PW4 Bhagwat Singh to PW10 Yashwant Singh, who deposited and entered the same in the Malkhana and the copy of the Malkhana Register is Ex.P/12 and one sample was given by PW10 Yashwant Singh to PW6 Prahlad Singh for depositing in the FSL. Then, PW6 Prahlad Singh went to SP Office, Chittorgarh and after obtaining forwarding letter Ex.P/11 from SP Office, he deposited the sample in the FSL, Jaipur and the receipt of depositing the sample in the FSL is Ex.P/12. The FSL report is Ex.P/11, where it has been mentioned that sample contained in the packet marked A/1 gave positive test for the chief constituents of the coagulated juice of opium poppy having 1.78% (one point seven eight percent) morphine.
After usual investigation, the Police submitted challan against the accused appellant for committing offence under Section 8/18 of the NDPS Act.
The learned Sessions Judge on 15.2.1995 framed the charge under Section 8/18 of the NDPS Act against the accused appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 10 witnesses and got exhibited several documents. Thereafter, statement of accused appellants under Section 313 Cr.P.C. was recorded and in defence, two witnesses were produced by the accused appellant.
After recording evidence and conclusion of trial, the learned Sessions Judge, Pratapgarh Camp, Chittorgarh vide his judgment and order dated 23.12.1995 convicted the accused appellant for the offence under Section 8/18 of the NDPS Act and sentenced in the manner stated above, holding tnter-alia:
1. That since recovery in the present case has been made from the Bus, a public place, the provisions of Section 42 of the NDPS Act would not be applicable and on the contrary, Section 43 would be applicable and thus, if compliance of the provisions of Section 42(2) of the NDPS Act has not been made, it would not affect the prosecution case.
2. That compliance of provisions of Section 50 of the NDPS Act has been made by the prosecution.
3. That the prosecution has been able to prove its case beyond reasonable doubt that accused appellant has committed the offence under Section 8/18 of the NDPS Act.
Aggrieved from the said judgment and order dated 23.12.1995 passed by the learned Sessions Judge, Pratapgarh Camp, Chittorgarh, the accused appellant has filed this appeal.
3. In this appeal, the learned Counsel for the accused appellant has made the following submissions:
1. That in the present case, provisions of Section 42 of the NDPS Act would be applicable and since compliance of the provisions of Section 42(2) of the NDPS Act has not been made, inasmuch as, grounds of belief recorded under Section 42(1) had not been sent to immediate official superior, therefore, the whole trial stands vitiated and the accused appellant should be acquitted on this ground alone.
2. That compliance of the provisions of Section 50 of the NDPS Act has also not been made.
3. That there is no evidence to show that specimen seal has been sent alongwith the sample to FSL and furthermore, sample of 30 grm. was taken on the spot while report of FSL Ex.P/11 mentions that weight of sample which was received in the FSL was 52 grms. and thus, recovery in the present case is doubtful.
Hence, it has been argued that accused appellant be acquitted of the charge under Section 8/18 of the NDPS Act.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge, Pratapgarh Camp, Chittorgarh.
5. I have heard the learned Counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
Point No. 16. On this point, the case of the learned Counsel for the accused appellant is that in the present case, Section 42 of the NDPS Act would be applicable and since compliance of Section 42(2) of the NDPS Act has not been made, inasmuch as, the grounds of belief were not sent by PW4 Bhagwat Singh to his immediate official superior, therefore, whole trial stands vitiated.
7. On the other hand, the learned Public Prosecutor has argued that the recovery in this case has been made at public place and, therefore, provisions of Section 42 of the NDPS Act would not apply and the provisions of Section 43 of the NDPS Act would apply.
Note :-The learned Sessions Judge has not decided the point whether in the present case compliance of Section 42 of the NDPS Act has been made or not.
Legal position in respect of Section 42 of the NDPS Act.
8. There is no dispute on the point that provisions of Section 42 of the NDPS Act, if they are applicable in any case, are mandatory. For that the decisions of the Hon'ble Supreme Court in State of Punjab v. Balbir Singh 1994 Cr.L.R. (SC) 241, Mohinder Kumar v. The State, Panaji, Goa , State of Punjab v. Baldev Singh Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 Cr. L.R. (SC) 373 may be seen.
9. The next question that arises for consideration is in which case provisions of Section 42 of the NDPS Act would apply.
10. The provisions of Section 42 of the NDPS Act are applicable in the case in which a building, conveyance or enclosed place is to be entered into and searched. If such places are not to be entered into and searched, the provisions of Section 42 of the NDPS Act will not be applicable. The powers which have been conferred are to enter, search, seize and arrest without warrant or authorization. Under proviso to Sub-section (1) Section 42 of the NDPS Act 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 the sunset and sunrise after recording the grounds of his belief.
11. Thus, it is clear that the provisions of Section 42 of the NDPS Act would be only applicable when search, seizure and arrest have to be effected without warrant or authorisation in any building, conveyance or enclosed place. If such places are not to be entered into and searched, the provisions of Section 42 of the NDPS Act will not be applicable. Sections 41 & 42 of the NDPS Act apply when there is a prior information about the presence of the contraband article in any building, conveyance or enclosed place, while Section 43 applies when information as such is not about the presence of a contraband article at any of such place, but such article is likely to be brought in any public place.
12. On purpose, it may be stated here that the provisions of Section 42 of the NDPS Act requiring the information received to be reduced into writing under Section 42(1) has a definite purpose. The purpose is that story of secret information may not be connected to support any version that is put in the Court. It is intended that the accused must know what information has been given to enable him or his counsel to cross-examine with reference to it. It cannot be a defence to the violation of this mandatory requirement that information was received while on patrol duty or while being away from police station. Even in such a case, the information can be reduced in writing.
13. Thus, Section 42 of the NDPS Act has two aspects:
1. That if the officer has reason, to believe from personal knowledge or information given by any person, he shall take down that information in writing;
2. That for making compliance of Section 42(2), such officer, after taking down that information in writing or recording grounds for his belief under the proviso to above Section, shall forthwith send a copy thereof to his immediate official superior.
14. So far as the present case is concerned, it is to be seen whether compliance of the provisions of Section 42 of the NDPS Act has been made or not.
15. On this point, the case of the learned Counsel for the accused appellant is that compliance of Section 42(1) of the NDPS Act in the shape of Fard Ex.P/8 has been made, but its copy has not been sent to the immediate official superior and, therefore, it is a case of non-compliance of Section 42(2) of the NDPS Act.
16. For deciding whether compliance of Section 42 of the NDPS Act in the present case has been made or not, the facts have to be looked into.
17. PW4 Bhagwat Singh, in his statement, states that when he prepared Fard Ex.P/8, information of it was sent to his superior officer. The Fard Ex.P/8 itself has been looking into. It contains the recital that information was sent to the superior officer through Radiogram.
Note:-This Fard Ex.P/8 was prepared on 5.5.1994 at 7.30 AM, though the actual search was effected on 5.5.1994 at 8.45 AM.
18. PW4 Bhagwat Singh, in his cross-examination, has admitted one fact that copy of the information which was sent to superior officer through Radiogram is not available in the file.
19. In my opinion, compliance of Section 42(2) of the NDPS Act in the present case should be held to be made, inasmuch as, Ex.P/8 Fard contains recital that information was sent to immediate official superior. Had there been no such recital in Ex.P/8 Fard, it could have been argued that statement of PW4 Bhagwat Singh that he sent information to immediate official superior is an after thought. But, since there is a clear cut recital in Ex.P/8 Fard that information was sent to immediate official superior through Radiogram and further PW4 Bhagwat Singh sticks to his statement that copy of information was sent to immediate official superior, therefore, there is no reason to disbelieve his statement on this point, merely because copy of that Radiogram is not available in the file.
20. Hence, it is held that in the present case before search at about 7.30 AM on 5.5.1994, PW4 Bhagwat Singh made compliance of Section 42(2) of the NDPS Act also.
21. Thus, the first argument of the learned Counsel for the accused appellant fails and is rejected.
22. On point No. l, the learned Public Prosecutor has vehemently argued that the Bus in question since carrying passengers from place to place and public in general has entry in it and, therefore, search in the Bus in question would tantamount to search in public place and thus, the provisions of Section 42 of the NDPS would not be applicable and the provisions of Section 43 of the NDPS Act would apply.
23. To appreciate the above contention, explanation attached to Section 43 of the NDPS Act should be quoted here for convenience:
Explanation-For the purposes of this section, the expression 'public place' includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public.
24. Explanation to Section 43 of the NDPS Act says that for the purpose of this Section, public place includes any public conveyance, hotel, shop or other place which is intended for use by, or which is accessible to, the public. Thus, in order to be covered by the expression 'public place', place should be such where public may go as of right. In Section 42 as well as Section 43, the word 'conveyance' is there. The difficulty that arises when word 'conveyance' is there. In what manner it should in interpreted.
25. In my humble opinion, in Section 43, the word 'conveyance' is qualified by the word 'public', but in Section 42, it is not qualified by any such word. Thus, it is only public conveyance which is covered by Section 43, but conveyance other than public conveyance will be covered by Section 42 of the NDPS Act.
26. So far as the present case is concerned, it has been held above that compliance of the provisions of Section 42 has been made and thus, the question whether in the present case, the Bus in question would fall under the category of public Bus or private Bus, ceases to be of any importance.
27. It may be stated here that though it has been held earlier that compliance of Section 42 of the NDPS Act in the present case has been made, but the question whether in a particular case Bus would fall under the category of public vehicle or not has been decided in the present case from academic point of view.
Point No. 228. On this point, the case of the learned Counsel for the accused appellant is that in the present case, the provisions of Section 50 of the NDPS Act would be applicable and since compliance of the said provisions of Section 50 of the NDPS Act has not been made, therefore, the whole trial stands vitiated.
29. About the applicability of Section 50 of the NDPS Act in the present case, it may be stated here that a gunny bag containing contraband opium was recovered beneath the seat of Khalasi where the accused appellant was sitting. In my opinion, the words 'to search any person' would include search of articles in immediate possession such as bag and other luggage carried by accused or in physical possession of the person to be searched. In the present case, since contraband article was found beneath the seat over which accused appellant was sitting, therefore, it can easily be said that gunny bag was in physical control of the accused appellant and thus, search of the gunny bag would amount to search of his person attracting provisions of Section 50 of the NDPS Act. In this respect, decisions of the Hon'ble Supreme Court in Namdi Francis Nwazor v. Union of India 1998 SCC (Cri) 1516 and Kalayath Nassar v. State of Kerala 2000 (1) R.Cr. D.151 (SC) may be seen.
30. Hence, it is held that provisions of Section 50 of the NDPS Act would be applicable in the present case.
31. The next question that arises for consideration is whether in the present case, compliance of Section 50 of the NDPS Act has been made or not.
32. Whether compliance of Section 50 of the NDPS Act has been made or not is a question of fact and for that evidence has to be looked into.
33. PW4 Bhagwat Singh is the main witness, who conducted the search in the present case. He states in his statement that as soon as the accused appellant was taken down from the Bus, a notice under Section 50 of the NDPS Act Ex.P/1 was given to him information whether he wanted to be searched before a Gazetted Officer or Magistrate. Notice Ex.P/1 is seen. It contains that accused appellant was informed whether he wanted to be searched before a Gazetted Officer or Magistrate. It further contains recital that accused appellant thereafter gave his consent and it bears the signatures of the accused appellant at place 'E to F.
34. In my opinion, the statement of PW4 Bhagwat Singh on this point does not suffer from any infirmity and should be believed.
35. The other two motbir witnesses of notice Ex.P/1 are PW1 Hasan Khan and PW8 Bhanwaroo.
36. Though PW1 Hasan Khan has been declared hostile, but he admits his signatures on notice Ex.P/1, Similarly, PW8 Bhanwaroo though has been declared hostile, admits his signatures on notice Ex.P/1 under Section 50 of the NDPS Act.
37. Thus, it appears that both witnesses PW1 Hasan Khan and PW8 Bhanwaroo are suppessing the truth and therefore, are not coming straight forward.
38. The statement of PW4 Bhagwat Singh further gets corroboration from the statement of PW5 Balwant Singh also.
39. Hence, for the reasons stated above, it is held that compliance of the provisions of Section 50 of the NDPS Act has been made by the prosecution in the present case and the learned Sessions Judge has rightly held so and thus, his findings in this respect are liable to be confirmed.
40. Thus, the second argument of the learned Counsel for the accused appellant also fails.
Point No. 341. On this point, the case of the learned Counsel for the accused appillant is that specimen seal was not sent to FSL alongwith the sample and furthermore, sample of 30 grm. was taken on the spot, whereas in the FSL report Ex.P/11, the weight of the sample was found to be 52 grams and thus, recovery in the present case is doubtful.
42. In this respect, it may be stated here that PW4 Bhagwat Singh took the specimen seal on Ex.P/3, but there is no evidence that its copy has been sent to FSL alongwith the sample. In my opinion, this lacuna can be termed as mere irregularity, but on this count, whole prosecution case cannot be thrown out, especially when there is a clear cut evidence that seals of the samples remained intact and not tampered with in any manner, as it would be evident from the discussion of evidence just made below.
43. PW10 Yashwant Singh, who was Malkhana Incharge on 5.5.1994 of the Police Station, Nikum, states that he was given two packets of opium samples marked A/1 and A/2 and one more article marked 'A' by PW4 Bhagwat Singh and the same were deposited and entered by him in the Malkhana Register Ex.P/12. He further states that entry of the above fact was also made in Rojnamcha Ex.P/11. He further states that one sample was also sent to FSL- on 16.5.1994 through PW6 Prahlad Singh and the same was in sealed condition. The statement of PW10 Yashwant Singh is further corroborated by the statement of PW6 Prahlad Singh. He also states in his statement recorded on 22.12.1995 that one sealed packet was given to him by PW10 Yashwant Singh on 16.5.1994 and he took that sample to the office of SP and, thereafter, through forwarding letter Ex.P. 11, he deposited the same at Jaipur in FSL and the receipt of depositing the sample in FSL is Ex.P/12.
44. Thus, there is evidence on record which clearly goes to show that seal of the sample from the date it was brought to Malkhana till it reaches in FSL remained intact and seals of other articles also remained intact and therefore, there is linking evidence on this point. Hence, it cannot be said that articles seized from the accused appellant were not kept in proper custody and that seals of the seized articles were tampered with in any manner.
45. Hence, the argument that there is possibility that seals were tampered with is rejected and it is further held that if there is no evidence of the fact that specimen seal was sent alongwith the sample to FSL, as stated, above, it may be treated as mere procedural irregularity and prosecution case cannot be thrown out on this count alone.
46. The next argument of the learned Counsel for the accused appellant is that sample marked A/1 which was sent to FSL was of 30 grams, whereas when it reached to FSL, as is evident from FSL report Ex.P/11, its weight was found to be 52 grams and thus, it should be held that seal was tampered with.
47. In my opinion, this argument is also not helpful to the accused appellant because of the simple reason that 52 grams weight includes the weight of tin container and thus, to say that weight of sample was increased is totally wrong.
48. For the reasons stated above, the findings of the learned Sessions Judge convicting accused appellant under section 8/18 of the NDPS Act are liable to be confirmed and the appeal of the accused appellant is liable to be dismissed.
Note-Before parting with the file, it may be stated here that present accused appellant Mushtaq Shah has also preferred jail appeal being S.B. Cr. Jail Appeal No. 150/96 against the same judgment and order dated 23.12.1995 passed by the learned Sessions Judge, Pratapgarh Camp, Chittorgarh and that file was ordered to be tagged with this appeal. Hence, the jail appeal filed by the present accused appellant being S.B. Cr. Jail Appeal No. 150/96 may also be treated as disposed of in terms of the judgment passed in the present appeal No. 71/96.
In the result, the appeal filed by the accused appellant Mushtaq Shah fails and is dismissed, after confirming the judgment and order dated 23.12.1995 passed by the learned Sessions Judge, Pratapgarh Camp, Chittorgarh.