Allahabad High Court
Anil Kumar Dubey vs State Of U.P. on 14 December, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on7.11.2017 Judgement delivered on 14.12.2017 Court No. - 13 Case :- CRIMINAL APPEAL No. - 2835 of 1999 Appellant :- Anil Kumar Dubey Respondent :- State Of U.P. Counsel for Appellant :- N.D. Shukla Counsel for Respondent :- Govt. Advocate Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal appeal has been filed against the judgment and order dated 23rd September, 1999 passed by then IVth Additional Sessions Judge, Varanasi in Criminal Case No. 559 of 1995 arising out of Case Crime No. 146 of 1995, P.S. Maruwadih District Varanasi whereby the accused appellant Anil Kumar has been convicted and awarded punishment under Section 21 of NDPS Act of 10 years rigorous imprisonment, fine of Rs. 1,00,000/- and in default of payment of fine to further undergo two years rigorous imprisonment.
2. Facts of this case, in nut-shell, are as follows.
3. On 3.9.1995 S.I. Pramod Kumar Pandey (PW-1), along with Head Constable Shyam Narain Yadav (PW-3) were busy in night patrolling duty and and were present at Maruwadih Inter-Section (Chauraha). There, they received information from an informer that one person was coming from the side of Lahartara and would go towards Shivdaspur Mandi. He had heroin with him. If police party promptly reached there he could be arrested. Believing this information to be true PW-1 (Pramod Kumar Pandey, Sub-inspctor) and PW-3 (Shyam Narain Yadav, (Head Constable) along with informer reached near Shivdaspur Mandi tri-section and concealing themselves behind Gomti situated there, waited for the said person to arrive. After some time the said person coming from the side of Lahartara reached Mandi tri-section. The informer pointed him out and went away from there. PW-1 Pramod Kumar Pandey directed that person to stop but looking to the police personnel, he turned around and tried to run away but was caught with the help of PW-3, Shyam Narain Yadav at 20.30 hours. On inquiry from him, he disclosed his name to be Anil Kumar Dubey s/o Vanshi Dhar Dubey. He was told that an information was received that he possessed contraband substance and that, if he wanted, he could be searched in presence of a Magistrate or a Gazetted Officer. At this, the accused stated that as he had already been arrested, therefore, his search could be made by them only. Pursuant to that consent his personal search was made in presence of PW-3, Shyam Narain Yadav and from right side of his trouser one match box was recovered which was tucked in his trouser. From the said match-box seven pudias (small packets) of brown sugar (Heroin) were recovered and when asked to show the licence to keep the same, he started apologising. He was apprised that this act of his amounted to offence under Section 21 of NDPS Act and thereafter he was taken into custody. All the seven pudias of heroin were placed again in the said match-box and were wrapped in a cloth and in the light of torch and electricity they were sealed on the spot and its sample seal was also prepared. At the time of his arrest a large number of people had assembled there who went away from there, when told to be the witness to the said recovery. The recovery memo was prepared on the spot in the light of torch and electricity and was read out to the accused and PW-3 . Thereafter, the signature was obtained thereon of the accused. A copy of the said recovery memo (Exhibit Ka-1) was provided to the accused. The PW-3, Shyam Narain Yadav went to the police station with the recovered contraband substance along with sample seal and the accused and got the case registered. Chick FIR (photo copy paper no. 9Ka/1), was prepared by Shivdarshan Giri (not examined) and the entry of this case was made by him in General Diary dated 3.9.1995 (Paper no. 9ka/1), at report no. 38 at time 20.30 hours. The Investigation was assinged to Inspector Nafees Ahmad (PW-2), who made inspection of the place of occurrence at the instance of PW-1 and prepared the site plan (Exhibit Ka-2). He had sent the contraband substance recovered from the accused to FSL through Constable Sanjay Kumar Tiwari on 11.9.1995, whereafter the FSL sent its report (Exhibit Ka-4), in which it was found that all the seven pudias contained hereoin. Thereafter, PW-2, Nafees Ahmad after having recorded entire evidence filed charge sheet(Exhibit Ka-3) under Sections 21 of NDPS Act against accused appellant Anil Kumar Dubey.
4. The court below, on the basis of evidence collected by police, framed charge against accused appellant under Section 21 of NDPS Act on 7.6.1996, to which accused pleaded not guilty.
5. Thereafter the prosecution examined Pramod Kumar Pandey (S.I.) as PW-1, Inspector Nafees Ahmad as PW-2 and head constable Shyam Narain Yadav as PW-3. Out of these witnesses, PW-1 and PW-3 are witnesses of fact while PW-2 is the Investigating Officer.
6. Apart from above oral evidence, the prosecution has proved recovery memo (Exhibit Ka-1), site plan (Exhibit Ka-2), Charge Sheet (Exhibit Ka-3) and report from FSL (Exhibit Ka-4).
7. After closure of evidence of prosecution, the statement of accused was recorded under Section 313 Cr.P.C. on 31.8.1999, in which he denied the recovery to have been made of seven pudias of heroine from him; recovery memo was alleged to have been made falsely; showed ignorance about FIR having been lodged against him on the basis of recovery memo; also showed ignorance about any case having been entered in general diary against him on the basis of FIR; denied preparation of the site plan; stated that charge sheet had been wrongly filed; expressed ignorance about any report having been received about alleged recovered contraband from FSL; stated that the witnesses had given statement against him due to enmity; refused to give any evidence in defense.
7. Learned court below after having considered the arguments of both the sides passed judgment of conviction against accused holding him guilty under Section 21 of NDPS Act and awarded him the above mentioned punishment.
8. Learned counsel for the appellant Sri N.D. Shukla has challenged the judgment of court below on several grounds.
9. First and foremost argument made by learned counsel for the appellant is that seven pudias containing heroine are alleged to have been recovered from the accused but none of them was weighed nor the weight of entire recovered contraband was taken on the spot. The attention is drawn towards statement of PW-1 Pramod Kumar Pandey, in which he has stated that seven pudias containing heroine which were recovered from the accused were weighed by him. The weight of these seven pudias including the paper in which the contraband substance was wrapped may have been little more than 1/2 gram. The heroin contained could have been 200 mg also. This quantity of heroine was sealed by him on the spot and in that, he had used his own seal; the memo of which was 'P.K. Pandey S.I. UPP'. With that memo he had handed over the recovered contraband substance at police station which was used at the time of occurrence. Nafees Ahmad was present at the time of occurrence but when the accused along with recovered substance was taken to police station, whether S.O. was present there or not, he does not remember. No seal of S.O. Maruwadih was affixed. Referring to above statement it is argued by the learned counsel for the appellant that it was mandatory for the prosecution (police party which arrested accused on the spot) to weigh each pudia separately and the sample ought to have been taken from each pudia for being sent to FSL for being examined/tested. If that was not possible then the entire weight of all the seven pudias ought to have been taken on the spot and its weight should have been recovered in the recovery memo and some definite quantity from each of the seven pudias ought to have been taken and the same should have been sent for being tested by the FSL. All this has not been done rather the entire allegedly recovered seven pudias are said to have been sent to the FSL for being tested, which is against the provisions. The quantity/weight of entire recovered contraband substance has been narrated by PW-1 on the basis of conjecture, to be little more than 1/2 gram or it could also be 200 mg. while the small quantity of Heroin is fixed at 5 grams and the commercial quantity of it begins from 250 grams. Therefore, it is evident that the allegedly recovered quantity is far below the small quantity even which could be falsely planted and yet the learned court below has imposed maximum penalty upon accused of 10 years rigorous imprisonment and Rs. 1,00,000/- as fine which is not proportionate to recovery.
9. The next argument made by learned counsel for the appellant is that the FSL report dated 21.11.1994 discloses that the packets of contraband substance sent to them bore seal of PW-1 'P.K. Pandey S.I. U.P.P.' on the cloth wherein these packets were contained. In the statement of PW-1, it has also been stated that the alleged recovered contraband (Heroin) was sealed by him using his own seal, memo of which was 'P.K. Pandey S.I. UPP'. But in the statement given by PW-2, it has been stated in cross-examination that when he had received investigation of this case in the morning of 4.9.1995, the material recovered from the accused was kept in Malkhana. The said material was in front of him because the same was in Malkhana. Malkhana is under his jurisdiction/sub-ordination. During inspection of the material, it is always seen that seal was affixed on them. On the material recovered from the accused, the seal of S.I., P.K. Pandey and of S.H.O., Harischandra were affixed. On the day when the material was recovered by the recovery officer (P.K. Pandey) in front of Head Constable, he (PW-2) was in-charge of police station. His seal of S.O. was not affixed on it rather that of in-charge, i.e. P.K. Pandey's seal was affixed. The material which was sent to FSL for being tested, was sent under the seal of P.K. Pandey by the order of court. The seal of Pramod Kumar Pandey, in-charge police station, was broken in Court and the seal of court was affixed. This seal was opened in court on 6.9.1995. The seal which was affixed on the recovered material was broken in the court of VIIth ACJM. When the material was sent, along with it sample seal also used to be sent. When the recovered material was sent to FSL in the present case it bore on it the seal of VIIth ACJM. The report of FSL was received in court. The material which was sent for being examined by the FSL, the envelope of the same was not kept on file; because there was no justification of keeping it on file. The envelope which was sent, the same is not available on file. He had recorded statement of S.I. Pramod Kumar Pandey(PW-1) on 6.6.1995.
10. Drawing attention towards above statement of investigating officer, PW-2 who is also reported to have remained present on the spot at the time of occurrence by PW-1, it is argued that the seal which was affixed on the contraband material recovered from the accused on the spot, of S.I. P.K. Pandey was broken in the Court of VIIth ACJM and the seal of VIIth ACJM was affixed on the said contraband material which was sent for being tested/examined by the FSL, while in the report of FSL, it is mentioned that it found the seal of S.I. 'PK Pandey' affixed on it when it received the contraband material. Therefore, in the light of contradictory evidence on record regarding the seal of contraband substance sent for examination to FSL, it is argued that it cannot be held that the contraband material allegedly recovered from the accused was the same which is alleged to have been recovered from the accused and sealed on the spot and therefore, the entire recovery of the said contraband material stands not proved.
11. Next point argued by learned counsel for the appellant is that according to the prosecution's case, the accused along with recovered material was taken to the police station on 3.9.1995 while the contraband substance allegedly recovered from the accused had been sent to the FSL on 11.9.1995. There is no evidence given on record by prosecution as to where this contraband substance was kept from 3.9.1995 to 11.9.1995. If the same was kept in Malkhana, no entry of the said contraband substance having been kept in Malkhana has been brought on record by the prosecution. This creates doubt in the mind that there could be possibility of tampering with the recovered contraband substance. It is further argued that on the said contraband substance, no signature of accused has been found. From the evidence on record, it is not reflected that the contraband substance recovered from the accused was produced before court at the time of statement of eye-witnesses.
12. Next argument made by learned counsel for the appellant is that the police party which has made search of the accused had not given their search to the accused nor had they made search of each other to ensure that they did not have any such substance with them which is allegedly recovered from the accused. Prior to making search of the accused it was necessary to show that there could be no opportunity to the police party of planting the alleged contraband substance upon the accused.
13. Next argument made by the learned counsel for the appellant is that the compliance of Section 50 of NDPS Act has not been made in its right spirit because the accused was not properly informed about his legal right of being exaimined/searched in presence of a Gazetted Officer or a Magistrate, if he so desired. In this regard, reliance is placed by learned counsel for the appellant on State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172, C. Ali Vs. State of Kerala, 1999 (7) SCC 88, Santosh Kumar Gupta Vs. State of U.P., 2017 (101) ACC 112 and Vijaysinh Chandubha Jadeja Vs. State of Gujrat, 2011 (1) SCC 609.
14. Next argument raised by learned counsel for the appellant is that no compliance has been made by the prosecution in this case of Section 57 of the NDPS Act because after the search and seizure, a complete report in that regard ought to have been sent, in compliance with the said provisions, to the higher Authority within 48 hours and in this regard reliance has been placed upon Md. Idrish Vs. State of U.P., 2017 (101) ACC 156.
15. From the side of learned A.G.A., the sole argument made in rebuttal is that the accused has been rightly convicted by the learned court below because the recovery of Heroin has been made from him. It is stated that the occurrence belongs to 3.9.1995 regarding which the judgment has been delivered by the court below on 23.9.1999, while the amendment in the NDPS Act 1995 has been brought in 2001 with effect from 2.10.2001 whereby the punishment under Section 21 NDPS Act has been provided separately for illegal possession and recovery of small quantity, more than small but less than commercial quantity and commercial quantity. Earlier to that under the un-amended Section of 21 of NDPS Act, following punishment was provided.
"21. Punishment for contravention in relation to manufactured drugs and preparations-Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactuered drug shall be punishable with rigorous imprisoment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less tha one lakh rupess but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
16. Referring to above provision of punishment under unamended Act, it is argued by learned A.G.A. that the court had in its discretion, awarded the accused minimum punishment as provided under the un-amended Act. The accused may not be given any benefit of the fact that there was recovery of Heroin from him of below small quantity, hence, his punishment should be reduced. In the same continuation, it is also argued that since it is not to be taken into consideration as to what quantity was recovered from the accused to determine his punishment, it is quite likely that the investigation agency did not consider it proper to weight the said recovered quantity of Heroin from the accused because punishment, in any case, on being proved that he possessed illegal Heroin, would be not less than ten years and fine would be of not less than 1,00,000/-..
17. In view of above arguments of both the sides, this Court has to first of all determine, as to whether, in the light of evidence on record, compliance of Section 50 of NDPS Act has been properly made in this case by the prosecution or not.
18. In this regard, the learned court below has made following observations.
"I have considered the submissions made by the learned counsel for the defence in this regard. It would be desirable to enumerate Section 50 of the NDPS Act, herein below, to better appreciate the submissions made by the learned counsel for the accused.
(1) When any duty 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 nearest Gazetted Officer of any of the departmnts 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."
From perusal of the above provisions I agree with the law laid down in Raju Prasad Gupta's case that the provisions contained under Section 42 to 55 are mandatory and the law requires quality of evidence in its stricter sense in the cases of graver punishment like the present one. The law requires that where any person is detained, on the basis of credible information for having any Narcotic Durgs or Psychotropic substances in his possession, and to be searched, if he so requires, it shall be in presence of Gazetted Officer enumerated under Section 42 or the nearest Magistrate. No doubt it is a valuable right of the accused to be so searched so as to give and attach more authenticity about the recovery from his possession. In the present days of police manipulating and concocting false cases against the citizens, laying emphasis on this provision, it has been said in Raju Prasad Gupta's case that mere mentioning in the recovery memo of revealing to the accused of his aforesaid valuable right and recording his consent to be searched by the arresting officer, its compliance should not be taken to be met-with. I have examined the evidence given by PW-1 and P.W.-3 in this regard, who have categorically stated that the accused was revealed of his right being searched in presence of a Gazetted Officer or Magistrate, if he so requires. The provisions of Section 50 of NDPS Act, enumerated above, also speak and make it clear that the person detained and likely to be searched should be searched in presence of a Gazetted Officer or a Magistrate, if he so requires. The words used "if such person so requires" in Section 50, are not meaningless, and, to my mind, are of importance in the sense that the person to be searched, if requires to be searched in presence of Gazetted Officer or Magistrate, he shall, without unnecessary delay, be taken to the nearest Magistrate or Gazetted Officer of any of the Departments mentioned in Section 42 or the the nearest Magistrate. Therefore it is the wish and desire of the detained persons likely to be searched that will prevail and it is not necessary for the officer detaining a person to make search to take such person to the Gazetted Officer or the Magistrate. Every person is expected to know the law of the land. Even though PW-1 and PW-3 have stated before the court that they revealed to the accused of his aforesaid valuable right of being searched before the Gazetted Officer or the Magistrate, if he so requires; and, according to them, the accused Anil Kumar consented for being searched by the PW-1 detaining him. In view of this fact, I am of the opinion that there has been full and complete compliance of Section 50 NDPS Act in the case against the accused simply by revealing of the right under Section 50 of NDPS Act. The consent of the accused Anil Kumar for being searched by PW-1 clearly rules out further action or step to be taken by PW-1 for taking the accused to the Gazetted Officer or the nearest Magistrate, because it clearly rules out the possiblity of the accused requiring him to be searched before any such Gazetted Officer or Magistrate. In view of this, I am of the clear opinion that there has been full and complete compliance of Section 50 NDPS Act in the case against the accused, and he could not claim any illegality in this regard committed by PW-1 or claim prejudice.
19. It has to be seen by this Court as to whether the above conclusion drawn by learned court below has any infirmity in the light of evidence on record.
20. In recovery memo (Exhibit Ka-1), it is apparent that on 3.9.1995, PW-1 had received information from an informant, pursuant to which the same day, the accused was arrested and prior to his search he was apprised that since an information was received by police that he was carrying contraband substance, if he wanted his search to be made in presence of a Magistrate or a Gazetted Officer, he could opt so, but on being so told, he stated to the police that since he had already been arrested, hence, police could proceed with his search, pursuant to whcih the seven pudias of brown sugar (Heroin) kept in a match-box tucked in his right side of trouser were recovered. PW-1 who is a witness of fact, who made arrest, has stated in examination-in-chief that when from accused it was inquired whether he would like to be searched in presence of a Magistrate or a Gazetted Officer, he stated that the police itself could take his search. In cross-examination this witness has stated that he had told the accused whether he should take him to a Gazetted Officer or a Magistrate for search, then accused stated that he himself could take his search. Accused had refused to be taken before a Magistrate or a Gazetted Officer. It was wrong to say that he was giving this statement for the first time in court that the accused had refused to be taken before a Magistrate or a Gazetted Officer. The investigating Officer had recorded his statement on 6.9.1995; he had told that the accused had denied to be taken before a Gazetted Officer or Magistrate, if the investigating officer had not recorded so in his statement, he could not tell its reason. At the time of search being taken, he was accompanied by Shyam Narain Yadav(PW-3), his companion. This other eye-witnesses PW-3, Shyam Narain Pandey(Head Constable) in this regard has stated in examination-in-chief that the accused was asked that because the police had received information about accused having illegal heroin whether he would like to be searched in presence of a Magistrate or a Gazetted Officer. On this, the accused stated that they (police) could take his search, whereafter they had taken his search and recovered the said contraband. In cross-examination this witness has stated that after the arrest of the accused, pursuant to the information of his possessing illegal heroin, he was asked whether he would like to be searched before a Magistrate or a Gazetted Officer, to that he responded that police could take his search. A pointed question was put to him by the defense counsel as to whether the accused had not refused to be taken before a Magistrate or a Gazetted Officer, it was replied by this witnesses that the reply which was received from this accused would imply that he did not want to be taken to a Magistrate or a Gazetted Officer. He, further stated that, refusal was not recorded in the recovery memo nor was that stated in his statement under Section 164 Cr.P.C. The Investigating Officer Nafees Ahmad (PW-2) was put question in Court in cross-examination whether P.K. Pandey had given statement that when accused Anil Kumar Dubey was asked to be taken before a Gazetted Officer or a Magistrate he had denied to go to them. In reply to this he stated in affirmative and further stated that accused stated that when he had already been caught hence he should be searched by them (police party).
21. Now the position of law has to be examined in this regard which has been relied upon by the learned counsel for the appellant in State of Punjab Vs. Baldev Singh (supra) in paragraph 57 of the judgment.
"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 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. 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;
(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 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 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 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 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's 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 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's case correctly interprets and distinguishes the judgment in Pooran Mal's 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"
22. Therefore, it is clear from above provision of law that it is an obligation of empowered officer conducting search of the person of a suspect pursuant to prior information, to inform the suspect that he has a legal right to require his search to be conducted in presence of a Gazetted Officer or a Magistrate. The failure to so inform the suspect of his right, would render the search illegal because the suspect would be deprived of the protection against false implication which is in built in Section 50 of NDPS Act. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in presence of Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also would render the search illegal and the conviction and sentence of the accused based solely on recovery made during that search, bad.
23. The other case law relied upon by the learned counsel for the appellant is C Ali Vs. State of Kerala (supra) in which following is held in para 2.
"2. The appellant had contended before the High Court that the mandatory requirement of Section 50 of the Act was not complied with in this case. We do not find any clear finding recorded by the High Court on this point. As the deposition of the Circle Police Inspector (P.W. 5) was recorded in Malayalam language, we told learned Counsel for both the parties to verify and tell us whether he had stated in his evidence that the appellant was informed about his right to be searched in presence of a Magistrate or a Gazetted Officer. After going through his evidence, both the learned Counsel stated that the evidence of the witness is silent on this point. The settled position of law is that the person to be searched under the N.D. P.S. Act, 1995 is required to be told about his right under Section 50 before he is searched and that is a mandatory requirement. No presumption to that effect can be raised. As there is no evidence on record to show that the appellant was informed about his said right, it has to be held that the said mandatory requirement of Section 50 was not complied with in this case. On this short point, this appeal deserves to be allowed. Accordingly, we allow this appeal, set aside the conviction of the appellant and also quash the order of sentence passed against him. "
24. Therefore, from above citation, it is clar that it is mandatory for the prosecution to prove that the accused was apprised of his right to be searched in presence of a Magistrate or a Gazetted Officer. In case such right has not been apprised the conviction would vitiate.
25. The next citation relied upon by the learned counsel for the appellant is Vijaysinh Chandubha Jadeja Vs. State of Gujrat (supra) in which following is held in para 29, 30, 31 and 32.
"29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
30. As observed in Re Presidential Poll, in (1974) 2 SCC 33 : (SCC P.49, para 13), "13. It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole."
31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.
32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."
26. The next citation relied upon by the learned counsel for the appellant is Santosh Kumar Gupta Vs. State of U.P.(supra) in which following is held in para 12 of the judgment.
"Upon hearing the parties counsel and considering the arguments, I feel it appropriate to discuss prosecution case on following points which have been raised in this appeal in the light of evidence on record.
(i) Compliance of Section 50 of N.D.P.S. Act: Section 50 of N.D.P.S. Act requires that when an officer duly authorized, is about to search any person, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the department mentioned in section 42 or to the nearest Magistrate. The F.I.R./recovery memo on record does not state that the accused was made aware of his right to be searched before some Gazetted Officer or the Magistrate as mentioned above and is not alleged to have given any consent for being searched by the first informant Arvind Singh himself. As far as the calling of Circle Officer by the first informant is concerned, the recovery memo states that upon getting information the Circle Officer was called and he accompanied the first informant Arvind Singh as member of raiding party and the search was taken in his presence in accordance with the provisions of Section 50 of N.D.P.S. Act.
......................"
27. From the above citations it is absolutely clear that the compliance of provision of Section 50 of NDPS Act is extremely important right of the accused, non-compliance of which would make the recovery suspect. In the case at hand in the light of above mentioned statements of the witnesses and also entry made in the recovery memo it is apparent that the accused was given option of being taken before a Magistrate or a Gazetted Officer for being searched to find whether he possessed any contraband substance. It would be noted here that the provisions of Section 50 have been amended with effect from 2.10.2001 by adding Clause 5 and 6 also, but in this case those clauses would not be operational because the occurrence belongs to the year 1995 when the unamended Act was in force, provisions of which have been reproduced by the learned lower court in judgment. In the case at hand, in the light of evidence on record, it is apparent that the accused was given option to be taken before a Magistrate or a Gazetted Officer as has been stated by both the witnesses of fact i.e. PW-1 and PW-3 and entry in that regard has also been made in the recovery memo, but they certainly had not apprised him about his legal right of being searched before a Magistrate or a Gazetted Officer in right earnest, in letter and spirit, as has been laid-down in the Vijaysinh Chadubha Jadeja's case (Supra) which goes to the extent to lay down that an endevour should be made to produce the suspect before the nearnest Magistrate who enjoys more confidence of common man, hence this Court finds that compliance of section 50 of NDPS Act was not made in right earnest by apprising the accused of his legal right that he could opt to be searched before a Magistrate or a Gazetted Officer, but only such option was given to him, hence the finding of lower court in this regard is found to be erroneous.
28. Next important point which needs to be taken into consideration is as to whether the prosecution has been able to prove that the alleged recovered contraband (Heroin) from the accused was the same which was sent for being examined by the FSL and was found to be heroin and whether not recording the weight of recovered contraband, would cause prejudice to the accused.
29. This is also a matter of fact which needs to be analysed in the light of evidence on record. In recovery memo, it is recorded that seven pudias of heroin were recovered from the accused kept in a match box tucked in right side of his trouser which were not weighed on the spot and the sample seal was prepared. PW-1 in this regard in cross examination has stated that seven pudias of heroin were recovered from the accused and they were sealed on the spot. Recovery memo was prepared on the spot in the light of torch and electricity and the signature of his companion (PW-3) were also taken thereon and a copy of the same was provided to the accused and thereafter, the accused along with recovered contraband substance were taken to police station and on the basis of recovery memo case was registered at police station and the recovered seized material was kept in malkhana. In cross-examination this witness has stated that the heroin which was recovered from the accused was sealed by him by applying his own seal bearing memo 'P.K. Pandey' and with that seal the said substance was handed over at police station. At that time of occurrence S.O. Nafees Ahmad was present and the recovered material and accused were taken to P.S. He does not recollect whether S.O. was present or not. Seal of S.O. Maruwadih was not used. The said recovered material was kept in Malkhana.
30. PW-3 Shyam Narain Yadav has stated that seven pudias of brown sugar were taken into possession and after keeping them in the match box they were sealed and sample seal was prepared on the spot, recovery memo was also prepared on the spot in the light of torch and electricity. Thereafter, with the accused and the seized contraband substance and recovery memo they had gone to the police station and the seized substance was kept in Malkhana and accused was lodged in lock up. In cross-examination, nothing has been asked about the seal and the recovered contraband substance. PW-2 Investigating Officer in this regard has stated that recovered contraband substance was sent to FSL, Lucknow through Constable Sanjay Kumar Tiwari on 11.9.1995 for being tested, entry regarding which, was made by him in case diary parcha no. 3 dated 15.9.1995. In cross-examination this witness has stated that on the rcovered contraband substance, the seal of Pramod Kumar Pandey and that of SHO was affixed on it, his seal of S.H.O. was not affixed rather the seal of in-charge i.e. Pramod Kumar Pandey was affixed. It is further stated that it is wrong to say that the contraband substance which was sent to FSL for being tested, was bearing seal of Pramod Kumar Pandey rather the same was sent under the orders of court. Further he stated that the seal of Pramod Kumar, in-charge police station was broken in court and the seal of court was affixed. The seal was opened in court on 6.9.1995. The report of FSL was received in court. The contraband substance which was sent to court for being tested, its envelope was not on file nor was there any justification of keeping the same on file.
31. In view of above statement it is argued that the above statement is in conflict with the FSL report (Exhibit Ka-4) because on the said report a seal of 'P.K. Pandey S.I. UPP' is found affixed and it is mentioned in the said report that one packet covered with cloth was received by FSL on 11.9.1995 in which seven pudias of suspected heroin were received which were marked as 1 to 7 in a Kishan Marka match box and it is mentioned in the report by FSL that contents of all pudias were separately analysed and in all of them Heroin was found. In its report dated 21.11.1995, no where has it been mentioned that the sample of seal was also received by the FSL of 'P.K. Pandey, S.I., U.P.P.' which was compared by the FSL and was found intact. It was important in view of the statement of PW-2 which come on record saying that the seal of P.K. Pandey, S.I., U.P.P. was used in sealing the heroin (recovered contraband material) on the spot which was broken in court of VIIth A.C.J.M. on 6.9.1995 and thereafter the said material was sent to FSL after sealing it under the seal of VIIth ACJM along with sample seal of VIIth ACJM. How was it possible then that the FSL found the packet containing contraband having seal of P.K. Pandey, 'S.I., U.P.P'. The prosecution has failed to give any explanation of this which creates doubt in the mind of court that material which was sent to the FSL for being tasted was the same contrband material which was allegedly recovered from the accused on the spot.
32. It is also noticed by this Court that when the contraband material from the accused was brought to police station with the accused and the recovery memo along with sample seal, the entry of the same ought to have been proved by the prosecution to have been made in the Malkhana register, to prove that the said contraband material along with the sample seal were deposited in Malkhana and were kept there in safe custody till it was taken out for being sent to the FSL and thereafter also when the same material was received back from the FSL with seal which was used by FSL. The same should have been kept at safe place until at the time of trial, when the case property was supposed to be opened before court for being exhibited. Then only it could have been held that substance which was examined and found to be heroin by the FSL was produced before court at the time of examination of witnesses in intact condition. Therefore, link evidence is found to be missing in this case. It may also be mentioned here that the evidence is not on record to the effect that when the statement of PW-1 and PW-3, witnesses of fact, were being recorded, the case property in sealed condition was presented before court for being identified by the these two witnesses as the contraband material which was recovered from the accused. This was very essential to establish the recovery of the alleged heroin, weight of whcih is not disclosed by the prosecution. It is noticeable that the alleged recovery is being said of very small quantity and it may not be ruled out that such a small quantity could be planted as well.
33. Further, the court has noticed that the prosecution has not examined, the witness who had prepared the chick F.I.R. and lodged the case at police station after accused and the recovered contraband were brought to the police station with recovery memo nor has it been brought on record as to whether entry in general diary was made of initiation of this case as the concerned general diary has not been proved.
34. The next important aspect which this court has taken into consideration is the non-compliance of Section 57 of the NDPS Act. For sake of convenience the said section is reporduced hereinbelow.
"57. Report of arrest and seizure. Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
35. It is mandatory as per the above section that when search and seizure is made of a contraband substance and the accused is arrested, within 48 hours thereof a full report containing all the details of such arrest and seizure are mandatory to be reported to immediate superior officials. Learned counsel for the accused-appellant has laid much emphasis on this breach of compliance of this Section. The reliance is also placed by him on Md. Idrish Singh Vs. State of U.P. (Supra).
"17. Further there is no evidence on record proving that PW1 Param Hans Tiwari after arresting the accused-appellants and seizing contraband articles from their vehicle within 48 hours next after such arrest or seizure had made a full report of all the particulars of such arrest or seizure to his immediate official superior as required by Section 57 of the NDPS Act. Although the recovery memo Ext. Ka1 contains a recital that PW1 had informed his immediate superior officers about the arrest of the appellants and seizure of the contraband articles from their jeep on phone but no evidence was led during the trial by the prosecution for proving the aforesaid fact.
18. Another very interesting aspect of the case is that the appellants have been convicted in this case for having committed an offence under Section 20 of the NDPS Act involving commercial quantity. The prosecution case is that 19 bundles allegedly containing ganja, each weighing above 10 kg were recovered from the specifically designed secret cavity in the appellants' jeep but admittedly samples were drawn only from bundle no.1 and bundle no.19 and sent for chemical examination and according to the chemical examiner's report Ext.Ka7, samples were found to contain ganja. No samples having been drawn from bundle nos. 2 to 18 it cannot be held on the basis of the chemical examiner's report pertaining to the samples drawn from bundle no.1 and bundle no.19 that the substanace packed in bundle nos. 2to18 was also ganja. The total weight of bundle no.1 and bundle no.19 together with the weight of the packing material is about 20 kg 535 gm which is slightly above the commercial quantity of ganja as specified by the Central Government by notification in the official gazette, which is above 20 kg. Since there is no evidence proving that the remaining 17 bundles also contained ganja, the appellants cannot be fastened with the guilt of having been found in possession of 190 kg illicit ganja. At the most it can be held that the appellants were found to be in possession of about 20 kg and 535 gm illicit ganja which is slightly above the commercial quantity. Since the aforesaid weight includes the weight of the packing material also it is doubtful whether the offence, if any, committed by the appellants under Section 20 of the NDPS Act involves commercial quantity.
19. Thus in view of the foregoing discussion, I find that the FIR in this case is ante-timed. The prosecution has failed to prove by any reliable evidence that the arrest, recovery and seizure were made in the manner narrated in the recovery memo Ext. Ka1. It is further proved that there was no compliance of Sub-Sections 1 and 2 of Section 42 as well as Section 57 of the NDPS Act by the searching officer and hence the conviction of the appellants recorded on the basis of alleged recovery of contraband articles which is vitiated by total non compliance of Sub-Sections 1 and 2 of Section 42 of the NDPS Act cannot be sustained and is liable to be set aside."
36. It is apparent from the above citation that the court had considered it exteremely important that the prosecution must have made compliance of Section 57 by submitting a report to immediate higher authority under Section 57 about the recovery of contraband having been made and also the accused having been arrested within the time stipulated.
37. In the case at hand, learned counsel for the appellant has taken this court through entire evidence, not a word has been found to have been mentioned that any report was prepared under Section 57 by the raiding party of the arrest of the accused and of having prepared any seizure memo, and of sending the same to the superior authority within 48 hours. Not only that even if there was compliance made of this section beyond 48 hours with justification of the lapse of time, it could have been brought on record that the said report was submitted.
38. It would be pertinent to refer here to the law laid down in this regard by Supreme Court in State of Punjab Vs. Balbir Singh, 1994 (3) SCC 299 in paragraph 24 & 25 of the said judgment which is quoted hereinbelow:-
"24. Section 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the Cr.P.C. If there. is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non- compliance or failure to strictly comply by itself will not vitiate the prosecution.
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 Cr.P.C. 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 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.
(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 Cr.P.C. fails to strictly comply with the provisions 'of Section 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 Cr.P.C. namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of Cr.P.C. 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 Section 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."
39. It is clear from the above position of law that the provisions of Section 57 by itself is not mandatory but it contains certain procedural instructions for strict compliance by the officers. If there is no strict compliance of any of these instructions that by itself cannot vitiate the trial but it would affect the probabative value of evidence regarding arrest or search and in some cases may invalidate arrest or serach. Therefore, it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanantion for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution's case and the courts have to appreciate after perusing evidence what effect would it have on merits of the case.
40. In view of above, this Court is of the view that non-compliance of Section 57 by itself may not be held to vitiate the conviction or trial in this case but certainly it would have adverse impact on probabative value of the evidence adduced by the proseuction. In the case at hand, it has to be taken into consideration and to see whether non-compliance of this provision has caused any prejudice to the accused. Here a very small quantity of heroin is alleged to have been recovered from the accused which can easily be procured and may be planted, hence, looking to the fact that huge penalty has been provided under law under Section 21 of the NDPS Act, therefore, it was strict liability of the prosecution to prove the said recovery genuinely from the accused. For this, they ought to have prepared a report under Section 57 of NDPS Act of arrest of the accused and seizure of the recovered contraband and should have sent it to the superior authority within stipulated time or even beyond that with a proper justification of delay which has not been done. It certainly has caused prejudice to the accused. It is also to be noticed that non-compliance of Section 57 of NDPS Act may not be single handedly enough to hold that accused was not guilty, but if non-compliance of Section 57 is coupled with other significant infirmities, such as there being no procedure followed for proving recovery of contraband substance from the accused which includes taking weight of all the pudias of recovered contraband substance and of their samples and sealing them properly for being sent to the FSL for being tested; effort not being made of taking independent public witness; non production of malkhana register showing that the proper entry was made therein of the alleged recovered contraband substance; the production of the contraband material before court at the time of statement of witnesses; then certainly a cumulative effect of all these infirmities would have adverse impact on the prosecution's case.
41. In view of above infirmities, this court finds that prosecution has failed to adduce proper evidence on record which weakens the prosecution's case. It has not been able to prove its case to the hilt beyond shadow of doubt against the accused regarding illegal recovery of heroin. The learned lower court has omitted to take into consideration above mentioned infirmities noticed by this Court and has gone on to convict the accused with huge penalty of 10 years rigorous imprisonment and one lakh rupees fine.
42. This court is of the view that conviction held by the court below is not liable to sustain and needs to be set-aside in view of above infirmities. The accused is held not guilty of offense under Section 21 of NDPS Act and deserves to be released forthwith in this case.
43. Appeal is allowed. The accused be released immediately in this case, if not wanted in any other case subject to compliance under Section 437-A Cr.P.C.
44. The case property shall be destroyed after the period of appeal is over, or if law permits otherwise.
45. Let a copy of this order be transmitted to court below along with lower court record for immediate compliance.
Order Date :- 14.12.2017 A.P. Pandey