Madhya Pradesh High Court
Prabhu Yadav vs The State Of Madhya Pradesh on 31 July, 2017
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VED PRAKASH SHARMA)
Criminal Appeal No.1239 of 2012
Prabhu Yadav. ... Appellant.
Vs.
State of M.P.
Through Police Station Narcotics Cell,
Indore. ... Respondent.
-x-x-x-x-x-x-x-x-x-x-x-
Shri Jitendra Bajpai, Advocate for appellant.
Shri Pankaj Wadhwani, Public Prosecutor.
-x-x-x-x-x-x-x-x-x-x-x-
JUDGMENT
(Delivered on July, 2017) This appeal is directed against judgment and order dated 27.2.2012 rendered by Special Judge, Narcotics, Indore in Special Case No.21/2009, whereby appellant - PrabhuYadav has been found guilty u/s. 20(b)(ii)(c) of Narcotic Drug and Psychotropic Substances Act, 1985 (hereinafter, for short, 'the Act') and has been sentenced to undergo 10 years' RI and to pay fine of Rs.1,00,000/- with usual default stipulation.
2. The prosecution story, briefly stated, is that on 17.6.2009, Prateek Rai (P.W.9), the then Inspector, Narcotics Police Station, Indore received a secret information at around 10.05 am. that a person named Prabhu Yadav wearing pant and shirt is going to deliver 'Charas' to some person at around 11 am. near Collectorate compound. This information was recorded by him in daily-diary of Police Station at Serial No.155 (copy Ex. P/26-C). A memorandum Ex. P/1 was drawn by him in this regard 2 and a copy of the memorandum and daily-diary entry was forthwith sent to Additional Superintendent of Police, Indore. Thereafter, Prateek Rai (P.W.9) along with police force proceeded to the given place to lay a trap. After reaching at the given place, he called two 'Panch' witnesses viz. Jagdish (P.W.10) and RameshYadav (P.W.4). After some time, a person of the given description wearing pant and shirt came at the spot. He was taken into custody. Prateek Rai (P.W.9) told that he is having a secret information that the appellant is having 'Charas' in his possession, hence he is required to be searched. The appellant was further informed vide notice Ex. P/7 that either he can consent for being searched before the SHO himself or in presence of Gazetted Officer or a Magistrate. As per prosecution, the appellant agreed for being searched by Prateek Rai (P.W.9). Thereafter, Prateek Rai (P.W.9) in presence of 'Panch witnesses viz. Ramesh Yadav (P.W.4) and Jagdish (P.W.10) carried out search of the appellant who was holding a polythene bag in his hand. On search, it was found that the polythene bag contained 'Charas', which on weighment on the spot, turned out to be 10 Kg. On physical examination, it was confirmed that the substance being carried by the appellant is 'Charas', therefore, two samples, each of 50 gms. were drawn from the substance and thereafter, the samples so drawn as well as remaining substance separately sealed on the spot and respectively marked as Article 'A/1' and 'A/2', while the remaining substance was marked as Article 'A'. All the packets were duly sealed and seized vide memo Ex. P/16. The appellant was arrested vide arrest memo Ex. P/18. Thereafter, Prateek Rai (P.W.9) along with police force came back to the Police Station.
3The contraband seized from the appellant was deposited with the 'Mal khana' of the Police Station. A detailed report with regard to search, seizure and arrest was sent on the same day to the Additional Superintendent of Police. One of the samples, which was marked as Article 'A/1', was sent for chemical examination to the Regional Forensic Laboratory, Bhopal. The Senior Scientific Officer and Assistant Chemical Examiner of the Laboratory found the substance to be 'Charas'. The witnesses were interrogated.
3. After usual investigation, a charge-sheet was laid against the appellant before the Court of Special Judge, Narcotics, Indore. The learned trial Judge framed a charge u/s. 20(b)(ii)(c) read with Section 8 of 'the Act' against the appellant, who abjured the guilt and claimed to be tried. The prosecution, in order to prove its case, examined as many as 10 witnesses including 'Panch' witnesses viz. Ramesh Yadav (P.W.4) and Jagdish (P.W.10). Prateek Rai (P.W.9) is the person who has conducted search, seizure and arrest, while Dr. Harsh Sharma (P.W.3) is a Senior Scientific Officer of Forensic Laboratory, Bhopal. Apart this, documents vide Ex. P/1 to P/45 were also marked in evidence. The appellant chose not to produce any evidence, oral or documentary, in his defence. The circumstances appearing against the appellant in the prosecution evidence were brought to his notice during his examination u/s. 313 of the Cr.P.C. Except his arrest, the appellant denied all the incriminating circumstances and pleaded that he is innocent and has been falsely implicated in this case by the Police. The learned Special Judge, on appreciation of evidence, vide the impugned judgment, found the charge proved against the appellant 4 and accordingly convicted and sentenced him, as stated hereinabove.
4. The learned counsel for the appellant has challenged the conviction primarily on the ground that the mandatory provisions of Section 50 of 'the Act' were not complied with in letter and spirit inasmuch as the appellant was not apprised about his legal right to be searched before the Gazetted Officer or a Magistrate. It is submitted that in view of the non-compliance of Section 50 of 'the Act', the trial stands vitiated and, therefore, the conviction and sentence recorded against the appellant cannot be maintained.
5. Per contra, it is submitted by the learned Public Prosecutor that the contraband in question was recovered from the polythene bag held by the appellant. As search of person was not involved in the matter, therefore, the provisions of Section 50 were not at all attracted in the matter. It is further submitted that Section 50 of 'the Act' was still complied with, inasmuch as, a notice Ex. P/7 was given to the appellant, therefore, it cannot be said that Section 50 of 'the Act' was not complied with. It is further submitted that the prosecution has proved its case against the appellant beyond reasonable doubt, therefore, this appeal having no merit deserves to be dismissed.
6. Heard the learned counsel for the parties and perused the record.
57. The main point for consideration before this Court is, whether the provisions of Section 50 of 'the Act' were attracted in the present case and if yes, whether the same were duly complied with in letter and spirit ?
8. Section 50 of 'the Act', to the extent, it is relevant for our purpose, reads thus -
"50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 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 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) xxx xxx xxx"
9. Section 50 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 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.6
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.
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 7 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 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 8 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 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.
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 9 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, 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 also 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 party. It is the prosecution case that the respondents informed the officers 10 that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act."
14. From the aforesaid discussion and analysis, it emerges that provisions of Section 50 of 'the Act' are mandatory and the prosecution is required to prove compliance thereof in letter and spirit. If merely, a bag carried by a person is searched without there being any search of his person, Section 50 of 'the Act' will have no application, however, if the bag carried by the accused is searched and his person is also searched, then Section 50 of 'the Act' will have application (Parmanand's case, supra). If the accused, who is subjected to search, is merely asked as to whether he requires to be searched in presence of Gazetted Officer or Magistrate, it cannot be treated as communicating to him that he had a right under law to be searched (K. Mohanan's case, supra). If the accused has been given an option to be searched before the Police Officer who is conducting the search and seizure, then that may not be treated as sufficient compliance of Section 50 of 'the Act'.
15. In the instant case, it is not a matter of dispute that apart from the bag carried by the appellant, his personal search was also carried out, therefore, in the light of the aforesaid, Section 50 of 'the Act' was very much attracted. With regard to compliance of Section 50 of 'the Act', notice Ex. P/7 was given to the appellant, which reads as under :
"mijksDr xokgksa ds le{k lansgh izHkq ;kno dks eq> S.I. } kjk crk;k x;k dh eq[kfcj ls lwpuk feyh gS dh vkids 11 ikl 10Kg. pjl gS fdlh dks nsus ds fy;s dysDVsªV ds ikl eSnku esa vk;s gS eq[kfcj lwpuk ls voxr djkus ds i'pkr izHkq ;kno dks crk;k dh ;fn og pkgs rks mlds ikl ekStqn voS/k eknd iznkFkZ 10Kg. pjl dh ryk'kh tIrh dh dk;Zokgh eq> Fkkuk izHkkjh izfrd jk; ls djk ldrs gS ;k jktif=r vf/kdkjh ls djok ldrs gS ;k eftLVªsV egksn; ls djok ldrs gS ;g mlds bPNk ij gS crk;k x;kA"
16. From the language of notice (Ex. P/7), it clearly flows that firstly, the appellant was not apprised about his legal right to be searched before the Gazetted Officer or the Magistrate; secondly, simply his opinion was solicited as to whether he would like to be searched before the Police Inspector, or before a Gazetted Officer or a Magistrate; thirdly, an option was also given that the accused can tender his consent for his search before the Police Inspector carrying out the search. In the light of law discussed supra, the aforesaid manner of compliance of Section 50 of 'the Act' cannot be said to be in conformity with the mandate of law, as flowing from various pronouncements of the apex Court.
17. The oral testimony of Prateek Rai (P.W.9), as found in Para 4 of his Court statement, with regard to compliance of Section 50 of 'the Act', is also of the identical nature. Therefore, in the instant case, it cannot be said that Section 50 of 'the Act' was complied with in letter and spirit. As the accusation against the appellant is based on the search and seizure of the contraband, therefore, in view of the non-compliance of Section 50 of 'the Act', the conviction and sentence cannot be sustained.
1218. In view of the foregoing discussion, this appeal deserves to be and is hereby allowed. The impugned judgment is hereby set aside and the appellant is acquitted with regard to charge u/s. 20(b)(ii)(c) of 'the Act'. Appellant - Prabhu Yadav is in custody, he shall be set at liberty forthwith, if not required to be kept in detention in any other case. A copy of this judgment be sent to the trial Court for compliance.
( VED PRAKASH SHARMA ) JUDGE Alok/-