Delhi District Court
State vs 1. Rakesh @ Bhaiya (On Bail) on 15 July, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTHEAST): KARKARDOOMA COURTS,
DELHI
SC No. : 16/2010
FIR No. : 62/2010
PS : Crime Branch
Under Section : 21 (b) of the NDPS Act
Case ID : 02402R0163012010
State Versus 1. Rakesh @ Bhaiya (on bail)
S/o Sh. Kishan Lal
R/o Jhuggi No. 20, back side of
Shankar Market, Connaught
Place, New Delhi
Date of Institution : 09.06.2010
Date of reserving order : 06.05.2014
Date of Judgment : 15.07.2014
J U D G M E N T
Back ground facts:
1. On 03.05.2010 at about 9.15 a.m., SI Rajbir Singh received an information from a secret informer at Narcotics Cell that one person namely Rakesh, a resident of Shankar Market, Connaught Place would come between 10.15 a.m. 11.00 a.m. near Mazar, Shastri Park, Metro Station to supply 'heroin' to someone. FIR No. 62/2010, PS Crime Branch Page No. 1/27
2. It is further case of the prosecution that SI Rajbir Singh produced the secret informer before Insp. Vivek Pathak, Narcotics Cell, Shakarpur and informed him about the secret information. Insp. Vivek Pathak satisfied himself and thereafter, intimated secret information to ACP S.R. Yadav, Narcotics Cell who directed him to immediately conduct a raid. SI Rajbir Singh reduced the secret information into writing vide DD No. 12 and submitted a copy thereof to Insp. Vivek Pathak. SI Rajbir Singh, as per instruction of Insp. Vivek Pathak, organized a raiding party comprising of himself, HC Ramesh Chander and Ct. Rakesh and briefed them about the secret information. He collected IO bag, field testing kit and electronic weighing machine. At about 9.50 a.m., he alongwith raiding team and secret informer proceeded to the place of information in an official vehicle vide departure entry DD No. 13. In the way, he made efforts to join the public persons in the raiding team near cremation ground, Geeta Colony and Gandhi Nagar Parking but they refused to join the raiding team and proceeded on their way without disclosing their names and addresses. At about 10.10 a.m., he alongwith raiding party reached near Mazar, Shastri Park Metro Station and positioned the members of the raiding team around the said place. FIR No. 62/2010, PS Crime Branch Page No. 2/27
3. It is further case of the prosecution that at about 10.25 a.m., accused Rakesh was seen coming on foot from the side of old bridge and secret informer identified him and left the spot. Accused Rakesh reached near Mazar and started waiting for someone. After 5 minutes, accused Rakesh started moving from the spot and thereafter, SI Rajbir Singh alongwith raiding team surrounded him and disclosed identity of the members of the raiding team. He also disclosed secret information to accused Rakesh. He explained legal right to accused Rakesh that it was his legal right that if he desired, his search can be conducted in the presence of a Gazetted Officer or a Magistrate. Accused was informed that he can conduct search of members of the raiding team and the official vehicle before his search. SI Rajbir Singh served a notice U/s. 50 of the NDPS Act on accused Rakesh. Accused Rakesh stated that he was illiterate and therefore, contents of the notice was read over and explained to him, and meaning of Gazetted Officer and Magistrate was also explained to him. After understanding his legal right, accused Rakesh refused to exercise his right and his refusal was recorded by SI Rajbir Singh in the words of accused Rakesh in Hindi and the said refusal was also read over and explained to him. Thereafter, accused Rakesh signed the refusal. FIR No. 62/2010, PS Crime Branch Page No. 3/27
4. It is further case of the prosecution that SI Rajbir Singh made further efforts to join the public persons in search and seizure proceedings by asking the persons assembled there but they also refused to join the proceedings and left the spot without disclosing their names and addresses. SI Rajbir Singh conducted personal search of accused Rakesh @ Bhaiya and recovered a transparent polythene from right pocket of his trouser. The opening of the said polythene was tied with a rubberband and it contained brown colour powder. The polythene was opened and the said powder was checked with fielding testing kit and it found to be 'heroin'.
5. It is further case of the prosecution that the recovered 'heroin' alongwith polythene packet was weighed on an electronic scale and it weighed 70 grams. Two representative samples of 5 grams each were drawn from the recovered 'heroin' and converted into cloth parcels marked as Mark A and B and the remaining 'heroin' in the transparent polythene was also converted into a cloth parcel and marked as Mark C. Form FSL was filled. SI Rajbir Singh affixed his seal having impression '2A PS NB DELHI' on the said three parcels and form FSL and taken them into his possession vide seizure memo. He prepared a rukka and sent it to police station through Ct. Rakesh. FIR No. 62/2010, PS Crime Branch Page No. 4/27
6. It is further case of the prosecution that SI Rajbir Singh also sent the said three parcels and form FSL alongwith a carbon copy of seizure memo through Ct. Rakesh for being handed over to Insp. Kuldeep Singh, SHO, PS Crime Branch, Nehru Place. Ct. Rakesh handed over rukka to HC Jai Pal Singh, Duty Officer, PS Crime Branch and the said three parcels, form FSL and carbon copy of seizure memo to Insp. Kuldeep Singh, SHO, PS Crime Branch who affixed his seal having impression 'KSY' thereupon and deposited with HC Jag Narain, MHC(M) and made DD No. 17 in this regard.
7. It is further case of the prosecution that after registration of FIR, the investigation of the case was assigned to SI Satyawan. During investigation, he prepared site plan, arrested accused Rakesh @ Bhaiya, recorded statement of witnesses and produced accused Rakesh @ Bhaiya before Insp. Vivek Pathak, Narcotics Cell. He prepared a report U/s. 57 of the NDPS Act regarding arrest of accused Rakesh @ Bhaiya and submitted it to Insp. Vivek Pathak who forwarded it to senior officers of police. The representative sample Mark A was sent to FSL for chemical analysis and it was found containing Diacetylmorphine & Phenobarbital to the extent of 1.8 % and 2.9 % respectively. In due course, chargesheet was filed. FIR No. 62/2010, PS Crime Branch Page No. 5/27
8. Accused Rakesh @ Bhaiya was charged U/s. 21 (b) of the NDPS Act to which he pleaded not guilty and claimed trial.
9. During trial, prosecution has examined 10 witnesses, as under:
(a) PW1 HC Jag Narain, MHC(M) stated that on 03.05.2010 at about 2.30 p.m., Insp. Kuldeep Singh deposited with him three parcels Mark A, B and C and form FSL sealed with the seal of '2APS NB DELHI' and 'KSY' alongwith a carbon copy of seizure memo. He made an entry at Sl. No. 145 in Register No. 19 in this regard and a copy of the relevant page containing the said entry is Ex.PW1/A. He stated that on 05.05.2010, sample parcel Mark A was sent to FSL vide RC No. 160/21 Ex.PW1/D through Ct. Rajender and an entry to this effect was made in the register which is Ex.PW1/C and a copy of acknowledgement receipt issued by FSL, Rohini is Ex.PW1/E. He stated that the case property and sample parcels were not tampered in any manner till they remained in his custody.
(b) PW2 HC Ramesh Chander was a member of the raiding team. He has supported the case of the prosecution. In his depositions, he has proved original notice U/s. 50 of the NDPS Act Ex.PW2/A and refusal Ex.PW2/B recorded by SI Rajbir Singh in his hand writing.FIR No. 62/2010, PS Crime Branch Page No. 6/27
PW2 HC Ramesh Chander has proved seizure memo Ex.PW2/C. He identified sample parcel Mark C as Ex.P1, sample parcel Mark B as Ex.P2 and remnants of sample parcel Mark A as Ex.P3 as the same contraband which was recovered from accused Rakesh. He identified the accused before the Court.
(c) PW3 HC Rajender was posted as Constable at PS Narcotics Cell. On 05.05.2010, he deposited sample parcel Mark A, as per direction of Insp. Kuldeep Singh Yadav, alongwith form FSL in FSL, Rohini.
(d) PW4 HC Karunakaran Nair was a Reader to ACP, Narcotics Cell. He stated that on 03.05.2010, DD No. 12 Ex.PW9/A was received in the office of ACP, Narcotics Cell vide diary no. 1224 and a copy of relevant page containing the said entry is Ex.PW4/A. According to him, DD No. 12 Ex.PW9/A was produced before ACP Sube Ram Yadav who perused and signed it at point X. He stated that on 04.05.2010, special reports U/s. 57 of the NDPS Act Ex.PW4/E and Ex.PW4/F were received in the office vide diary no. 1243 and 1244 and copies of the relevant page containing the said entries is Ex.PW4/C and Ex.PW4/D respectively. According to him, the said reports were produced before ACP who signed them at point Y. FIR No. 62/2010, PS Crime Branch Page No. 7/27
(e) PW5 Insp. Vivek Pathak, Narcotics Cell, Shakarpur stated that on 03.05.2010 at about 9.30 a.m., SI Rajbir Singh alongwith secret informer visited his office and intimated him about the secret information. He stated that he informed ACP, Narcotics Cell about the secret information who directed him to take necessary action. He stated that SI Rajbir Singh reduced the secret information into writing vide DD No. 12 Ex.PW9/A as produced before him and thereafter, he forwarded it to ACP, Narcotics Cell. According to him, SI Rajbir Singh constituted a raiding party as per his direction and collected IO bag, field testing kit and electronic weighing machine and made departure entry vide DD No. 13 Ex.PW9/B at about 9.50 a.m. He stated that at about 9.00 p.m., SI Satyawan produced accused Rakesh @ Bhaiya before him. On 04.05.2010, he forwarded special reports U/s. 57 of the NDPS Act Ex.PW4/E and Ex.PW4/F to senior officers of police which were submitted by SI Rajbir Singh and SI Satyawan regarding seizure of 'heroin' and arrest of accused in this case.
(f) PW6 Ct. Rakesh was also a member of the raiding team and he corroborated depositions of PW2 HC Ramesh Chander on material aspects from the stage of departure from the police station till the arrest of accused Rakesh. He identified recovered contraband. FIR No. 62/2010, PS Crime Branch Page No. 8/27
(g) PW7 HC Jai Pal Singh was the Duty Officer. On 03.05.2010 at about 2.30 p.m., he registered FIR No. 62/2010, U/s. 21 NDPS Act, PS Crime Branch, Nehru Place, New Delhi which is Ex.PW7/A on receipt of rukka from Ct. Rakesh. He recorded kayami and bandi vide DD No. 10 Ex.PW7/C and DD No. 14 Ex.PW7/D respectively. He informed SI Satyawan about the registration of the case.
(h) PW8 Insp. Kuldeep Singh was posted as SHO, PS Crime Branch, Nehru Place, New Delhi. On 03.05.2010 at about 2.35 p.m., he received three cloth parcels Mark A, B and C and form FSL sealed with the seal of '2APS NB DELHI' alongwith one carbon copy of seizure from Ct. Rakesh and thereafter, he affixed his seal having impression 'KSY' on all the three cloth parcels and form FSL. He enquired FIR number from the Duty Constable and mentioned it on all the three cloth parcels, form FSL and a carbon copy of seizure memo. He handed over the said three sealed parcels, form FSL and carbon copy of seizure memo to PW1 HC Jag Narain, MHC(M) who made an entry to this effect in the register no. 19 and PW8 Insp. Kuldeep Singh also signed register no. 19. At 3.15 p.m., he recorded DD No. 11 Ex.PW8/A regarding deposit of the case property in the Malkhana. On 05.05.2010, sample parcel was sent to FSL as per his direction. FIR No. 62/2010, PS Crime Branch Page No. 9/27
(i) PW9 SI Rajbir Singh was the Incharge of the raiding team. He has materially corroborated PW2 HC Ramesh Chander and PW6 Ct. Rakesh. He stated that at 9.15 a.m., he received secret information in his office and thereafter, at about 9.20 a.m., he produced the secret informer before Insp. Vivek Pathak. At 9.35 a.m., he recorded DD No. 12 Ex.PW9/A regarding receipt of secret information and submitted a copy thereof to Insp. Vivek Pathak. According to him, Insp. Vivek Pathak informed ACP Sube Ram Yadav about the secret information who directed him to take immediate action and thereafter, as per direction to Insp. Vivek Pathak, he organized the raiding party, collected IO bag, field testing kit and electronic weighing scale and proceeded to the spot vide departure entry DD No. 13 Ex.PW9/B. He deposed about apprehension, service of notice U/s. 50 of the NDPS Act, seizure of contraband and preparation of sample parcels Mark A, B and C of the contraband. He prepared rukka Ex.PW9/C and handed it over to Ct. Rakesh with the direction to hand over rukka to Duty Officer and case exhibits to Insp. Kuldeep Singh at PS Crime Branch, Nehru Place. He identified the cloth parcels Mark A, B and C before the Court as the contraband which was recovered from accused Rakesh @ Bhaiya. He identified the accused before the Court. FIR No. 62/2010, PS Crime Branch Page No. 10/27
(j) PW10 SI Satyawan was the Investigating Officer of this case. According to him, on 03.05.2010 at about 3.15 p.m., investigation of this case was assigned to him and thereafter, he proceeded to the spot. He stated that at about 3.35 p.m., he reached at the spot and prepared the site plan Ex.PW10/A, interrogated the accused and arrested him vide arrest memo Ex.PW2/D and personal search memo Ex.PW2/E. He recorded disclosure statement Ex.PW2/F of the accused. He stated that at about 6.40 p.m., he reached at PS Crime Branch, Nehru Place where he deposited personal search articles of the accused and recorded the statement of Insp. Kuldeep Singh and MHC(M) HC Jag Narain.
At 9.00 p.m., he reached PS Narcotics Cell vide arrival entry Ex.PW10/B. He produced accused Rakesh @ Bhaiya before Insp. Vivek Pathak, Narcotics Cell. He prepared special report U/s. 57 of the NDPS Act Ex.PW4/E and submitted it to Insp. Vivek Pathak. He received FSL report Ex.PW10/C. On completion of investigation, he submitted chargesheet against accused Rakesh @ Bhaiya.
10. Material circumstances appearing in evidence against accused Rakesh @ Bhaiya were put to him as required U/s. 313 Cr.P.C. to which he pleaded innocence and claimed false implication. FIR No. 62/2010, PS Crime Branch Page No. 11/27
11. According to accused Rakesh @ Bhaiya, he was picked up from his residence and falsely implicated in this case. He stated that no recovery was effected from his possession and the contraband was planted upon him. He stated that the entire written work was done in the police station and his signatures were obtained on blank papers, written documents and printed proformas.
12. In defence evidence, accused has examined three witnesses, as under:
(a) DW1 HC Kamal Singh was posted at PS Narcotics Branch, Shakarpur. He stated that on 03.05.2010, he was driving vehicle No. DL 1CJ 3481 and he alongwith SI Rajbir Singh and his team reached at Shastri Park Metro Station, near Mazar at about 10.10 a.m. to conduct a raid.
(b) DW2 HC Mahesh Chand was posted as MHC(M) at PS Narcotics Cell, Shakarpur. He brought the original register maintained at PS Narcotics Cell, Shakarpur regarding issuance of electronic weighing machine. According to him, on 03.05.2010 a weighing machine was issued to SI Rajbir Singh at about 9.35 a.m. and it was received back at 9.30 p.m. Photocopy of the relevant page containing the relevant entry is Ex.DW2/A. FIR No. 62/2010, PS Crime Branch Page No. 12/27
(c) DW3 HC Narender Kumar brought the logbook regarding vehicle bearing registration No. DL 1CJ 3481 for the period from 01.02.2010 to 25.06.2010. Photocopy of the relevant page containing the relevant entry dated 03.05.2010 is Ex.DW3/A. The first route is mentioned at point X to X and the second route is mentioned at point Y to Y in Ex.DW3/A.
13. I have heard arguments of Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Ms. Geeta Bharti, Advocate for accused Rakesh @ Bhaiya and carefully considered the evidence on record.
14. Ld. defence counsel has argued that there is non compliance of mandatory provision of Section 50 of the NDPS Act as the accused was not apprised about his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. She submitted that mere asking the accused is not an effective communication of legal right. She submitted that the accused was given an option and not informed about his legal right as provided U/s. 50 of the NDPS Act and as such, recovery of the contraband is vitiated and accused is entitled to be acquitted on this ground. She submitted that no public person was associated with the search and seizure proceedings despite the fact that accused was arrested from a thickly populated area. FIR No. 62/2010, PS Crime Branch Page No. 13/27
15. Ms. Geeta Bharti, Ld. defence counsel further submitted that no sincere endeavour was made to produce the accused before a Gazetted Officer or a Magistrate for conducing his personal search. She submitted that the prosecution has failed to prove its case and therefore, accused deserves to be acquitted from the charge.
16. Sh. I.H. Siddiqui, Ld. Addl. PP for the State has argued that the accused was informed about his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. He relied upon notice U/s. 50 of the NDPS Act Ex.PW2/A to submit that accused as apprised about his legal right. He submitted that accused after understanding his legal right, refused to exercise his right and thereafter, personal search was conducted. He submitted that the prosecution has proved compliance to provision of Section 50 of the NDPS Act. He submitted that PW9 SI Rajbir Singh has deposed that he made three efforts at Geeta Colony, Gandhi Nagar and at the spot to join public persons in search and seizure proceedings but they refused to join the proceedings and therefore, no exception can be taken to the case of the prosecution. He submitted that the prosecution has been able to prove its case by cogent evidence that accused was in possession of 70 grams of 'heroin' in violation of the NDPS Act. FIR No. 62/2010, PS Crime Branch Page No. 14/27 Absence of public witness in search and seizure proceedings:
17. The case of the prosecution is based upon the depositions of police witnesses. Admittedly, the accused was apprehended in a crowded area. It has come in the evidence of PW9 SI Rajbir Singh that he requested public persons at Geeta Colony Shamshan Ghat and Gandhi Nagar Parking to join the raid but all of them refused and left the spot without disclosing their names and addresses. It has also come in his evidence that before conducted personal search of accused, he requested public persons, who gathered at the spot, to join the proceedings but they refused and left the spot. Therefore, no exception can be taken to the prosecution case for not joining independent person to search and seizure proceedings.
18. In 'Ramswaroop v. State (Government of NCT of Delhi) reported in 2013 (7) SCALE 407, Hon'ble Supreme Court observed as under:
"7. .................We may note herewith profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. Vs. Anil Singh, 1998 Supp. SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the FIR No. 62/2010, PS Crime Branch Page No. 15/27 Court and therefore, the prosecution case cannot be doubted for nonexamination the independent witnesses.
8. At this juncture a passage from State Govt. of NCT of Delhi Vs. Sunil, (2001) 1 SCC 652 and another is apt to quote:
(a) 21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during postindependent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a propositions of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature.
9. In Ramjee Rai and others Vs. State of Bihar, (2006) 13 SCC 229, it has been opined as follows:
10. Keeping in view the aforesaid authorities, it can safely be stated that in the case at hand there is no reason to hold that nonexamination of the independent witnesses affect the prosecution case and, hence, we unhesitatingly the submissions advanced by the learned counsel for the appellant".FIR No. 62/2010, PS Crime Branch Page No. 16/27
19. In 'Asif Khan @ Kallu Vs. The State of NCT of Delhi', Crl. Appeal. No. 1122/12 decided on 29.04.2014; Hon'ble High Court has observed as under:
11. There is no doubt that the recovery has been made from the accused at public place. The investigating officers have duly explained that they had asked several persons to join the investigation but all of them had refused. There is no doubt that today in the society there is apathy in the public. Even if somebody is lying in an injured condition, people just look at the injured and walk away. It is very seldom that people stop and try to help the injured or make an effort to remove the person to a nearby hospital. This Court as well as the apex Court has been crying about the insensitivity of public in catena of cases. It is a hard fact that nobody wants to get involved into police cases. People are becoming on lookers. When they are asked to witness anything they just show their difficulty and try to stay away. In view of this apathy of the public, the police have to act on their own. It, thus, cannot be said that because public persons were not made a witness, the entire proceedings are vitiated.
20. Such a view was taken by Delhi High Court in Ashraf Khan Vs. State, Crl. A. No. 264/13, decided on 11.03.14 and Brijesh Kumar Gupta Vs. NCB, Crl. A. 1242/10 decided on 03.04.2014. FIR No. 62/2010, PS Crime Branch Page No. 17/27 Compliance of Section 50 of the NDPS Act :
21. The case of the prosecution is that personal search of the accused was conducted and a transparent polythene bag containing brown colour powder was recovered from the right side pocket of trouser of accused. It was checked with the help of field testing kit and it found to be 'heroin' and therefore, it is evident that the contraband was recovered in the personal search of accused and as such, provision of Section 50 of the NDPS Act is applicable.
22. The issue before the Court is whether the obligation U/s. 50 of the NDPS Act has been discharged statutorily by the prosecution.
23. In State of Punjab Vs. Baldev Singh, AIR 1999 SC 2378; Hon'ble Supreme Court held in para 55 as under: (1) That when an empowered officer or a duly authorized 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 subsection (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;
FIR No. 62/2010, PS Crime Branch Page No. 18/27 (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 provision 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 exists. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the FIR No. 62/2010, PS Crime Branch Page No. 19/27 failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curved. 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 decease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operation and may also undermine respect for law and may have the effect of unconscionably compromising the administration of the 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 safeguard provided by Section 50 at the trial, would render the trial unfair.
24. In Vijay Sinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609, Hon'ble Supreme Court of India held in para 22 that the object with which right U/s. 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz, to check the FIR No. 62/2010, PS Crime Branch Page No. 20/27 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 Subsection (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.
25. It is, therefore, evident that the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. Offences under the NDPS Act carry stringent punishment and the checks and balances must be unscrupulously followed. The accused must be made aware of the existence of his legal right U/s. 50 of the NDPS Act. FIR No. 62/2010, PS Crime Branch Page No. 21/27
26. Merely asking an accused as to whether he required to be searched in presence of a Gazetted Officer or a Magistrate cannot be treated as communicating to him that he had a right under law to be searched so.
27. In the case at hand, PW9 SI Rajbir Singh was the In charge of the raiding team. He is the most important witness of the prosecution. He received the secret information, organized the raiding team and served notice U/s. 50 of the NDPS Act. Let us see what he has deposed in his testimony on this aspect. PW9 SI Rajbir Singh stated as under: "I told him that his search is to be conducted and if he want his search can be conducted in the presence of a Gazetted Officer or a Magistrate. I also offered my search, search of the raiding party and search of the official vehicle, to the accused, prior to his search."
PW2 HC Ramesh Chander, a member of the raiding team deposed as under: "As there is suspicion regarding his possessing 'heroin', his search is to be conducted and was informed that as a matter of legal right, if he wanted he could get himself searched in the presence of a Gazetted Officer or a Magistrate." FIR No. 62/2010, PS Crime Branch Page No. 22/27 PW6 Ct. Rakesh was also a member of the raiding team. He deposed as under: "IO told the accused regarding the secret information received by him. He also told him that his search was to be conducted and if he desires his search can be conducted in the presence of a Gazetted Officer or a Magistrate."
28. It is, therefore, evident that the accused was informed only about the option and not about his right of being searched before a Gazetted Officer or a Magistrate. The appellant did not come to know that it was his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. Such intimation given to the accused cannot be treated as communicating to him that he had a right under law to be searched before the aforesaid authorities. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make suspect aware of such right. It is, therefore, clear that accused was only given an offer or option which is not in accordance with mandatory requirement of Section 50 of the Act.
29. In Myla Venkatishwarlu Vs. the State of Andhra Pradesh, Crl. A. No. 611 of 2012, decided on 04.04.2012; Hon'ble Supreme Court acquitted the appellant for breach of Section 50 of the NDPS Act.
FIR No. 62/2010, PS Crime Branch Page No. 23/27
30. In the said case, the police had prior information about illegal sale of ganja at a particular place and thereafter, police team apprehended appellants and recovered contraband from their pockets. During the trial, members of the police team deposed as under: PW1 PC Shaik Kasim, who had apprehended the appellant, stated that Circle Inspector of Police asked them whether they wanted any an other gazetted officer for their search and seizure in addition to him to which they replied that they did not want any other gazetted officer and the checking by the Circle Inspector of Police was sufficient for them. Thereafter, the Circle Inspector of Police checked their pockets and recovered ganja packets.
PW2 SI Nageshwar Rao was in the police party. He stated that before conducting the search, the Circle Inspector of Police asked the appellants about the intention to have another gazetted officer and they replied that they do not want any other gazetted officer for their search and seizure. Thereafter, the search was conducted and ganja packets were recovered from their possession.
Our Apex Court held that from evidence of PW1 and PW2, it is clear that the appellants were not communicated their right to have search conducted in the presence of a Magistrate or a gazetted officer. FIR No. 62/2010, PS Crime Branch Page No. 24/27
31. In Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Custom, Customs House, Punjab, Crl. No. 1857 of 2010, Hon'ble Supreme Court of India after considering the evidence of recovery officer observed as under: "It is therefore apparent that the precise question that was before the Constitution Bench was as to whether a consent memo could be said to be information conveyed to an accused as to his right under Section 50 of the NDPS Act. The Constitution Bench clearly stated that a consent memo could not be said to be such information as to provisions of Section 50 of the NDPS Act were mandatory and strict compliance was called for and any deviation therefrom would vitiate the prosecution. It was further held that it was not necessary that this information should be in a written form but the information had to be conveyed in some form or manner which would depend on the facts of the case. We have accordingly gone through the evidence of PW4 Prem Singh. He did not utter a single word as to whether he had informed the appellant of his right and he merely took his option as to whether he would like to be searched before a Gazetted Officer or a Magistrate as noted in Ex.P.A. In the light of the judgment in Vijaisingh's case (supra) we find that there has been complete noncompliance with the provisions of Section 50 of the NDPS Act."
FIR No. 62/2010, PS Crime Branch Page No. 25/27
32. In Ashok Kumar Sharma Vs. State of Rajasthan, Crl. A No. 817 of 2008, decided on 09.01.2013; Hon'ble Supreme Court considered deposition of Incharge, of raiding team i.e. Additional Superintendent of Police (Crimes), Jaipur City which is reproduced as under: "He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in writing and said that I have faith on you, you can search me."
Hon'ble Supreme Court held as under" "8. The above statement of PW1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused persons has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person."
FIR No. 62/2010, PS Crime Branch Page No. 26/27
33. It is therefore clear that accused was not informed about his legal right to be searched in the presence of a Gazetted Officer or a Magistrate before subjecting him to personal search and therefore, there is noncompliance of mandatory provision of Section 50 of the NDPS Act and as such, it has rendered the recovery illegal.
34. Once the recovery is held to be illegal, that means the accused did not actually possess the illicit article or contraband and that no such illicit article was recovered from the possession of the accused such as to enable such conviction of a contraband article.
35. Accordingly, accused Rakesh @ Bhaiya deserves to be acquitted.
36. Therefore, Rakesh @ Bhaiya is acquitted of the offence under Section 21 (b) of the NDPS Act.
Announced in the open court SANJAY SHARMA on this 15th day of July, 2014. Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
FIR No. 62/2010, PS Crime Branch Page No. 27/27