Chattisgarh High Court
Jaggu @ Jageshwar Nishad vs State Of Chhattisgarh on 30 November, 2022
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Order Reserved on 14.10.2022
Order Pronounced on 30.11.2022
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No. 5184 of 2022
Rakesh Verma S/o Maniram Verma, aged about 26 Years R/o House No. 12/27, Ward
No. 12, Jawahar Nagar, Bhilai, District - Durg (C.G.)
---- Applicant
Versus
State Of Chhattisgarh, through Station House Officer, Police Station - Khursipar,
District - Durg (C.G.)
----Non-Applicant
MCRC No. 5559 of 2022
Jaggu @ Jageshwar Nishad S/o Brajlal Nishad, aged about 26 Years R/o Station
Maroda, Near Chandrakar Daily Needs, Newai, District - Durg (C.G.)
---- Applicant
Versus
State Of Chhattisgarh, through Station House Officer, Police Station - Khurshipar,
District - Durg (C.G.)
----Non-Applicant
MCRC No. 6951 of 2022
Safaque Bano D/o Irfan Ahmed, (Wrongly mentioned as Isfaque in impugned order),
aged about 20 Years R/o Krishna Nagar, Ward No.08, Supela, District - Durg (C.G.)
---- Applicant
Versus
State Of Chhattisgarh, through Station House Officer, Police Station - Khurshipar,
District - Durg (C.G.)
----Non-Applicant
___________________________________________________________________________
_
For Applicants: Ms.Fouzia Mirza, Senior Advocate along with Mr.
Rahim Ubwani, Ms. Indira Tripathi & Ms Priya Sharma,
Advocates for the respective applicants.
For Non-Applicant/State: Mr. Kashif Shakeel, Deputy Advocate General & Mr.
Sushil Sahu, Panel lawyer
___________________________________________________________________________
CAV Order
Hon'ble Shri Justice Sachin Singh Rajput
1. Since all the above bail applications are arising out of the same crime number, there
fore, they are being decided by this common order.
2. The applicants have been arrested in connection with Crime No.140/2022, registered
at Police Station Khursipar, District Durg (CG) for offence punishable under Sections
22 (c), 27 (B), & 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
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short 'NDPS Act') as per impugned order. However charge sheet has been filed under
section 22(c), 27A, 8 of the NDPS Act.
3. Case of the prosecution, in brief, is that on 14.3.2022 police inspector of Police Station
Khursipar, District Durg received a secret information through secret informant, acting
upon which, he along with staff went to the place of incident and conducted search and
seizure near Shyam Pharma in which the accused persons Rakesh Verma, Jaggu @
Jageshwar Nishad, Safaque Bano and other co-accused namely Ajay Agrawal were
caught in possession of narcotic substance. From the possession of applicant - Rakesh
Verma, total 24000 tablets of alprazolam and cash of Rs.400/- was seized, from the
possession of applicant- Jaggu @ Jageshwar Nishad, 8640 capsules of spas trancan
plus which contains tramadol and cash of Rs.600/- was seized, from the possession of
applicant - Safaque Bano, total 9000 tables of alprazolam, 2016 capsules of spas tran-
can plus which contains tramadol and Rs.3000/- was seized and from the possession of
co-accused Ajay Agrawal, 11700 tablets of alprazolam was seized.
4. Learned counsel for the applicants submits that the applicants are innocent and they
have not committed the aforesaid crime. It is submitted that during conduction of
search and seizure, mandatory provisions of the NDPS Act have not been complied
with. It is further submitted that co-accused Ajay Agrawal from whose possession
11700 tablets of alprazolam was seized has been granted bail by a coordinate Bench of
this Court in M.Cr.C. No.3022/2022 vide order dated 10.5.2022.
5. Ms. Fouzia Mirza, learned Senior Counsel with Mr. Rahim Ubwani, learned counsel
for applicant - Safaque Bano in M.Cr.C. No. 6951/2022, submits that applicant -
Safaque Bano is in jail since 15.3.2022 and she is 20 years B.Sc. student and she is
having no criminal antecedents. She further submits that applicant - Safaque Bano had
gone to shop in search of job where a raid was conducted and she was not involved in
the crime. She also submits that there is no evidence of Section 27A of the NDPS Act
to connect the present applicant having involvement of sale of the narcotic drug. She
submits that memorandum of co-accused Ajay Agrawal was recorded and names of co-
accused Rakesh Verma and Nitin Simpi was mentioned along with one Suman Ratlani
with whom bank transaction and payment of money with respect to alleged drugs sale
and purchase has been done. In memorandum of co-accused Ajay Agrawal, name of
the present applicant is not reflected and hence, it is evident that the present applicant
has only gone for search of job in that shop and however she has been falsely impli-
cated. She further submits that there is total non-compliance of Sections 42 and 42(2)
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of the NDPS Act. In support of her argument, she relies upon the judgment of the
Supreme Court Chunna alias Mehtab Vs. State of M.P. 1 (para-2), State of Ra-
jasthan Vs. Jagraj Singh alias Hansa2 (para-24) and Darshan Singh Vs. State of
Haryana3 (para 8 and 13). She also submits that search notice panchnama under Sec-
tion 50 of the NDPS Act of the applicant does not bear the signature of the applicant.
Hence, there is total non-compliance of Section 50 of the NDPS Act. For this purpose,
she relies upon the judgment of the Supreme Court reported in State of Punjab Vs.
Baldev Singh4(paras-55 to 57). She submits that the applicant being lady and Section
50(4) of the NDPS Act requires that she should be searched by a female and search
memo shows that she has been searched by the investigating officer Yogesh Tandon
and not by any female police officer. To buttress this submission, she relies upon the
judgment of the Supreme Court reported in State of Punjab v. Surinder Rani 5. She
further submits that seizure of psychotropic substance was done at 21:15 hours as per
seizure memo and search memo i.e. search of the applicant has been done at 21:25
hours. Even identification of the substance was done at 21:10 hours. Therefore, before
the seizure of psychotropic substance was effected, no search of the applicant was car-
ried out by a female police officer. She further submits that seizure memo of other ac-
cused person namely Rakesh Verma was made at 23:40 hours i.e. after two and half
hours. Seizure memo of applicant - Jageshwar was done at 1:30 hours and seizure
memo of co-accused Ajay Agrawal was done at 2:55 hours. She further carry forward
her arguments and submits that FSL report dated 07.04.2022
shows that the psychotropic substances have been examined by random sampling and
was sent to Senior Scientific Officer Assistant Chemical Examiner in violation of
Standing Order No. 1/89 dated 13.06.1989 clause 2.5 and 3.0, which is also in viola-
tion of section 293(4)(e) of Cr.P.C. as it should be sent to Director/Deputy Director/
Assistant Director only. To substantiate this she placed reliance of an order passed by
co-ordinate bench of this court in M.Cr.C. No. 7895/2022 (Para 4 & 7). In view of the
above submissions, the application may be allowed and bail may be granted to the ap-
plicant.
6. The arguments so advanced by learned Senior Counsel is also adopted by learned
counsel for other applicants.
7. Refuting to the submissions made by learned counsel for the applicants,Mr.Kashif Sha
keel, learned Deputy Advocate General for the respondent/State, makes the following
1 (2002) 9 SCC 363 2 (2016) 11 SCC 687 3 (2016) 14 SCC 358 4 AIR 1999 SC 2378 5 (2000) 10 SCC 429 4 submissions:-
i) The mandatory provisions of the NDPS Act including Sections 42 and 50 have been duly complied with.
ii) The contraband article was seized from conscious possession of the applicants which are in commercial quantity.
iii) Co-accused Ajay Agrawal was granted bail by a coordinate Bench of this Court on the ground that he was having drug licence to run medical shop and the case of the present applicants is totally different to that of co-accused Ajay Agrawal. Hence, no parity can be claimed by the present applicants on bail being granted to co-accused Ajay Agrawal.
iv) According to Section 54 of the NDPS Act, presumption is against the appli-
cants and it would be presumed that the applicants were in possession of the con- traband.
He further submits that the procedural irregularities in investigation cannot be tested at the time of granting bail and same can only be tested at the time of conduction of trial. Therefore, submissions made by learned Senior Counsel would not hold any water and is liable to be rejected. He also submits that quantity of contraband seized from con- scious possession of the present applicants is commercial quantity and it would entail a Bar under Section 37 of the NDPS Act and there are no reasonable ground to believe that the applicants have not committed the crime and they would not commit the same crime while on bail. To buttress his submissions, Mr. Shakeel relies upon the judgment of the Supreme Court in the matter of Union of India v. Mohd. Nawaz Khan6 , State of Kerala v. Rajesh7 & Narcotics Control Bureau v. Mohit Agrawal8 and Heeras- ingh and another v. Union of India and others 9. In sum and substance, the submis- sion of learned State Counsel is that there are no reasonable ground to believe that the applicants have not committed the crime and even if some procedural irregularities are found that can be tested at the stage of trial and it would not give rise on an occasion that the applicants are not guilty of offence.
8. I have heard learned counsel for the parties, considered their rival submissions made herein above and also perused the case diary.
9. First submission of the learned Senior Counsel is that mandatory provision of section 6 (2021) 10 SCC 100 7 (2020) 12 SCC 122, 8 2022 SCC OnLine SC 891 9 (2020) 20 SCC 272 5 42 of the NDPS Act has not been complied with. Section 42 of the NDPS Act is quoted below for ready reference.
42. Power of entry, search, seizure and arrest without warrant or autho- risation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, cus- toms, revenue intelligence or any other department of the Central Govern- ment including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or consta- ble) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or spe- cial order of the State Government, if he has reason to believe from per- sons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evi- dence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any build- ing, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any docu- ment or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evi- dence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportu- nity for the concealment of evidence or facility for the escape of an of- fender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-sec-
tion (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate offi- cial superior.
10. Hon'ble Supreme Court in case of Chhunna alias Mehtab (Supra) observed in paragraph 2 as under:-
6"2. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the posi- tion, the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant or authorisa- tion was obtained nor were the grounds for possible plea that if opportu- nity for obtaining search warrant or authorisation is accorded the evi- dence will escape indicated. In other words, there has been a non-compli- ance with the provisions of the proviso to Section 42 and therefore, the trial stood vitiated.
Similarly in State of Rajasthan (Supra) it has been observed as under by the Hon'ble Supreme Court:
"24. After referring large number of cases, this Court recorded conclusion in paragraph 25 which is to the following effect:
"25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer 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 42(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 Section 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 7 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 CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non- compliance of Section 50 which is mandatory and thus 8 it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."
In case of Darshan Singh (Supra) Hon'ble Supreme Court held as under:-
"8. Insofar as the contention of learned senior counsel for the appellant under Section 42 of the NDPS Act is concerned, he relied on the interpretation placed by a Constitution Bench judgment of this Court on the above provisions in Karnail Singh v. State of Haryana, (2009) 8 SCC 539, wherein, this Court recorded its conclusions in Paragraph 35, which is being extracted hereunder:
"In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section (42) from any person had to record it in writing in the Register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .
(c) In other words, the compliance with the requirements of sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance with requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with section 42. To illustrate, if any delay may result 9 in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001." (emphasis is ours) From perusal of the above authorities cited by the learned Senior Counsel it is apparent that the total non-compliance of requirements of sub-sections (1) and (2) of section 42 of NDPS Act is impermissible. However delayed compliance with satisfactory explanation is acceptable of section 42 of the NDPS Act. It has also been held in the above cited authorities factum whether compliance of section 42 of NDPS Act has been done or will have to be determined in each case. If the fact of the present case is considered in light of the settled legal position, it appears from the material collected by the prosecution that the Investigating Officer has prepared a Panchnama under section 42 (1) of NDPS Act for not obtaining search warrant. Investigating Officer also prepared informant information Panchnama and also prepared an intimation letter with regard to commission of crime. It appears from the record that these were sent to City Superintendence of Police, Old Bhilai District Durg (C.G.). Therefore at this stage it cannot be said that the prosecution failed to comply with provisions of section 42 of the NDPS Act. Veracity of the submission of the learned Senior Counsel can be tested during the course of trial and this argument of non-compliance of section at this stage of no help to the applicants.
11. The next submission of the learned Senior Counsel for the applicants is that there is total non-compliance of mandatory provisions of section 50 of the NDPS Act. The search memo of applicant Safaque Bano does not bear her signature and she was not informed about the legal right to be searched by Gazetted Officer of Magistrate. It has also been argued that she was searched by a male police officer in violation of sub- section (4) of Section 50 of the NDPS Act. There is variation in time in the proceedings of search and seizure. To appreciate this submission it is desirable to quote section 50 of NDPS Act as under:-
1050. Conditions under which search of persons shall be conducted:-
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the 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 dis-
charge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
1[(5) When an officer duly authorised under section 42 has reason to be- lieve that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic sub- stance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
In case of State of Punjab Vs. Baldev Singh (Supra) the Constitution Bench of the Supreme had, inter alia, held as under: -
"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 person concerned 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 person concerned 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 11 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 the 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 the 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 inn 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 case [(1974) 1 SCC 345 : 1974 SCC (Tax) 114] cannot be understood to have laid down that an illicit article 12 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 case [(1994) 6 SCC 569 : 1995 SCC (Cri) 32] correctly interprets and distinguishes the judgment in Pooran Mal case [(1974) 1 SCC 345: 1974 SCC (Tax) 114] and the broad observations made in Pirthi Chand case [(1996) 2 SCC 37 : 1996 SCC (Cri) 210] and Jasbir Singh case [(1996) 1 SCC 288 : 1996 SCC (Cri) 1] are not in tune with the correct exposition of law as laid down in Pooran Mal case [(1974) 1 SCC 345 : 1974 SCC (Tax) 114] "
In case of Vijaysinh Chandubha Jadeja vs State Of Gujarat 10, the Constitution Bench of the Supreme Court considered the question whether compliance of Section 50 of the NDPS Act would be sufficient. The Court answered in the negative and held that the obligations of the authorized officer under Section 50 (1) of the NDPS Act is mandatory and requires strict compliance. The relevant extract of the said decision is set out below:-
"29. In view of the foregoing discussion, we are of the firm opinion that the object with which the 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 insofar 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 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 Presidential Poll, In re [(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 [(2000) 1 SCC 707 : 2000 SCC (Cri) 300] and Prabha Shankar Dubey [(2004) 2 SCC 56 : 2004 SCC (Cri) 420] 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 case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080].
10 (2011) 1 SCC 609 13 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 the 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.
33. Accordingly, we answer the reference in the manner aforesaid. The appeals shall, now, be placed before the appropriate Bench for disposal."
(emphasis supplied) From perusal of the above authoritative pronouncement of the Hon'ble Supreme Court it is manifestly clear that section 50 of the NDPS Act is mandatory in nature and deviation of any kind is impermissible. Deviation or violation of the same would lead to vitiate the conviction. Section 50 of the NDPS Act mandates the empowered/authorised officer to appraise the accused with regard to his right under section 50 of NDPS Act to be searched by a Gazetted Officer or Magistrate. If the accused deposes the faith in the empowered officer/authorised officer and consents to be searched by him/her, he/she may search the accused. Search Notice Panchnama of the applicants prepared under section 50 of Act prima facie contains the signature of the applicants barring applicant Safaque Bano. It prima facie indicates that applicants were informed with regard to their right under section 50 of NDPS Act. They were also explained about Gazetted Officer and Magistrate. Sub-section 5 of the NDPS Act envisages that when an authorised officer has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973(2 of 1974). Sub-section 6 of the NDPS Act envisages that after a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. The report of the entire proceeding carried out search, seizure etc. was sent by the investigation officer to the Superintendent of Police, Durg on 16.03.2022 which is a part of charge sheet. This documents envisages that the applicants were informed about their right to be searched by a Gazetted 14 Officer or Magistrate. They gave in writing to be searched by the authorised officer. However perusal of search notice panchnama under section 50 of the NDPS Act prepared prima facie does not indicate that there was a written consent given by the applicant to be searched by the authorised officer. Prima facie it is not clearly apparent from charge sheet that there was any written consent of the applicants with regard to be searched by authorised officer and not by the Gazette Officer or Magistrate. Once the applicants were appraise about their right under section 50 of NDPS Act, in fitness of things written consent of applicants ought to have taken for their search by authorised officer. But at the same time this court cannot loose sight of the fact that whether there was any written consent or not can be ascertain by leading evidence during course of trial. Sub-section 4 of section 50 of NDPS Act mandates that a female accused must be searched by a female. In the instant case secrete information was received with regard to male and female as reflected from informant notice panchnama. Suspect search panchnama of the applicant Safaque Bano prima facie it appears that she was searched by a male Inspector, Police Station, Khursipar. Though it also indicates that this panchnama was read over and explained to her and witnesses by lady head constable. From Recovery panchnama prima facie it appears that applicant Safaque Bano was searched by male Inspector of Police Station, Khursipar and from her possession in a cartoon contraband were recovered. However it also indicates that Rs.3000/- was recovered from her in search by a female Head Constable. Hon'ble Delhi High Court in a case of Mamta Vs. State of Delhi, Bail Appln. No.2270/2021 vide order dated 28.09.2021 granted bail to a lady applicant considering that she was searched by a lady constable. It appears prima facie there is insufficient compliance of section 50 (4) of NDPS Act so far as applicant Safaque Bano is concerned. The other ground raised by the Senior Counsel for the applicants that psychotropic substance was examined by random sampling and the same was sent to Senior Scientific Officer in violation of Standing Order 1/89 do not appeal to this court at this stage. The contraband was sent to the Director, State Forensic Science Laboratory as reflected in charge sheet. Ground of parity with co-accused also do not help the applicants as they were enlarged on bail on different grounds.
12. The next submission of the learned counsel for the applicants is that there is no evidence collected by the prosecution to connect the applicants with section 27A of the NDPS Act. For ready reference section 27A of the NDPS Act is reproduced below:-
[27A. Punishment for financing illicit traffic and harbouring offenders.
--Whoever indulges in financing, directly or indirectly, any, of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, 15 shall be punishable with rigorous imprisonment 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 than one lakh rupees 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.] The Hon'ble Bombay High Court in case of Rhea Chakraborty Vs. Union of India11 observed as under:-
73. Thus, "financing" as generally understood, is offering monetary support or provide funds.
74. Therefore, simply providing money for a particular transaction or other transactions will not be financing of that activity. Financing will have to be interpreted to mean to provide funds for either making that particular activity operational or for sustaining it. It is the financial support which directly or indirectly is cause of existence of such illicit traffic. The word "financing" would necessarily refer to some activities involving illegal trade or business.
78. Section 2(xxix) of NDPS Act also permits use of Cr.P.C. to assign meaning to words and expressions. The Hon'ble Supreme Court mainly discussed whether mens rea was applicable. Even in Section 27A of NDPS Act, the concept of mens rea is applicable. Section 52-A of IPC can be used for a limited purpose as mentioned by the Hon'ble Supreme Court.
The key words in that Section are "to evade apprehension". This only means that first of all there has to be another offender who has committed the offence. The person who is charged with harbouring that main offender should have supplied him with shelter, food etc.; and then the next requirement is that that second person should have done this to prevent the main offender's apprehension. In the present case, no criminal case or FIR was pending against Sushant Singh Rajput. He was residing in his own house and was spending for his own food and other necessities. At that point of time, he had no apprehension of any arrest. Therefore, the act on the part of the Applicant cannot be stretched to attract the allegation of harbouring Sushant Singh Rajput.
79. Another important word in Section 27A is "engaged". The offence of harbouring is attracted when a person harbours the persons "engaged" in the activities mentioned in Section 2(viiia) (i) to (v). The Black's Law Dictionary gives the meaning of the word "Engaged" as 'to employ' or 'involve oneself'; 'to take part in'; 'to embark'. Thus, if Section 27A is read in its entirety, it indicates that financing is in respect of illicit traffic through which the financer expects monetary or other returns. In the same context, Section 27A makes harbouring a punishable offence. Harbouring is in respect of a person who is engaged in such activities. It requires that he is either employed in or has involved himself with or has taken part in or has embarked on such activities.
(emphasis supplied) Likewise Hon'ble Calcutta High Court in case of Rakesh Singh @ Rakesh Kumar Singh Vs. The State of West Bengal C.R.M.3152 of 2021 decided on 24.11.2021 11 2020 SCC OnLine Bom 990 16 held as under:-
8. Fourthly, in so far as the offence under Section 27A of the NDPS Act is concerned, i.e. financing illicit trafficking and harbouring offenders, prima facie we do not find material evidence to support that charge. In our view, being involved in one solitary transaction concerning contraband items will not amount to financing illicit traffic in narcotics.
The word "trafficking" connotes continuous flow. There has to be some degree of continuity and regularity in drug dealing before a person can be said to be trafficking in drugs. Similarly, financing illicit traffic would necessarily mean doing so on a regular or continuous basis. It is much more than purchasing or selling contraband items on one occasion. Such a solitary transaction would, in our prima facie opinion, not fall within the mischief of Section 27A of the NDPS Act. In this connection, one may refer to a decision of the Bombay High Court rendered on October 7, 2020 in Criminal Bail Application (Stamp) No. 2386 of 2020 (Reha Chakraborty v. The Union of India State of Maharashtra).
It is pertinent to add here that the appeal of the State of West Bengal against the above order was dismissed by the Hon'ble Supreme Court, which is reported in 2022 LiveLaw (SC) 580 State of West Bengal Vs. Rakesh Singh @ Rakesh Kumar Singh inter-alia observing as under:-
16.4. Hence, suffice it to observe for the present purpose that in the given set of facts and circumstances, the High Court has rightly found that applicability of Section 27A NDPS Act is seriously questionable in this case. That being the position; and there being otherwise no recovery from the respondent and the quantity in question being also intermediate quantity, the rigours of Section 37 NDPS Act do not apply to the present case.
In light of the above settled legal position the material collected by the prosecution needs consideration for the purposes of decision making of this application. From the charge sheet it does not prima facie appears that the applicant Jaggu @ Jageshwar, Safaque Bano had any previous money transaction with regard to sale, purchase of the contraband. Rather evidence of some money transaction is available in charge sheet between co-accused Ajay Agrawal and some other persons. Memorandum statement of co-accused Ajay Agrawal indicates some money transaction took place between him and applicant Rakesh. Name of applicant Jaggu @ Jageshwar and Safaque Bano is not mentioned is his memorandum statement. Some role played by co-accused Nitin Simpy is indicated in the memorandum statement of Ajay Agrawal. Both of them have been enlarged by the co-ordinate bench of this court. The arrest memo of the applicants does not prima facie show any criminal antecedent of the applicants much less under NDPS Act. Prima Facie from the material so collected even scanty evidence of harbouring of offender is not available. Therefore on the above analysis and relying upon the above stated authorities, this court is of the opinion that prima facie the applicant Jaggu @ Jageshwar and Safaque Bano have made out a case to 17 come out the rigours of section 27A of the NDPS Act. As name of applicant Rakesh is mentioned in the memorandum statement of co-accused Ajay Agrawal with regard to some money transaction hence at this stage it cannot be said that he could come out from the rigours of section 27A of NDPS Act and the same can be tested at the stage of trial.
13. Learned State counsel vehemently opposed the submissions of the learned Senior Counsel for the applicants. He contended that all the arguments advanced could be looked into by the trial court during the course of trial. At this stage the arguments advanced cannot be gone into by this court. He submitted that there is a presumption of possession of contraband against the applicants under section 54 of the NDPS Act. The quantity of contraband seized is commercial quantity therefore bar under section 37 of the NDPS Act would operate as there is no reasonable grounds for this court to believe that the applicants are not guilty and they will not commit any offence while on bail. To buttress his submissions he relied on various authorities of the Hon'ble Supreme Court. In case of State of Kerala Vs. Rajesh and another (Supra) the Hon'ble Supreme Court held that "the expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence." Likewise in case of Narcotics Control Bureau Vs. Mohit Aggrawal (Supra) the Hon'ble Supreme Court held as under:-
14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-
tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
14. It is evident from the above mentioned authoritative pronouncement of the Hon'ble Supreme Court that in order to come out from the rigors of section 37 of the NDPS Act, the applicants have to demonstrate credible, plausible grounds to persuade the Court to believe that the applicants are not guilty of the alleged offence. From the above discussion prima facie it appears on record that strict compliance of section 50 (4) of the NDPS Act is missing so far as applicant Safaque Bano is concerned for her search by a female. In Nazir Ahmad Vs. The King Emperor 12 it has been held that 12 1936 SCC OnLine PC 41 18 where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. In light of the above discussions and authorities cited by the counsel for the parties particularly Baldev Singh (Supra) and Vijaysinh (Supra), the applicant Safaque Bano appears to have crossed the hurdle of section 37 of the NDPS Act. As a consequence the M.Cr.C. No. 5184/2022 of applicant Rakesh Verma and M.Cr.C. No. 5559/2022 of applicant Jaggu @ Jageshwar are dismissed. M.Cr.C. No. 6951/2022 of the applicant Safaque Bano for grant of bail is allowed and she shall be released on bail on her furnishing personal bond of Rs.1,00,000/- with one surety of the like sum to the satisfaction of the learned trial court on the following conditions:-
A) She shall attend each and every hearing of the case before the trial court unless exempted.
B) She will not influence any prosecution witnesses or temper with the evidence.
C) She shall not leave the territory of State of Chhattisgarh without prior permission of the trial court.
15. It is made clear that the observation made herein above is only for the purpose of decision making of the bail applications of the applicant and to appreciate the arguments advanced by the learned counsel for the parties. It will not have any bearing on the merits of the case. The learned trial court will decide the case on it own merits without being influenced by any observation made herein above. If the applicant Safaque Bano violates any of the conditions stated above, state would free to move for cancellation of bail.
16. Certified copy as per rules.
Sd/-
(Sachin Singh Rajput) Judge Parul