Gujarat High Court
State Of Gujarat vs Abdulgani Gulamrasul Bhatt & ... on 3 November, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, B.N. Karia
R/CR.A/1261/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1261 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE Sd/-
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
ABDULGANI GULAMRASUL BHATT & 2....Opponent(s)/Respondent(s)
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Appearance:
MS MOXA THAKKAR, APP for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR CB GUPTA, ADVOCATE for the Opponent(s)/Respondent(s) No. 2 - 3
MS E.SHAILAJA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE B.N. KARIA
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HC-NIC Page 1 of 46 Created On Fri Nov 03 23:06:46 IST 2017
R/CR.A/1261/2006 CAV JUDGMENT
Date : 03/11/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. The State of Gujarat has preferred this Appeal under Section 378 [1] (3) of the Code of Criminal Procedure, 1974 {"CrPC" for short} against the order of acquittal dated 21st April 2005 of the respondents herein for the offence punishable under Sections 20 (b), 8 (c) read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 {"Act"
for short} passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 159 of 2001.
2. The brief facts necessary to dispose of this Appeal are that on 11th June 2001, the Superintendent of Police, Narcotic Control Bureau, CID Crime received a secret information that one Abdulgani Abdulrasul Bhatt, a resident of Jammu & Kashmir has rented a Flat No. 11 in Karnavati Avenue, Near CTM Cross-roads possesses huge quantity of 'Charas'. On the basis of this tip-off, the Superintendent of Police summoned Dy. SP-Shri Pandey of Narcotic Drugs & Psychotropic Substances Cell for arranging a raid. Accordingly, Dy. SP raided the said premises with his subordinate officers and recovered 26 kgs & 400 grams of 'Charas' packed in different packets from the said flat. The police party also seized currency notes Page 2 of 46 HC-NIC Page 2 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT worth Rs. 1 lac. On inquiry, accused-Abdulgani Gulamrasul Bhatt informed that 10 kilograms of 'Charas' had already been sold off to one Allarakha Uasmanbhai Shaikh, resident of Chandola Lake, Ahmedabad. On the basis of this information revealed from the accused, the police personnels carried out raid at the premises of Allarakha Shaikh from where, 1 kg and 600 grams of 'Charas' was recovered. After following the due procedure as laid down under the law, the said contraband was seized and sealed by the raiding party, and thereafter, they had also raided premises of one Yasinkhan Anwarkhan Patan from where 130 grams of 'Charas' contained in 48 small packets was recovered.
3. After due investigation into the matter, all the accused were chargesheeted to stand trial for the offence punishable under Sections 8 (c), 20 (b) read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985.
4. At trial, the accused pleaded not guilty and claimed to be tried. Therefore, the prosecution examined in all 10 witnesses to substantiate the charges levelled against the respondents-
accused. At the behest of the defence, three witnesses viz., Butabhai Radhjibhai Rabari, V. Shrivanas and Mohammed Page 3 of 46 HC-NIC Page 3 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT Ramzan were also examined by the Court at Exh. 148, 171 and 157 respectively. Further statements were also recorded of all these three respondents-accused where also they have denied the incriminating evidence led by the prosecution.
5. On the strength of oral as well as documentary evidence led by both the sides and after elaborately dealing with the submissions advanced, and considering the law on the subject, the learned trial Judge by elaborate judgment, gave benefit of doubt and thereby acquitted all the respondents herein, giving rise to filing of this Appeal by the State.
6. Heard learned advocates appearing for the respective sides.
7. Learned APP Ms. Moxa Thakker appearing for the appellant-State assailed the impugned judgment and order of acquittal on the ground that the same being contrary to law and against evidence available on the record. She urged that the learned trial Judge has erred in giving benefit of doubt to all the accused when the prosecution has followed all the provisions of the Act and ought to have considered the fact that the contraband articles 'Charas' weighing 26 kilogram Page 4 of 46 HC-NIC Page 4 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT were recovered from the conscious possession of the accused.
According to the learned APP, the said huge quantity of charas recovered from the accused falls under 'commercial quantity' and therefore, the learned trial Judge ought to have considered this aspect and convicted the accused for the offence alleged.
Learned APP drew attention of this Court to the evidence of witness-Sidhrajsinh Gulabsinh Bhati [Exh. 107] and Parasnath Shivmandir Pandey [Exh. 56] to contend that the same ought to have been believed by the learned trial Judge, as they have supported the case of prosecution. At last, learned APP Ms. Moxa Thakker urged the Court to quash and set aside the impugned order.
8. Per contra, learned advocate Shri CB Gupta appearing for the respondents no. 1 & 2 urged that the trial Court has gone deep into the matter and weighed each and every piece of evidence led before it. He drew attention of this Court to the fact that CID Crime Intelligence is not a Zone Police Station. He read over Rules 459 & 461 of the Gujarat Police Manual [Vol.
III] to contend that there is no notification produced by the State declaring CID Crime Intelligence as a Police Station, and therefore, the registration of the complaint itself was illegal and bad in law. He emphasized that as to who is the Officer In-
Page 5 of 46HC-NIC Page 5 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT charge of the Police under Section 154 of the Code of Criminal Procedure was totally lacking, and that being the mandatory provision, the procedure adopted was rightly deprecated by the trial Court, as the secret information which was received first in point of time, ought to have been construed as FIR, and whereas, investigation started moment Mr. Pandey, Dy. SP left the place, and therefore, the complaint given by Police Inspector Shri Rana ought not to have been exhibited. As regard provisions of "search & seizure" enunciated under Sections 41 and 42 of the NDPS Act, learned advocate Shri Gupta urged that Section 42 (2) of the Act when makes it mandatory for an Officer, who takes down the information in writing to send a copy of such information to his immediate superior, and in absence of any provision for telephonic intimation to be given to his superior, the charges should fail on that count alone.
9. Following decisions are relied upon by the learned advocate appearing on behalf of the respondent qua applicability of Section 42 of the Narcotic Drugs & Psychotropic Substances Act, 1985 [for short "NDPS Act, 1985"].
10. Learned advocate Mr. Gupta relied on decision of Larger Page 6 of 46 HC-NIC Page 6 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT Bench in case of Karnail Singh v. State of Haryana, (2009) 8 SCC 539 and submitted that compliance of Section 42 of NDPS Act, 1985 is mandatory and non compliance thereof would be fatal for the case of the prosecution, and in such a case, the accused is to be acquitted.
11. A decision dated 8th August 2011 in Criminal Appeal No. 1051 of 2009 of the Apex Court in case of Rajender Singh v.
State of Haryana, where DSP was present at the time of search carried out by raiding party. In the above decision, a Bench of two-Judges relied on Constitution Bench decision of Karnail Singh [Supra] and para-35 therein. It was reiterated, according to Shri Gupta, learned advocate for the respondent that compliance of Section 42 (2) is mandatory unless satisfactory explanation is rendered for delayed compliance.
12. On the same lines, another decision reported in AIR 2013 SC 953 in case of Sukhdev Singh v. State of Haryana, where also Bench consisting of two learned Judges relied on Constitution Bench decision in case of Karnail Singh [Supra].
13. As against the above, Ms. Moxa Thakker, learned APP placed reliance on the decision reported in (2008) 8 SCC 313 in Page 7 of 46 HC-NIC Page 7 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT case of Union of India v. Satrohan in which earlier decision in case of M. Prabhulal v. Directorate of Revenue Intelligence, reported in (2003) 8 SCC 449 was relied.
According to her, sub-section (2) of Section 42 may be mandatory but the language of sub-section (2) of Section 42 applies to an Officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by sub-section (2) of Section 41. Excerpts of M. Prabhulal [Supra] quoted in para 31 were specifically relied on.
14. In another decision reported in 2014 (13) SCC 344 in case of Yasihey Yobin & Anr. vs. Department of Customs, Shillong also, it was held that if the search is made by an Officer authorized under section 41 (2) of the Act, then the said Officer namely Gazetted Officer is said to be acting under section 41 (2), and therefore, compliance under Section 42 is not necessary at all. In the above decision, therefore, the Apex Court relied on earlier two decisions - in case of M. Prabhulal [Supra] and Union of India v. Satrohan [Supra]. However, the fact remains that information was received by PW-8 who happen to be District Superintendent of Police and was dealing with Narcotic Control Bureau of the State of Gujarat and deputed PW-3 namely Mr. Pandey holding the rank of Dy.SP - a Page 8 of 46 HC-NIC Page 8 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT Gazetted Officer to carry out search and seizure and under the circumstances, the record reveals that substantial compliance was made of Section 42 but even if it is noticed that there was no compliance of Section 42, it would not be fatal and accordingly, no error is committed by the learned trial Judge.
15. Further, reliance is also placed on the decision of Apex Court in case of State of Rajasthan v. Chhagan Lal dated 4th February 2014 rendered in Criminal Appeal No. 592 of 2005, where the Deputy Superintendent of Police recorded information received by him through an informer and on receipt of information, he noted it down and forwarded it to the Superintendent of Police, Chittorgarh, and thereafter, entry made and search, etc., was conducted. The Apex Court referred to the provisions of Section 42 of the NDPS Act and the decision in case of Karnail Singh v. State of Haryana [Supra] and found that in case of emergent situation, if the Officer had a reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for concealment of the evidence, as per the provisions of Section 42 (1) of the NDPS Act, it was incumbent upon such Officer to have conducted the search after recording grounds of his belief. In the facts of the above case, no material was Page 9 of 46 HC-NIC Page 9 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT produced to establish that the officer had followed the procedure viz., recording the grounds of his belief and communicated such grounds to his immediate superior officer.
By applying ratio of Karnail Singh v. State of Haryana [Supra], the order of setting aside conviction of the respondents by the High Court was upheld.
16. Mr. Gupta placed heavy reliance on testimony of DW-3 Mohammed Ramzan Gulam Mohammed - an informant to the Police and other authorities of providing vital and correct information about dealing of narcotic drugs and psychotropic substances on twelve different occasions and in all such cases, the information turned out to be true. According to this DW, the present prosecution case has genesis in the arrest of one Daljit Singh @ Raju, a resident of Jammu, who happen to be active member of a gang of Jaswant Singh and was arrested for having 1 kg. Of Charas by Mr. Polra, a Police Inspector working with Narcotic Control Bureau of the State of Gujarat. That mother of Daljit Singh requested the informant - DW-3 to get her son released in view of contacts of DW-3 with the Police authorities and Narcotic Control Bureau officials and according to the above DW-3, when he approached the Superintendent of Police of Narcotic Cell at Ahmedabad alongwith certificates Page 10 of 46 HC-NIC Page 10 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT received by him for rendering service as an Informant issued by the Police authorities, DW-3 was persuaded to give more information about leader of the gang dealing with Narcotic substances. A deal was struck to offer Rs. 3 lacs to get Daljit Singh released and also to supply more information about Jaswant Singh - a kingpin. Having paid Rs. 3 lacs, Daljit Singh was released and later on on 25th May 2001 Daljit Singh informed DW-3 at Jammu that about 100 kilogram of Charas is lying at Karnavati Flats at Ahmedabad. That information was given to PW-8 who was in-charge of Narcotic Cell of the State of Gujarat and holding the rank of District Superintendent of Police. The information was given to PW-8 on telephone at his office but for more clarity, DW-3 was called to reach at Ahmedabad and, after three days, one Sardar by appearance was leaving his flat with green colour bag and boarded a Sumo vehicle which was intercepted by the police party, where DW-3 was present and two bags of Charas were found. Sardar Jaswant Singh was taken to a hotel at Saraspur area, behind Railway Station where certain dubious transactions had taken place and a deal was struck again with Shri Polra, Police Inspector and Rs. 15 lacs, according to DW-3 were given to Mr. Polra with further understanding that 60 kilograms of Charas lying in twenty different packets of three kilogram each to be Page 11 of 46 HC-NIC Page 11 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT handed over to Mr. Polra and Jaswant Singh to be allowed to go scot-free and by making some arrangement in his place servant of Jaswant Singh is to be brought in as an offender.
Accordingly, further course of action has taken place and on 11th June 2001 and in place of Jaswant Singh, the present accused no. 1 was arraigned as an accused and DW-3 was taken to Godhra and for which railway ticket was provided by PW-1 for Jammu i.e., on 17th June 2001.
17. Further, upon another information provided by PW-3, one Babu Khan was arrested with two and half kilogram of Brown Sugar on 14.4.2002 and in the above case also, by taking bribe of Rs. 8 lacs, the original accused was allowed to go scot free and in his place another person was planted as an accused, as per the details narrated by DW-3. Upon arrest of Babu Khan in the above case of Brown sugar, certificates were issued on 16 th April 2002, for both the cases viz., the present case for which seizure was carried on on 11th June 2001 and in the second case where seizure was carried out on 14th April 2002.
18. Mr. Gupta, learned advocate appearing for the respondents has relied upon two more decisions on the aspect of credibility of defence witnesses namely 2009 [16] SCC 487 Page 12 of 46 HC-NIC Page 12 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT in case of Sanjiv Kumar v. State of Punjab, and in case of Adambhai Sulemanbhai Ajmeri & Ors. v. State of Gujarat, reported in 2014 [7] SCC 716 to contend that equal weightage shall have to be given to the defence witness as that of the prosecution witnesses.
19. That the common thread which runs through both the above decisions is, such witness is to be believed, if his version is probable and that other para meters namely truthfulness, trust-worthy, reliability and of inspiring confidence have to be undergone.
20. In this appeal arising out of judgment and order of acquittal under challenge, the short question that is to be addressed is about nature of compliance of Section 42 of the NDPS Act and, therefore, other contentions in the appeal do not require detailed deliberation.
21. An analysis of important case laws with regard to nature of compliance of Section 42 of the NDPS Act, we are inclined to refer to and rely upon following decisions and law laid down therein:-
Page 13 of 46HC-NIC Page 13 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT 21.1 In the case of State of Punjab v. Balbir Singh (1994)3 SCC 299 in para 15 reference was made to Section 42(1) of NDPS Act in the context of stringent provisions for control and regulation of operation relating to drugs and psychotropic substance vis-a-vis to avoid harm to the innocent persons and to avoid abuse of the provision by the officers, certain safeguards are provided in the NDPS Act and failure to exercise mandatory requirement while entry, search, seizure or arrest in breach thereof held to be affecting case of the prosecution and vitiating the trial.
21.2 In para 25 of the above decision, the Apex Court set out conclusions about frequently arising questions to be considered by the trial courts in the context of Sections 41, 42, 50, 52 and 57 of the NDPS Act, which reads as under:-
"25. The questions 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 offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of 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.
(2-A) Under section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Page 14 of 46 HC-NIC Page 14 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT Act, etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41 (2) and 42 (1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2-B) Under section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2-C) Under section 42(1) the empowered officer if he has 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 offneces 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 Page 15 of 46 HC-NIC Page 15 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of sections 100 and 165, Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under section 41(2) of the Act, carries out a search, he would be doing so under the provisions of Cr. P.C., namely, sections 100 and 165, Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information, the empowered officer or authorised officer while acting under section 41(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under 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 Page 16 of 46 HC-NIC Page 16 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT 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."
21.3 A three Judges Bench in the case Saiyad Mohd. Saiyad Umar Saiyed & ors. v. State of Gujarat (1995)3) SCC 610 endorsed the judgment of Balbir Singh [supra].
21.4 A Constitution Bench of the Apex Court in the case of State of Punjab v. Baldev Singh (1999)6 SCC 172 again considered the provisions of NDPS Act and earlier judgment and noticed that judgment in the case of Balbir Singh [supra] which found approval by three judges bench in Saiyad Mohd. Saiyad Umar Saiyed [supra] and a contrary view to some extent was taken by two judges bench in the case of State of Himachal Pradesh v. Pirthi Chand & Anr. (1996)2 SCC 37, the Constitution Bench approved the view taken by the Apex Court in the case of Balbir Singh [supra] that it is an obligation of mandatory nature upon authorized officer under Section 50 of the NDPS Act to inform the suspect that he has right to be informed in the presence of the Gazetted Officer and if the search is conducted in violation of Section 50 it may not vitiate the trial but that would render the recovery of illicit articles doubtful and vitiates the conviction and sentence of the accused. A Constitution Bench of the Apex Court had an occasion to again consider Section 50 of the NDPS Act in the case of Baldev Singh (supra) in which safeguards provided in Section 50 about basic right of an accused were considered and in para 57 has concluded as under:-
Page 17 of 46HC-NIC Page 17 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT "57. On the basis of the reasoning and discussion above, the following conclusions arise :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search.
However, such information may not necessarily be in writing;
(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;
(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under 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 law and may have the effect of unconscionably compromising the administration of Page 18 of 46 HC-NIC Page 18 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT 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 50 have by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the 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;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.
(9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful Page 19 of 46 HC-NIC Page 19 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case."
21.5 The case of Vijaysinh Chandubhai Jadeja v. State of Gujarat, (2011) 1 SCC 609] was referred to a Constitution Bench of the Apex Court to decide the question as to whether Section 50 of NDPS Act casts a duty on the empowered officer to "inform" the suspect of his desires or 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 gazetted officer can be said to be due compliance with the mandate of the Section 50?
21.6 In the above case, a Constitution Bench of the Apex Court after considering the controversy involved in the matter has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provisions of Section 50 must be very strictly construed. The nature of discharge of obligation upon the authority under Section 50 is statutory and is not to be deviated. Before deciding above issue, in paragraph 22 the Apex Court considered provisions of Section 41 and in paragraph 23 conclusions drawn by earlier Constitution Bench in the case of Baldev Singh (supra) were considered. The Apex Court, in the above judgment, while answering the reference, in paras 28 to 32 held as under:
"28. We shall now deal with the two decisions, referred to in the referral order, wherein "substantial Page 20 of 46 HC-NIC Page 20 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT compliance" with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey (supra), a two Judge bench of this Court culled out the ratio of Baldev Singh's case (supra), on the issue before us, as follows:
"11. ...What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word "right" at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the "suspect" at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it."
However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez (supra), the Court chose to follow the views echoed in the latter case, wherein it was held that searching officer's information to the suspect to the effect that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression "substantial compliance" in the following words:
"12. The use of the expression "substantial compliance" was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word 2 in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations."Page 21 of 46
HC-NIC Page 21 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT It is manifest from the afore-extracted paragraph that Joseph Fernandez (supra) does not notice the ratio of Baldev Singh (supra) and in Prabha Shankar Dubey (supra), Joseph Fernandez (supra) is followed ignoring the dictum laid down in Baldev Singh's case (supra).
29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
30. As observed in Re Presidential Poll, in re:
"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 imponent is, 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 Page 22 of 46 HC-NIC Page 22 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.
32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of 14 (1974) 2 SCC 33 2 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.
(Emphasis supplied)"
21.7 In the case of Karnail Singh v. State of Haryana (2009) 8 SCC 539 again a Constitution Bench of the Apex Court considered Sections 42 and 50 of the NDPS Act. In view of divergent opinions in earlier two cases which has resulted in placing of the matter before the Larger Bench. In paras 1 and 2 of the above judgment, the apex court referred the issues for which the matter was referred to Constitution Bench and conclusions were drawn in para 35 of the said judgment.
Paragraphs 1, 2 and 35 of the above judgment read as under:
"1. In the case of Abdul Rahsid Ibrahim Page 23 of 46 HC-NIC Page 23 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT Mansuri v. State of Gujarat, (2000) 2 SCC 513, a three-Judge Bench of this Court held that compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances At, 1985 (hereinafter referred to as "NDPS Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient.
2 In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue.
35. 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 Page 24 of 46 HC-NIC Page 24 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT 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 subsections (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 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 Page 25 of 46 HC-NIC Page 25 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT position got strengthened with the amendment to Section 42 by Act 9 of 2001."
21.8 In the case of State of Rajasthan v. Jag Raj Singh @ Hansa in Criminal Appeal No.1233 of 2006 in which again the Apex Court considered the provisions of Sections 42 and 50 of the NDPS Act.
21.9 In the case of Ritesh Chakravarti v. State of Madhya Pradesh (2006)12 SCC 321 in the context of Sections 42 and 50 of NDPS Act, upon receipt of information by Inspector about person carrying contraband articles of about 1.5 kgs. was boarding on a bus at a particular place was apprehended by Sub-Inspector and contention was raised that suspect accused was given an option of search by a Magistrate or Gazetted Officer in terms of Section 50 of the Act and opium weighing 1.3 kgs. was recovered, the prosecution failed to examine competent witnesses viz. Inspector and the officer, who had received information and also independent witnesses, though search was conducted of a busy place like bus stand, the Apex Court held that absence of independent witnesses non-examination of key members of the raid party and absence of explanation as to how apprehended person was identified, raised serious doubt about veracity of the prosecution case and it was held that prosecution failed to prove its case beyond reasonable doubt.
21.10 In the case of Myla Venkateswarlu v. State of Andhra Pradesh (2015)5 SCC 226, the Apex Court held that a clear communication with clarity is must while complying with Section 50(1) of The NDPS Act and such communication will qualify as a valid communication of the right under Section 50(1) of the NDPS Act, which must contain three elements;
Page 26 of 46HC-NIC Page 26 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT "[1] That the person sought to be searched has a right of being taken to the nearest Magistrate or gazetted officer in whose presence the search of his person would be conducted; and [2] Of being taken to the nearest Magistrate or gazetted officer [it seems that a government communication that the accused has the right of the presence of a Magistrate or gazetted officer at the location where the person has been accosted for th search would not be enough; it has to be communicated that the said accosted person has the right to be taken to the location where the Magistrate or gazetted officer is; such an interpretation seems consistent with the safeguard that Section 50(1) seeks to provide i.e. that people do not have narcotics planted on them by the police or others; and [3] That the right under Section 50(1) pertains to being taken to either the nearest Magistrate or gazetted officer other than the searching officer, and that there must a clear communication of this choice i.e. there must be a mention of the nearest [I] Magistrate, and [ii] gazetted officer, and [iii] that the accosted person has a choice to be taken to either of them".
21.11 The above judgment also referred to decision in the case of Baldev Singh [supra].
21.12 In the case of Union of India v. Shah Alam & Anr. (2009)16 SCC 644, where recovery of heroin was made from bags being carried out by accused and not from their person. Relying on the decision in the case of State of Himachal Pradesh v. Pawan Kumar (2005)4 SCC 350, the word `person' would mean a human being with appropriate coverings and clothings and also footwear and a bag, briefcase or any such article or container, etc. can, under no Page 27 of 46 HC-NIC Page 27 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT circumstances, be treated as body of a human being including items like a thaila, a jhola, a gathri, a holdall, a carton, etc. Thus, Section 50 of NDPS Act laid down the conditions for search of the person and not any bag, briefcase, etc. and provisions of Section 50 had no application in the facts of this case or even non-examination of two witnesses of search and recovery was another grave omission by prosecution and accused were given benefit and upheld the conviction of the accused.
21.13 Similar such view was taken in the case of Dilip & Anr. v. State of M.P. (2007)1 SCC 450 and it was further held that benefit of doubt should be given to the accused if two views are possible in a criminal trial.
21.14 In the case of Kishan Chand v. State of Haryana (2013)2 SCC 502 in the context of Sections 42 and 57 of the NDPS Act, the Apex Court noticing provisions of both the above sections, it was held that Sections 42 and 57 are neither interlinked nor interdependent so as to dispense compliance of one with compliance of another. Sections 42 and 57 operate in different fields and at different stages and each has to be strictly complied with as per its own norms and the above aspect is to be kept in mind.
21.15 Even if seized articles are not kept in a safe custody and sending of such articles to chemical examiner if found doubtful, the conviction was held to be unsustainable. 21.16 In the case of Rajesh Jagdamba Avasthi v. State of Goa (2006)1 CCC [Cri.] 150 credibility of recovery proceedings is considerably eroded if the quantity found by the analyst is less than the quantity sealed and sent to him. The Page 28 of 46 HC-NIC Page 28 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT question is not how much contraband was seized but whether there is actual seizure and whether what was seized was really sent for chemical analysis or not.
21.17 In the case of State of Gujarat v. Ismail U Haji Patel & Anr. (2003)12 SCC 291, the issue of safe custody of seized articles as required under Section 55, was not established and in that case it was held that the prosecution has to establish that the seized articles were in proper custody, in proper form and samples sent to the chemical analyst related to the seized articles.
21.18 In the cases of State of Rajasthan v.
Chhaganlal, (2009)8 SCC 539 and Sukhdev Singh v. State of Haryana, AIR 2013 SC 953, the Apex court followed decision in the cases of [i] Karnail Singh [supra]; [ii] Darshan Singh v. State of Haryana in Criminal Appeal Nos.216 with 217 of 2009 decided on 02.09.2015 by the Apex Court; and [iii] Rajendra Singh v. State of Haryana in Criminal Appeal No.1051 of 2009 decided on 08.08.2011 and held that total non-compliance of the requirements of Section 42 was impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42 of NDPS Act. 21.19 Vijaysinh Chandubhai Jadeja [supra] considered in length, provisions of Section 50 of the NDPS Act by referring to decision of constitution Bench in the case of Baldev Singh [supra] and also Karnail Singh [supra] and paras 20, 21, and 22 conclusions are given by reiterating law laid down in the case of Baldev Singh [supra] and even concept of 'substantial compliance' with the requirement of Section 50 of the NDPS Act is held to be neither born out form Page 29 of 46 HC-NIC Page 29 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT the language of sub-section (1) of section nor it is in consonance with the dictum laid down in the case of Baldev Singh [supra].
21.20 In the case of Basheer v. State of Kerala, [2004] 3 SCC 609 proviso to section 41(1) of the amending Act 9 of 2001 was held to be constitutional and not hit by Article 14 the Constitution of India.
21.21 In the case of State Through Intelligence Officer Narcotics Control Bureau v. Mustaq Ahmed Etc., 2015 JX(SC) 802 in relation to cannabis plant and cannabis, the aspect about quantity was considered in the context of definitions contained in Section 2[iii] of the Act and punishment prescribed therein.
21.22 In case of Yasihey Yobin & Anr. vs. Department of Customs, Shillong, 2014 (13) SCC 344, in which the Apex Court was considering Section 42 of the Act in the backdrop of search made by the Gazetted Officer from the residence of accused no.1 and by considering law laid down in the case of Prabhulal (supra), Satrohan (supra), Abdul Rashid (supra), Balbir Singh (supra), Baldev Singh (supra), it was held that such mandatory compliance of Section 42 is not necessary in a case where Gazetted Officer is a member of searching party.
21.23 In the case of Satrohan (supra), a Bench of two Page 30 of 46 HC-NIC Page 30 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT Judges of the Apex Court relied on M.Prabhulal v. Directorate of Revenue Intelligence (supra) and quoted paragraphs 8, 9 and 14 in the context of nature of compliance of Section 42 of the NDPS Act, which reads as under:-
"13. So far as the applicability of Section 42 is concerned few decisions need to be noted. In M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence (JT 2003 (2) Supp SC 459) it was noted as follows:
"8. Now, we come to the last and rather more serious objections raised on behalf of the appellants regarding the non-compliance with Section 42 of the NDPS Act vitiating the conviction which looks quite formidable but only on the first impression and not on its deeper examination. The contention of Mr R.K.Jain is that the view of the High Court that when a Gazetted Officer himself conducts a search it is not necessary to comply with Section 42(2) of the Act, is clearly erroneous.Section 42(2) provides that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. This was the statutory provision at the relevant time. By the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 which came into force on 2-10-2001, Section 42(2) was amended whereunder the information taken down in writing under sub-section (1) or grounds of belief recorded under the proviso thereto are required to be sent within seventy-two hours to officers' immediate official superior. The contention is that the officer who searched and seized the contraband did so on information received by him as per Ext. PW 1 but the said information was not forwarded to his superior officer as contemplated in Section 42(2) of the NDPS Act, thus vitiating the entire prosecution. Further argues the counsel that the respondent after grant of bail to the appellants by the High Court taking into consideration the non-Page 31 of 46
HC-NIC Page 31 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT compliance with Section 42(2) has tried to fill in the lacuna with a view to show the compliance of this mandatory provision.
9. The officer who conducted the arrest, search and seizure was an empowered Gazetted Officer of the Department. This fact is not in dispute. According to Mr Vasdev, learned Senior Counsel for the respondent, Section 42(2) is not applicable when an empowered Gazetted Officer conducts the arrest, search and seizure. The counsel submits that there was no obligation on the officer to comply with the requirement of Section 42(2) of the NDPS Act. It was also contended, in the alternative, that Section 42 (2) of the NDPS Act was complied with.
14. Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41(2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorize an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a peon, a sepoy or a constable. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorized the arrest or search under sub- section (2) of Section 41, and (iii) the officer who is so authorized under sub-section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including the power of seizure. Section 42 provides for procedure and power of entry, search, seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open any door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. In case of an emergent situation, these powers can Page 32 of 46 HC-NIC Page 32 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT also be exercised even between sunset and sunrise without obtaining a search warrant or authorization, in terms provided in the proviso to sub-section (1) of Section 42. Sub-section (2) of Section 42 is a mandatory provision. In terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for the belief under the proviso thereto, is required to be sent by the officer to his immediate superior official. It is clear from Section 41(2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorize his subordinate on the terms stated in the section. Under sub-section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub- section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of Section 42. It is clear from the language of sub-section (2) of Section 42 that it applies to an officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by subsection (2) of Section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in a public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not Page 33 of 46 HC-NIC Page 33 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT necessary to comply with Section 42. The decisions in State of Punjab v. Balbir Singh, Abdul Rashid Ibrahim Mansuri v. State of Gujarat and Beckodan Abdul Rahiman v. State of Kerala on the aspects under consideration are neither relevant nor applicable."
However, In Yasihey Yobin (supra), the Apex Court had not referred to the decision of the Constitution Bench on the interpretation of Section 42 of the NDPS Act in the case of Karnail Singh (supra).
22. In the backdrop of rival contentions and the law laid down by the Apex Court, particularly about interpretation of Section 42 of the NDPS Act, in paragraph 35 of the case of Karnail Singh (supra) of Constitution Bench, we address to findings, reasonings and conclusions drawn by the trial Court in the judgment whereby it is borne out that learned trial Judge has considered evidence of Dy.SP. Mr.Pandya (PW-1). Panchnamas drawn of seizure and muddamal and has found as under:-
"Evidence of Dy.S.P. Mr.Pandya (PW1) and that of Mr.Rana may look flawless as far as seizure barring the resolution u/s.42 of N.D.P.S. Act is concerned but this Court cannot be oblivious of the factual drama that have come on record preceding this stage and with reasonable doubt having been created of striking a deal of replacing one man with another and with identity of accused no.1 as the tenant and only possessor of the impugned flat since last two years not getting established with proved Page 34 of 46 HC-NIC Page 34 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT legal method, facts cumulatively do not lead to the single most of guilt of the accused. This Court would desist from passing any remarks/ comments on the conduct of any officer as process has already begun departmentally as conveyed during deposition it would not cause prejudice at this stage but suffice to say that a scorching cross- examination of an informant could not take bottom of his version.
There are yet other vital aspects that need consideration and the first amongst those is that there is a major flow in the case of prosecution of non- compliance of s.42 of the NDPS Act. Admittedly, the raid was to be carried out in the closed premises as the information is very clear on this aspect and therefore, the case of Rajendra Babu (Supra) would not apply to the instant case and instead the Court shall have to consider the judgment of the Apex Court in case of Mohinder Kumar v. State (AIR 1995 S.C. Pg.1157) and that of the Gujarat High Court in 2005 Cri. L.J. Pg. where it has been specifically ruled that, the information received by the police officer in respect of the contraband article kept in private premises which is not accessible to the people sending the said information in writing to the superior is a must and this being a mandatory provision, its breach would be fatal to the prosecution's case. This provision can be well appreciated especially under the facts and circumstances of the instant case where there is a specific allegation by the informant himself that the information given to SP Mr.Bhati was in respect of the contraband article possessed by Jaswantsingh Punjabi. Had there been the information sent in a sealed envelop to the superior officer, there would not have arisen any question of creating a reasonable doubt by the deposition of the said informant and the submission of the LAPP that, as there is a specific deposition from the S.P. Mr.Bhati of having communicated to his superior the said information telephonically, cannot be accepted for the reason that, there is no supporting document having come on the record as regards the said telephone call and moreover, no such superior has been examined by the prosecution which would confirm the version of Mr.Bhati with substantiating evidence of his having received the said information prior to the raiding team having proceeded to Karnavati Avenue Flats. When there is a mandatory provision, it needs to be followed in the Page 35 of 46 HC-NIC Page 35 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT manner it is described and irregardless of quantum of seizure, breach of such mandatory provision itself would be fatal to the case of prosecution.
However, even when there was a specific information received in pursuance of which raid was decided to be conducted, there was no warrant obtained from Ld.Metropolitan Magistrate nor was any authorization given by SP Mr.Bhati and PW-2 had to rely on the resolution u/s.42 before entering the premises and the said resolution does not bear the signature of either of the panchas nor does it bear the date. With the panchas not supporting the raid at Karnavati Avenue Flat this conduct is also creating a serious doubt. Moreover, after the seizing of muddamal as discussed hereinabove, the custody of the muddamal and its movement is not what is required under the law. As CID does not have the post of Crime Writer Head, there is nowhere to be shown as to whether the raiding party officer handed over the same to the PSO who in turn after preparing the muddamal receipt had handed over to the Crime Writer Head. In fact, for two days it continued to lie with Mr.J.B.Rana (PW4), who handled the investigation but, there is no entry as required in the muddamal register and handing over of the sample as well as handing over of the rest of the muddamal as is generally being maintained in all narcotic cases circulars issued by the office of Addl.D.G. (Mark B) needs to be exhibited which is dt.27-08-1995 where all the required safeguards when raid under NDPS Act is conducted are mentioned where it says at Sr.No.24 that, muddamal needs to be handed over to the PSO in a sealed condition and who in turn should hand it over to the Crime Writer Head and their statements shall have to be recorded and they shall be cited as witnesses. Weight of the muddamal also is directed to be done from an outsider and a certificate to that effect needs to be obtained from the man. The person carrying the muddamal to the FSL and who bring it back also needs to be cited as witnesses. There appears to be serious lapse as there is nothing to suggest that, muddamal had been handed over to the PSO as PW4 who was a part of the raiding party team himself had prepared the muddamal receipt and he had registered the offence in the station diary. He continued to retain the muddamal and the samples prepared from it till the same were handed over to Mr.Polra on dt.12-06- Page 36 of 46 HC-NIC Page 36 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT 2001 in the morning. He is not sure as to from whom he had taken the charge and to whom he had handed over. The said register, according to him is in the custody of Dy.S.P. Gandhinagar. This officer has not noted it down in any register. There is no muddamal register kept at Meghaninagar which according to him is kept at Gandhinagar but, he has not deposited the said muddamal at Gandhinagar Office on the 11th. He, of course, insisted that, the said muddamal had been kept in his lock and key, but as regards the handing over to Crime Writer Head or noting it down in any register and thereafter handing it over back to Mr.Polra, there is nothing on the record.
This takes this Court to the last conclusion that, even if disregarding the deposition of PW8 & PW9, depositions of Dy.SP (PW2) and P.I. Mr.Polra (PW4) are taken into consideration, it speaks of seizure of a huge quantity of charas. Undoubtedly, there does not arise any question of implanting such a huge quantity of contraband article and therefore, seizure of the same needs to be held as record.
The moot question therefore, would remain is as to whether these three accused and particularly accused no.1 in respect of 26 kgs and 400 gms. can be held to have a conscious possession which the prosecution can be said to have proved beyond reasonable doubt. Even with there being not an iota of allegation against PW2, as held hereinabove, when the case is looked at from the entire evidence that has come on the record, the Court cannot convict a person merely relying on the evidence for the sake of argument that the informant Mohd.Ramzan can be persuaded by the defence to curry favour to the accused, it is incomprehensible as to how any informant would risk his life by stating certain startling facts in the matter where he himself is a whistle blower as every informant would be desirable that his information and seizure that takes place in pursuance thereof, may result into conviction and therefore, he himself cannot act as an impediment in giving final conclusion to such a seizure. Moreover, he had been an informant to the Delhi Police and it is not the case of the prosecution that either the information proved to be wrong or he had attempted to save any of these persons and with no connection of this informant with the Page 37 of 46 HC-NIC Page 37 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT accused no.1 and when he has been awarded lakhs of rupees for the information that he has passed on to the police, money may not be the criteria for him to go against his own information. Moreover, even if it assumed that, for the reasons best known to him, he had decided to go out of the way to help the accused no.1, then also, being somebody who is accustomed with the legal process, he would not dare to go against the Sr.Police Officers risking his own life. The Court also cannot be oblivious of the fact that, he was called as a witness from Vadodara Central Jail but, this line of defence is from two years before when the evidence of PW1 began. Moreover, it is about 3 to 4 times the Court was reported his presence and as the schedule of his examination quoted by the LA for the defence was for about 2 to 3 hours, his deposition needed to be postponed and only after his interview had been published, that he is alleged to have been involved in abetting the transaction of drug trafficking by NCB at Vadodara. As what essentially was the matter before the concerned Court within whose jurisdiction the alleged offence had been committed, this Court cannot regard those facts and as the informant has died during the pendency of this trial, his alleged confession u/s.67 of NDPS Act would hardly be of any use as he himself is not being tried in for the trial before learned Judge at Vadodara. Again his arrest was not by either SP Mr.Bhati or P.I. Mr.Polra of CID Crime so as to drive him to start the kind of crusade against them. The Court also cannot disregard the fact that there had been no criminal antecedent of the said person and believing it for a moment that he was trafficking in the drugs as alleged by the NCB by being an informant himself, there is nothing that has come on the record except his bare allegation and even assuming that he so did and he was not caught by the police, the fact remains that, he continued to be an informant and in that event, it would have been necessary for him to remain in the good book of the police and that also would prevent him from going against the police force and making such wild allegation against the Sr.Officers. With the very identity of Jaswantsingh Punjabi being doubtful and the accused no.1 said to be a stooge, the Court is of the firm opinion that benefit should go to the said accused.
As regards compliance of s.42 the Apex Court has Page 38 of 46 HC-NIC Page 38 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT held in the matter of Mohinder Kumar v. The State {AIR 1995 S.C. 1157} the officer concerned, as required u/s.42 (2) did not record the ground of his belief at the stage of investigation subsequent to his realizing that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required u/s.42 (2) of the Act because he had not made any record under the proviso to S.42(1).
The Court felt that the mandatory provisions required for the arrest and seizures were not adhered to and the accused was entitled to be acquitted.
In the State of Punjab v. Balbir Singh reported in JT 1994 (2) S.C. 108 it is ruled that u/s. 42 (1) the empowered officer if has a prior information given by any person, that should be 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 material 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 s.42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief and contravention of the same would affect the prosecution case and vitiate the trial. Whereas, u/s. 42 (2) such empowered officer who takes down any information in writing or records the grounds under proviso to s.42 (1) should forthwith send a copy thereof to his immediate 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.
Likewise, Division Bench in case of Liming Bojang v. State of Maharashtra reported in 1996 (4) Crimes Pg.212 which is sought to be relied on by the defence where noncompliance of mandatory provisions of S.42 of the Act where prior information reduced in writing was not sent to the immediate superior official. The Bombay High Page 39 of 46 HC-NIC Page 39 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT Court held that the oral information sent to the superior officer could not be said a compliance of the provision. The Court held that the trial vitiated and conviction unsustainable. It is also held that the provisions of S.42 of the Act is mandatory and question whether any prejudice was caused to the accused on account of strict non-compliance of the provision was immaterial. In another decision relied upon by the defence reported in 1994 (3) Crimes Pg.1048 (H.P.) in cases of Tawarsu @ Kancho Baba v. State of H.P. the secret information which was received by the police was sent to the police station for registration of the case and the case was accordingly registered but, the copy of that was not sent to the superior officer which was held noncompliance of s.42 (2) of the Act, which is mandatory and the trial was held to be vitiated.
In the first place as per the decision of the Apex Court in the case of Rajendra v. State of M.P. reported in (2004) 1 SCC 432, S.42 will not be attracted. The decision states as follows.
"S.42 comprises two components : one relates to the basis of information i.e. : (I) knowledge, and (ii) information given by person and taken down in writing. The second is that the information must relate to commission of an offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist S.42 has no application.
S.42 (2) comes into operation where the officer concerned does the enumerated acts, in case of offence under Chapter IC has been committed or conveyance or enclosed place. Therefore, the commission of the act or concealment of documents etc. must be in any building , conveyance or enclosed place. The trial Court and the High Court after analyzing the evidence have come to hold that there was compliance with s.42 (2) in the sense that requisite documents were sent to the superior office, though per se s.42 had no application to the facts of the case."
In case of Smt. Krishna Kanwar @ Thakurasen v. State of Rajasthan reported in 2004 AIR SCW 1203 the Page 40 of 46 HC-NIC Page 40 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT said ratio has been reiterated where it has been specified that, s.42 (2) only come into operation. It is enumerated that in case any offence under Chapter IV of the Act has been committed or any other article which may furnish evidence of the commission of such offence is kept or concealed in any "building or conveyance or enclosed place." In absence of sending a copy of information to the superior immediately and even at any stage thereafter, there is a clear breach of the mandatory provision as held hereinabove. Though there is no particular mode prescribed for reducing the prior information into writing what is found here is that the prior information was with regard to the narcotic substance being in a closed place/building.
In 1996 Cri.L.J. 2001 in case of Mohd. Alam Khan v. Narcotics Control Bureau the ownership and possession of premises by accused from which contraband articles were seized was not established and accused was acquitted on that ground. Here in the instant case also the ownership or the possession of the place from where the contraband article has been found is not proved to be that of the accused. Admittedly, it is said to be of one Punjabi who had been rented the said premises.
Supreme Court has held s.42 to be mandatory and categorized the officers in three types i.e. as the Gazetted Officer who has received the information is not the same who had conducted the search and seizure and make an arrest and as s.42 (2) is held to be a mandatory provision.
This takes this Court to another vital issue which is much debated of an offer s.50 of the Act.
Firstly taking the legal aspect on this point, in the authority reported in 2003 SCC (Cri.) P.14 in the case of Vinod v. State of Maharashtra, it is held by the Apex Court that, police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or Gazetted Officer. In absence of specific evidence, there is noncompliance held of mandatory requirement of S.50 and therefore, it was concluded that if the complaint and the panchnama cannot be used to established offer of search of the person of the accused, his possession of the brown sugar Page 41 of 46 HC-NIC Page 41 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT cannot be held to have been proved. The Court also said that before conducting the search, the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or a gazetted officer for the purpose of search but must inform him of his right under the law. Reliance is placed on the judgment in the case of K.Mohanan v. State of Kerala reported in 2000 SCC (Cri.) P.1228, H.P.High Court in 1996 (2) Crimes, Pg. 245 did not find offer in writing given by the Investigating Officer and as to in what manner the option was exercised by the applicant. The Court felt that circumstances showing that factum of oral option having been given by the appellant was an afterthought and therefore, benefit was given to the accused for noncompliance of S.50. Likewise, in the case of Saleem v. State of Kerala reported in JT 2002 (5) SC Pg.387, no option was given to the accused who was searched by the gazetted officer who was present at the spot and the mandatory provisions were held not complied with and hence, conviction was set aside. Rajasthan High Court in the case of Sukhpal Singh @ Pala v. State of Rajasthan reported in 1996 (3) Crime P.194 held that if the officer conducting search was a gazetted officer, other option being searched before gazetted officer having not been given, provisions of s.50 of the Act cannot be said to be fully complied with. It also says that gazetted officer performing function u/s.50 of the Act has to be different from one who is a member of raiding party or who is officer conducting search.
Thus, what gets concluded from these discussions is that the officer present as a part of raiding party cannot merely ask this accused whether he would like to be searched before gazetted officer or executive magistrate but he must inform him of his right provided under the law. This is a mandatory provision and noncompliance of which would vitiate the trial and therefore, it needs to be found as to whether factually by virtue of substantive evidence as well as documentary evidence, there has been compliance of S.50 or not.
The Supreme Court in 2000 Cri.L.J. Pg.817 Kalayath Nasar v. State of Kerala found that there is a non- compliance with s.50 as accused was not informed of his right to be searched before the Gazetted Officer or the Magistrate. Likewise, in 2000 Cri.L.J. 3181 - C. Ali v. State Page 42 of 46 HC-NIC Page 42 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT of Kerala there was no evidence before the Supreme Court that, the detenu was informed of his right to be searched in presence of Gazetted Officer or Magistrate and since, there was noncompliance of s.50. Bombay High Court in 2003 Cri.L.J. 1324 - Mohammed Ismail v. State of Maharashtra also held on the same line.
In the instant case, he had been made an offer whether he wants to be examined by another Gazetted Officer or the Executive Magistrate. However, there has been no mention either in the panchnama or in the separate offer made in writing that it is his right to be examined by either of them and that is also one of the grounds. Of course, the witnesses have stated that they had been particularly communicated that it was their right but, substantiating documents are not there. Seizure of charas when was not reported to Magistrate, provision of S.102 & 103 was held directory, but substantial compliance thereof was considered to be necessary, trial was held vitiated.
As far as the accused no.3 is concerned, as reflected hereinabove 130 gms of narcotic drugs alleged to have been seized from him when the raid was carried out at accused no.2's place admittedly, the said sample had not been sent to the FSL as no reserve sample had been drawn from the article which had been found from him and as it is not proved that the article seized from him was charas or nay other contraband article as defined under the NDPS Act, in the opinion of this Court that fact itself would entitle him to be given the benefit of doubt. Over and above, as the raid has been taken as a continuous raid, noncompliance of mandatory provision and other provisions which question-mark the custody and movement of the muddamal article and there are various lapse with regard to the proceduralities as discussed hereinabove that would cumulatively go to raise serious doubts in the case of prosecution which also would entitle the accused to be given the benefit.
As far as accused no.2 is concerned, as the entire discussion held hereinabove and more Page 43 of 46 HC-NIC Page 43 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT particularly as regards non-compliance of s.42 of not sending the information to the superior officer would be fatal to the case of prosecution as far as this accused is concerned and though there is a alleged recovery of 1 Kg 600 gms of Charas from him, the sample of which had been sent to the FSL with the entire evidence discussed hereinabove creating serious and reasonable doubt and suspicion, Court is constrained to give him as well the benefit of doubt. ...."
(Emphasis supplied)
23. The above findings and discussion of evidence preceded by nature of NDPS Act, its stringent provisions, the manner in which investigation has taken place and deposition of defence witness, DW-2 clearly reveal that accused no.1 was falsely implicated. It has come on record that reasonable doubt having been created of striking of deal of replacing one man with another and that identity of accused no.1 as the tenant and the only possessor of the impugned flat since two years is not established and proved and learned trial Judge has rightly given benefit of doubt. Apart from failure to comply with procedure mandatory in nature under Section 42 of the NDPS Act, even as per law laid down by the Constitution Bench in the case of Karnail Singh (supra), at this stage of deciding the appeal finally, we find that there was a breach of above provision, and when there was a specific allegation by the informant himself that the information given to SP, Mr.Bhatti, was in respect of contraband article possessed by one Punjabi Page 44 of 46 HC-NIC Page 44 of 46 Created On Fri Nov 03 23:06:46 IST 2017 R/CR.A/1261/2006 CAV JUDGMENT and such information if were sent in a sealed envelop to the superior officer, there would not have arisen any doubt at all.
Besides no warrant was obtained from learned Metropolitan Magistrate nor there was any authorization given by SP, Mr.Bhatti and PW-2 relied on resolution under Section 42 before entering the premises. Even serious doubt is created about handing over muddamal to the PSO, as PW-4, who was a part of the raiding party himself has prepared muddamal receipt and he had registered the offence in the station diary.
He continued to retain the muddamal and that samples prepared from it till the same were handed over to Mr.Polra on 12.6.2001 in the morning. No mention is made in the register maintained. Thus, according to learned trial Judge the prosecution has failed to prove its case beyond reasonable doubt and, on the contrary, the manner in which investigation made an attempt to implicate the accused, clearly emerging from the deposition of DW-2 and DW-3 is rightly believed by learned trial Judge. We are in agreement with the law laid down by the Apex Court in the case of Sanjeev Kumar (supra) and Aadam Ajmeri (supra) that equal weightage shall have to be given to the defence witness and that of prosecution witness.
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24. That collective and cumulative effect of the discussion, as above, result into dismissal of the appeal filed by the State of Gujarat warranting no interference in exercise of powers under Section 378 read with Section 386 of the Code of Criminal Procedure and the appeal is hereby rejected. The impugned judgment and order of acquittal dated 21st April 2005 of the respondents herein for the offence punishable under Sections 20 (b), 8 (c) read with Section 29 of the NDPS Act passed by the learned Additional Sessions Judge, Court No.7, Ahmedabad in Sessions Case No. 159 of 2001 is hereby confirmed. Bail bond, if any, of the accused stands discharged. Record and Proceedings be sent back to the concerned trial Court forthwith.
Sd/-
(ANANT S.DAVE, J.) Sd/-
(B.N. KARIA, J.) *malek Page 46 of 46 HC-NIC Page 46 of 46 Created On Fri Nov 03 23:06:46 IST 2017