Karnataka High Court
Sri Arun Raj vs State Of Karnataka on 12 March, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CRIMINAL PETITION NO.7672 OF 2020
BETWEEN:
1. SRI. ARUN RAJ
S/O RAJ MOHAN,
AGED ABOUT 24 YEARS,
R/AT CHIRAYATH,
NADATHARA, THRISSUR,
KERALA STATE-620680.
2. SRI. MOHAMMAD SANATH
S/O SADATH SULAIMAN,
AGED ABOUT 24 YEARS,
R/AT SHAINAZ MANZIL,
ZINATH NAGAR,
THALANAGERE POST,
KASARGODE,
KERALA STATE-671121.
3. SRI. SHAHIN K.P.
S/O HAMZA R.P.,
AGED ABOUT 23 YEARS,
R/AT RAMLAS,
PONKUTHI, KOLAHEDRRY,
KANNUR,
KERALA STATE-670001.
4. SRI. ABIN SAJI GEORGE
S/O SANI GEORGE,
AGED ABOUT 23 YEARS,
R/AT VALIYAVILA PUTHEN VEEDU,
THEPPUPARA POST,
2
PATHANAMTHITTA,
KERALA STATE-689645.
5. SRI. SRIDHARTH H.L.
S/O HARI K.B. NAIR,
AGED ABOUT 22 YEARS,
R/AT NANDHANAM NGRA 45,
MARAPALLAM, PATTAM POST,
THIRUVANTHAPURAM CITY,
KERALA STATE-605036.
6. SRI. MITHUN NAIR
S/O MANI NAIR,
AGED ABOUT 27 YEARS,
R/AT SHRI SHAILAM,
POOKKUNNAN POST,
THRISSUR, KERALA STATE-620680.
7. SRI. KURIAN PETER
S/O PETER KURIAKOSE,
AGED ABOUT 20 YEARS,
R/AT KUNNATH HOUSE KAKKANAD,
CHITTETHUKARA,
SEJ POST, TRIKAKARA TALUK,
ERNAKULAM CITY,
KERALA STATE-682011.
...PETITIONERS
(BY SMT. HALEEMA AMEEN, ADVOCATE)
AND:
STATE OF KARNATAKA
BY POLICE SUB-INSPECTOR,
UDUPI CEN POLICE STATION,
UDUPI.
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU-560001.
...RESPONDENT
(BY SMT. WAHEEDA M.M., HIGH COURT GOVERNMENT
PLEADER)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN SPL.C.C.NO.3/2020
(CR.NO.80/2018) REGISTERED BY THE CEN UDUPI POLICE
STATION, PENDING BEFORE THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, D.K., UDUPI REGISTERED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 8(C) AND SECTION 20(b)(ii)(B)
OF N.D.P.S. ACT.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 21.12.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioners have challenged the prosecution launched against them in Spl.C.C.No.3/2020 registered by the Udupi CEN Police Station for the offences punishable under Sections 8(c), 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'N.D.P.S. Act'), which is pending trial before the Principal District and Sessions Judge, Dakshina Kannada, Udupi (henceforth referred to as 'Trial Court').
2. It is alleged that on 06.09.2018 at about 12.30 p.m., an informant telephoned the investigating officer and informed him that a few students were consuming Ganja at Flat No.204, Aditi Apartment, Vidya Ratna Nagar, and 4 that they had also stored Ganja for sale. The investigating officer purportedly entered the information in the Station House Diary and informed his superiors and obtained permission to raid the premises. He also requested the District Health and Family Welfare Officer to depute a Gazetted Officer to conduct a search, consequent to which Dr.Vasudeva was deputed. It is also alleged that two panchas were requested to co-operate in the raid and they accepted. Later, the Sub-Inspector along with three Head Constables and three witnesses went to the spot in Jeep, while two other police personnel reached the spot on their bikes. The premises was raided and the occupants were searched. The accused No.1 brought two shoulder bags kept in a compartment of a wooden rack, which contained Ganja leaves, seeds, buds and plants. The said accused disclosed that 3 kilos of Ganja was supplied of which, they had consumed a small portion and they sold 10 grams. packet to the students at Rs.500/-. The accused disclosed that they were not authorised to sell Ganja. The accused were offered to inspect the raiding party. Thereafter, the 5 Ganja packs were seized which weighed 1 kilo 254 grams and 1 kilo 550 grams respectively. A mahazar was drawn on the same day between 1.45 to 3.45 p.m. at the spot and a case in Crime No.80/2018 was registered for the offence punishable under Sections 8(c), 20(b)(ii)(B) of the N.D.P.S. Act.
3. The accused Nos.1 to 7 were produced before the Magistrate, who were remanded to judicial custody. The accused were later enlarged on bail. The respondent conducted an investigation and filed a final report under Section 173 of Cr.P.C. for the offences punishable under Sections 8(c), 20(b)(ii)(B) and Section 27(b) of N.D.P.S. Act. The Trial Court took cognizance of the aforesaid offences and issued process to the accused and registered Spl.C.C.No.3/2020 for the offences punishable under Section 8(c), 20(b)(ii)(B) and Section 27(b) of the N.D.P.S. Act.
4. Being aggrieved by the same, the petitioners have filed this petition.
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5. The learned counsel for the petitioners contended that,
(i) that the respondent had not complied with the mandatory provisions of law while conducting a search and seizure as prescribed under Section 41(2) of the N.D.P.S. Act, in as much as the investigating officer had not taken down the information in writing. She contended that the charge-sheet discloses that the entries in the Station House Diary was made after the search, seizure and arrest of the accused persons. She therefore, contends that the mandatory provision of law was not complied.
(ii) that the respondent did not record his reasons in writing as to why a search warrant could not be procured as mandated under proviso (2) to Section 42(1) of the N.D.P.S. Act. She contends that since a reverse burden is cast upon the accused, the 7 provisions of the N.D.P.S. Act have to be strictly construed and any violation of mandatory provision of law should result in vitiation of the prosecution.
(iii) that the premises searched was not a public place but was a private place of the accused No.1, which was a hostel and therefore, the search could not have been conducted without following the procedure contemplated under Section 43 of the N.D.P.S. Act.
(iv) that the accused were not informed that they were entitled to be searched before the Gazetted Officer or before the nearest Magistrate as stipulated under Section 50 of the N.D.P.S. Act and therefore, the search and seizure was wholly doubtful and the prosecution stood vitiated.
(v) that the report of the search of the premises and the arrest of the accused was not sent within 48 hours to the official superior of the 8 respondent as mandated under Section 57 of the N.D.P.S. Act.
(vi) that the complainant was the investigating officer and therefore, the prosecution was tainted.
(vii) that the Gazetted Officer, who allegedly was present at the time of the search, seizure and arrest, had become a witness to the mahazar and therefore, was not an independent witness and hence, the whole process of search and seizure was vitiated.
(viii) that the alleged seizure was on 06.09.2018, it was sent for a laboratory test on 14.09.2018. She contends that the seized material was examined from 17.07.2019 to 25.07.2019, which was nearly after 8 months 11 days from the date of seizure. She therefore, contends that the standing instructions of the Central Government to secure qualitative and 9 quantitative test within 15 and 30 days respectively, is not complied with.
6. In support of her contentions, the learned counsel for the petitioners relied upon the following judgments:-
(i) Directorate of Revenue and another vs. Mohammed Nisar Holia [(2008) 2 SCC 370];
(ii) State of Punjab vs. Balbir Singh [AIR 1994 SC 1872];
(iii) the judgment of a Coordinate Bench of this Court in Crl.P.No.8644/2017;
(iv) Roy V.D. vs. State of Kerala [(2000) 8 SCC 590];
(v) Union of India vs. Bal Mukund and others [2009 (12) SCC 161]
7. Per contra, the learned High Court Government Pleader for the respondent submitted that the question whether Section 42 of the N.D.P.S. Act has been complied or not, is a question of fact that has to be appreciated after the conclusion of the evidence. She submitted that this Court may not exercise jurisdiction under Section 482 of 10 Cr.P.C. at this stage when cognizance is taken. In this regard, she has relied upon the judgment of the Hon'ble Apex Court in the case of Mohd. Malek Mondal vs. Pranjal Bardalai and another [(2005) 10 SCC 608]. She also referred to a judgment of the Constitution Bench of the Hon'ble Apex Court in the case of Mukesh Singh vs. State (Narcotic Branch of Delhi) [(2020) 10 SCC 120] and contended that investigation by an Officer, who is himself an informant in the case does not violate the right to fair investigation. The question whether the investigation conducted by the informant was fair or not has to be decided at the time of trial. She also relied upon the judgment of the Coordinate Bench of this Court in the case of Tasleem N.P. vs. State of Karnataka [(2020) 6 KLJ 638] and contended that if a contraband is found in the house of the accused, it goes without saying that the first impression of an ordinary prudent man is that the bag belonged to the accused and he must be aware of its contents. She further submitted that as noticed by this Court, the duty of a Police Officer is not only to prosecute 11 an accused but also to prevent offence from being committed.
8. I have considered the submissions made by the learned counsel for the petitioners as well as the learned High Court Government Pleader for the respondent.
9. What can be discerned from the charge-sheet is that the accused Nos.1 and 8 were charge-sheeted for the offence punishable under Sections 8(c), 20(b)(ii)(B) of the N.D.P.S. Act, while the accused Nos.1 to 7 were charge-sheeted for an offence punishable under Section 20(b)(ii) of the N.D.P.S. Act for consuming cannabis, which was punishable under Section 27(b) of the NDPS Act. The arrest and seizure mahazar, which is part of the charge- sheet shows that cannabis weighing 2.804 kgs was allegedly seized from house of accused No.1 on 06.09.2018. The quantity seized was more than small quantity and less than commercial quantity as specified by the Central Government vide its Notification dated 12 16.07.1996 in exercise of its power under sub-section (viia) and (xxiiia) of Section 2 of the N.D.P.S. Act. The N.D.P.S. Act prescribes punishment for contravention in relation to cannabis plant and cannabis and Section 20(b) is relevant and the same is extracted below:
"20. Punishment for contravention in relation to cannabis plant and cannabis.-- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--
(a) xxxxxx
(b) produces, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports
inter-State or uses cannabis, shall be punishable,--
(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub- clause (b),--
(A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous 13 imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, 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."
10. Therefore, the punishment for "possessing"
and "selling" quantity lesser than commercial quantity but greater than small quantity is rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. As far as the premises where the incriminating narcotic was seized, was occupied by the accused No.1 and was seized from his "possession". The arrest and seizure panchanama shows that all the accused consented to the search. There is no material to establish that any incriminating substance were recovered from the person of the accused when they were searched. 14 The accused No.1 brought up two shoulder bags, when the investigating officer questioned all the accused as to where they had kept the Ganja. The two shoulder bags were allegedly kept in a compartment in a plywood rack in the premises. The Gazetted Officer directed the accused No.1 to bring out the incriminating substance, which was done by the accused No.1. The bags revealed two black bags inside which contained cannabis leaves, seeds, buds and stem. When he was asked from where he procured it, he informed that accused No.8 had delivered 3 kilos the previous morning of which, some part of it was consumed by them and some part was sold to students at Rs.500/- for a 10 grams packet. A weighing machine was also seized from the possession of accused No.1, which was kept in one of the shoulder bags, which was allegedly used to weigh the cannabis sold to the students. A mobile phone used by the accused No.1 to contact accused No.8 and a sum of Rs.6,000/- was seized from him. A mobile phone used by the accused No.2 to contact the accused No.1 was seized. The mahazar specifically recorded a fact, that 15 except the above seized articles, there was no other offensive material recovered from any of the accused persons. Therefore, it can safely be held that accused Nos.2 to 7 were accused of "using" or "consuming" the cannabis. The medical reports of the accused showed traces of chemical substances, which indicated consumption of cannabis. An offence of consumption of cannabis is punishable under Section 27(b) of the NDPS Act. Therefore, there was enough material to charge-sheet the accused for the aforesaid offences and the Trial Court was perfectly justified in taking cognizance of the offences alleged against the accused.
11. In so far as the contentions urged by the learned counsel for the petitioners that statutory and mandatory provisions of the N.D.P.S. Act were not complied which vitiated the prosecution, undoubtedly under Section 35 of the N.D.P.S. Act, a presumption of culpable mental state is drawn and it is for the accused to establish that he had no such mental state. Likewise, 16 under Section 54 of the N.D.P.S. Act, a presumption is drawn that the accused has committed an offence under the Act in respect of any narcotic drug or psychotropic substance that he is in possession of, which he fails to account satisfactorily. As rightly contended by the learned counsel for the petitioners, the provisions of the Act have to be strictly complied in view of the reverse burden cast upon the accused. At the same time, the N.D.P.S. Act provides for a safeguard against vexatious entry, search and seizure or arrest under Section 58 of the N.D.P.S. Act.
12. The Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja vs State of Gujarat [(2011) 1 SCC 609] has held as follows:-
"15. The NDPS Act was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances. The object of the said legislation has been explained time and again by this Court in a plethora of cases and, therefore, we feel that it is not necessary to delve upon this aspect all over again, 17 except to re-emphasise that in order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered officers, the safeguards provided by the legislature have to be observed strictly."
13. In so far as the first contention urged by the learned counsel for the petitioners that there was no compliance of Section 41(2) of the N.D.P.S. Act, in as much as the investigating officer had failed to record the information received by him in writing, the information provided by the investigating officer to the Court on 06.09.2018 shows that he had entered the said information in the Station House Dairy and informed his superiors and submitted a written request to raid the premises. Therefore, prima-facie there is substantial compliance of Section 41(2) of the N.D.P.S. Act and therefore, the prosecution cannot be halted on this ground at this stage. The question whether there was true compliance or not and whether it prejudiced the accused in any manner whatsoever and thus affected the prosecution, is matter of fact, which has to be established after a trial. 18
14. In so far as the second contention is concerned, it is the case of the petitioners that the mandatory provision under Section 42(1) of the N.D.P.S. Act is not complied, in as much as the investigating officer failed to record his grounds for belief that a search warrant or an authorisation cannot be obtained without affording an opportunity for the concealment of evidence or that the offender might escape, is yet again a question of fact which has to be established at a trial. The Hon'ble Apex Court in the case of Sajan Abraham vs. State of Kerala [(2001) 6 SCC 692] held as follows:-
"7. In the present case, PW3 the Head Constable got information with reference to the appellant only at about 7 p.m. that the person is selling injectable narcotic drugs near the Blue Tronics Junction, Palluruthy. When he proceeded for Palluruthy Police Station to give this information to his immediate superior, S.I. of Police, PW5, he found PW5 along with his police party, who were on patrol duty coming, hence the said information was communicated there by PW3 to PW5. Thereafter, PW5 along with his police party and PW3 immediately proceeded towards the place where the appellant was standing. Had they not 19 done so immediately, the opportunity of seizure and arrest of the appellant would have been lost. How PW5 could have recorded the information given by PW3 and communicated to his superior while he was on motion, on patrol duty, in the jeep before proceeding to apprehend him is not understandable. Had they not acted immediately, the appellant would have escaped. On these facts, we do not find any inference could be drawn that there has been any violation of Section 42 of the Act."
15. Similarly, in the case of Karnail Singh vs. State of Haryana [(2009) 8 SCC 539], it was held that whether there was adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case and non-compliance of Section 42 may not vitiate the trial, if it does not cause any prejudice to the accused.
16. A Coordinate Bench of this Court in the case of Tasleem N.P. supra, held as follows:
"10. Examined whether the ratio in Lalita Kumari (supra) is applicable in a situation where a police officer only receives a credible or secret 20 information about an offence which is about to be committed, I may with great respect observe that the primary duty of police is to prevent an offence from happening; immediately after receiving the information, a police officer has to proceed to spot for averting the crime, and taking such other measures as the situation demands. In Lalita Kumari (supra), the focus is on the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed.
And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report, it may be treated as FIR for further course of action. Sometimes, offences do take place in the presence of the police officer. In such a situation, his first duty is to arrest the accused and collect the evidence, and not registration of FIR.
11. In the case on hand what the police officer received was a report about likelihood of offences under NDPS Act being committed, the informant only 21 suspected possession of contraband substances, regarding which no FIR could be registered without ascertaining the truth in the information. The seizure panchanama discloses that the petitioners and other accused possessed contraband substance for the purpose of selling them. He seized the substances and made a report of the same. No error can be found in it."
17. The reliance placed by the learned counsel for the petitioners on the judgment of the Hon'ble Apex Court in the case of Roy V.D., supra, is no longer good law in view of the subsequent judgment of the Hon'ble Apex Court in the case of Karnail Singh, referred supra as well as the judgment of the Hon'ble Apex Court in the case of Mohd. Malek Mondal, supra, where it was held:
"The question whether Section 42 of the NDPS Act has been complied or not being a question of fact has to be gone into on appreciation of evidence that may be adduced by the Special Judge. Prima facie, the High Court has come to the conclusion that there has been compliance. This is not the stage for an in-depth examination of this question."22
18. The Hon'ble Apex Court further held, "Before parting, we may also note that wide extraordinary power of quashing vested in the High Court is to be exercised sparingly and with caution and not to stifle legitimate prosecution. Such a power is required to be exercised in a case where the complaint does not disclose any offence and it is frivolous, vexatious or oppressive. At this stage, it cannot be meticulous analysis of the case. The High Court has rightly declined the prayer to quash the complaint at this initial stage."
Therefore, the second contention of the petitioners is also liable to be rejected.
19. In so far as the third contention that the premises searched was a hostel room which was not a public place in view of the judgment of the Hon'ble Apex Court in the case of Mohammed Nisar Holia, supra, Section 43 of the N.D.P.S. Act deals with the procedure to be adopted while seizing a narcotic drug or psychotropic substance in a public place, unlike seizure of such substance in any place as found in Section 42 of the 23 N.D.P.S. Act. Therefore, this contention too is liable to be rejected.
20. In so far as the next contention that the petitioners were not taken to the nearest Gazetted Officer or to the Magistrate as required under Section 50 of the N.D.P.S. Act, the Hon'ble Apex Court in the case of State of Punjab vs. Baldev Singh [(1999) 6 SCC 172], held;
"12. On its plain reading, Section 50 would come into play only in the case of search of a person as distinguished from search of any premises etc., However, if the empowered officer, without any prior information as contemplated under Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."
The Bench concluded its findings as follows:-
"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 24 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 25 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 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;
26
(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 27 article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand'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. Later, the full bench of the Hon'ble Apex Court while considering the question whether the compliance of Section 50 is mandatory or not, held in the case of Vijaysinh Chandubha Jadeja, supra, as follows:-
"19. Sub-section (1) of Section 50 provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-section (2), it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such gazetted officer 28 or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the gazetted officer or the Magistrate, the empowered officer is restrained from effecting the search of the person concerned. He can only detain the suspect for being produced before the gazetted officer or the Magistrate, as the case may be. Sub- section (3) lays down that when the person to be searched is brought before such gazetted officer or the Magistrate and such gazetted officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct the search to be made.
20. The mandate of Section 50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so.
21. At this juncture, we must state that the issue before us in terms of the referral order is not about the applicability of Section 50 of the NDPS Act per se but is confined to the scope and width of the expression "if the person to be searched so requires"
as figuring in sub-section (1) of the said Section. 29 Therefore, we deem it unnecessary to evaluate the submissions made by the learned counsel regarding the applicability of the rigours of Section 50 of the NDPS Act when a search of the suspect is conducted by an officer empowered under Section 41 of the said Act.
xxxxxx
31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.
32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce 30 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."
22. Therefore, the contention of the learned counsel for the petitioners that Section 50 of the N.D.P.S. Act was not complied and therefore, prejudiced their case, is a matter of fact which has to be established after a trial.
23. The further contention that the quantitative and qualitative analysis of the offensive substance was carried out between 17.07.2019 to 25.07.2019 i.e., after 8 months and 11 days of seizure, which was against the standing instructions issued by the Central Government as held by a Coordinate Bench of this Court in Crl.P.No.8644/2017, it is necessary to note that the sample of the seized substance was sourced after obtaining appropriate orders from the Court and was sent for qualitative and quantitative analysis on 12.09.2018, which was evidenced by a certificate of the Magistrate 31 under sub-section 3 of Section 52A of the N.D.P.S. Act and was permitted to be sent to the examination by a Chemical Examiner at FSL, Bengaluru. The question whether there is any foul play in securing the sample or while subjecting it to test and therefore, prejudiced the case of the petitioners, is a matter of fact, which has to be established at a trial and not in a petition under Section 482 of Cr.P.C.
24. In so far as the next contention that the investigating officer has failed to submit a full report of the arrest and seizure to his immediate superior within 48 hours, next after the arrest and seizure, that again is a question of fact which has to be established after a trial. As stated by the petitioners themselves, the charge-sheet index shown that an emergency report was submitted to the Superintendent of Police for having registered a case. The question whether such report was a full report of the arrest and seizure or not and that it prejudiced the case of the petitioners, are all questions of fact that have to be 32 established after a trial and therefore, the prosecution cannot be thwarted on this ground.
25. Though a faint submission was made that the investigation was conducted by an officer who himself was a complainant and therefore, the prosecution was bad in view of the judgment of the Hon'ble Apex Court in the case of Mohanlal Vs. State of Punjab [(2018) 17 SCC 627], the law is now well settled in view of the judgment of the Hon'ble Apex Court in the case of Mukesh Singh, supra, where it overruled its judgment in the case of Mohanlal, referred supra and held that its earlier judgments in Bhagwan Singh vs. State of Rajasthan [(1976) 1 SCC 15], Megha Singh vs. State of Haryana [(1966) 11 SCC 709] and State vs. Rajangam [(2010) 15 SCC 369] were limited to the facts in those cases and were held per incuriam. The Hon'ble Apex Court further held that, "Thus it is concluded that in a case where the informant himself is the investigator, by that itself, it cannot be said that the investigation is vitiated on 33 the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of the each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore, on the sole ground that the informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on case-to-case basis."
26. In view of the above, the petitioners are not entitled to any reliefs in this petition. Hence, this petition lacks merit and is dismissed.
Sd/-
JUDGE PMR/HJ