Raju @ Rajendra Kumar vs The State Of Madhya Pradesh on 11 May, 2020

[Cites 41, Cited by 30]

Madhya Pradesh High Court

Raju @ Rajendra Kumar vs The State Of Madhya Pradesh on 11 May, 2020

1. The appellant has preferred this appeal against judgment and order dated 18.02.2017 delivered in Special Case No.22/2010 by Special Judge, N.D.P.S. Act, Jawara, Ratlam whereby the appellant has been convicted under Sections 8(c)/18(b) of N.D.P.S. Act, 1985 and has been awarded ten years rigorous imprisonment with fine of Rs.1,00,000/- in default further to undergo one year R.I., for having 2 kg 750 gm Opium in his illegal possession.

2. Prosecution case in brief is that on 24.05.2010 ASI R. C. Surawat (PW-19), who was posted at Police Station--Kalukheda received a secret information that one Raju @ Rajendra Kumar S/o Kanhaiyalal, aged about 32 years, R/o Asawati, Police 2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 Station--Ringnod is going to Rajasthan to deliver illegal opium tied with tummy by his black colour Yamaha motorcycle bearing registration No.MP-04-JD-7489. He will pass through Kalaliya fanta Chiklana Mawata and can be nabbed by prompt action. The information was entered in Roznamcha Sanha. Mukhbir Suchana Panchnama was prepared. Independent witnesses were called. Senior Officer was intimated. A police team comprising ASI R. C. Surawat, Constables Antarsingh and Mahendrasingh, independent panch witnesses Jagdish and Rameshwar was constituted and were proceeded by their own motorcycles towards the place pointed out by the informer alongwith necessary paraphernalia. On the spot, they hid themselves and their motorcycles behind the shrubs and waited for the suspect. After about an hour, they noticed the suspect coming on black colour motorcycle from village Lasudiyanathi Nai Abadi end. When he came close, the police pounced upon and stopped him. On interrogation, he revealed his name as Raju @ Rajendrakumar S/o Kanhaiyalal. ASI R.C. Surawat (PW-19) informed him about the information received and also about his right under Section 50 of N.D.P.S. Act. He consented in writing for his search by ASI Surawat. ASI Surawat searched him and his motorcycle after giving his own and his team members search. Nothing objectionable was recovered from the person but a strip of white towel wrapped around the belly having a poly bag with a mark "Jai Mata Di India Collection" in orange color containg two polly pouches having condensed substance alongwith Rs. 20/- cash and a black Nokia mobile from right pocket of trouser having idea SIM were recovered from his possession. On testing, the substance was found 3 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 opium. Its weight was found 02 kg 750 gm. Two samples of 30 gm each were taken out and contraband as well as samples were sealed on the spot. The appellant alongwith the Contraband and motorcycle was brought to the police station. Crime No. 55/201o was registered. Samples were sent for FSL, who confirmed identity of the substance recovered that it was opium. Following the due process and after completing the other usual investigation, the police filed the charge-sheet.

3. During investigation, the police have prepared following documents:-

Distinct Mark Description of Document Remarks (1) (2) (4) izn'kZ ih&1 /kkjk 42 ,uMhih,l ,DV dk iqfyl izfrosnu xokg ua-&1 izn'kZ ih&2 /kkjk 57 ,uMhih,l ,DV dk iqfyl izfrosnu xokg ua-&1 izn'kZ ih&3 eq[kfcj lwpuk xokg ua-&2 izn'kZ ih&4 lpZ okjaV izkIr u dj ldus dk iapkuke xokg ua-&2 izn'kZ ih&5 EkksVjlkbfdy o pkyd dks idM+us dk iapukek xokg ua-&2 izn'kZ ih&6 iapukek vUrxZr 50 ,uMhih,l ,DV xokg ua-&2 izn'kZ ih&7 lgefr iapukek xokg ua-&2 izn'kZ ih&8 ryk'kh iapukek xokg ua-&2 izn'kZ ih&9 vkjksih o eksVjlkbfdy dh rkyk'kh iapukek xokg ua-&2 izn'kZ ih&10 iapukek igpku eknd inkFkZ xokg ua-&2 izn'kZ ih&11 iapukek rkSy eknd inkFkZ xokg ua-&2 izn'kZ ih&12 iapukek eknd inkFkZ lejl xokg ua-&2 izn'kZ ih&13 iapukek vkVhZdy lhycUn xokg ua-&2 izn'kZ ih&14 iapukek uewuk lhy xokg ua-&2 izn'kZ ih&15 tIrh i=d xokg ua-&2 izn'kZ ih&16 fxjQrkjh i=d xokg ua-&2 izn'kZ ih&17 jkes'oj ds dFku xokg ua-&2 izn'kZ ih&18 Ekseksjs.Me /kkjk 27 lk{; fo/kku xokg ua-&3 izn'kZ ih&19 UkjsUnz flag dk 'kiFk i= xokg ua-&4 izn'kZ ih&20 fd'kksj flag dk 'kiFk i= xokg ua-&4 izn'kZ ih&21 Lkh uksVjh jft0 dh QksVks dkWih xokg ua-&4 izn'kZ ih&22 Lkh uksVjh jft0 dh QksVks dkWih xokg ua-&4 izn'kZ ih&23 LkEifRr tIrh i=d xokg ua-&4 4 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 izn'kZ ih&24 QksjsfUld lkbal yscksjsVªh Hkksiky dh izkfIr jlhn xokg ua-&6 izn'kZ ih&25 Ekseksjs.Me /kkjk 27 lk{; fo/kku xokg ua-&7 izn'kZ ih&26 euhjke dk dFku xokg ua-&7 izn'kZ ih&27 vkuUn flag dk dFku xokg ua-&8 izn'kZ ih&28 lh TkIrh eky jftLVj dh dkWih xokg ua-&9 izn'kZ ih&29 Ekknd inkFkZ iqu% lhycan djus dk iapukek xokg ua-&10 izn'kZ ih&30 vijk/k fooj.k QkeZ xokg ua-&11 izn'kZ ih&31 fxjQrkjh i=d xokg ua-&11 izn'kZ ih&32 LkEifRr i=d xokg ua-&11 izn'kZ ih&33 dk;kZy; iqfyl v/kh{kd dk i= xokg ua-&11 izn'kZ ih&34 izfrosnu] U;k;kyf;d foKku iz;ksx'kkyk] Hkksiky xokg ua-&11 izn'kZ ih&35 jlhn] U;k;kyf;d foKku iz;ksx'kkyk] Hkksiky xokg ua-&11 izn'kZ ih&36 vijkf/kd fjdkMZ ckcr i= Fkkuk 'kgj fpRrksM+x<+ xokg ua-&11 izn'kZ ih&37 vijkf/kd fjdkMZ ckcr i= Fkkuk vQtyiqj] eUnlkSj xokg ua-&11 izn'kZ ih&38 Fkkuk vQtyiqj ls izekf.kr rLnhd xokg ua-&11 izn'kZ ih&39 LkEifRr tIrh i=d xokg ua-&14 izn'kZ ih&40 dksfguwj vkWVksMky] Hkksiky dk dz; fodz; jlhn xokg ua-&14 izn'kZ ih&41 fxj/kkjh ds dFku xokg ua-&15 izn'kZ ih&42 izseflag ds dFku xokg ua-&17 izn'kZ ih&43 dUgS;kyky ds dFku xokg ua-&18 izn'kZ ih&44 jkstukepk xokg ua-&19 izn'kZ ih&45 IkzFke lwpuk fjiksVZ dh QksVksdkWih xokg ua-& izn'kZ ih&46 ,uMhih,l ,DV dk;eh dh lwpuk xokg ua-&19 izn'kZ ih&47 Ckcyw flg ds dFku xokg ua-&20 izn'kZ ih&48 dkWy fMVsy 14 i`"B esa xokg ua-&21 izn'kZ ih&49 dLVwej ,Iyhds'k QkeZ xokg ua-&21 izn'kZ ih&50 dLVwej ,Iyhds'k QkeZ xokg ua-&21 izn'kZ ih&51 dkWy fMVsy 3 i`"B esa xokg ua-&21 izn'kZ ih&52 bZ&esy ysVj dkWih xokg ua-&21 izn'kZ ih&53 nLrkost izn'kZ ugha fd;k x;kA izn'kZ ih&54 rglhynkj fiiykSnk dks i= /kkjk 52 dh dk;Zokgh xokg ua-&23 gsrq izn'kZ ih&55 /kkjk 55 ,uMhih,l ,DV dh dk;Zokgh dk pkVZ xokg ua-&23 izn'kZ ih&56 dk;Zikfyd n.Mkf/kdkjh dh vkWMZj 'khV xokg ua-&23 izn'kZ ih&57&58 QksVksxzkQl xokg ua-&23 izn'kZ ih&59 ljiap xzke iapk;r udsfM+;k] eUnlkSj dks i= xokg ua-&12 izn'kZ ih 53&58 jkstukepk izfof"V;ka xokg ua-&19 izn'kZ ih 62&70 jkstukepksa dh dkWcZu izfr;ka xokg ua-&19 5 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017

4. On inquiry, the appellant revealed that he had procured the said contraband from co-accused Mangu Patel R/o Kuchdod. On the basis of this disclosure Mangu @ Mangilal was arrested and impleaded in the array of the accused, but nothing except one Nokia mobile was recovered from his possession (Ex. P/31 & 32).

5. Both the accused persons were charged under Sections 8(c) and 18(B)/29 of N.D.P.S. Act, 1985. After the trial, the trial Court acquitted co-accused Mangu @ Mangilal and has convicted and sentenced the present appellant as stated in para 1 above.

6. The appellant has preferred this appeal on the grounds that the judgement and order of the learned Trial Court is contrary to the law and the facts on record. The prosecution has failed to comply mandatory provision of Sections 42, 52, 52A, 55, and 57 of the NDPS Act and also the seizure of the contraband from possession of the appellant. The words "Constitutional Right" and "Nearest" are missing in the information memo Ex.P/6 and the Seizing Officer proactively gave a third option of being searched by himself, which is against the settled principles of law and the law laid down by the Hon'ble Supreme Court in the case of State of Rajsthan Vs. Parmanad and another reported in 2014 Cr.L.J. SC 1756 and vitiates the trial. There is no evidence that the contraband was found in conscious possession of the appellant. Before making search from the accused, the police party didn't give their own search. This makes the proesecution case doubtful. Independent witnesses either have not supported the case of the prosecution or have not been examined by the 6 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 prosecution. There are variations, contradictions and omissions in the statements of the material witnesses, which were ignored by the learned Trial Court. In para 10 of his cross-examination PW-10 Mahendra Singh has deposed contrary to facts stated in his examination-in-chief regarding receiving of information and reaching of the police party on the spot pointed out by the informer. There is variation in time of several memos prepared by the police on the spot and at the police station. Place of arrest is not mentioned in the arrest memo. According to the prosecution itself the contraband allegedly recovered from the appellant was weighed along with the six plastic bags. This creates serious doubts about the actual weight of the contraband.

7. PW-10 Mahendra Singh has stated that they left the police station after an hour of receiving the information and reached on the spot, which was 7 kms away from the police station, after 20 minutes. After wait of an hour, the appellant came on the spot. As per memo Ex. P/3, the information was received at the police station at 12:25.As per calculation of time stated by Mahendra Singh, the accused was reached on the spot at 14:10 P.M., while memo Ex.P/5 shows that the accused arrived on the spot at 14:45 or 15:00 hours. In para 12 of his cross-examination Mahendra Singh PW-10 has again chaged his version and has said that they had reached on the spot at 10:30 AM., which is impossible as the secret information itself was received at 12:25 PM (E.P/3). PW-19 ASI RC Surawat has admitted in para 5 & 6 of his examination-in-chief that the alleged recovery was made on the spot. In para 19 he has admitted that crime No. 55/10 is mentioned on Article A. In 7 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 para 21, he has admitted that date 04.05.10 is mentioned on Article A-1, but the fact is that the of offence is 24.05.2010. Ex.P/29, which is a memo of re-sealing of contraband and preparation of samples contains date 24.05.2010. In the case of State of Orissa Vs. Sitanshu Shekhar, Western Law Cases (SC) Criminal 203 (1) 206 it is held that if the crime number is mentioned at the spot then it creates high doubts on the prosecution story.

8. It is further asserted that Investigating Officer Gopal Singh (PW-11) was trapped by the Lokayukt in the present case in connection with demand of illegal gratification from the appellant and the co-accused. This fact was revealed during the trial but was ignored by the Trial Court.

9. The appellant had taken a defence that he belongs to a poor family and does not possess any motorcycle. On 21.05.2010, Constable Antar Singh called him at Holi Hanuman temple on the pretext of some religious function. He provided him motorcycle bearing registration No.MP-04-Z-7489 of his collegue Constable Narendra Chawda. When he reached at Holi Hanuman temple, the police detained him. After detaining him, Investigating Officer - Gopal Singh Chouhan (PW-11) started demanding money. He called co-accused Mangilal by his mobile No.94251-05127 on 23.05.2010 and 24.05.2010. When his demand was not fulfilled, he foisted this false case on both of them. A complaint was made and Gopal Singh Chouhan was trapped for receiving illegal gratification. Recovery of motorcycle bearing registration number MP- 04-Z-7489 of constable Narendra Chawda and trap of IO Gopal Singh supports this defence, but the trial court discarded the same 8 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 without assigning any reason. On all these grounds, acquittal of the appellant is prayed for.

10. I have considered rival contentions of the parties and have perused the record.

11. Assistant Sub-Inspector (ASI) R.C. Surawat has narrated the entire incident before the Trial Court. He has deposed on oath that during his posting at Police Station Kalu Kheda on 24.05.2010 at 11:50 AM, he received information that the appellant is going to deliver opium in Rajasthan. He will pass through Kalaliya fanta Chiklana Mawata by his motorcycle bearing registration No.MP-04-Z-7489. He prepared a panchnama, entered the information in Roznamcha Sanha, intimated his immediate senior and proceeded for the spot with Constables Mahendra Singh & Antar Singh and panch witnesses Jagdish & Rameshwar with all paraphernalia. After reaching on the spot, they hid themselves and their motorcycles in a shallow trench behind the bushes and waited for the suspect. After about an hour, they noticed a person of the same particulars, as mentioned in the information, coming on motorcycle. He was stopped, intimated about his right of search before Gazetted Officer or nearest Magistrate and after getting his consent to be searched by Mr. Surawat himself, he was searched after giving search of police team and panch witnesses to him. It was found that an strip of cloth was wrapped around his stomach. When the same was removed and opened, total 2.750kg opium was recovered from his possession for which he was having no valid documents, permit & license etc. It was further stated by ASI surawat that after taking out two samples of 30 gram each, recovered contraband was sealed on the spot.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017

12. Head Constable Mohanlal (PW-1), Constable Anil (PW-5), Head Constable Tulsiram Sharma (PW-6), Head Constable Moharar Rameshwar Parihar (PW-9), Constable Mahendra Singh (PW-10), Head Constable Omprakash Yadav (PW-12), ASI N.S. Kushwaha (PW-16) have supported the statement of ASI R.C. Surawat (PW-19) on one or the other point. Their statements are well corroborated by the documents prepared either by them or before them and could not be battered in lengthy cross-examinations. Nothing has come on record to disbelieve these statements. The Trial Court has appreciated them in detail and after close scrutiny of this entire evidence, I am satisfy with the conclusions arrived at by him.

13. There is no evidence that Investigating Officer Gopal Singh Chouhan (PW-11) was trapped in this case. However, seizing officer ASI R.C. Surawat (PW-19) has admitted in para 31 of his statement that his Thana In-charge (T.I.) Gopal Singh Chouhan was trapped in this case, but this does not adversely affect the case of the prosecution as in the present case entire proceedings of recovery and seizure of illegal contraband was conducted by ASI Surawat. Though, it is not much clear as to when T.I. Gopal Singh Chouhan was trapped, but evidence reflects that he was trapped, when he was demanding money from the co-accused - Mangilal or some Ramesh Pandit after recovery of contraband from the appellant. It is a fact that nothing remains in the hand of Thana In-charge after recovery and seizure on the spot by a different officer. In such situation, only on the basis of vague statement of trap, particularly in absence of any evidence/record of the trap case, recovery made by ASI Surawat from the appellant, which was certainly prior to 10 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 the trap of Mr. Gopal Singh Chouhan, cannot be doubted.

14. There is no evidence that Mobile No.94251-05127 belongs to or was being used by T.I. Gopal Singh Chouhan or that Mr. Chouhan had ever called Mangilal by using this Mobile number. There is also no evidence as to on which Mobile number of Mangilal, Mr. Chouhan called him for demand of illegal gratification. Thus, this defence of the appellant also does not find support in the record.

15. The prosecution has produced sufficient evidence to show that motorcycle bearing registration No.MP-04-Z-7489 seized from the appellant at the time of recovery of contraband was purchased and was being used by the appellant himself. Constable Narendra Singh Chawda has been examined by the prosecution as witness No.13. He has categorically stated that he had purchased this motorcycle from Kohinoor Auto Deal, Lily Talkies Chauraha, Jahagirabad, Bhopal and had sold it to Badari Lal S/o Shankar Lal Tailor of village Asawati by a notarized agreement dated 04.11.2009. The appellant himself was witness of this agreement. Notary Mukesh Kumar (PW-4) has supported this statement. Mukesh has further stated that Badari Lal later sold this motorcycle to Prem Singh of village Asawati again by notarized agreement dated 23.12.2009, but none of them got it transferred in their names.

16. Though, the motorcycle remained in the name of Narendra Singh Chawda, but statement of Narendra and Notary Mukesh supported by entry of notary register and the affidavits shows that the motorcycle was very well in the village of the appellant viz Asawati and with the person whom he was very well acquainted, therefore, the defence of the appellant 11 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 that Constable Antar Singh provided him motorcycle of his colleague to come to the Holi Hanuman temple is not believable, rather raises presumption against him that he did not come with clean hand and had tried to conceal the facts by taking such defence.

17. After going through the memos prepared on the spot, there does not appear any discrepancy or variation in the time of conducting all the proceedings on the spot. The argument of the learned Counsel for the appellant regarding variation in time is based on the estimated time of taking several steps on the spot stated by Mr. Surawat (PW-19) in his cross- examination. Otherwise in the documents, there is no discrepancy in the time mentioned in the memorandums prepared in respect of recovery and seizure on the spot.

18. There is a correction in the quantity of contraband recovered from the appellant in memorandum of taking out sample Ex.P/12. It appears that it is corrected as "2 K.G. 750 gram" by interpolating "2" in place of "1", but the trial Court has rightly observed that just before preparing of memorandum Ex.P/12, a panchnama of weighing the contraband Ex.P/11 was prepared and in this panchnama; there is no correction or interpolation in the quantity of the contraband recovered from possession of the appellant and quantity is mentioned as "2 K.G. 750 gram", therefore, the correction in Ex.P/12 appears nothing, but only a human error and does not give any benefit to the appellant.

19. Much emphasis is given by the learned Counsel for the appellant that crime number is mentioned in the Articles sealed on the spot, which creates a serious doubt that the recovery 12 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 proceedings were taken out on the spot. To bolster this contention, learned Counsel took me to paras 18 to 22 of the cross-examination of seizing officer Mr. Surawat (PW-19). In the last line of para 19, Mr. Surawat has admitted that there is mentioned of Crime No.55/10 on Article A, which was marked on the remaining part of the contraband recovered from the appellant after taking out samples. Undisputedly, two samples of 30 gram each were taken out from the total quantity recovered. Both those samples were marked as Article A1 and Article A2 and the remaining part was marked as Article 'A'. Chits of these different marks i.e., A, A-1, A-2 were affixed on each packets. There is no disputes that all three packets were produced and again sealed at the police station. In para 19, Mr. Surawat has only admitted that there was Crime No.55/10 mentioned on Article 'A', but it does not show that this crime number was mentioned on the chits affixed on the spot by Mr. Surawat on any of the three packets. Even this does not reflect that the crime number was mentioned on the packets prepared on the spot. Careful reading of the evidence, it appears that the crime number referred by the appellant may be on the packet/pouch or bag prepared at the police station for re- sealing the contraband. Therefore, this only appears an attempt to create confusion to take undue advantage. But this is not the factual status of the case and does not help the appellant.

20. True, the independent witness Jagdish has not been examined by the prosecution and Rameshwar (PW-2) has not supported the case of the prosecution, but relying on the judgment of Abdul Sttar Vs. State reported in 1989 Cr.L.J. 430; Mohammad Hussain Vs. State reported in 13 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 1989 3 Crimes 671; Karamjit Singh Vs. State reported in (2003) 5 SCC 291 Babulal Vs. State of Madhya Pradesh reported in 2004 (2) MPLJ 423 and Devi Singh Vs. State of Madhya Pradesh reported in 2002 (2) MPWN 111, the Trial Court has rightly observed that this doesn't affect the prosecution case adversely and only make it necessary to scrutinize the statements of the police witnesses cautiously and carefully. The trial Court has appreciated the evidence of the police witnesses observing all the precautions and has rightly concluded that non support of witnesses, who have admitted their signatures on each and every documents prepared on the spot and do not propose any plausible explanation does not create any doubt towards the statements of the police witnesses, which are otherwise well supported by the documents prepared on the spot and at the police station.

21. Compliance of Section 50 is also questioned by the learned Counsel for the appellant. It is argued that third option of search was given to the appellant, which was not permissible in the law and this, according to the learned counsel, vitiates the recovery and also the conviction based on such recovery. Reliance has been placed on State of Rajsthan Vs. Parmanand & another 2014 Cri.L.J. 1756 : AIR 2014 SC 1384 and Arif Khan @ aga Khan Vs. State of Uttrakhand AIR 2018 Sc 2123.

22. Section 50 of the NDPS Act prescribes the conditions under which personal search of a person is required to be conducted. Here we are concern with subsection 1 & 2 of Section 50, which reads as under:

"50. Conditions under which search of persons shall be 14 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 conducted.-

(1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)."

23. Plain reading of these subsections would reveal that before effecting search, the suspect has to be informed about his right to be searched before the nearest gazetted officer or the magistrate and it is imperative or peremptory only when he desires so or makes a request to do so. Thus, it is manifest that the mandate of Section 50 is precise and clear that if the suspect expresses the desire to be taken to the nearest gazetted officer or the Magistrate, the empowered officer is restrained from effecting the search and he can be then searched only under the direction of the gazetted officer or the Magistrate. Simple connotation of the language of these subsections is that if the person to be searched does not wish to take to the nearest gazetted officer or the magistrate or waives his right, the officer empowered may effect the search. If he wishes, it is peremptory to follow the mandate of law but if he does not wish, the officer is not under obligation to take him before the nearest gazetted officer or the magistrate. Pivotal of the provision is that before effecting search, the suspect should be apprised about his right in unambiguous or unequivocal manner or words.

24. The issue raised before this Court was earlier raised by the same counsel, who is representing the appellant in this case too, before the co-ordinate bench of this Court in the case of Abdul Sattar Vs. State of M.P. CRA No. 833/2013 15 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 decided on 03/01/2019, wherein considering the similar arguments advanced by the learned counsel for the appellant therein and its reply given by the state, the Court held that the search and recovery of contraband from possession of the appellant was in accordance with law and declined to interfere with the conviction of the appellant. For ready reference relevant paras 7-19 of the judgement rendered in Cr. Appeal No.833/2013 are being reproduced here-in-below:

"7. While challenging the legality and sustainability of the impugned judgment, learned counsel for the appellant has asserted that there is non-compliance of Section 50 of the Act, 1985 and referring to Exhibit P/3 inter alia contended that while the Seizure Officer informed the appellant of his right to be searched before the nearest Gazetted Officer or the nearest Magistrate in compliance of Section 50(1) of the Act but, as he was not produced either before Magistrate or Gazetted Officer and further the option given to him to be searched by raid party is in excess to the requirement of Section 50(1) of the Act, 1985. Therefore, the alleged searched conducted by the raid party though consequent upon the consent of the appellant vide Ex.P/4 and also Ex.P/5 stands vitiated. Learned counsel relied upon two judgments of the Hon'ble Supreme Court in the case of State of Rajasthan v. Parmanand & Anr. 2014 Cr.L.J. 1756 and Arif Khan @ Agha Khan V. State of Uttarakhand passed in Criminal Appeal No.273/2007 decided on 27.04.2018 to contend that the search conducted in absence of the Gazetted Officer or the Magistrate is illegal. Under the circumstances, conviction based upon the sole reason of seizure of four kilograms opium from the possession of the appellant cannot be sustained. Learned counsel further contends that there is misappreciation of the evidence on record and grave illegality while the trial Court relied upon the testimony of the evidence led by cited witnesses, Ishqu (P.W.1) & Gudda alias Sayyed (P.W.2); and the documents relied upon by the trial Court. He has submitted that the appellant has been falsely roped in the case and there was no cogent evidence to establish the ingredients of offence alleged against the appellants. Under such circumstances, the trial Court erred in convicting the appellant, hence, this appeal be allowed and the appellant be acquitted from the charge.

8. An alternate submission has also been put-forth by the learned counsel that the appellant is very poor and if this Court comes to the conclusion that the appellant is guilty of the offence, as it is the first offence of the appellant, his conviction and sentence may be maintained but, looking to the fact that there is no other criminal case pending against him, the amount of fine may be reduced suitably.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017

9. Learned Public Prosecutor supported the impugned judgment and submits that the conviction in question is well merited and considering the bulk quantity of contraband from the appellant, the minimum sentence imposed by the trial Court for the said offence deserve to be maintained and the fine may not be reduced as sought for.

Learned counsel further contends that in this case the requirement of Section 50 of the Act, 1985 has been strictly compiled with vide Exhibit P/3, the appellant was informed of his right to be searched by the Gazetted Officer or the Magistrate. The appellant vide Exhibit P/5 expressed his unwillingness to be searched by the Gazetted Officer or the Magistrate, but has agreed to be searched by the raid party. Learned counsel further submits that merely for the reason the raid party has made the appellant aware at last in Ex.P/3 that he may also be searched by the raid party, this by itself cannot be construed to be non-compliance of section 50 of the Act, 1985. Learned counsel has distinguished the judgments relied upon by learned counsel for the appellant with the contention that in the case of State of Rajasthan (supra) that two accused persons namely; Surajmal and Parmanand, respondent No.1 therein were allegedly found in possession of 9 Kg. 600 grams of opium. The raid party had informed only Surajmal of their rights to be searched either by the Gazetted Officer or by the Magistrate and Surajmal had given consent allegedly on behalf of Parmanand as well not to be searched by the Gazetted Officer or the Magistrate but by raid party. Surajmal and Parmanand both were convicted by the trial Court having been found in possession of opium and sentenced for 10 years with fine of Rs.10.00 Lacs. However, the High Court acquitted Parmanand on the premise that his consent was not obtained before effecting search under Section 50, hence there was non- compliance of Section 50. The Hon'ble Supreme Court on an appeal by the State of Rajasthan (supra) has confirmed the judgment of the High Court with justification that there were no separate communication of such right to Parmanand but, a common notice was given to Surajmal respondent No.2 thereunder, and since it was only signed by Surajmal. The Hon'ble Supreme Court referred to Constitutional Bench judgment in the case of State of Punjab v. Baldev Singh (1999) 6 SCC 172 in the context of strict compliance of Section 50 of the N.D.P.S. Act. Learned counsel submits that in the instant case, undisputedly, appellant the only person suspect of possession of 4 K.g. opium was informed of his right by Ex.P/3 and upon his consent in writing, he was searched by the raid party. Hence, the aforesaid judgments is of no help.

Learned Counsel before referring to judgment of Arif Khan (supra) has read out judgments rendered by two constitutional Benches of Hon'ble Supreme Court viz. Baldev Sinh vs. State of Punjab (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja V. State of Gujarat (2011) 1 SCC 609 to lay emphasis on the authoritative interpretation of Sec.50 by two Benches of the Hon'ble Supreme Court.

10. Learned counsel submits that though the Constitutional Bench in Baldev Singh's case (supra) ruled that strict compliance of 17 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 Section 50 was held to be mandatory, particularly; to apprise the person intended to be searched of his right to be searched before the Gazetted Officer or the Magistrate, however, as there was divergence opinions between two-sets of decisions of the Hon'ble Supreme Court in Joseph Fernandez Vs. State of Goa (2000) 1 SCC 707, Prabha Shankar Dubey Vs. State of M.P, (2004) 2 SCC 56 on one hand and on the other hand the judgment in the case of Krishan Kanwar (Smt.) @ Thakuraeen Vs. State of Rajasthan (2004) 2 SCC 608 with regard to dictum laid down by the Constitution Bench in Baldev Singh's case (supra) on the question; "whether before conducting search, the police officer (raid party) is merely required to ask the suspect if he would like to be produced before the Magistrate or the gazetted officer for the purpose of search or is a suspect required to be made aware of existence of his right in that behalf under law." Under such circumstances, again the matter was placed before the Constitution Bench to resolve the controversy. The Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), has ruled that it is imperative on the part of the empowered officer to "inform" the person intended to be searched of his right under section 50 of the Act, 1985 to be searched before the gazetted officer or a Magistrate though there is no prescribed format or manner in which such communication is to be made, nevertheless, it is mandatory that the suspect is aware of his right to be searched before the gazetted officer or a Magistrate. Therefore, strict compliance of the mandatory provision of section 50 of the Act, 1985 is required, however, thereafter the suspect may or may not chose to exercise the right provided to him under the said provision. The scope of substantial compliance is 'neither borne out from any subsections of section 50 of the Act, 1985 nor it is in consonance with the law laid down by the Hon'ble Supreme Court in Baldev Singh's case (supra).

(Emphasis supplied)

11. Learned counsel further submits that both the Constitutional Benches of the Hon'ble Supreme Court while extensively examining section 50 of the Act, 1985, particularly; sub-section (1) of section 50, Hon'ble Benches have not laid down the law that even if the accused did not choose or accord his consent to be searched before the gazetted officer or a Magistrate upon being apprised of existence of the right in that behalf for the purpose of search, still the search conducted by the raid party in the absence of the gazetted officer or a Magistrate is illegal and rightly so, because section 50(1) of the Act, 1985 does not contemplate so.

12. While referring to judgment by a Bench of Hon'ble two judges in the case of Arif Khan @ Agha Khan (supra), learned counsel with full humility and respect at his command submits that the judgment in the said case neither is in consonance with section 50 of the Act, 1985 nor in line with the judgments of the aforesaid two Constitutional Benches.

13. It is submitted that in the case of Arif Khan @ Agha Khan (supra) that though the Hon'ble Bench has taken note of the aforesaid two Constitutional Bench decisions in paragraph 23 of the judgment but, in paragraphs 25, 27 and 28 concluded that though the suspect was apprised of existence of his right for 18 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 search before the gazetted officer or a Magistrate and the suspect consented to be searched by the police officer (raid party), absence of a Magistrate or gazetted officer during search was not in conformity with the provisions of section 50 of the Act, 1985. Resultantly, held that as the search was illegal, therefore, the trial should vitiate and the appellant was acquitted.

14. Learned counsel submits that the aforesaid judgment in the case of Arif Khan @ Agha Khan (supra) though purportedly rested on the dictum of the Constitutional Benches but, is not in consonance thereto and independent of the provisions of section 50 of the Act, 1985. The judgment is sub silentio inter alia contending that Chapter V of the Act, 1985 deals with the procedure in the matter of entry, search, seizure and arrest. Sections 41 and 42 defines the powers of a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government to issue warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act for the search .....

Sections 43 and 44 deals with power of entry, search, seizure and arrest in offences relating to coca plant, opium poppy and cannabis plant with competent authorization by the raid party is legal and proper. Of course, subject to conditions stipulated under section 50 whereunder the person to be searched is given the option of his existing right to be produced before the Magistrate or the nearest gazetted officer for search. But, if he does not consent to be produced before the Magistrate or a nearest gazetted officer and consents to be searched by the police raid party, such search and/or seizure cannot be faulted for the reason that the Magistrate or the gazetted officer is not present at the time of search.

To bolster his submission, he has relied upon the judgments of the Hon'ble Supreme Court in the case of State of U.P., and another Vs. Synthetics and Chemicals Ltd., and another (1991) 4 SCC 139 and Arnit Das Vs. State of Bihar (2000) 5 SCC 488.

Since, the judgment of the Hon'ble Supreme Court in the case of Arif Khan @ Agha Khan (Supra), the provisions of sections 41, 42, 43 and 50 of the Act, 1985 have not been dealt with instead only refers to the Constitution Bench judgment in Vijaysinh Chandubha Jadeja (supra) as indicated in paragraph 27 of the judgment, the reasons reiterated in paragraph 28 thereof are not in conformity with the law laid in the cited judgment; Vijaysinh Chandubha Jadeja (supra) wherein the Hon'ble Supreme Court confined its dictum on the scope and meaning of the words "if a person to be searched so requires" and did not lay down the law that search and seizure by the police raid party upon a person shall be illegal if such a person despite having been made aware of existence of his right to be searched before the gazetted officer or a nearest Magistrate for search and seizure has declined to be produced and thereafter consented to be searched by the raid party. As such, the judgment of the Hon'ble Supreme Court in the case of Arif Khan @ Agha Khan (Supra) is not preceded by 19 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 discussion of law and interpretation of the provisions of section 50 of the Act, 1985 and is not in consonance with the dictum of the Constitution Bench in Vijaysinh Chandubha Jadeja (supra)'s case.

Learned counsel relied upon the judgment of the Hon'ble Supreme Court referred to and relied upon in the case of Arnit Das (Supra) as regards the meaning, scope, law laid down under Article 141 of the Constitution of India wherein the doctrine of per incurium and sub silentio have been explained; the exception to the rule of precedent in the case of Synthetics and Chemicals Ltd., and another(Supra); Paragraph 41 of the judgment reads as under:

"40. Does this principle extend and apply to a conclusion of law, Which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. A decision passed subsilentio, in the technical sense that has come to be attached to that phrase, when the particular' point of law involved in the decision is not perceived by the Court or present to its mind' (Salmond on jurisprudence 12th Edition). In Lancaster Motor Company (London) Ltd. V. Bremith Ltd., [1941] IKB 675 the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi V. Gurmam Kaur, [1989] 1 SCC 101. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decedendi. In Shama Rao Vs. State of Pondicherry,, AIR 1967 SC 1480 it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law."

Learned counsel referred to the doctrine stare decisis as explained in Corpus Juris Secundum, page 302 as under:

"Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and and public policy, and, although generally it should be strictly adhered to by the courts it is not universally applicable."

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 The learned counsel also refers to the doctrine of stare decisis reiterated by the Hon'ble Supreme Court in the case of Maktul Vs. Ms. Manbhari and others, AIR 1958 SC 918.

The doctrine of judicial precedent has been considered in the realm of judicial system in India by the Hon'ble Supreme Court in the case of Union of India and another Vs. Raghubir Singh (Dead) by L.Rs., etc., (1989) 2 SCC 754 and observed in paragraphs 8, 9 and 15 as under:

"8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they consti- tute an adjudication on the rights of the parties and re- solve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.

9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.

15. The question then is not whether the Supreme Court is bound by its own previous decisions. It is not. The question is under what circumstances and within what limits and in what manner should the highest Court over-turn its own pronouncements.

At this stage, learned counsel relied upon the Constitution Bench judgment of the Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja (supra) wherein laid down the law under Article 141 of the Constitution of India and ruled in paragraphs 31 and 32 as under:

"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 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 21 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 proceedings, it may verily strengthen the prosecution as well."

(Emphasis supplied) Learned counsel also submits that the aforesaid observations in paragraph 32 of the judgment dated October 29, 2010 are suggestive or directive in nature nevertheless, prospective.

15. Turning to merits of the case, it is submitted that vide exhibit P/3, the accused was apprised of his right to be searched before the nearest gazetted officer or a nearest Magistrate and he had signed the said memo as an acknowledgment of the communication. Thereafter, he had given written consent (exhibit P/5) to be searched by the raid party. Under such circumstances, there was strict compliance of section 50(1) of the Act, 1985. During trial, nothing is placed on record to belie the existence and veracity of exhibits P/3 and P/5. Applying the ratio decidendi of the Constitutional Benches, no fault can be found with the search of the suspect and the consequent recovery from his possession and seizure of the contraband resulting in his conviction as detailed above. Therefore, no interference is warranted in the impugned judgment.

16. Heard.

17. Before adverting to the rival contentions, it is expedient to quote section 50 of the Act, 1985.

50. Conditions under which search of persons shall be conducted.--

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a 22 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 copy thereof to his immediate official superior." (Emphasis supplied)

18. In Vijaysinh Chandubha Jadeja (supra), the Constitution Bench while examining the scope and ambit of the expression "if the person to be searched so requires" as figuring in sub- section (1) of the section 50, has after quoting section 50 in paragraph 18 has explained and reiterated the same in paragraphs 19 and 20 quoted below:

"19. .Sub-section (1) of the said Section 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 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." (Emphasis supplied) A bare reading of the provisions of section 50 as quoted above and reiteration of sub-sections (1), (2) & (3) of section 50 of the Act, 1985, the Constitution Bench do not suggest that section 50 contemplates that even if the suspect did not accord consent to be taken before a Magistrate or gazetted officer for the purpose of search upon being apprised of existence of such right to him, still if search is conducted though by duly authorized officer under section 42 of the Act, 1985 in absence of gazetted officer of a Magistrate search so conducted shall be rendered illegal rendering the trial based upon such seizure vitiated by error of law.

In the contest of the object and ambit of sub-sections (5) and (6) added by amending Act No.9 of 2001 with effect from 02-10-2001, the Hon'ble Constitution Bench has held as under:

"25..As noted above, sub-sections (5) and (6) were inserted in Section 50 by Act 9 of 2001. It is pertinent to note that although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub- sections, viz. when the authorised officer has reason to believe that any delay in search of the person is fraught with the possibility of the 23 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 person to be searched parting with possession of any narcotic drug or psychotropic substance etc., or article or document, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases a safeguard against any arbitrary use of power has been provided under subsection (6). Under the said sub-section, the empowered officer is obliged to send a copy of the reasons, so recorded, to his immediate official superior within seventy two hours of the search. In our opinion, the insertion of these two sub-sections does not obliterates the mandate of sub-section (1) of Section 50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate."

The Hon'ble Bench further observed that in Baldev Singh case (supra), the Constitution Bench did not decide in absolute terms the question whether section 50 of the NDPS Act was directory or mandatory though it was held that provisions of sub-section (1) of section 50 makes it imperative for the empowered officer to "inform" the suspect concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate. Failure to "inform" the suspect about the existence of his said right would cause prejudice to him. In case, he opts for, 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 the person during a search conducted in violation of the provisions of section 50 of the NDPS Act. But, as in the said case, it was held to be mandatory that the suspect was made aware of existence of his right to be searched before the gazetted officer or a Magistrate, if so required by him.

19. Now turning to the facts of the case, the suspect was informed as regards existence of his legal right to be searched before the nearest gazetted officer or a nearest Magistrate in terms of Section 50(1) of the Act, 1985 vide exhibit P/3. However, he has given consent in writing to be searched by the raiding party and not by the gazetted officer or a Magistrate vide exhibit P/5. Under such circumstances, it has been rightly held by the trial Court that search and recovery of the contraband from possession of the accused/appellant was in accordance with law. This Court sees no reason to interfere with the same, as the same is held to be in consonance with the dictum laid down by the Hon'ble Supreme Court in the case of Vijaysinh Chandubha Jadeja (supra)."

25. In the present case, bare perusal of memos Ex.P/6 and and hand written and signed consent of the accused Ex.P/7, coupled with the statement of ASI Surawat (PW-19) and Constable Mahendra Singh (PW-10) convincingly shows that 24 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.519 of 2017 the accused was informed about his right indubitably and he consented for the search by the raiding party consciously, which is proper compliance of mandatory provisions of Section 50 of the N.D.P.S. Act, 1985. Furthermore, it was not the case of the appellants before the trial Court that due to any ambiguity in the information given by the raiding party; he could not exercise his right properly. Therefore, raising this issue first time in the appeal does not help him to get any favour.

26. Keeping in view the incriminating evidence available on record proving the guilt of the appellant beyond reasonable doubt, I find no reason to arrive at a finding different from the one recorded by the learned trial court in regard to the complicity of the appellant in carrying 2.750 kg illegal opium. Hence, the impugned conviction and sentence are maintained and the appeal is dismissed being bereft of merit.

27. All the IAs pending in this appeal stand closed.

28. The order of learned Trial Court regarding disposal of case property is hereby confirmed.

(Virender Singh) Judge Pankaj Digitally signed by Pankaj Pandey Date: 2020.05.11 16:27:24 +05'30'

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