Madhya Pradesh High Court
Rakesh Sahu vs The State Of Madhya Pradesh on 13 September, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1 Cr.A. No. 4143 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
CRIMINAL APPEAL No. 4143 of 2024
RAKESH SAHU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri D.S. Raghuvanshi - Advocate and Shri Vijay Kumar Jha -
Advocate for the appellant.
Shri Harish Sharma - Public Prosecutor for the respondent/State.
Reserved on : 10.09.2024
Delivered on : 13.09.2024
JUDGEMENT
This Criminal Appeal under Section 374 read with Section 383 of the Code of Criminal Procedure, 1983 is filed assailing the judgment of conviction and order of sentence dated 13.10. 2023 passed by learned Special Judge, NDPS Act, Vidisha whereby appellant Rakesh Sahu was convicted for offence punishable under Section 8 read with Section 21(b) of the NDPS Act, 1985 and sentenced to rigorous imprisonment for three years and fine of Rs.3,000/- with default stipulation of rigorous imprisonment for 2 Cr.A. No. 4143 of 2024 three months. For the sake of convenience, appellant Rakesh Sahu shall be referred to as "accused" and the Narcotic Drugs and Psychotropic Substances Act, 1985 shall be referred to as the "Act of 1985" hereinafter.
2. As per the case of prosecution, Sub-Inspector M.L. Dodiyar of Police Station, Kotwali, Distt. Vidisha received secret information on 09.10.2019 around 20:40 hours that Rakesh Sahu has brown sugar and he is standing with an Apache motorcycle at Indira Complex Ground. S.I. M.L. Dodiyar entered the information in Roznamcha Sanha and proceeded to Indira Complex along with police officials and independent witnesses Sanju Sharma and Madhav Singh, after intimating CSP, Vidisha in compliance of Section 42 of the Act of 1985. The police party reached Indira Complex Ground and intercepted Rakesh Sahu. He was given intimation of his right u/s. 50 of the Act of 1985. On search of Rakesh Sahu in compliance with the procedure, the brown coloured powder was recovered from a polythene bag which was kept in right pocket of his full pant. Sub-Inspector Dodiyar tested the powder and found it to be contraband brown sugar. The contraband brown sugar quantity 9 grams was seized from possession of Rakesh Sahu. After taking out two samples of one gram each, remaining contraband brown sugar was sealed in a polythene bag . The samples and remining contraband were deposited in Malkhana of Police Station, Kotwali, Distt. Vidisha. 3 Cr.A. No. 4143 of 2024 Rakesh Sahu was arrested on spot. The samples Exs. A/1 and A/2 were forwarded for chemical examination to Regional Forensic Science Laboratory, Bhopal. The Senior Scientific Officer of Regional Science Laboratory, on examination of the material forwarded by S.P. Vidisha, opined that the powder contains diacetyl morphine (brown sugar). On completion of investigation final report was submitted.
3. Learned Special Judge, NDPS Act, Vidisha framed charges for offence punishable under Section 8 read with Section 21 (b) of the Act of 1985 against the accused. On completion of trial and after hearing both the parties, learned Special Judge convicted accused Rakesh Sahu for the alleged offence and sentenced him as mentioned in para-1 of the judgment. 4 Cr.A. No. 4143 of 2024
4. Learned Counsel for the appellant assailing the impugned judgment and order of sentence contended that independent witnesses Sanju Sharma (PW/1) and Madhav Singh (PW/3) did not support the prosecution, therefore, learned Trial Court committed error in convicting the appellant merely on the basis of evidence of investigation officer and the police officials associated with the proceedings of raid. There are material contradictions and inconsistencies in the evidence of investigation officer and police officials. The alleged contraband was seized without due compliance of due procedure. Learned Trial Court convicted the appellant ignoring all the inconsistencies in the prosecution case.
5. Per contra, learned counsel for the State supporting the impugned judgment submits that learned Trial Court has not committed any error in convicting the appellant. The impugned judgment is based on proper appreciation of the evidence on record. No case is made out for interference in the well-reasoned judgment of conviction.
6. Heard both the parties and perused the record.
5 Cr.A. No. 4143 of 2024
7. Sub-Inspector Munnalal Dodiyar (PW/10) deposed that he received reliable secret information on 09.10.2019 that a suspect, who is wearing saffron colour half shirt and white paint is standing at Indira Complex to sell the brown sugar. He entered this information at Roznamcha Sanha Ex. P/31. He prepared panchnama Ex. P/18 for inability to get search warrant. He forwarded information u/s. 42 of the Act of 1985 to CSP, through Constable Rajkumar and proceeded to Indira complex with the police officials and independent witnesses Madhav Gurjar and Sanju Sharma. He along with PSI Gunjan Patel, Constable Suneel Bhaghel and witnesses Sanju Sharma and Madhav Singh Gurjar reached Indira Complex Ground. The suspect Rakesh Sahu S/o Hazarilal Sahu was apprehended. He gave notice u/s. 50 ( Ex. P/2) to the suspect and intimated right to get searched by any Gazetted Officer or Executive Magistrate or by him (investigation officer). The suspect agreed to be searched by him. Accordingly, panchnama Ex. P/3 was prepared. He, police officials and the witnesses gave their personal search to Rakesh Sahu. Thereafter, Rakesh Sahu and his motorcycle was searched. One small polythene bag containing light brown colour powder was recovered from right side pocket of full pant of Rakesh Sahu. Further, copy of notice u/s. 50 was recovered from pocket of shirt of the suspect. Accordingly, search panchnama Ex. P/5 was prepared. He checked the powder by smelling and 6 Cr.A. No. 4143 of 2024 burning it and he concluded, on the basis of his experience, that the powder is brown sugar. He prepared contraband identification panchnama Ex. P/6. The contraband was weighed by electronic weighing machine, total quantity of contraband was found to be 9 grams. He took out two samples of one gram each and kept them in transparent polythene. Remaining contraband quantity 7 grams was kept in another polythene. The samples were marked as Annexures A/1 and A/2. He prepared panchnama Ex. P/2 with regard to the sampling and sealing of the contraband. He further prepared seizure memo Ex. P/13 and arrest memo Ex. P/14. He handed over seized property to HSCM Chandra Bhushan Sharma, Police Station, Kotwali.
8. Although independent witnesses Sanju Sharma (PW/1) and Madhav Singh (PW/3) did not support the prosecution with regard to alleged search recovery and seizure. Alok Soni (PW/2), A.S.I. Arun Kumar (PW/6), Head Constable Suneel Bhaghel (PW/9) supported the proceeding conducted by Munna Lal Dodiyar (PW/10). Malkhana Moharrir Chandra Bhushan Sharma (PW/4) deposed regarding receipt of samples of contraband and their entry Ex. P/20 in Malkhana register. He further deposed regarding forwarding of samples for chemical analysis vide draft Ex. P/21. Head Constable Harvendra Sisodia deposed that he has presented the sealed contraband Annexure (A/1) and the draft Annexure P/21 at RFSL, Bhopal. 7 Cr.A. No. 4143 of 2024
9. Learned Trial Court examined inconsistencies in aforestated evidence. Learned Trial Court considered the effect of the evidence of independent witnesses Sanju Sharma (PW/1) and Madhav Singh (PW/3) in paras-11 and 12 of the judgment. Learned Trial Court further considered effect of non- compliance with the provisions of Section 42 and Section 55 of the Act of 1985 and concluded that these provisions are directory in nature, therefore, in view of substantial compliance of these provisions, no adverse inference can be drawn against prosecution.
10. Learned Trial Court in para-20 of the judgment considered compliance of Section 50 of the Act of 1985 and concluded that evidence on record reveals substantial compliance with the provisions of Section 50 of the Act of 1985.
11. In the case of Ranjan Kumar Chadha v. State of H.P. reported in 2023 SCC OnLine SC 1262, it was observed that-
25. What is pertinent to note in the oral evidence of PW 12 and PW 14 respectively referred to above, is that the appellant herein was told or rather informed that if he so desired, he may get himself searched before the ASI or before the Gazetted Officer or Magistrate. Thus, it is evident from the oral evidence of both PW 12 and PW 14 resply that three options were given to the appellant herein - first to be searched before the ASI i.e. Assistant Sub-Inspector, second, before the Gazetted Officer and third, before any Magistrate. It is also pertinent to note that the appellant was not informed in so many words that it is his right under Section 50 of the NDPS Act to seek search before a Gazetted Officer or Magistrate.
26. So far as the issue of applicability of Section 50 of the NDPS Act is 8 Cr.A. No. 4143 of 2024 concerned, there are two aspects of the same. Even if we hold that Section 50 of the NDPS Act was not complied with, then the second question would be, whether Section 50 could at all be made applicable to the case on hand.
27. We have no hesitation in recording a finding that Section 50 of the NDPS Act was not complied with as the appellant could not have been offered the third option of search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted Officer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told, whether he would like to be searched before a police officer or a Gazetted Officer or Magistrate?
28. This Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345, held that it is improper for a police officer to tell the accused that a third alternative is also available i.e. the search before any independent police officer. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of Section 50. We quote the relevant observations made by this Court as under:--
"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.
16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before the nearest gazetted officer or the nearest Magistrate or before PW 5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in State of Punjab v. Baldev Singh (1999) 6 SCC 172, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent 2 Surajmal is stated to have signed for himself and for respondent 1 Parmanand. Respondent 1 Parmanand did not sign.9 Cr.A. No. 4143 of 2024
17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh v. State of Punjab, (1977) 1 Crimes 242 (P&H) and the Bombay High Court in Dharamveer Lekhram Sharma v. State of Maharashtra (2001) 1 Crimes 586 (Bom) meets with our approval.
18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent Surajmal has signed for himself and for respondent 1 Parmanand. Respondent 1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent 2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent 1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.
19. We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW 5 J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of 10 Cr.A. No. 4143 of 2024 Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated." (Emphasis supplied)
29. Thus, from the oral evidence on record as discussed above it is evident that Section 50 of the NDPS Act stood violated for giving a third option of being searched before a police officer.
12. The evidence of Sub-Inspector Munnalal Dodiyar (PW/10) reveals that he had given third option of being searched by himself to the accused. In view of the law laid down in case of Parmanand and Ranjan Kumar Chadha (supra), the search and seizure in present matter stood vitiated for the reason of giving third option of being searched by the Investigation Officer.
13. The Supreme Court, while interpreting the provision of sampling before the Magistrate, in case of Union of India Vs. Mohanlal (2016) 3 SCC 379, held as under-
11 Cr.A. No. 4143 of 2024
"15. It is manifest from Section 52-A(2) include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
14. Recently, in the case of Yusuf v. State, 2023 SCC OnLine SC 1328, it was held that-
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the 12 Cr.A. No. 4143 of 2024 Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal's3 case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in- charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated. In the case of Mohd. Khalid v. State of Telangana, (2024) 5 SCC 393, it was further held that-
26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating officer PW 5 for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Ext. P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot. (Simarnjit Singh v. State of Punjab, 2023 SCC OnLine SC 906 and Bothilal v. Narcotics Control Bureau, 2023 SCC OnLine SC 498 also relied)
15. The evidence on record reveals that sampling of contraband was done 13 Cr.A. No. 4143 of 2024 by the Investigation Officer Munnalal Dodiyar (PW/10). The contraband was not forwarded for sampling to the Magistrate in compliance with the provision of Section 52-A of the Act of 1985. There is absolute non- compliance with the provisions contained in Section 52-A of the Act of 1985, therefore, in view of the proposition of law laid down by the Supreme Court, the sampling and subsequent conclusion with regard to the contraband being a manufactured drug (brown sugar) also stand vitiated. The inconsistencies in the evidence of investigation officer and police officials associated with raid, assume importance in view of these violation of mandatory provision. Learned Trial Court ignored these important legal requirements for fair investigation, therefore, impugned judgment of conviction is not sustainable. The appellant deserves benefit of doubt.
16. Consequently, the appeal is allowed and impugned judgment of conviction and order of sentence dated 13.10.2023 passed in SC NDPS No. 38 of 2019 by learned Special Judge, NDPS, Act, Vidisha is set aside. Appellant/accused Rakesh Sahu is acquitted from charge of offence under Section 8 read with Section 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. He shall be set at liberty forthwith. The personal bond and surety bond stand discharged. The appellant shall be entitled for remittance of fine amount, if deposited. The order with regard to disposal of seized material is affirmed.
(SANJEEV S KALGAONKAR) JUDGE ABDUR RAHMAN 2024.09.03 03:54:14 +05'30'