Allahabad High Court
Ramesh Rana vs State Of U.P. on 15 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 891
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 11.03.2019 Delivered on 15.03.2019 Court No. - 27 Case :- CRIMINAL APPEAL No. - 1370 of 2010 Appellant :- Ramesh Rana Respondent :- State Of U.P. Counsel for Appellant :- Jail Appeal,Ashok Kumar Bajpayee,Pankaj Kumar Tripathi,Ram Pratap,Vinod Kumar Singh Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 1371 of 2010 Appellant :- Dil Bahadur Respondent :- State Of U.P. Counsel for Appellant :- Jail Appeal,Ashok Kumar Bajpayee,Pankaj Kumar Tripathi,Ram Pratap,Vinod Kumar Singh Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 2364 of 2010 Appellant :- Kriti Bahadur Respondent :- State Of U.P. Counsel for Appellant :- In Person,Ashok Kumar Bajpayee,Pankaj Kumar Tripathi,Vinod Kumar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Virendra Kumar-II,J.
1. Heard Shri Vinod Kumar Singh, learned Amicus Curiae appearing for appellants, Ms. Shikha Sinha, learned A.G.A. for the State.
2. These appeals have been preferred on behalf of appellant Dil Bahadur, Kriti Bahadur and Ramesh assailing the impugned judgment and order dated 25.02.2010. Learned Trial Court of Additional Sessions Judge/Fast Track Court, Ist, Shrawasti by a common judgment has decided Sessions Trial No. 22 of 2008 (State Vs. Dil Bahadur) arising out of Crime No. 379 of 2008, Sessions Trial No. 23 o 2008 (State Vs. Kriti Bahadur) arising out of Crime No. 380 of 2008 and Sessions Trial No. 24 of 2008 (State Vs. Ramesh) arising out of Crime No. 381 of 2008 for offence punishable under Sections 20 (Kha) (2) (Sa), Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as "N.D.P.S. Act") Police Station Sirsiya, District Shrawasti. The recovery memo prepared by police personnel is common and all the appellants were arrested on the same day, therefore, their appeals are taken up, heard and decided together.
3. The learned trial Court has analyzed, appreciated and evaluated evidence of witnesses and delivered impugned judgment and order dated 25.02.2010 by which appellant Dil Bahadur has been convicted in Sessions Trial No. 22 of 2008 for offence punishable under Section 20 (Kha) (2) (Sa), N.D.P.S. Act and sentenced to undergo rigorous imprisonment for 10 years and amount of Rs. 1 lac has been imposed as fine along with default stipulation to serve out additional rigorous imprisonment for two years. The appellant Kriti Bahadur for the aforesaid offence sentenced to undergo rigorous imprisonment for 13 years and amount of Rs. 2 lacs has been imposed as fine along with default stipulation to serve out additional rigorous imprisonment for three years. The appellant Ramesh has also been convicted for aforesaid offence and sentenced to undergo rigorous imprisonment for 14 years, amount of Rs. 2 lacs as fine has been imposed along with default stipulation to serve out additional rigorous imprisonment for three years. The trial Court has directed that period of detention during course of trial shall be set off against the punishment/imprisonment awarded against the appellants. The amount Rs. 3000/- recovered from Dil Bahadur and amount of Rs. 100/- Nepaly currency from appellant Ramesh from their personal search were directed to be refunded to them after prescribed period for appeal.
4. As per prosecution version, the Station House Officer Kamla Prasad PW-3 along with Constable Vijay Nath-PW-1 were conducing patrolling duty and reached at Banda Trisection. They met with police party of PW-2 Inspector Bahadur Chandra of 8th Battalion SSB, C-Company, Sirsiya. They were talking each other at about 05.45 a.m.. They saw three persons were coming towards them holding bags on their shoulders. These three persons after seeing the police party tried to escape by turning around. On suspicion, the police party surrounded and arrested them at a distance of 50 paces. Their names were asked. They apprised the police party that their names were Dil Bahadur son of Chandra Bahadur, Kriti Bahadur son of Lal Bahadur and Ramesh son of Ishwar Bahadur and they were resident of Imiliya, Police Station- Guru Singh,Distict Kapilvastu of country Nepal. The police party asked them reason for their running. They apprised the police party that charas is kept in their bags.
5. It is also mentioned in recovery memo that the police party apprised the appellants/accused persons about their right of search before any Gazetted Officer or Magistrate. They consented to be searched by the police party. Their written consent (Ext Ka-2) was obtained and the police party searched bag held by Dil Bahadur, charas kept in seven packets of white polythene of weight 07 Kg 200 gm was recovered, from bag of Kriti Bahadur 10 packets of charas kept in white polythene of weight 15 Kg 450 gm was recovered and from the bag held by Ramesh 11 packets of charas of weight 16 Kg was recovered. A sample of 50-50 gm was taken from one packet of each bag and remaining charas was sealed in their bags. The recovery memo (Ext Ka-1) was prepared on the place of recovery on 30.05.2008.
6. It is mentioned in the recovery memo that at the time of arrest and recovery of charas from their possession, public witnesses were not available, because this place was situated in "Jangal" and it was a deserted place.
7. The Investigating Officer Sub Inspector Dharmendra Pratap Singh-PW-6 recorded statements of the witnesses, prepared site plan of place of arrest of appellants and recovery of charas from their possession, Check F.I.R. (Ext Ka-5) and G.D. of registration of Crime (Ext Ka-6) was prepared on the basis of recovery memo submitted by the police party at Police Station Sirsiya, District Shrawasti. The docket was produced before Circle Officer Bhinga, District Shrawasti and sent through letter (Ext Ka-7). The witness PW-5 Constable Umesh Singh submitted sealed packet of sample of charas at the Forensic Science Laboratory, Mahanagar, Lucknow.
8. The Joint Director forwarded chemical analysis report (Ext Ka-3) for Dil Bahadur and Ext Ka-15 for Ramesh Rana and Ext Ka-14 for accused Kriti Bahadur. The letter Ext Ka-8 was sent to the Director along with docket regarding Kriti Bahadur and copy of the Site Plan (Ext ka-11) was proved by the Investigating Officer. Likewise, letter (Ext Ka-9) of docket and Site Plan (Ext Ka-12) were proved regarding accused Ramesh.
9. The Investigating Officer collected copy of the register maintained at Police Station Sirsiya, District Shrawasti regarding case property as Ext Ka-19, 20 and 21.
10. The Superintendent of Police, Shrawasti vide order dated 16.06.2008 transferred investigation of these crimes to the Station House Officer, Malipur. Therefore, Investigating Officer of Police Station Malipur conducted investigation of these crimes under orders of Superintendent of Police, Shrawasti.
11. The Investigating Officer after conclusion of trial submitted charge-sheet (Ext Ka-16) against Dil Bahadur, Ext Ka-17 against Kriti Bahadur and Ext Ka-18 against Ramesh before the competent trial Court.
12. The trial Court of Additional Sessions Judge/Fast Track Court, Shrawasi framed charges against the appellants on 02.01.2019 for offence punishable under Section 20Kha 2 Sa N.D.P.S.Act. The appellants pleaded not guilty and claimed to be tried.
13. Learned trial Court has recorded statements of PW-1 Constable No. 169 CP Vijay Nath Yadav, PW-2 Inspector Bahadur Chandra, PW-3 Sub Inspector Kamla Prasad, PW-4 Constable Mohrrir No. 48 Virendra Kumar Mishra, PW-5 Constable Umesh Singh, PW-6 Sub Inspector Dharmendra Pratap Singh and PW-7 Head Mohrrir Mukhram.
14. The trial Court has recorded statements of all the appellants under Section 313 Cr.P.C. They have stated that the witnesses have adduced false evidence against them. They were arrested from the Bus Stand Sirsiya, while they were going to Gurudwara Himanchal Pradesh for doing labour work. The police personnel demanded money. They were foreigner and could not accede to demand of money made by the police personnel. Therefore, they have been falsely been implicated in this crime. No defence evidence has been adduced on behalf of the appellants during the course of trial.
15. Learned Amicus Curiae has submitted that in this case no independent public witness was kept with them by the police party of PW-1, PW-2 and PW-3 at the time of arrest and alleged recovery of charas from possession of the appellants. The witnesses PW-1, PW-2 and PW-3 are police personnel and interested witnesses. Their evidence cannot be believed.
16. PW-1, PW-2 and PW-3 are witnesses of facts and proved this fact that they were busy in patrolling duty and reached at Rampur Bandha Trisection ,where during conversation on 30.05.2008 at 5.45 a.m. the appellants came towards police party and tried to fled away after seeing the police party. The Police party on suspicion intercepted them. They searched their bags after apprising them about their right to be searched before any Gazetted Officer or Magistrate. These witnesses have stated that the place of occurrence was "Jangal" and deserted place and during course of arrest and recovery of charas from the possession of the appellants, no independent witnesses came there nor these were available.
17. PW-1 Constable Vijay Nath Yadav during his cross-examination has specifically stated that no Aabadi/locality was situated on the place of arrest of appellants. It is relevant to mention her that it is mentioned in recovery memo (Ext ka-1) that place of occurrence was situated in "Jangal" and was a deserted place, where the public witnesses were not available. Since police party of PW-1, PW-2 and PW-3 intercepted the appellants during patrolling duty, therefore, there was no occasion to call public witnesses on the place of occurrence as suggested to the witness PW-1 during his cross-examination.
18. The following exposition of law is relevant regarding evidence of police personnel and non-production of public witnesses.
A Division Bench of Hon'ble Supreme Court in the case of Narain v. State of Punjab:AIR 1959 SC 484, has held as under:
13.....The test is whether he is a witness "essential to the unfolding of the narrative on which the prosecution is based". Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. It is not however that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses.
14....The fact, assuming it to have been so, that Raghbir would have said in his evidence that the incidents did not happen as the prosecution stated, may no doubt have established a good defence. But if it was so, then he would have been only a witness material for the defence and not a witness essential to the unfolding of the narrative on which the prosecution case is based. The prosecution is not bound to call witnesses to establish the defence but only witnesses who are material for proving its own case. Indeed, since according to the prosecution case Raghbir arrived after the alleged offences were committed, he could not have given any evidence about the prosecution case. We, therefore, think that the contention of the learned Advocate for the appellants that the prosecution should have called Raghbir to ensure a fair trial or that he was a witness material to the prosecution case, is unfounded. We do not think that the trial has at all been vitiated by the failure to call Raghbir. It may be pointed out that the appellants had not sought to produce Raghbir as a witness on their behalf.
Exposition of law regarding evidence of independent witnesses:
A Division Bench of Hon'ble Supreme Court in para-16 of its judgment given in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149 has observed as under:-
"16. ...... The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected."
A Division Bench of Hon'ble Supreme Court in the case of Yogesh Singh v. Mahabeer Singh: (2017) 11 SCC 195, has held as under:
50 - The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , wherein it was observed: (AIR p. 333, para 12) "12. ... It is well known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits."
51. Similarly, in Raghubir Singh v. State of U.P. [Raghubir Singh v. State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.
A Division Bench of Hon'ble Supreme Court in the case of Vijendra Singh v. State of U.P. :(2017) 11 SCC 129 has held as under:
30. It is next contended by Mr Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs 1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited.
31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P.[Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v.State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
A Division Bench of Hon'ble Supreme Court in the case of Ambika Prasad v. State (Delhi Admn.) : (2000) 2 SCC 646 has held as under:
12.....It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P.v.Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48 : AIR 1988 SC 1998] this Court observed: (SCC pp. 691-92, para 15) "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."
Exposition of law regarding evidence of police personnel:
A Division Bench of Hon'ble Supreme Court in the case of Sama Alana Abdulla v. State of Gujarat : (1996) 1 SCC 427 has held as under:
6......Only PI B.B. Dwivedi and PSI Gohil have stated that the map was found from the house from a tin trunk kept on a cupboard. Therefore, in the absence of any independent evidence the High Court ought not to have held that the appellant was in conscious possession of the said map particularly when at the time of the raid he was not present in the house. In support of the submissions that the evidence of PI Dwivedi and PSI Gohil should not be regarded as sufficient it was also submitted that they had taken two persons of Bhuj as Panchas to witness the raid instead of taking independent witnesses from the locality i.e. Village Nana Dinara and thus it becomes apparent that they were selected panch witnesses and therefore to that extent the investigation was not fair and impartial.
Even on close scrutiny of the evidence of PI Dwivedi and PSI Gohil, we see no reason to disbelieve this explanation. It cannot, therefore, be said that the investigation was not fair and therefore independent corroboration was necessary.
Again their evidence cannot be rejected only on the ground that they are police witnesses and were members of the raiding party. Their evidence receives corroboration from the panchnama. It may be stated that the other panch witness could not be examined by the prosecution because he had expired before his evidence could be recorded.
A Division Bench of Hon'ble Supreme Court in the case of Anil v. State of Maharashtra, (1996) 2 SCC 589 has held as under:
5.....Indeed all the 5 prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinised and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.
It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence.
The evidence on the record shows that the raiding party made sincere efforts to join with them two independent panchas at the time of search and seizure and they were so joined. They were also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore they could not be examined at the trial.
The Division Bench of Hon'ble Supreme Court in the case of Pradeep Narayan Madgaonkar v. State of Maharashtra, (1995) 4 SCC 255 has held has under:
11...... the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony.
The Divison Bench of Hon'ble Supreme Court in the case of Mohan Singh v. State of Haryana, (1995) 3 SCC 192 has held as under:
5.....In these facts and circumstances when the police officials deliberately avoided to join any public witness or railway officials though available at the time when the appellant was apprehended the evidence of Hira Lal who is nobody but a chance witness and the evidence of police officials PW 6 and PW 7 has to be closely scrutinised with certain amount of care and caution.
A Single Bench of this court in the case of Mahesh v. State of U.P., 2000 Cri.L.J. 1334 has held as under:
7.....The obligation to take public witnesses is not absolute. If after making efforts which the Court considered in the circumstances of the case reasonable, the Police Officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the Police Officers was believable after taking due care and caution in evaluating their evidence. What weight Is to be attached to the evidence of the Police Officers would essentially be a question of fact for the trial Court to decide applying hard common sense and recognised principle of re-evaluation of evidence of witnesses.
The Three Judges' Bench of Hon'ble Supreme Court in the case of P.P. Beeran v. State of Kerala, AIR 2001 SC 2420 has held as under :
3.The case alleged against him shows that he was found in possession of 23.5 grams of opium at the time when he was intercepted and searched by PW 2 Sub-Inspector of Police. We have noticed that two witnesses were called by PW 2 at the time of search out of whom one was examined as PW 1 and the other was not examined. But even the one examined (PW 1) did not support the prosecution and hence he was treated as hostile. Though an argument was addressed by Mr R. Venkataramani, learned Senior Counsel for the appellant that the evidence of PW 2 Sub-Inspector of Police remained uncorroborated and, therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW 2 on that ground alone. Even otherwise, it cannot be said that the evidence of PW 2 remains uncorroborated because the fact that opium was recovered from his person and also Exhibit P-2 which is an endorsement containing the signature of the appellant could be treated as circumstances corroborating the testimony of PW 2.
19. The police personnel are competent witnesses to adduce evidence before the learned trial Court, therefore, there is no substance in the argument of learned Amicus Curiae that no independent witness was produced on behalf of the prosecution during course of trial of these sessions trial.
20. Learned Amicus Curiae more vehemently argued that compliance of the provisions of Section 50 N.D.P.S. Act was required in the circumstances of this case, because personal search of the appellants was also conducted. It is immaterial whether any psychotropic substance or narcotic drug was recovered from their search of person or not.
21. Learned Amicus Curiae has also submitted that as per facts narrated in recovery memo (Ext Ka-1) right back pocket of pant of appellant Dil Bahadur was searched and amount of Rs. 3000/- was recovered. Likewise, right back packet of pant of appellant Ramesh was also searched and one Nepali note of Rs. 100/- denomination was recovered. The provisions of Section 50 of N.D.P.S. Act has been complied with by the police party of PW-1, PW-2 and PW-3 in correct perspectives, even then it was not legally required.
22. Learned A.G.A. has submitted that the compliance of the provisions of Section 50 of N.D.P.S. Act, is mentioned in recovery memo (Ext Ka-1) prepared by witness PW-3 Kamla Prasad, Sub Inspector regarding the fact that the appellants were apprised about their right of search to be conducted before any Gazetted Officer or Magistrate. All the witnesses PW-1, PW-2 and PW-3 have proved this fact that the appellants were apprised about their right of their search. During cross-examination, these witnesses have explained that this right was orally apprised to the appellants. There is no infirmity or deficiency in compliance of provisions of Section 50 of N.D.P.S.Act made by the police party of these witnesses.
23. Learned Amicus Curiae relying on exposition of law of Hon'ble Supreme Court in case State of Rajasthan Vs. Parmanand and another 2014 (85) ACC 662 has argued that in the present case compliance of provisions of Section 50 N.D.P.S. Act has not been made by the police party of witness P.W-1-, P.W.-2 and P.W.-3. Hon'ble Supreme Court in para 12 to 15 has held as follows:
"12. 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 No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.
13. 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 a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, 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 No.2 - Surajmal is stated to have signed for himself and for respondent No.1 - Parmanand. Respondent No.1 Parmanand did not sign.
14. 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 a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50 (1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.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 No.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 No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.
15. We also notice that PW-10 S.I. Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a 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 Section 50 (1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a 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 S.I. 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. We have, therefore, no hesitation in concluding that breach of Section 50 (1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed.
24. The provisions of Section 50 N.D.P.S. Act does not prescribe any particular language or proforma regarding appraisal of the right of an accused to be searched before any Gazetted Officer or Magistrate. It is not the choice of the accused, but it is choice of the person/authority based on availability of nearest Gazetted Officer or Magistrate. The authority/person would decide that search of an accused of offence punishable under provisions of N.D.P.S. Act would be made before which of Gazetted Officer or Magistrate who is available.
25. The following case laws are also relevant on the point of compliance of Section 50 of the N.D.P.S. Act:-
Hon'ble Supreme Court (Division Bench ) in the case of T. T. Haneefa Vs. State of Kerala (2004)5SCC128 has observed as follows:-
1.........The sample taken from the seized article was sent for chemical analysis and it was proved to be brown sugar.
4. The counsel for the Appellant submits that under Section 50 of Narcotic Drugs and Psychotropic Substances Act, accused should have been told that he has got a right to be searched in the presence of Gazetted Officer or a Magistrate and this option was not given to the Appellant and it was argued that in the instant case, the Appellant was asked only whether he would like the presence of a Magistrate and in that way there was violation of Section 50 of Narcotic Drugs and Psychotropic Substances Act. We are unable to agree with the plea raised by the Appellant. Ext. P.1 mahazar shows that before the search the Appellant was asked whether he would like the presence of a Magistrate, he declined to avail that privilege and thereafter the search was conducted and drug was recovered from his possession.
5. The plain reading of Section 50 of Narcotic Drugs and Psychotropic Substances Act does not show that the accused has got a right of option either a Gazetted Officer or the Magistrate, rather the option is for the officer who conducts the search. Section 50 of Narcotic Drugs and Psychotropic Substances Act relevant portion reads as follows:
any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
6. If the accused says that search shall be in presence of Gazetted Officer or Magistrate, the officer can choose any one of them depending upon the availability of Gazetted Officer or the Magistrate. In this case the Appellant was given an option to be searched in the presence of Magistrate, he did not exercise that right.
The Division Bench of Hon'ble Supreme Court in the case of State of Punjab Vs. Balbir Singh : AIR 1994 SC 1872 has observed as follows:-
16........The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial.
26. The questions considered above arise frequently before the trial courts. therefore we find it necessary to set out our conclusions which are as follows :
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. PC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.
Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the precisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal.
(2B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.
(2C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. PC fails to strictly comply with the provisions of Sections 100 and 165 Cr. PC including the requirement to record-reasons, such failure would only amount to an irregularity.
(4B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. PC namely Sections 100 and 165 Cr. PC and if there is no strict compliance with the provisions of Cr. PC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information, the empowered officer or authorised of officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made an such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there in non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
A Five Judges' Constitutional Bench of Hon'ble Supreme Court in the case of State of Punjab Vs. Baldev Singh, AIR 1999 SC 2378, has observed as follows:-
54. Thus, even if, it be assumed for the sake of argument that all the material seized during an illegal search, may be admissible as relevant evidence in other proceedings, the illicit drug or psychotropic substance seized in an illegal search cannot by itself be used as proof of unlawful conscious possession of the contraband by the accused. An illegal search cannot also entitle the prosecution to raise a presumption under Section 54 of the Act because presumption, is an inference of fact drawn from the facts which are known as proved. 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.
55. We, therefore, hold 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 by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case.
56. Thus, considered we are of the opinion that the judgment in (Ali Mustaffa's case)Ali Mustaffa Abdul Rahman Moosa vs. State of Kerala ( 1994 ) 6 SCC 569 correctly interprets and distinguishes the judgment in (Pooran Mal's )case PooranMal vs. The Director of Inspection (Investigation), New Delhi and Ors. AIR 1974 SC 348and the broad observations made in Pirthi Chand's case State of Himachal Pradesh vs. Shri Pirthi Chand and another1996 CriLJ 1354 and Jasbir Singh'scase State of Punjab vs. Jasbir Singh and Ors. ( 1996 ) 1 SCC 288 are not in tune with the correct exposition of law, as laid down in Pooran Mal's case.
57. On the basis of the reasoning and discussion above, the following conclusions arise:
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;
(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;
(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial;
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.
(9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful 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.
A Division Bench of Hon'ble Supreme Court in the case of Gurbax Singh Vs. State of Haryana : AIR 2001 SC 1002 has observed as follows:-
8. In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right is extension of right conferred under Section 100(3) of the Criminal Procedure Code. Sub-Section (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant allow him free ingress thereto, and afford all reasonable facilities for a search therein. Sub-Section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is searched under sub-section (3) a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the N.D.P.S. Act would be applicable only in those cases where the search of the person is carried out.
9. The learned counsel for the appellant next contended that from the evidence it is apparent that the I. O. has not followed the procedure prescribed under Sections 52 55 and 57 of the N.D.P.S. Act. May be that the I.O. had no knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR under Section 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk.
The Division Bench of Hon'ble Supreme Court in the Case of Megh Singh Vs. State of Punjab : AIR 2003 SC 3184 has observed as follows:-
5. In response, learned counsel for the respondent-(SIC) submitted that conscious possession has been established and by application of logic of Section 54 of the Act when physical possession is established, there is presumption of conscious possession. Merely because co-accused persons have been acquitted that cannot be a factor to hold the accused-appellant innocent. It is submitted that since there was no personal search. Section 50 of the Act has no application.
14. In the factual scenario of the present case not only possession but conscious possession has been established. It has not been shown by the accused-appellant that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.
15. Now comes the question whether there was non-compliance of Section 50 of the Act.
16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr. 2000CriLJ507 , The State of Punjab v. Baldev Singh 1999CriLJ3672 , Gurbax Singh v. State of Haryana 2001CriLJ1166 . The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance.
Three Judges' Bench of Hon'ble Supreme Court in the case of State of Himachal Pradesh Vs. Pawan Kumar With State of Rajasthan Vs Bhanwar Lal : AIR 2005 SC 2265 has observed as follows:-
10. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act,
11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free.
16. There is another aspect of the matter, which requires consideration. Criminal law should be absolutely certain and clear and there should be no ambiguity or confusion in its application. The same principle should apply in the case of search or seizure, which come in the domain of detection of crime. The position of such bags or articles is not static and the person carrying them often changes the manner in which they are carried. People waiting at a bus stand or railway platform sometimes keep their baggage on the ground and sometimes keep in their hand, shoulder or back. The change of position from ground to hand or shoulder will take a fraction of a second but on the argument advanced by learned counsel for the accused that search of bag so carried would be search of a person, it will make a sharp difference in the applicability of Section 50 of the Act. After receiving information, an officer empowered under Section 42 of the Act, may proceed to search this kind of baggage of a person which may have been placed on the ground, but if at that very moment when he may be about to open it, the person lifts the bag or keeps it on his shoulder or some other place on his body, Section 50 may get attracted. The same baggage often keeps changing hands if more than one person are moving together in a group. Such transfer of baggage at the nick of time when it is about to be searched would again create practical problem. Who in such a case would be informed of the right that he is entitled in law to be searched before a Magistrate or a Gazetted Officer? This may lead to many practical difficulties......"
8. It will be useful here to take note of the general law regarding search and seizure and the effect of any illegality committed during the course of search on the seizure or recovery made of any incriminating article. In State of Maharashtra v. Natwarlal Damodardas Soni1980CriLJ429 , the Anti-Corruption Bureau had recovered 100 gold bars each weighing 10 tolas having foreign markings from the residential premises of the accused, consequent upon which the custom authorities initiated proceedings in which he was convicted. The contention raised was that the search and seizure of the gold by the police was illegal. It was held that the police had powers under the Code of Criminal Procedure to search and seize the gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming argue do that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the custom authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.
Hon'ble Allahabad High Court (Single Judge) in the case of Mahesh Vs. State of U.P : 2000 Cri. LJ 1334 has observed as follows":
7. It may be mentioned here that the omission in mentioning this part of the offer in the recovery memo might have been just accidental. Therefore, I see no reason to differ from the learned Sessions Judge who held on a consideration of evidence that due offer was made to the accused-appellant as required under Section 50 of the N.D.P.S. Act. In my view on the facts of this case, it cannot be said that there was any infraction of the provision of Section 50 of the N.D.P.S. Act.
8. It has been argued before me that no public witnesses had been taken to witness the raid of the accused-appellant and his companion leading to their arrest. However, all the three witnesses had explained that an effort was made to take public witnesses from the passengers on the platform in that late hour of night i.e. 11.45 p.m. but none of them was willing to join the raid for the obvious reason that every one was interested in pursuing his journey rather than interrupting it and joining the raid and arrest with which he had no concern and which would or could have delayed his journey indefinitely. It may be that there must be railway officers present in the office of the station master etc. but then it has to be kept in mind that the time at the disposal of the Station Officer (S.O.) was very little and any delay in procuring the witnesses would have surely frustrated the raid itself as in the meantime, the accused would have fled away. The obligation to take public witnesses is not absolute. If after making efforts which the Court considered in the circumstances of the case reasonable, the Police Officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the Police Officers was believable after taking due care and caution in evaluating their evidence. What weight is to be attached to the evidence of the Police Officers would essentially be a question of fact for the trial Court to decide applying hard common sense and recognised principle of re-evaluation of evidence of witnesses.
Hon'ble Allahabad High Court(Single Judge) in the case of Ram Kailash Jaiswal Vs. State of U.P., 2001Cri.LJ674 has observed as follows:
11. Therefore, after considering all the cases referred by the learned counsel and Section 50 of N.D.P.S. Act, I am of the view that the provisions of Section 50 applied only to the personal searches. In this case the recovery has been made from the truck and therefore Section 50 does not apply, The accused is not entitled to bail even if it is held that there is no compliance of Section 50 of N.D.P.S. Act.
26. Hon'ble Supreme Court(3Judges Bench) in the case of State of Himachal Pradesh Vs. Pawan Kumar with State of Rajasthan Vs Bhanwar Lal (supra) has held that if psychotropic or narcotic drug has been recovered from bag, briefcase or any vehicle or container, etc., then this search will not come within category of personal search of the accused and compliance of provisions of Section 50 would not be required. Therefore, exposition of law relied upon by learned Amicus Curiae would not extend any benefit to the appellants.
27. The trial Court has recorded specific finding that on this point of compliance of provisions of Section 50 of N.D.P.S. Act. It was not required, because the psychotropic substance charas was recovered from bags held by the appellants on their shoulder. The search of bag did not come within purview of search of person of the accused persons. The trial Court has also quoted exposition of law propounded by Hon'ble Apex Court in this regard that the huge quantity of charas was recovered from the possession of the accused, therefore, there were less chances to falsely implicate the accused in the heinous crime. The learned trial Court has also considered the exposition of law propounded by Hon'ble Apex Court and recorded findings that compliance of provision of Section 52, 55 and 57 were directory. Moreover, the appellants were having burden to prove this fact that any prejudice was caused to them on the basis of non-compliance of provisions of Section 52, 55 and 57 N.D.P.S.Act.
28. The learned trial Court has also considered the statements given by appellants in their statements recorded under Section 313 Cr.P.C. that they were arrested at Sirsiya Bus Stand by the police personnel and amount of Rs. 20,000/- was demanded from the appellants. The appellant Ramesh specifically stated that this amount was demanded and amount of Rs. 5000/- was obtained form him by the police party of witnesses PW-1, PW-2 and PW-3.
29. The trial Court has recorded finding that since the appellants has stated that they were going to do labour work in Himanchal Pradesh, therefore, it was not expected from them that they were carrying amount of Rs. 5000/-. Moreover, amount of Rs. 3000/- was recovered from the appellant Dil Bahadur and it was entered in the register maintained at the police station. Therefore, contention of the appellants was discarded by recoding finding that no defence evidence was adduced by them in support of their statements given under Section 313 Cr.P.C. The appellants were resident of country Nepal and they were going to Himanchal Pradesh for doing labour work, therefore, some person resident of Himanchal Pradesh was known to them, even then they did not adduce any defence evidence to prove this fact that they were doing labour work in Himanchal Pradesh. Likewise, learned trial Court has recorded finding that the appellants are resident of country Nepal and there was no possibility of any enmity or animosity with the Indian police or personnel of SSB. The appellants were having huge quantity of charas in their possession, therefore, it cannot be accepted that this huge quantity of charas was planted on them by the police party and they were falsely implicated in this crime.
30. I have perused statements of PW-1, PW-2 and PW-3/witnesses. They have stated in their examination-in-chief specifically that they apprised all the appellants about their right to be searched before any Gazetted Officer or Magistrate of their choice, even then they consented in writing for their search by their police party. PW-1 in his cross-examination conducted on behalf of Kriti Bahadur appellant has specifically stated that the appellants were apprised orally in this behalf that their search could be conducted before any Gazetted Officer or Magistrate. The appellants consented for their search by the police party. The appellant Dil Bahabad provided written consent (Ext Ka-2) to the police party for his search by the police party of PW-1, PW-2 and PW-3. The witness PW-2 has also stated in his cross-examination that before search of the appellants they were orally asked for their search before any Gazetted Officer or Magistrate, but they consented their search by the police party.
31. The PW-3 witness has also stated in his cross-examination conducted on behalf of appellant Kriti Bahadur that before search of the appellants they were apprised about their right to be searched before any Gazetted Officer or Magistrate. He has specifically stated that this fact was mentioned by him in recovery memo (Ext Ka-1) prepared by him. Likewise, PW-3 has also disclosed this fact during his cross-examination conducted on behalf of appellant Dil Bahadur.
32. Since recovery of psychotropic substance charas in huge quantity was made by the police party of PW-1, PW-2 and PW-3 from the bags held by the appellants, therefore, compliance of provisions of Section 50 N.D.P.S. Act was not required legally, even then police party of these witnesses complied with provisions of Section 50 N.D.P.S. in correct perspectives and they apprised the appellants about their right to be search before any Gazetted Oficer or Magistrate of their choice. On consent given by the appellants the police party of these witnesses searched their bags. Therefore, there is no substance that provisions of Section 50 N.D.P.S.Act were not complied with by police party of PW-1, PW-2 and PW-3. The learned trial Court has rightly discarded this argument of learned defence counsel.
33. Learned Amicus Curiae has also submitted that there is contradiction in statements of PW-1, PW-2 and PW-3/witnesses about preparation of docket/sample of charas which was recovered from the possession of the appellants and in which circumstances 50 gm charas and remaining charas were sealed by the police party at the place of occurrence or before Circle Officer docket was prepared. PW-1 witness in his cross-examination on one place has stated that sample of 50gm - 50 gm charas was sealed at police station, therefore, there is possibility that the sample of charas sent to the Forensic Science Laboratory was tampered with by the police party.
34. Learned Amicus Curiae has also submitted that entire remaining charas was not produced before the trial Court during the course of trial. There is difference of weight of sample of charas mentioned in recovery memo (Ext Ka-1) and chemical analysis report sent by the Forensic Science Laboratory. Hence it can be safely be inferred that the appellants have falsely been implicated in this crime, because illegal demand of money of the police personnel PW-1, PW-2 and PW-3, was not acceded by the appellants.
35. I have perused statements of PW-1, PW-2 and PW-3 witnesses. They have proved this fact that PW-1 Constable Vijay Nath Yadav brought weight and balance on the place of occurrence from the shop of Anil Kumar Gupta son of Onkar Nath Gupta, resident of Sirsiya. The charas recovered from the bags of the appellants was weighed and remaining charas was kept in polythene in respective bags held by the appellants. The charas of weighed 7Kg 200 gm was recovered from bag of appellant Dil Bahadur, 15 Kg 450 gm charas was recovered from bag of appellant Kriti Bahadur and 16 kg charas was recovered from bags of appellant Ramesh Bahadur. The witness PW-1 has stated in his examination-in-chief that 50 gm sample of charas was deduced from one packet of each bag, which was kept in cloth and sample of seal was prepared. Afterwards all the three bags held by the appellants were kept in separate clothes and these were sealed on the place of occurrence. The recovery memo (Ext Ka-1) was prepared in his presence by PW-3 Sub Inspector Kamla Prasad.
36. The witness PW-1 in his cross-examination has stated that seven packets of charas were recovered from possession of Dil Bahadur. The cross-examination on behalf of Ramesh was conducted by learned Amicus Curiae after five months on 07.08.2009, whereas his examination-in-chief was recorded on 31.03.2009.Therefore, some minor contradiction may naturally appear during cross-examination of a witness. This witness reached along with PW-3 during patrolling duty on the place of arrest and recovery of charas from the possession of the appellants on 30.05.2008 at 5.45 a.m.
37. The learned Amicus Curiae has pointed out that there is material contradiction in the statements of PW-1, PW-2 and PW-3 that "PW-2 witness has stated that his police party of SSB, C-Company, 8th Battalion was already present on Rampur Bandha Trisection and PW-1 and PW-2 arrived at place where they were standing, whereas PW-1 has stated that police party of PW-2 was also busy in night patrolling duty at Rampur Bandha Trisection" .
38. PW-3 witness has stated that he along with PW-1 Vijay Nath Yadav reached on 30.05.2008 at 5.45 a.m. at Rampur Bandha Trisection and police party of PW-2 was also met them there. Therefore, there is no material contradiction in the statements of PW-1, PW-2 and PW-3 regarding the fact in which circumstances they were present on Rampur Bandha Trisection, while the appellants arrived in the circumstances narrated in recovery memo (Ext ka-1) and stated by these witnesses.
39. PW-1 and PW-3 have stated that the place was situated in "Jangal" and it was a deserted place. PW-1 in his cross-examination conducted by learned counsel for the appellant Kriti Bahadur has stated that sample of charas was deduced from one packet, out of packet kept in bag of each appellants. He has refuted this suggestion that in the remaining packets, charas was not kept by the appellants. The statement of PW-1 that packeting of sample of 50-50gm charas deduced from the packets kept in bags held by the appellants, were made at police station, this statement has been given by him carelessly, because in his statement recorded on 31.03.2009 in his examination-in-chief he has specifically stated that this packet of sample 50-50 gm charas was sealed on the place of recovery.
40. PW-2 and PW-3 witness have also proved the weight of charas recovered from the possession of the appellants and 50-50 gm sample of charas was deduced from 01-01 packet kept in bag of each appellant and these packets were sealed on the place of recovery. Likewise PW-3 witness Kamla Prasad has also proved this fact. No material contradiction was elicited during the cross-examination of these witnesses. The circumstances of recovery of charas from the bags of each appellant Dil Bahardur, Kriti Bahadur and Ramesh has been proved by the PW-1, PW-2 and PW-3 in their examination-in-chief and in detailed cross-examination conducted on behalf of appellants by the learned defence counsel/ amicus curiae engaged on their behalf.
41. Constable Virendra Kumar Mishra PW-4 has proved check F.I.R. (Ext Ka-5) and registration of G.D. (Ext Ka-6), which were prepared by him on the basis of recovery memo (Ext Ka-1). He has specifically stated that the fact of recovery of contraband charas was informed through RT Set to higher authorities of police. PW-1 has also stated in his cross-examination conducted on behalf of appellant Ramesh that the Station House Officer informed the higher authorities i.e. Superintendent of Police, Additional Superintendent of Police and Circle Officer regarding arrest of appellants and recovery of charas. They did not come at the place of recovery.
42. On perusal of G.D. (Ext Ka-6), it reveal that this fact was mentioned in it by PW-4 that Daily Zaraim report would be sent and information of the occurrence was given to the high authorities of the police. No material contradiction was elicited during course of examination of PW-4 conducted on behalf of appellants. He has stated in his cross-examination also that higher authorities were apprised through RT Set about the arrest and recovery of charas from the possession of the appellants.
43. PW-5 Constable Umesh Singh has proved this fact that sample of charas deduced from the packets of charas recovered from possession of the appellants was submitted by him on 13.06.2008 in Forensic Science Laboratory, Mahanagar, Lucknow and receipt was submitted at Police Station on 15.06.2008. He has proved Ext Ka-7, Ka-8 and Ka-9 in this regard. He has specifically stated that during his possession he kept sample of charas intact. No material contradiction was elicited during course of examination of PW-5 on behalf of appellant, even this suggestion was not given that sealed packet of sample of charas was tampered by the police personnel.
44. PW-6 Sub Inspector Dharmendra Pratap is Investigating Officer of these crimes and he has proved this fact that he conducted investigation of these crimes, prepared site plan (Ext Ka-10, Ka-11, Ka-12) and recorded statements of witnesses PW-1, PW-2 and PW-3 and other witnesses. He sent sample of charas to Forensic Science Laboratory and receipt was incorporated in the case diary. The Chemical Examination Report of sample of charas was received by him and chemical analysis report (Ext Ka-13, Ka-14 and Ka-15 have been proved by him. He has also proved charge-sheet (Ext Ka-16, Ka-17 and Ka-18) submitted by him against the appellants.
45. During his cross-examination he has stated that he did not try to record statement of independent witness, but this statement does not extend any benefit to the appellants, because it may be fault of the Investigating Officer-PW-6 and prosecution cannot be adversely affected on the basis of deficiency made or fault committed by the Investigating Officer. On the other hand, PW-1, PW-2 and PW-3 have proved this fact that in their examination-in-chief and cross-examination that the place of recovery of charas from possession of the appellants was "Jangal" and deserted place and the public witness were not available on the place of occurrence.
46. During his cross-examination PW-6 has specifically stated that he inspected the place of occurrence on 11.06.2008 and prepared site plan. He has also stated in his cross-examination that he received Chemical Analysis Report of sample of charas recovered from the possession of the appellants. He has disclosed this fact in cross-examination that PW-1 witness Vijay Nath Yadav brought weight and balance from the shop of Anil Kumar Gupta resident of Sirsiya. The fact that the prosecution did not produce Anil Kumar Gupta during course of trial before the trial Court is not so of importance, because it may be fault of the public prosecutor.
47. PW-7 Head Moharrir Mukhlal has proved this fact that remaining case property and sealed sample of charas were entered by him in relevant register and amount of Rs. 3000/- recovered from possession of appellant Dil Bahadur was also entered in this register. Likewise, he has proved the fact that the case property and sealed sample of charas relating to appellant Kriti Bahadur and Ramesh Rana were also entered by him in the register at Serial No. 50, 51 and 52. He has proved Ext Ka-19, 20 and 21, which are copy of entry made by him in the relevant register. He has proved this fact that these case property and sample of charas were kept intact in the police station. The sample of charas 50-50 gm deduced from remaining charas recovered from the possession of appellants was sent through Circle Officer, Bhinga along with letters Ext ka-7, Ka-8 and Ka-9 through PW-5 Umesh Singh.
48. PW-5 Constable Umesh Singh has proved this fact that he submitted sample of charas 50-50 gram at the Forensic Science Laboratory, Mahanager, Lucknow through Ext ka-7, Ka-8 and Ka-9, letters issued by the concerned Circle Officer and he kept the sample of charas intact in his possession.
49. The Joint Director, Forensic Science Laboratory, Mahanager, Lucknow has sent report (Ext Ka-13) relating to appellant Dil Bahadur, the weight of charas kept in sample of charas was found 53.5 gm. As per report Ext Ka-15 sample of charas regarding appellant Kriti Bahadur, the sample was found 53.5 gm and per report Ext Ka-14 sample of charas regarding appellant Ramesh Rana was found 52.5 gm. The Joint Director, Forensic Science Laboratory, Mahanager found the sample of charas/the material contained in sample as "charas".
50. PW-3 witnesses has proved the remaining charas before the trial Court in his examination-in-chief. These remaining case property was produced before the trial Court contained in sealed bags recovered from the possession of appellants. These remaining charas kept in bags were proved by PW-3 as material Ext-1 to 7 for appellant Dil Bahadur, Ext-8 to 18 for appellant Kriti Bahadur and Ext- 19 to 28 for appellant Ramesh Rana. The witness PW-3 has specifically identified the bags recovered from the appellants separately.
51. Learned Amicus Curiae has vehemently argued that there was difference of weight stated by PW-1, PW-2 and PW-3, witnesses and weight mentioned in Chemical Analysis Report. Learned Amicus Curiae/defence counsels have not put up any question to witnesses PW-1, PW-2 and PW-3 that weight and balance brought by PW-1 Vijay Nath Yadav from Anil Kumar Gupta was scientific balance or not. The weight mentioned above in chemical analysis report has been observed in the Forensic Science Laboratory. Therefore, the difference of weight is immaterial, it is of one or two grams only. The Chemical Analysis Reports disclosed that sample of charas was kept in sealed packet and it was found according to sample of seal. In this regard, following expositions of law propounded by Hon'ble Apex Court are relevant.
A Division Bench of Hon'ble Supreme Court in the case of Rajendra and Anr. Vs. State of Madhya Pradesh :(2004) 1 SCC 432 has observed as follows:-
9. Section 42 enables certain officers duly empowered in this behalf by the Central or State Government, as the case may be, to enter into and search any building, conveyance or enclosed place for the purpose mentioned therein without any warrant or authorization. Section 42 deal with "building, conveyance or enclosed place" whereas Section 43 deals with power of seizure and arrest in public place. Under Sub-section (1) of Section 42 the method to be adopted and the procedure to be followed have been laid down. If the concerned officer has reason to believe from personal knowledge, or information given by any person and has taken down in writing, that any narcotic drugs or substance in respect of which an offence punishable under Chapter IV of the Act has been committed or any other articles which may furnish evidence of the commission of such offence is kept or concealed in any "building or conveyance or enclosed place" he may between sunrise and sunset, do the acts enumerated in Clauses (a) and, (b), (c) and (d) of Sub-section (1).
10. The proviso came into operation if such officer has reason to believe that search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escaped offender, he may enter and search such building, conveyance or enclosed place any time between sunrise and sunset after recording grounds of his belief. Section 42 comprises of two components. One relates to the basis of information i.e. (i) from personal knowledge (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-section (2) mandates as was noted in Baldev Singh's case (supra) that where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, Sub-section (2) only comes into operation where the officer concerned does not enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place.
13. As in the instant case the search was of the bags and not of the persons, Section 50 has no application and the High Court was right in its conclusions.
15. A similar question was examined in Madan Lal and Anr. v. State of Himachal Pradesh 2003CriLJ3868 .
16. Coming to the question of alleged non-compliance of the requirement of Sections 55 and 57, we find the trial Court has referred to the evidence of the witnesses and held that articles were kept in Malkhana in safe custody and were sent for chemical examination after necessary orders by the Magistrate and, therefore, the requirement of Section 55 were complied with. Section 57 relates to reporting of arrest and seizure to immediate superior officer. The evidence shows that same has been done. We find no infirmity in the conclusions of the trial Court and the High court regarding compliance of Sections 55 and 57 to warrant interference.
A Division Bench of Hon'ble Supreme Court in the case of Smt. Krishna @ Thauraeen Vs. State of Rajasthan (2004) 2 SCC 608 has observed as follows:-
21. It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under Section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of one of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula.
22. Section 50 does not involve any self-incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transparency in the process of search has been given the primacy. In Raghbir Singh v. State of Haryana 1996CriLJ1694, the true essence of Section 50 was highlighted in the following manner:
"8. The very question that is referred to us came to be considered by a Bench of two learned Judges on 22.1.1996 in Manohar Lal v. State of Rajasthan (Crl.M.P.No. 138/96 in SLP(Crl.)No. 184/1996). One of us (Verma, J) speaking for the Bench, held:
"It is clear from Section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused".
9. We concur with the view taken in Manohar Lal's case supra.
10. Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment. It is, therefor,e that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate, depending upon who is conveniently available.
11. The option under Section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a magistrate. The use of the word 'nearest' in Section 50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, Gazetted Officer or Magistrate".
26. The quantity recovered by no stretch of imagination is small. Further, nothing could be shown as to how there was violation of Section 57 of the Act. The safe custody of seized articles and samples has been established by cogent evidence. Forensic Laboratory report shows that the samples were received in sealed conditions with seals and tags intact. That being so, there is no infraction as alleged.
The Division Bench of Hon'ble Supreme Court in the case of State of Punjab Vs. Makhan Chand : (2004) 3 SCC 453 has observed as follows:-
7. Apart from the aforesaid question, we are also of the view that Section 50 of the Act would not apply to a situation where the search undertaken is not of the person of the accused but of something carried in his hand. See in this connection, the observations of the Constitution Bench of this Court in Baldev Singh's case, (supra) the judgment of this Court in Gurbax Singh v. State of Haryana2001CriLJ1166 and in Kalema Tumba v. State of Maharashtra2000CriLJ507 .
8. In the present case, for both the reasons discussed earlier, we are of the view that Section 50 does not apply at all. The mere fact that the officer concerned offered to have the search of the respondent-accused taken before a Gazetted Officer/Magistrate, or that there were no independent witnesses to evidence this offer, hardly makes any difference to the situation. In our view, therefore, the High Court erred in holding that the action of the police officers was contrary to Section 51 of the Act and giving the benefit of doubt to the respondent-accused when there was no scope for raising such a doubt at all.
10. This contention too has no substance for two reasons. Firstly, Section as the marginal note indicates, deals with "disposal of seized narcotic drugs and psychotropic substances". Under Sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substance's having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in Sub-sections (2) & (3). If the procedure prescribed in Sub-sections (2) & (3) of Section 52A is complied with and upon an application, the Magistrate issues the certificate contemplated by Sub-section (2), then Sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under Sub-section (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances.
52. Therefore, on the basis of evidence adduced on behalf of prosecution, it was established that the case property/remaining charas was kept in sealed bags at police station Sirsiya, District Shrawasti. The sample of 50-50 gm charas was separately kept in sealed packet. These case properties and sample were kept intact and the Forensic Science Laboratory found sealed packets of sample of charas intact. Therefore, there is no substance in the argument of learned Amicus Curiae that the sample of charas and remaining charas, which was recovered from the bags of the appellants was manipulated and tampered with by the police party of PW-1, PW-2 and PW-3 at the police station Sirsiya.
53. Learned Amicus Curiae has also submitted that the appellants have been awarded harsh punishment. They have completed minimum punishment provided for the offence punishable under Section 20 (Kha) (2) (Sa), N.D.P.S. Act. Therefore, for the ends of justice would be subserved if some period of punishment awarded to the appellants may be reduced and period of additional punishment be reduced as awarded according to default stipulation.
54. Learned Amicus Curiae has also argued that signatures of appellants were not proved by the prosecution on the bags of sample of charas and remaining case property.
55. PW-1 witness has stated in his cross-examination that signatures of appellants were not available on sample of seal and sealed packets, whereas case property and packet of sample were not produced at the point of time of recording statement of PW-1 on 07.08.2009 that may be fault of the concerned police personnel of police station Sirsiya. The signatures of appellants were obtained on recovery memo (Ext Ka-1). This fact has been proved by witness PW-1, PW-2 and PW-3.
56. PW-2 in his cross-examination has stated that he did not remember, whether signatures of appellants were obtained on sealed packet of sample and packets of remaining charas or not. He has stated that packets of sample were sealed by PW-3 in his presence and he (PW-3) signed these packets. In his cross-examination conducted on behalf of Kriti Bahadur, he has specifically stated that on sample of seal and sealed packets signature of Kriti Bahadur were obtained. The case property was also not produced by the concerned police personnel during examination-in-chief and cross-examination of PW-2.
57. PW-3 witness Kamla Prasad has proved the material exhibits 1 to 28 and stated that he sealed the packet of sample of charas and remaining charas in bags of appellants and signed on these packets. The signatures of appellants were obtained on the sample of charas and remaining charas. PW-3 in his cross-examination has specifically stated that he prepared recovery memo and obtained signatures of witnesses and all the appellants on it.
58. PW-3 during cross-examination conducted on behalf of Dil Bahadur, he has specifically stated that sample of charas was deduced from one packet from each bag held by the appellants and remaining packets were kept in bag recovered from Dil Bahadur and this bag was sealed by him on the place of recovery. He has identified his signature available on the sealed packets of case property produced before the Court. He has also stated in cross-examination conducted on behalf of Ramesh Rana that all the three bags were sealed by him in white cloth. He deduced sample of charas of weight 50-50 gm from one packet of each bag. The case property recovered from the possession of Ramesh Rana produced at the point of time of cross-examination of PW-3 by the concerned police personnel. He has stated that he sealed the remaining charas and sample of charas at the place of recovery. During his cross-examination he has identified his signatures on the sealed packets of material exhibits 1 to 38, proved by him.
59. The argument of learned Amicus Curiae in this regard does not extend any benefit to the appellants.
60. The learned trial Court has observed on the basis of analysis of evidence adduced by prosecution that recovery of 07 Kg 200 gm, 15 Kg 450 gm and 16 Kg charas was made from the possession of the appellants respectively and statements of witnesses were recorded after 10 months. Therefore, the contradiction regarding colour of bag or non-availability of signatures of the accused persons on the sealed packet of sample or remaining charas was not material and on the basis of these arguments/contradictions, the prosecution version cannot be termed as suspicious. The learned trial Court has also recorded finding that the appellants were arrested at random/ all of sudden during patrolling duty by police party of PW-1, PW-2 and PW-3. No material contradiction was elicited during course of examination of witnesses produced on behalf of prosecution by the learned Amicus Curiae/defence counsel.
61. Therefore, the trial Court has convicted the appellant Dil Bahadur, Kriti Bahadur and Ramesh Rana in correct perspectives and the impugned judgment and order dated 25.02.2010 cannot be termed as perverse or against evidence available on record.
62. On the point of adequate punishment, the following expositions of law propounded by Hon'ble Apex Court are relevant:
In State of Karnataka v/s Krishnappa AIR 2000 SC 1470 , a three- Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and the sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 , the trial court had convicted the appellant therein under Section 308 IPC along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the appellant were affirmed. By the time the matter came to be considered by Court, the Court observed as under: -
"In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime,the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
In Shyam Narain v/s State (NCT of Delhi) (2013) 7 SCC 77, it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
In Guru Basavaraj v. State of Karnata a (2012) 8 SCC 734, the Court, discussing about the sentencing policy, had to say this: -
"There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored."
In Rattiram v. State of M.P. (2012) 4 SC 516 though in a different context, it has stated that: -
"the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries.... it is the duty of the court to see that the victim's right is protected."
63. So far as punishment awarded and fine imposed against the appellants is concerned, the punishment awarded to the appellant Kriti Bahadur is liable to be reduced to 11 years and punishment awarded to the appellant Ramesh Rana is liable to be reduced to 12 years and the period of imprisonment according to the default stipulation is liable to be reduced to one year in respect of appellant Dil Bahadur and in respect to each appellants Kriti Bahadur and Ramesh it is liable to be reduced to two years.
64. On the basis of evidence adduced by the prosecution, it has been proved that charas of weight 7 kg 200 gm was recovered from possession of appellant Dil Bahadur, whereas of weight 15 Kg 450 gm was recovered from possession of appellant Kriti Bahadur and charas of weight 16 kg was recovered from possession of appellant Ramesh Rana on 30.05.2008 at 4.45 p.m. According to provision of Section 35 and 54 of N.D.P.S. inference may be drawn against the all appellants about criminal mental state and conscious possession of the aforesaid psychotropic substance charas recovered from the possession of the appellants. The appellants have not discharged their burden regarding conscious possession of charas by adducing defence evidence to contradict the version of the prosecution. According to Section 20 (Kha) (2) (Sa), N.D.P.S. Act, commercial quantity of charas was recovered from the possession of the appellants and this offence is punishable with minimum punishment of imprisonment for ten years and fine of amount of Rs. 1 lac has been prescribed.
65. The Senior Superintendent, Central Jail Varanasi has reported vide letter dated 04.08.2018 that appellant Ramesh has served out sentence of 10 years, 02 months and 05 days. The appellant Dil Bahadur has served out sentence of 10 years, 02 months and 05 days and appellant Kriti Bahadur has served out sentence of 10 years, 02 months and 05 days. This period shall be set off against the punishment awarded to them.
66. The appellants are detained in jail since their date of arrest, therefore, ends of justice would be subserved if the punishment order of the appellants is modified while affirming the conviction of the appellants.
67. Accordingly, conviction of the appellants is hereby affirmed and the impugned judgment and order dated 25.02.2010 is hereby modified as follows:
1) In Sessions Trial No. 22 of 2008, appellant Dil Bahadur is sentenced to undergo rigorous imprisonment for 10 years and amount of Rs. 1 lac shall be paid by him, otherwise he will serve out additional sentence of rigorous imprisonment for one year.
2) In Sessions Trial No. 23 of 2008, appellant Kriti Bahadur shall undergo rigorous imprisonment for 11 years. He shall pay amount of Rs. 2 lacs imposed against him, otherwise he will serve out additional sentence of two years.
3) In Sessions Trial No. 24 of 2008, the appellant Ramesh shall undergo rigorous imprisonment for 12 years. He shall pay amount of Rs. 2 lacs fine, otherwise he will serve out additional sentence for two years.
4) The period of detention during course of trial shall be set off against the punishment/imprisonment awarded against the appellants.
68. The provisions of Section 70 I.P.C. and the following exposition of law propounded by Hon'ble Apex Court are relevant regarding recovery of amount of fine imposed on the appellants.
Section 70 of Indian Penal Code provides as follows :
70. Fine leviable within six years, or during imprisonment. Death not to discharge property from liability.--The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts.
22. Section 431 of the Cr.P.C., 1973 provides as follows:
431. Money ordered to be paid recoverable as a fine.--Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:
Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures "under Section 357", the words and figures "or an order for payment of costs under Section 359" had been inserted.
23. In the case of Harnam Singhv. State of H.P., reported in (1975) 3 SCC 343 the Apex court after considering provisions of Section 431 of Cr.P.C., 1898 has held as under-
"9. Every other appeal under Chapter XXXI, except an appeal from a sentence of fine, finally abates on the death of the appellant. By "every other appeal" is meant an appeal other than one against an order of acquittal, that is to say, an appeal against an order of conviction. Every appeal against conviction therefore abates on the death of the accused except an appeal from a sentence of fine. An appeal from a sentence of fine is excepted from the all-pervasive rule of abatement of criminal appeals for the reason that the fine constitutes a liability on the estate of the deceased and the legal representatives on whom the estate devolves are entitled to ward off that liability. By Section 70 of the Penal Code the fine can be levied at any time within six years after the passing of the sentence and if the offender has been sentenced for a longer period than six years, then at any time previous to the expiration of that period; "and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts". The fact that the offender has served the sentence in default of payment of fine is not a complete answer to the right of the Government to realise the fine because under the proviso to Section 386(1)(b) of the Code the court can, for special reasons to be recorded in writing, issue a warrant for realising the fine even if the offender has undergone the whole of the imprisonment in default of payment of fine. The sentence of fine remains outstanding though the right to recover the fine is circumscribed by a sort of a period of limitation prescribed by Section 70 of the Penal Code."
This principle has also been reiterated by Hon'ble Apex Court in the case of State of A.P. Vs. S. Narasimha Kumar, reported in (2006) 3 SCC (Cri) 54.
69. In the aforesaid terms, all the three appeals are partly allowed.
70. The State shall be at liberty to recover amount of fine within 06 years from the date of this judgment.
71. Learned Amicus Curiae shall receive fees as prescribed by State Government immediately.
72. The copy of the judgment be sent to the trial Court and Jail Superintendent for compliance.
73. The record of trial Court be sent back.
74. The Section shall comply immediately.
Order Date: 15.03.2019 Arvind.