Madhya Pradesh High Court
Mukkan @ Balmukund vs State Of M.P. on 10 March, 1997
Equivalent citations: 1997(2)MPLJ244
Author: R.S. Garg
Bench: R.S. Garg
JUDGMENT R.S. Garg, J.
1. The appellant stands convicted Under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and has been awarded 10 years' R.I. and sentence of payment of fine of Rs. 1,00,000/- has also been imposed upon him.
2. The prosecution case in brief is that on 17-6-1992, when certain persons of Crime Investigation Department were on patrolling, they were informed by somebody that the present accused Mukkan alias Balmukund was having a bag containing contraband opium. After receiving the information from an informer, without taking any warrant or without sending any information to the higher officer, the Department people arranged a raid, apprehended the accused and after taking search of his bag found 6 kg. and 400 gms. contraband opium in his bag. Immediately after the search was over, the matter was informed by PW/4 H. S. Billa to the concerned Magistrate, Dy. Superintendent of Police and Station House incharge of the concerned Police Station. The substance seized from the accused was sent for its chemical examination. After receiving the reports etc., the prosecution filed a chargesheet against the accused. The accused denied the commission of the offence and submitted that the bag did not belong to him and he was falsely framed, defence regarding non-compliance of Sections 42, 50, 52 and 57 of the N.D.P.S. Act, were also raised. The learned trial Court came to the conclusion that there was no non-compliance of Sections 42, 50, 52 and 57 of the Act and the prosecution was successful in proving that, the accused was found in possession of contraband article, convicted the accused and awarded the sentence as referred to above.
3. Ms. T. Kholiya, learned counsel for the appellant submitted before the Court that, there is apparent non-compliance of Sections 42, 50, 52 and 57 of the Act. She submits that in view of the violation of mandatory provisions of the Act, the accused/appellant is not required to show the prejudice occasioned to him but is entitled to his acquittal. On the other hand Shri Naidu, learned Panel Lawyer, states that the prosecution did comply with the mandatory requirements of Section 42(2), Sections 50, 52 and 57 and, as such, the accused/appellant is not entitled to be acquitted.
4. In the matter of State of Punjab v. Balbir Singh, AIR 1994 SC1872, the Supreme Court has clearly stated that, Section 42(2) is mandatory to the extent that an authorised officer who takes down an information in writing or records the ground under provison to Section 42(1) he should forthwith send a copy thereof to his immediate official superior. According to the Supreme Court if there is total non-compliance of the provision, the same affects the prosecution case, but, if there is delay, then the provisions are not mandatory. In the instant case to my mind, no compliance of Section 42 is to be seen. Section 42(2) states that when 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. An authorised officer is bound to record the information received or the personal knowledge which he may derive from any other source. It is only after taking down the same in writing, he may proceed to make search etc. In the instant case it is not in dispute that the officer received the information. It is not to be seen from the records that the said information was ever reduced in writing. Ex. P/l is the seizure memo, which is prepared on 17-6-1992 at 13.15 p.m. Ex. P/2 is the arrest memo, which is prepared on 17-6-1992 at 14.00 p.m. i.e. after about 45 minutes of the seizure. Ex. P/3 is the information sent to the Judicial Magistrate First Class regarding search and seizure. Ex.P/4 is the information sent to the Superintendent of Police regarding search and seizure. Ex. P/5 is the reports sent by PW/4 Shri Billa to the Station House Incharge of Police Station Hanumanganj, Bhopal. There is no information sent either to the Superintendent of Police or any other immediate official superior under the provisions of Section 42(2) of the Act. The evidence does not show that mandatory requirement of Section 42(2) was observed. There is total non-compliance of these mandatory provisions. It is not a case where the information was sent but it was delayed. In case of delay, the prosecution could explain the same and then it would have been a question of fact but in case of non-compliance the prosecution case, according to the judgment of the Supreme Court would certainly be affected.
5. Section 50 of the N.D.P.S. Act, provides that when any officer duly authorised Under Section 42 is about to search any person under the provisions of Sections 41, 42 or 43 he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any department mentioned in Section 42 or to the nearest Magistrate. If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1). The Gazetted Officer if does not find any reasonable ground for search shall discharge the person but otherwise shall direct that search be taken. In the matter of Balbir Singh (supra), Supreme Court has clearly observed that provisions of Section 50 are mandatory. According to the Supreme Court, it is the duty of the person proposing to take the search to inform the accused of his right. The Supreme Court has further observed that if the right of the accused/appellant is violated the trial is vitiated, and the accused/appellant would be entitled to an acquittal. The said judgment has been followed by the Supreme Court in the matter of Ali Mustafa v. State of Kerala, AIR 1995 SC 244 and Mohinder Kumar v. The State, AIR 1995 SC 1157.
6. In the matter of Ali Mustafa (supra), one Ashok Kumar on the receipt of reliable information went to the platform after taking a constable Natraja Pillai with him, went to the first class waiting room where the appellant was found sitting with a bag. The witness questioned the accused, on which the accused took out a small packet of Charas from his bag and handed it over to PW/6. On further questioning, said witness recovered three big packets of Charas from the bag which was in possession of the appellant. The seizure was effected in presence of the witness on the spot itself. Relying upon the judgment of the Supreme Court in the matter of Balbir Singh (supra), it was observed that there was violation of the Provisions of Section 50 of the N.D.P.S. Act and consequently the accused was entitled to be acquitted.
7. In the matter of Mohinder Kumar (supra), interpreting the judgment of Supreme Court, it was observed that Section 52 and Section 57 of the Act, which deal with steps to be taken by the officers after making arrest or seizure, are mandatory. Though in the matter of Balbir Singh, Supreme Court only observed that if there is 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 prejudice will have a bearing on the appreciation of the evidence regarding arrest or seizure as well as on merits of the case. In the matter of Balbir Singh (supra) it was observed that the provisions of Section 52 and Section 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.
8. If the judgment reported in Balbir Singh's case (supra), has been interpreted by the Supreme Court in another judgment, then in my opinion this Court has to observe the interpretation made by a later bench of the Supreme Court, because what the Supreme Court appreciated about its earlier judgment, would be the law of land. If in Mohinder Kumar's case (supra), the Supreme Court held that the observance of Sections 52 and 57 are mandatory then this Court also must hold that observance of Sections 52 and 57 of the Act are mandatory.
9. Exs. P/l and P/2 are the seizure memo and arrest memo prepared on the spot itself. These two documents do not show that at any point of time before effecting the search the accused was ever informed of his right given to him Under Section 50 of the Act. Exs. P/3, P/4 and P/5 which are the informations sent by PW/4 Billa to Judicial Magistrate, Superintendent of Police and Station House Incharge, Hanumanganj, Bhopal, also do not contain the details that accused was apprised of his right Under Section 50 or any offer was made to him that his search may be conducted before the Magistrate or Gazetted Officer. Ex. P/7 is the First Information Report, recorded at the instance of PW P/4 Billa. The First Information Report is conspicuously silent about the offer made to the accused of his right Under Section 50 of the Act. It is in the Court that the officer H. S. Billa (PW/4), made the narration that he had asked the accused if he wanted the search before C.S.P. or D.S.P. then he may do so. According to his further statement, seizure was not required to be made in presence of a Gazetted Officer. On his statement regarding offer made to the accused, no reliance can be placed. Whatever was done by the officer on the spot has been recorded by him in Exs. P/l and P/2. Whatever he thought necessary, he informed to the officers under Exs. P/3, P/4 and P/5. The net result of the search, seizure, arrest and the things done by him are to be found in the First Information Report. If this material evidence is missing from all such documents, the earlier conduct of the witness would belie the statement made by him in the Court. I am not ready to rely upon the statement of PW/4 H. S. Billa that on the spot itself he gave offer to the accused that his search can be taken before Magistrate or Gazetted Officer. There is absolute non-compliance of provisions of Section 50 of the Act. It was argued that there would be no violation of Section 50 because Section 50 applies to the personal search of the accused and not of the luggage. Section 50 of Sub-section (1) states that when any officer duly authorised Under Section 42 is about to make a search of any person under the Provisions of Sections 41, 42 and Section 43 he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer or to the nearest Magistrate. Section 42 gives the power of entry, search, seizure and arrest without warrant or authorisation. Assuming that provisions of Section 50 apply only to the personal search then too it has to be held that anything found on the person of the accused cannot be searched unless the offer Under Section 50 is made to the accused. It is not that when a thing is on the body it is on his person. Anything carried by him in his hands, body or head would also be on his person. A purse in pocket if is on his person would not become luggage in his hands. A sling bag hanging on the shoulder would be deemed to be on the person of the accused. A coat on the body of the accused is if on his person would not become luggage if it is carried in hand. An attache case would be a luggage if it is not carried in his hands. Something on the person of the accused cannot be taken search of unless provisions of Section 50 are observed. If a bag is carried by the accused then it is on the person of the accused and not otherwise. In the matter of Ali Mustafa (supra), the Supreme Court has clearly found that contraband opium was found in a bag possessed by the accused. The Supreme Court observed that before taking the search, the accused was required to be informed of his right. That was a case where the search of the bag was found to be contrary to the provisions of Section 50 and the Supreme Court acquitted the accused. In the instant case, it is not in dispute that the accused was carrying the bag in his hands. He was not ready to open the bag but on persuasion or pressure exerted by PW/4 H. S. Billa, he opened the bag. It is clear that there was violation of the mandatory Provisions of Section 50 of the Act.
10. From the evidence on record, it does not appear that the prosecution observed the spirit of the mandatory provisions of Sections 42 and 50 of the Act. In view of the judgment of Supreme Court, the trial is vitiated. Consequence would only be acquittal of the accused.
11. The appeal deserves to and is accordingly allowed. The accused is acquitted of the charge. He is in jail. He be immediately released. The fine amount if any recovered from the accused shall be refunded to him immediately. The registry is directed to make payment of fee to the learned counsel who was appointed by this court at the time of final hearing.