Karnataka High Court
Babu Rao vs State Of Karnataka on 25 March, 1992
Equivalent citations: 1993(1)ALT(CRI)581, 1993CRILJ2310, ILR1992KAR3804, 1992(4)KARLJ563
JUDGMENT
1. Appellant Babu Rao has been convicted by the Special Judge, Metropolitan Area, Bangalore City under section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- or in default to suffer rigorous imprisonment for one year. Canvassing the correctness and legality of the said order of conviction and sentence he has preferred this appeal through the Senior Jail Superintendent, Central prison, Bangalore.
2. Sri R. C. Ijari was appointed as Amicus Curiae to argue this appeal on behalf of the appellant and he has ably assisted the Court.
3. The case of the prosecution is brief and simple : On 27-2-90 at about 5-30 p.m. the accused was found in possession of some ganja packets while he was selling the same to the public behind Seetharama Choultry, Kengeri. The Special squad of the Commissioner of Police, Bangalore which was on beat rounds having received information regarding the alleged sale of ganja packets, rushed to the spot and apprehended the accused and seized 17 packets of ganja from him. The persons who had gathered there to but the ganja packets from the accused ran away on arrival of the Special squad of Police. The said squad consisted of the Circle Inspector of Police, Syed Rafik (PW 5) and the Sub-Inspector of Police Jutike Gowda (PW 2). After apprehending the accused. PW 2 seized 17 packets of ganja from him under a mahazar Ex. P-1. All the packets were put in a cover with a seal bearing 'SS' mark. The accused was taken to Kengeri Police Station and PW 2 produced Ex. P. 1 the mahazar and also his complaint Ex. P. 2. P.W. 3 V. Venkatesh, the then Station House Officer, registered a case against the accused in Crime No. 22/90 for an offence punishable under section 20(b) of the NDPS Act and issued FIR. They seized ganja packets from the cover and subjected it to property form and the accused was arrested. Subsequently, P.W. 4 the Sub-Inspector of Police, Kengerigate Police Station took up further investigation. The seized ganja packets were sent to the Forensic Science Laboratory and after completion of due investigation, a charge-sheet was filed against the accused before the II Addl. C.M.M. Bangalore for the said offence. Thereafter, the case was committed to the Court of the Special Judge, Metropolitan Area, Bangalore City.
4. During the course of trial, the prosecution examined PWs 1 to 6 and marked Exs. P1 to P4 and M.Os. 1 to 3.
5. Sri R. J. Ijari, learned Amicus Curiae submitted that the trial Court ought not to have convicted the accused for an offence under Section 20(b) of the NDPS Act in the absence of any material against him. He also contended that there was no compliance of Sections 42, 50 and 57 of the NDPS Act by the Police and, as such, the impugned order of conviction and sentence are liable to be set aside.
6. In the light of these submissions, I have reassessed the evidence on record and also examined whether there has been compliance of Sections 42, 50, 55 and 57 of the NDPS Act.
7. Now, let me examine the evidence placed on record by the prosecution in proof of its case. PW 1 Lakshmana is a panch witness. He is said to have attested Ex. P. 1 mahazar under which the said ganja packets were seized from the accused on 27-2-90. But he did not support the prosecution case. He was permitted to be cross-examined and in his cross-examination nothing useful to the prosecution has been elicited. Therefore, his evidence is of no assistance to the prosecution.
8. According to PW 2, he received information on 27-2-90 that one person was selling ganja packets behind Seetharama Choultry at Kengeri. But he has not mentioned the name of the person who gave the information to him. He also did not reduce into writing the said information given by that person. According to him, Circle Inspector of Police - PW 5 also accompanied him.
9. Except the evidence of PWs 2 and 5 who are the Police officers there is no other evidence worth considering as regards the apprehension of the accused and the seizure of ganja packets from him near Seetharama Choultry. According to them, 17 packets of ganja and cash of Rs. 20/- were seized from the accused. All those packets were put in a cover and then sealed by PW 2 with seal "SS". Thereafter, the seized articles along with the accused were produced before PW 3, the Assistant Sub-Inspector of Police, Subramanya Nagar Police, Bangalore together with the complaint - Ex. P3. No doubt PW 2 has stated that 17 packets of ganja were put in a cover and sealed with the seal "SS". But, he has not stated that the said cover was kept in safe custody by PW 3. PW 3 also has not stated that after receiving the said cover he kept the same in safe custody. He has also not stated how and when the samples were taken or whether the samples taken were sealed with his seal.
10. P.W. 4 who took up further investigation from PW 3 on 28-2-90 deposed that on 7-3-90 he sent the sealed packets to the Forensic Science Laboratory through P.C. 6448. Therefore, it becomes clear that no samples were taken out of the ganja packets seized and all the 17 packets of ganja were sent to Forensic Science Laboratory. If PW 4 had sent all the 17 packets of ganja and if the concerned persons in the Forensic Science Laboratory had taken the samples from all the 17 packets he should have sent back all the 17 packets of PW 4. Surprisingly, only 9 packets of ganja were produced before the trial Court and there was no explanation whatsoever for non-production of the remaining eight packets of ganja. PW 5, however, was clever enough to depose that the remaining packets might have been used by the Chemical Examiner for testing purposes. None from the Forensic Science Laboratory has been examined to show that the remaining 8 packets were used by them for testing purposes. M.O. 3 the cover in which the ganja packets were went back from the Forensic Science Labour also did not bear the signature or the seal of the Forensic Science Laboratory. In this connection, it may be useful to extract Section 55 of the NDPS Act :
"55. Police to take charge of article seized and delivered : An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all article seized under this Act within the local area of that Police Station and which may be delivered to him, and shall allow any officer who may accompany such articles to the Police Station or who may be deputed for the purpose, to afix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the Police Station."
In the present case, neither PW 3 nor PW 4 has stated that after receiving the sealed cover from PW 2 they sealed the same with their own seal. These safeguards have been provided both for prosecution and the accused and have to be followed scrupulously. In Md. Jainulabdin alias Nahamacha v. State of Manipur, 1991 Cr LJ 696 a Division Bench of the Guahati High Court observed thus at Page 705 :
"while enacting this section legislature had two intentions viz., actual articles seized are produced at the time of trial and samples of the said articles are sent for analysis by expert and secondly after the articles are produced before the officer-in-charge, these are not substituted by some other articles. These safeguards have been provided both for prosecution and the accused and have to be followed scrupulously. In other words, these are mandatory provisions of law and unless followed, it would go in favour of the accused."
In the present case, there cannot be any doubt that this provision has not been scrupulously complied. Although 17 packets of ganja were seized only 9 packets were produced before the Court without offering any explanation for non-production of the remaining 8 packets of ganja. Under these circumstances it cannot be said that the prosecution has satisfactorily proved the seizure of 17 packets of ganja from the accused and all these packets had contained ganja.
11. Now coming to the question whether there has been due compliance with the provisions of Sections 42, 50 and 57 of the NDPS Act it has to be stated that in view of the nature of the punishment provided for the offence under the said Act the legislature has deliberately made certain provisions to safeguard the innocent persons so that they are not harassed. If the Investigating Agency deliberately ignores the compliance with the provisions of the above said Act, the Court will have to approach the omissions and lapses with reservations. Shri Ijari contended that there has been no compliance of Section 42 of the Act inasmuch as the secret information said to have been received by PW 2 was not reduced into writing and not recorded anywhere.
12. Section 42 of the NDPS Act deals with the power of entry, search, seizure and arrest without warrant or authorisation relating to an offence punishable under Chapter IV of the Act. A reading of the section would show that this relates to the search, seizure and arrest without warrant or authorisation of a person indulging in an offence punishable under Chapter IV in a building, conveyance or place. But, this cannot have reference to the seizure and arrest of persons in public places. Section 43 of the Act deals with power of seizure and arrest in public places. Reading the section as a whole it can be said that this power has been given to the officers of the Department mentioned in S. 42, an officer cannot be a silent spectator if in a public place Narcotic drugs etc., are found to be in possession by any person and as such the legislature did not contemplate authorisation by the Central or State Government under S. 41 or 42 of the Act for any officer of the Departments concerned mentioned in these sections to arrest a person or makes a seizure of Narcotic drugs in public place. The offence under the Act is cognizable, even a private person can arrest under S. 42 of the Cr.P.C. if the offence is committed in his presence. In the present case, the accused was apprehended near Seetharama Choultry which was undisputedly a public place. As stated by PW 2 when he along with PW 5 were making rounds, secret informant gave information that one person was selling ganja packets behind Seetharama Choultry at Kengeri. He collected two panchas and rushed to the place of occurrence along with PW 5. Under such circumstances, it cannot be said that they should have reduced the information received from their informant into writing and then proceeded to the place of occurrence. Section 43 of the Act does not contemplate taking down in writing the information given by any person relating to an offence punishable under Chapter IV. Such a requirement is contemplated only under S. 42 of the Act.
13. In Surajmal Kanaiyalal Soni v. State of Gujarat, 1991 Cri LJ 1483, a Division Bench of the Gujarat High Court while dealing with S. 43 of the Act observed thus :
18. The specific provisions in S. 43 provide for the seizure and arrest in a public place or in transit and that also clearly exclude the application of the provisions of S. 42 in the instant case. It was therefore, not necessary to record in writing the grounds of the information and to forward such information forthwith to the immediate official superior. Police Inspector Patil was duly authorised by the State Government by Notification No. GHL-14 NDS 1082-10577 (1)-H, dated June 15, 1987, by which, in exercise of the powers conferred by sub-sections (1) of S. 42, NDPS Act, the Government of Gujarat has invested all the police officers of and above the rank of Head Constable in the State of Gujarat, within the limits of their respective jurisdiction, the power of entry, search, seizure, detention and arrest without warrant between sunset and sunrise exercisable under S. 42 of NDPS Act. By that notification, the proviso of sub-section (1) of S. 42 are also conferred on the said officers. Police Inspector Patil who was the in charge of the police station within the jurisdiction of which the offence occurred, was authorised to exercise the powers under sub-section (1) of S. 42 of NDPS Act.
19. Section 43 empowering seizure and arrest in a public place is relevant to the facts of the instant case :
"43. Power of seizure and arrest in public places - Any officer of any of the Departments mentioned in S. 42 may -
(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substances in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation : For the purposes of this section, the expression 'public place' includes any public conveyance, hotel, shop or other place intended for use by, or accessible to the public."
Section 43 gives plenary power to the officers to seize in a public place or in transit any narcotic drug or psychotropic substance and to detain and search any person, whom he has reason to believe has committed the offence. The only restriction is that such powers can be exercised by the officer of any Department mentioned in S. 42. The Police Department is specifically mentioned in S. 42 and as stated above, even under S. 42 the Police Inspector in charge of the Police Station is empowered to exercise the powers under S. 42. Police Inspector Patil was, therefore, an authorised officer to exercise the power and take action for seizure, detention, search and arrest under S. 43, NDPS Act.
20. In our view, therefore, the provisions of Sections 41 and 42, NDPS Act, are not applicable, but the provisions of S. 43, NDPS Act are applicable for any search and seizure of the narcotic drug in a conveyance etc., and detaining and searching any person in a public place. We are fortified, in our view, by the judgment of this Court in Aslambhai Ibrahimbhai Memon v. State of Gujarat, Criminal Appeal No. 844/1988, delivered by a Division Bench of this Court, consisting of M. B. Shah and B. S. Kapadia, JJ. on October 5, 1989 : (1990 Cri LJ 1787) in which the learned brother Judges on considering the relevant provisions of Sections 41 and 43, NDPS Act, observed :
"Thus, the intention of the Legislature in Sections 41 and 42 is different as revealed from the language of sections as stated above from the one in S. 143 which authorises any officer of the Departments mentioned in S. 42 for search, seizure arrest or detention in any public places or in transit in respect of any narcotic drug or paychotropic substances in respect of which he has reason to believe an offence punishable under Chapter IV has been committed and, along with such drug or substance, any animal or conveyance or article is liable to be confiscated under the Act, or any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substances. Thus, S. 42 speaks about search and seizure from any building, conveyance or enclosed place, while S. 43 speaks about the search and seizure from public place or in transit. It is important to note that the wordings of Sections 41 and 42 with regard to information taken in writing have been deliberately omitted by the Legislature in S. 43 and in our view, that has been done so advisedly inasmuch as the police officer empowered under S. 42 may get information with regard to the person in any public place or in transit at the last moment and if he has to undergo the procedure of taking that information in writing and recording the reasons for his belief, possibly such information may not be useful. When that is so, any search or seizure is to be made in any public place or in a vehicle in transit or any person is to be arrested or detained from a public place, it is not intended by the Legislature to take down the said information in writing."
In Santokh Singh v. State, 1991 Cri LJ 147 it has been held by the Delhi High Court that non-compliance of S. 42 of the Act does not always vitiate the investigation. In the present case, while P.Ws. 2 and 5 were on their rounds they received secret information as to the sale of ganja near Seetharama Choultry by some person. They immediately collected two panchas and rushed to the place of occurrence. If they had wasted their time in recording the secret information the possibility of the secret information leaking immediately could not have been ruled out which would have resulted in the raid becoming abortive.
Sri. Ijari nextly contended that there was no compliance of S. 50 of the Act which is a mandatory provision. The said section deals with conditions under which search of persons should be conducted. Whenever a person is about to be searched under the provisions of S. 42 or 43, if a person so requires the officer searching shall take such person without unnecessary delay to the nearest Gazetted Officer under S. 42 or to the nearest Magistrate. This section lays down that if a person is arrested by any unauthorised officer under S. 43 he shall have to follow the conditions laid down in S. 50. The words appearing in S. 50 makes the conditions mandatory. Under this section, the person has a right to be taken to the nearest Gazetted Officer of any of the Departments mentioned in S. 42 or to the nearest Magistrate. This is an important safeguard given to an accused person by the Legislature keeping in view of our criminal jurisprudence. Therefore, after a person is arrested and before a search is conducted it is mandatory on the part of the officer to inform him that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate. It is clear from the evidence of P.Ws. 2 and 5 that they did not inform the accused that he has right to be searched in the presence of a Gazetted Officer or a Magistrate. No doubt P.W. 5 has deposed that he is Gazetted Officer. But this is not sufficient. How could the accused know that he was a Gazetted Officer ? The accused must be told that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate. Merely because P.W. 5 happened to be a Gazetted Officer present at that time his mere presence did not validate the search in view of the mandatory provisions contained in S. 50 of the Act. On this ground also the prosecution case has to be rejected.
Lastly Sri. Ijari contended that there is also no compliance of S. 57 of the Act inasmuch as P.W. 2 did not make a full report of the search and seizure to his immediate superior officer within 48 hours after the arrest of the accused and seizure of ganja from him. No doubt P.W. 5 was his superior officer who was present when the accused was apprehended. But his presence could not be an excuse for not sending the report within 48 hours as contemplated S. 57 of the Act. The report contemplated under S. 57 of the Act. The report contemplated under S. 57 in my view is a written report regarding the arrest and seizure in order to bring to an end the possibility of improving the prosecution version subsequently. In Smt. Zubeda Khatoon v. The Asst. Collector of Custons, Legal, Bangalore, 1991 Cri LJ 1392, a Division Bench of this Court has observed thus :
"13. This takes us to the next mandatory requirement of S. 57 of the Act. Under S. 57 of the Act it is clearly laid down that whenever any person makes any arrest or seizure under this Act he shall within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. In the instant case, there is material enough in the evidence of P.W. 1 to show that no such report was made by him. He admits that even warrant was not returned to the Officer who had issued it. A Division Bench of the Himachal Pradesh High Court in the case of the State of Himachal Pradesh v. Sudarshan Kumar observed that the provisions which stand incorporated in Sections 52(1) and 57 to be followed after the search and arrest of the accused or seizure are mandatory in character, but the remaining provisions are merely directory. In the opinion of the learned Judges the reason is that the right to be informed about the grounds of arrest contained in S. 52(1) and the requirement of S. 57 to the effect that any person making arrest or seizure shall make full report to his immediate superior officer within 48 hours confer valuable right on the accused. When informed about the grounds of arrest at the earliest opportunity, the accused becomes aware of, at the very outset, what he has to meet in the long run. Failure to do so, would certainly prejudice his defence. Similarly the provision requiring the person making arrest or seizure to make a full report to his immediate superior officer within 48 hours, brings into existence a document which can be used for purpose of cross-examination in defence. The making of such a report within 48 hours will also bring to an end the possibility of improving the prosecution version after that time. If these provisions are not strictly complied with, the prosecution must fall, but the same cannot be said with respect to the remaining provisions incorporated in Sections 52(2), 52(3) and 55. In their case, the defence will have to show that failure of justice has resulted due to non-compliance thereof. This decision only highlights that even though there are certain provisions under the Act the violation of which may not go to the root of the prosecution case of prejudice the case of the defence when a right has been created under S. 57 for the accused to known what exactly is the case as presented to the immediate superior of the Officer after making search, the legislature must have intended that these valuable rights should not be infringed. In our view, failure to comply with mandatory provisions of S. 57 has certainly resulted in prejudice to the accused-appellant and we are in respectful agreement with the learned Judges of the Himachal Pradesh High Court."
Therefore, in my view, the non-compliance of S. 57 has also resulted in prejudice to the accused.
From the above discussion it becomes manifestly clear that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. The lapses on the part of the Investigating Agency should undoubtedly benefit the accused. Unfortunately, the learned Sessions Judge appears to have lost sight of these mandatory provisions of the Act and the failure of the investigating agency to comply with the aforesaid provisions of the Act.
In the result, the appeal is allowed. The order of conviction of the appellant-accused for the offence punishable under S. 20(b) of the NDPS Act and the sentence awarded thereunder is set aside. The accused is acquitted of the said offence and he is ordered to be set at liberty forthwith unless he is required in any other case. In view of the nature of the case, the fee of Amicus Curiae is fixed at Rs. 300/-.
14. Appeal allowed.