Rajasthan High Court - Jaipur
Hari Ram vs Central Narcotics Bureau on 24 April, 2001
Equivalent citations: 2001CRILJ4867
JUDGMENT Sunil Kumar Garg, J.
1. This appeal has been preferred by the accused appellant against the judgment and order dated 7-8-1997 passed by the learned special Judge. NDPS Cases, Bhilwara in Sessions Case No. (32/93)/(28/ 94)/92/97. by which he acquitted other co-accused Subhash of the charge for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred to as the NDPS Act.), but convicted the present accused appellant for the said offence and sentenced him to undergo ten years' rigorous imprisonment and to pay fine of Rs. one lac, in default of payment of fine, to further undergo SI for one year.
2. It arises in the following circumstances: --
On 17-1-1991, PW 3 Sukhpal Singh, Inspector, Narcotics Department, Bhilwara gave a written report to PW 4 Ravindra Nath., who was District Opium Officer, Bhilwara stating inter alia that on 16.1 1991 he along with Raiding party consisting of PW 1 Bodusingh, PW 2 Mohd. Rehan and PW 7 Mohanchand proceeded in a Government Jeep No. RJH 4183 for the purpose of checking the vehicles in order to prevent smuggling of contraband articles and reached at Chungi Naka No. 2 on Bhilwara-Chittorgarh road and at about 11.30 AM. Madhya Pradesh Roadways Bus bearing No. GIF 212. Which was coming from Neemuch to Bhilwara, was stopped and thereafter, PW 3 Sukhpal Singh and his party entered the Bus and two persons, who were sitting on seats No. 17 and 18, were found in suspicious condition and on being asked, one told his name as Hariram Jat (Present accused appellant) and another Subhash Jat (acquitted accused) and both were asked by PW 3 Sukhpal under the provisions of Section 50 of the NDPS Act whether they wanted to be searched before the Magistrate or Gazetted Officer and upon this, they gave their consent that they may be searched by PW 3 Sukhpal and, thereafter, they were searched by PW 3 Sukhpal Singh and on search, a cloth bag was recovered from the present accused appellant, which was lying on his lap and on opening it, a polythene bag containing contraband opium was recovered and tickets were also recovered from them and they told at that time that it was the joint property of both of them. It was weighed on the spot and its weight was found to be 2 kg. 500 grms., out of which, two samples of 24 grms. each were taken and they were sealed on the spot and the remaining contraband opium was also sealed separately on the spot. The accused appellant was arrested through Ex. P/2 and the other co-accused Subhash was arrested through Ex. P/3. The fard of search and seizure Ex. P/1 was prepared on the spot by PW 3 Sukhpal Singh. The fard of specimen seal is Ex. P/6. The copy of Malkhana Register is Ex. P/12. Thereafter, vide letter Ex. P/8, the Sample was sent to the Government Opium abd Alkaloid works, Neemuch for chemical analy-sis through PW 7 Mohanchand and the report of the Assistant Chemical Examiner. Government Opium and Alkaloid Works, Neemuch is Ex. P/10, where it has been stated as under:
The sample is found by qualitative and quantitative analysis to be opium within the meaning of Section 2(xv) of NDPS Act 1985 (61 of 1985).
After usual investigation, challan was filed against the present accused appellant Hari Ram and other co-accused Subhash in the Court.
On 21-9-1993, the learned Sessions Judge, Bhilwara framed charges for the offence under Section 8/18 of the NDPS Act against the present accused appellant and other co accused Subhash. The charges were read over and explained to both accused persons', Who pleaded not guilty and claimed trial.
During trial, the prosecution in support of its case examined as many as seven witnesses and got exhibited some documents. Thereafter, statements of the accused persons under Section 313 Cr. P.C. were recorded. In defence, no evidence was produced. However, some documents were got exhibited by the accused in defence.
After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 7-8-1997 acquitted the other co-accused Subhash of the charge framed against him, but convicted the present accused appellant of the charge for the offence under Section 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding inter alia: --
1. That samples and seized contraband opium from the accused appellant remained in good sealed conditions and proper custody from the date of seizure till they reached FSL....
2. That it is an admitted position the present case that sample as well as remaining opium seized from the person of the accused appellant were not produced in the Court during trial and if they have not been produced in the Court, it would not affect the case of the prosecution.
3. That compliance of Section 50 of the NDPS Act has been made by the prosecution in the present case.
4. That it cannot be said that in the present case, other co-accused Subhash was, in any manner, in possession of the contraband opium and thus, he was acquitted.
Aggrieved from the said judgment and order dated 7-8-1997 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant.
3. In this appeal, the following submissions have been made by the learned counsel for the accused appellant: --
1. That statements of PW 1 Bodu Singh, PW 2 Mohd. Rehan, PW 7 Mohanchand and PW 3 Sukhpal Singh were got contradicted with their police statements in which it was not mentioned that Compliance of Section 50 of the NDPS Act was made and furthermore, since there is no separate memo for compliance of Section 50 of the NDPS Act, therefore, the learned Special Judge has erred in holding that compliance of Section 50 of the NDPS Act has been made on the contrary, it should be held that no compliance of Section 50 of the NDPS Act has been made in the present case.
2. That PW 7 Mohandchand, who took the sample to Government Opium and Alkaloid works, Neemuch, has stated that he received the sample for chemical analysis from Dharamveer Katwalia, who was not examined and the statement of PW 7 Mohanchand gets contradicted with the statement of PW 4 Ravindra Nath, who states that he gave the sample to PW 7 Mohanchand for the purpose of sending it to Neemuch for chemical analysis Thus, there is material contradiction on the point under whom the samples and seized articles remained in custody
3. That so-called articles and sample recovered from the accused appellant were not produced in the Court and this fact itself is sufficient to acquit the accused appellant.
4. That both Motbir witnesses, namely, PW 5 Keshu and PW 6 Budhiprakash have been declared hostile and normally mere declaring them hostile does not affect the case of the prosecution, but in the present case, looking to all the facts and circumstances, this fact also leads to only one conclusion that prosecution has not been able to prove its case beyond all reasonable doubts.
Hence, it is prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him.
4. on the other hand, the learned counsel for the respondent supported the impugned judgment and order passed by the learned Special Judge. NDPS Cases Bhilwara.
5. I have heard the learned counsel for the accused appellant and the learned counsel for the respondent and perused the record of the case.
Point No, 1 with regard to Section 50 of the NDPS Act.
6. Before proceeding further, object and purpose of Section 50 of the NDPS Act may be stated here.
Object and purpose of Section 50 of the NPDS Act
7. The purpose of informing a suspect that search could be taken in the presence of a Gazetted Officer was to ensure that there was safeguard against planting any incriminating article.
8. These provisions have been made in order to protect the interests of the citizens from irregular and illegal invasion on his liberty by the authorities as well as in the interest oh the State to secure the evidence bearing upon the commission of the crime and necessary to enable the justice to be done shall not be withheld from the course of law on merely formal or technical grounds,
9. The object of making it peremptory on the part of the office so as to ensure that the officer, who is charged with the duty of conducting the search, to conduct it properly and not to harm or wrong, such as planting of offending drugs by any interested party and to prevent fabrications of any evidence.
10. The provisions of Section 50 are intended to provide a safe ground, against vexatious search, any unfair dealings and to protect and safeguard the interests of the innocent persons. It also provides a protection to the law enforcing agency.
11. The provisions of Section 50 of the NDPS Act have been made with the intention to act as a safeguard against the vexatious and unfair dealings. The provisions have also been incorporated in order to protect and safeguard the interest of an innocent person. If a person is searched before a Gazetted Officer or before a Magistrate, as the case may be, then it will provide a weapon to the law enforcing agency against the common allegation that the opium has been planted by the investigating agency.
12. The rational behind, this provision is manifest A search before a Gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the proceedings. It would, verily, strengthen the prosecution.
13. The Hon'ble Supreme Court in so many cases has held that the provisions of Section 50 of the NDPS Act are mandatory in nature and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial.
14. It has been held by the Hon'ble Supreme Court in so many cases that it is obligatory on the part of the empowered officer to inform the person to be searched that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate. 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 of the NDPS Act, which is mandatory and thus, it would affect the prosecution case and vitiate the trial. The provision necessarily implies that the officer making search must inform the person, to be searched, of his right to be taken to the nearest Gazetted Officer or to the nearest Magistrate.
15. Thus, it can be said that a bare reading of the provision leaves no doubt that it is the right of the person to be searched to insist that he be taken without unnecessary delay to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 of the NDPS Act, or to the nearest Magistrate, This is an extremely valuable right which the legislature has clothed him with and has been incorporated in the Act keeping in view the severity of the sentence. A search before a Gazetted officer or Magistrate would impart more authenticity and creditworthiness to the proceedings otherwise the right would become illusionary.
16. It may be stated here that the officer concerned must inform accused of his right to be searched before Gazetted Officer or Magistrate and failure to do so would cause prejudice to such person. Merely asking accused whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of search, but not informing about his right in that behalf under the law, it would mean that mandatory requirement of Section 50 of the NDPS Act has not been satisfied. In this respect, the decisions of the Hon'ble Supreme Court in K. Mohanan v. State of Kerala 2000 SCC (Cri) 1228 and Ahmed v. State of Gujarat (2000) 9 JT (SC) 416 : 2000 Cri 4008 may be seen.
17. Keeping the above legal position in mind, the facts of the present case are being examined.
18. In the present case, there is no dispute that separate memo for compliance of Section 50 of the NDPS Act has not been made. Though there is no requirement of law the notice under Section 50 of the NDPS Act has to be given in writing, but where case of the prosecution is based solely on the police witnesses, in such a case, this point should be considered seriously.
19. The first witness is PW 1 Bodu Singh, who was with the raiding party along with PW 3 Sukhpal Singh. This witness does not say anything about the compliance of Section 50 of the NDPS Act,
20. Another witness is PW 2 Mohd. Rehan, who was also with the raiding party. He states in examination-in-chief that PW 3 Sukhpal Singh asked both the accused appellant Hariram and other co-accused Subhash whether they wanted to be searched before the Magistrate or Gazetted Officer and upon this, they told that their search could be made by PW 3 Sukhpal Singh. This witness was contradicted with his statement recorded during investigation and marked as D/1 in which there was no mention of the fact that both accused persons were asked whether they wanted to be searched before the Magistrate or the Gazeetted Officer. Thus, this is a material contradiction.
21. Another witness in this respect is PW 3 Sukhpal Singh, Inspector himself, Who conducted the search in the present case, He has stated that before search, he asked the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, he gave consent that his search could be made by PW 3 Sukhpal Singh. He was also contradicted with his earlier statement recorded during investigation and marked as D/3, in which, there was no mention of the fact that both accused persons were asked whether they wanted to be searched before the Magistrate or Gazetted Officer. Thus, this point also creates doubt whether such option was given by PW 3 Sukhpal Singh to accused appellant or not.
22. In this respect, statements of PW 5 Keshu and PW 6 Budhiprakash, who have been declared hostile, may be referred to here and since on material point they are silent, therefore, it creates doubt that before search of the accused appellant, he was asked by PW 3 Sukhpal Singh whether he wanted to be searched before the Magistrate or Gazetted Officer and thus, case of the prosecution cannot be said to be proved beyond reasonable doubt on the point that before search, accused appellant was given option whether he wanted to be searched before the Magistrate or the Gazetted Officer.
23. For the reasons stated above, it can easily be held that compliance the mandatory provisions of Section 50 of the NDPS Act has been made by the prosecution and therefore, the whole proceedings stand vitiated and the accused appellant is entitled to acquittal on this alone.
Points No. 2,3 and 424. The learned Special Judge at page 14 of his impugned judgment has clearly stated that it is an admitted fact that in the present case articles recovered from the accused-appellant have not been produced in the court during trial.
25.The relevant witness in this respect is PW 4 Ravindra Nath, who was District Opium Officer, Bhilwara. He states that on 16th and 17th January. 1991, he was also Incharge from of the Malkhana and contraband opium which was recovered from ac--cused appellant by PW 3 Sukhpal Singh was handed over to him and he deposited the same in the Malkhana and made entries in the Malkhana Register. He further states that through letter Ex, P/8, one sample was sent to Neemuch for chemical analysis,
26. Another witness is PW 7 Mohanchand. He states that on 18-1-1991, he took one sample from Malkhana Incharge Dharam-veer Katpalia and that sample was handed over by him in the Government Opium and Alkaloid Works Neemuch for chemical analysis. He has further stated that he has also brought the Malkhana Register Ex. P/12, but that Register does not bear his signatures anywhere.
27. Thus, from the statements of PW 4 Ravindra Nath and PW 7 Mohanchand, it clearly appears that there is material contradiction on the point whether sample was given to PW 7 Mohanchand by Dharamveer Katpalia or by PW 4 Ravindra Nath, The entry in the Malkhana Register has not been proved by the prosecution in the present case, as PW 4 Ravindra Nath is silent and simply says that he made entries in the Malkhana Register, but he has not proved the particular entries of Malkhana Register and similarly, PW 7 Mohanchand states that Malkhana Register Ex. P/12 does not bear his signatures and so-called Dharamveer Katpalia has not been produced in the present case.
28. Hence, looking to the evidence on record, it cannot be said that seized articles remained in proper custody and proper forum.
Effect of non-production of case property in court during trial.
29. In the present case, there is no dispute on the point that seized articles were never produced during the trial'in the Court and they were never identified by the witnesses of the prosecution.
Purpose behind this aspect.
30. In order to establish a clear cut link between the seized articles and the report of the Chemical Examiner, in my considered opinion, it is absolutely necessary to have identified the articles before the court as a substantive piece of evidence. After Seizure, some quantity of the contraband is taken as a representative sample and the remaining part of the contraband is also required to be sealed. Such remaining part and containers, etc. should be produced in Court so that they may be got identified from the concerned witnesses, at the time of recording their evidence, to be the same which were seized from the accused, This part is missing in the present case.
31. The next point is what would be its effect on the prosecution case.
32. In Kabul @ Khudia v. State of Rajasthan 1991 Cri LR Raj 183 : 1992 Cri LJ 1491, this Court has held that production of seized articles in the Court was necessary so that their chemical examination report could be corroborated with the seized articles and non-production of the case property in Court gives serious infirmity and doubt about the investigation.
33. In Valsala v. State of Kerala 1993 Cri LR (SC) 333 : 1994 Cri LJ 1 it has been held by the Hon'ble Supreme Court that articles seized be kept in proper custody and proper from so that Court can be sure that what was seized only was sent to the Chemical Examiner,. If this is not done, There would be a big gap and important missing link.
34. The Bombay High Court in Mainuddin Kasim Mulla v. State of Maharashtra 1991 (2) EFR 167 : 1991 Cri LJ 1699 has held that since the packets containing samples were not brought before the Court, therefore, they court not be got identified and as a result whereof, the trial stands vitiated.
35. In Mayadhar Rout v. State 1996 (2) Crimes 29 (Orissa) where contraband claimed to have been seized on 22-2-1991 were produced in court long after during trial in 1993. Explanation that SDJM was approached for keeping the seized articles in the Court Malkhana but due to want of space they were not accepted, was not found substantiated and relying on the decision of the Hon'ble Supreme Court in Valsala v. State of Kerala (supra), it was held by the Orissa High Court that it cannot be said beyond reasonable doubt that the articles seized from possession of the accused appellant were the very articles from which samples were sent for chemical examination
36. In Laxman Mohapatra v/s State of Orissa 1996 Cri LJ 4493(Orissa) where brown sugar was seized from the appellant on 15-8-1991. However, it was kept in police Malkhana till production in court on 12-11-1991. Relying on the decision of the Hon'ble Supreme Court in Valsala's case (supra), it was held by Orissa High Court that seized articles were produced after about three months and the materials on record did not indicate that the articles had been properly sealed and kept in safe custody during the period it remained it remained in police Malkhana .
37. In Antony Okoye v. State of West Bengal 1996 Cri LJ 4340 (Cal.), where appellant was convicted and sentenced to 20 years' rigorous imprisonment and a fine of Rs. 20 lakhs for having been found in possession of brown sugar concealed in ash-trays while being checked at Calcutta Airport. Relying on the decision of the Hon'ble Supreme Court in Valsala's case (supra), the Calcutta High Court held that till the conclusion of the trial before the trial Judge, the material seized was kept in the godown of the Customs House and it was never produced before the court. No. explanation has been given about the whereabouts of the material from 28-4-1990 to 18-5-1990. No. explanation has been given as to when the material was taken for chemical examination. There are missing links and as these missing links have not been properly examined. It cannot be stated with certainly that the material that was seized and the material that was sent for chemical examination was the same.
38. In Shyam Sunder @ Rathia Rana v. State of Orissa 1997 (2) EFR 504 (Ori) appeal was allowed by the Orissa High Court because there was no material on record to positively indicate that the seized articles were under proper custody, no explanation was offered by the prosecution as to why the seized articles were forwarded to the court on 25-4-1993 when the seizure was effected on 14-4-1993 and there was non-compliance of the provisions of Section 55 of the Act.
39. In Jadumani Sahu v. State of Orissa 1997 (2) EFR 529 (Orissa) one of the grounds on which appeal was allowed by the Orissa High Court was that, sample along with the seal remained with the sub-Inspector. Excise, for two weeks when he sent the samples to the Chemical Analyst, neither the seized articles nor the samples had been produced, there was non-compliance of the provisions of Section 55, there was every possibility of the tampering with the sample and it could not be said that sample which was sent for chemical examination was, in fact, the sample drawn from the seized articles.
40. This Court in Shambhu Lal v. State of Rajasthan S.B. Cr. Appeal No. 504/95 decided on 6th May, 1996 and Prakash Singh v. State of Rajasthan 2001 (1) Raj Cri. 197 has held as under :--
The production of seized articles is necessary, so that their chemical report can be corroborated with the seized articles, but the learned Public Prosecutor is not able to show any evidence on record and in view of the cases referred above, the non-production of the case property "Nal" in Court gives serious infirmity and doubt about the investigation.
41. In view of the discussion made above and keeping in mind the legal position as held in the above rulings, which are based on the decision of the Hon"ble Supreme Court in Vassal's case 1994 Cri LJ 1 (Supra), in absence of production of seized articles in Court, it cannot be said that what was seized from the accused-appellant alone was sent to the Chemical Examiner.
42. The learned counsel for the respondent has relied on the decision of this Court in Mubarak v. State of Rajasthan 1999 Cri LR (Raj) 297, where learned Single Judge of this Court in Para 15 of the judgment has observed that deposit of the seized opium with the trial court was not to serve any purpose, at the trial. In my humble opinion, looking to the above rulings including of this Court and other High Courts, which are based on the decision of the Hon'ble Supreme Court, this observation cannot be appreciate. Hence, this ruling would not be helpful to the respondent, especially when in the present case, apart from non-production of articles in Court, there is also infirmity in the prosecution case as to the point from whom PW 7 Mohanchand took sample and entries in Malkhana Register has also not been proved by the prosecution.
43. For the reasons stated above, it is held that prosecution has not been able to prove its case beyond all reasonable doubts against the accused appellant for the offence under Section 8/18 of the NDPS Act and thus, the findings of the learned Special Judge convicting the accused appellant for the said offence are liable to be set aside and the accused appellant is entitled to acquittal .
Accordingly, this appeal filed by the accused appellant Hari ram is allowed and the judgment and order dated 7th August, 1997 passed by the learned Special Judge, NDPS Cases, Bhilwara are set aside and the accused appellant is acquitted of the charge framed against him. Since he is in jail, he be released forthwith, if not required in any other case.