9911796707
TMI Blog2017 (12) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... le possessed by one Punjabi and such information if were sent in a sealed envelop to the superior officer, there would not have arisen any doubt at all. Besides no warrant was obtained from learned Metropolitan Magistrate nor there was any authorization given by SP, Mr.Bhatti and PW-2 relied on resolution under Section 42 before entering the premises. Even serious doubt is created about handing over muddamal to the PSO, as PW-4, who was a part of the raiding party himself has prepared muddamal receipt and he had registered the offence in the station diary. He continued to retain the muddamal and that samples prepared from it till the same were handed over to Mr.Polra on 12.6.2001 in the morning. No mention is made in the register maintained. Thus, according to learned trial Judge the prosecution has failed to prove its case beyond reasonable doubt and, on the contrary, the manner in which investigation made an attempt to implicate the accused, clearly emerging from the deposition of DW-2 and DW-3 is rightly believed by learned trial Judge. We are in agreement with the law laid down by the Apex Court in the case of Sanjeev Kumar (2006 (11) TMI 679 - SUPREME COURT) and Aadam Ajme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amrasul Bhatt informed that 10 kilograms of Charas had already been sold off to one Allarakha Uasmanbhai Shaikh, resident of Chandola Lake, Ahmedabad. On the basis of this information revealed from the accused, the police personnels carried out raid at the premises of Allarakha Shaikh from where, 1 kg and 600 grams of Charas was recovered. After following the due procedure as laid down under the law, the said contraband was seized and sealed by the raiding party, and thereafter, they had also raided premises of one Yasinkhan Anwarkhan Patan from where 130 grams of Charas contained in 48 small packets was recovered. 3. After due investigation into the matter, all the accused were chargesheeted to stand trial for the offence punishable under Sections 8 (c), 20 (b) read with Section 29 of the Narcotic Drugs Psychotropic Substances Act, 1985. 4. At trial, the accused pleaded not guilty and claimed to be tried. Therefore, the prosecution examined in all 10 witnesses to substantiate the charges levelled against the respondents- accused. At the behest of the defence, three witnesses viz., Butabhai Radhjibhai Rabari, V. Shrivanas and Mohammed Ramzan were also examined by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer In-charge of the Police under Section 154 of the Code of Criminal Procedure was totally lacking, and that being the mandatory provision, the procedure adopted was rightly deprecated by the trial Court, as the secret information which was received first in point of time, ought to have been construed as FIR, and whereas, investigation started moment Mr. Pandey, Dy. SP left the place, and therefore, the complaint given by Police Inspector Shri Rana ought not to have been exhibited. As regard provisions of search seizure enunciated under Sections 41 and 42 of the NDPS Act, learned advocate Shri Gupta urged that Section 42 (2) of the Act when makes it mandatory for an Officer, who takes down the information in writing to send a copy of such information to his immediate superior, and in absence of any provision for telephonic intimation to be given to his superior, the charges should fail on that count alone. 9. Following decisions are relied upon by the learned advocate appearing on behalf of the respondent qua applicability of Section 42 of the Narcotic Drugs Psychotropic Substances Act, 1985 [for short NDPS Act, 1985 ]. 10. Learned advocate Mr. Gupta relied on decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Gujarat and deputed PW-3 namely Mr. Pandey holding the rank of Dy.SP a Gazetted Officer to carry out search and seizure and under the circumstances, the record reveals that substantial compliance was made of Section 42 but even if it is noticed that there was no compliance of Section 42, it would not be fatal and accordingly, no error is committed by the learned trial Judge. 15. Further, reliance is also placed on the decision of Apex Court in case of State of Rajasthan v. Chhagan Lal dated 4th February 2014 rendered in Criminal Appeal No. 592 of 2005, where the Deputy Superintendent of Police recorded information received by him through an informer and on receipt of information, he noted it down and forwarded it to the Superintendent of Police, Chittorgarh, and thereafter, entry made and search, etc., was conducted. The Apex Court referred to the provisions of Section 42 of the NDPS Act and the decision in case of Karnail Singh v. State of Haryana [Supra] and found that in case of emergent situation, if the Officer had a reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for concealment of the evidence, as per the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hicle which was intercepted by the police party, where DW-3 was present and two bags of Charas were found. Sardar Jaswant Singh was taken to a hotel at Saraspur area, behind Railway Station where certain dubious transactions had taken place and a deal was struck again with Shri Polra, Police Inspector and ₹ 15 lacs, according to DW-3 were given to Mr. Polra with further understanding that 60 kilograms of Charas lying in twenty different packets of three kilogram each to be handed over to Mr. Polra and Jaswant Singh to be allowed to go scot-free and by making some arrangement in his place servant of Jaswant Singh is to be brought in as an offender. Accordingly, further course of action has taken place and on 11th June 2001 and in place of Jaswant Singh, the present accused no. 1 was arraigned as an accused and DW-3 was taken to Godhra and for which railway ticket was provided by PW-1 for Jammu i.e., on 17th June 2001. 17. Further, upon another information provided by PW-3, one Babu Khan was arrested with two and half kilogram of Brown Sugar on 14.4.2002 and in the above case also, by taking bribe of ₹ 8 lacs, the original accused was allowed to go scot free and in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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. P.C. 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 of 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. (2-A) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 41(2) of the Act, carries out a search, he would be doing so under the provisions of Cr. P.C., namely, sections 100 and 165, Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. 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 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 and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing; (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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption 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. 21.5 The case of Vijaysinh Chandubhai Jadeja v. State of Gujarat, (2011) 1 SCC 609] was referred to a Constitution Bench of the Apex Court to decide the question as to whether Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if you wish you may be searched in the presence of a gazetted officer or a Magistrate was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression substantial compliance in the following words: 12. The use of the expression substantial compliance was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word 2 in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations. It is manifest from the afore-extracted paragraph that Joseph Fernandez (supra) does not notice the ratio of Baldev Singh (supra) and in Prabha Shankar Dubey (supra), Joseph Fernandez (supra) is followed ignoring the dictum laid down in Baldev Singh's case (supra). 29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. (Emphasis supplied) 21.7 In the case of Karnail Singh v. State of Haryana (2009) 8 SCC 539 again a Constitution Bench of the Apex Court considered Sections 42 and 50 of the NDPS Act. In view of divergent opinions in earlier two cases which has resulted in placing of the matter before the Larger Bench. In paras 1 and 2 of the above judgment, the apex court referred the issues for which the matter was referred to Constitution Bench and conclusions were drawn in para 35 of the said judgment. Paragraphs 1, 2 and 35 of the above judgment read as under: 1. In the case of Abdul Rahsid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513, a three-Judge Bench of this Court held that compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances At, 1985 (hereinafter referred to as NDPS Act ) is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692, which was also decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001. 21.8 In the case of State of Rajasthan v. Jag Raj Singh @ Hansa in Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zetted officer other than the searching officer, and that there must a clear communication of this choice i.e. there must be a mention of the nearest [I] Magistrate, and [ii] gazetted officer, and [iii] that the accosted person has a choice to be taken to either of them . 21.11 The above judgment also referred to decision in the case of Baldev Singh [supra]. 21.12 In the case of Union of India v. Shah Alam Anr. (2009)16 SCC 644, where recovery of heroin was made from bags being carried out by accused and not from their person. Relying on the decision in the case of State of Himachal Pradesh v. Pawan Kumar (2005)4 SCC 350, the word `person' would mean a human being with appropriate coverings and clothings and also footwear and a bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being including items like a thaila, a jhola, a gathri, a holdall, a carton, etc. Thus, Section 50 of NDPS Act laid down the conditions for search of the person and not any bag, briefcase, etc. and provisions of Section 50 had no application in the facts of this case or even non-examination of two witnesses of search and recovery was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be acceptable compliance of Section 42 of NDPS Act. 21.19 Vijaysinh Chandubhai Jadeja [supra] considered in length, provisions of Section 50 of the NDPS Act by referring to decision of constitution Bench in the case of Baldev Singh [supra] and also Karnail Singh [supra] and paras 20, 21, and 22 conclusions are given by reiterating law laid down in the case of Baldev Singh [supra] and even concept of 'substantial compliance' with the requirement of Section 50 of the NDPS Act is held to be neither born out form the language of sub-section (1) of section nor it is in consonance with the dictum laid down in the case of Baldev Singh [supra]. 21.20 In the case of Basheer v. State of Kerala, [2004] 3 SCC 609 proviso to section 41(1) of the amending Act 9 of 2001 was held to be constitutional and not hit by Article 14 the Constitution of India. 21.21 In the case of State Through Intelligence Officer Narcotics Control Bureau v. Mustaq Ahmed Etc., 2015 JX(SC) 802 in relation to cannabis plant and cannabis, the aspect about quantity was considered in the context of definitions contained in Section 2[iii] of the Act and punishment prescribed therein. 21.22 In case of Ya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, thus vitiating the entire prosecution. Further argues the counsel that the respondent after grant of bail to the appellants by the High Court taking into consideration the non-compliance with Section 42(2) has tried to fill in the lacuna with a view to show the compliance of this mandatory provision. 9. The officer who conducted the arrest, search and seizure was an empowered Gazetted Officer of the Department. This fact is not in dispute. According to Mr Vasdev, learned Senior Counsel for the respondent, Section 42(2) is not applicable when an empowered Gazetted Officer conducts the arrest, search and seizure. The counsel submits that there was no obligation on the officer to comply with the requirement of Section 42(2) of the NDPS Act. It was also contended, in the alternative, that Section 42 (2) of the NDPS Act was complied with. 14. Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41(2) only a Gazetted Officer can be empowered by the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in a public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decisions in State of Punjab v. Balbir Singh, Abdul Rashid Ibrahim Mansuri v. State of Gujarat and Beckodan Abdul Rahiman v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n private premises which is not accessible to the people sending the said information in writing to the superior is a must and this being a mandatory provision, its breach would be fatal to the prosecution's case. This provision can be well appreciated especially under the facts and circumstances of the instant case where there is a specific allegation by the informant himself that the information given to SP Mr.Bhati was in respect of the contraband article possessed by Jaswantsingh Punjabi. Had there been the information sent in a sealed envelop to the superior officer, there would not have arisen any question of creating a reasonable doubt by the deposition of the said informant and the submission of the LAPP that, as there is a specific deposition from the S.P. Mr.Bhati of having communicated to his superior the said information telephonically, cannot be accepted for the reason that, there is no supporting document having come on the record as regards the said telephone call and moreover, no such superior has been examined by the prosecution which would confirm the version of Mr.Bhati with substantiating evidence of his having received the said information prior to the raid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary. He continued to retain the muddamal and the samples prepared from it till the same were handed over to Mr.Polra on dt.12-06-2001 in the morning. He is not sure as to from whom he had taken the charge and to whom he had handed over. The said register, according to him is in the custody of Dy.S.P. Gandhinagar. This officer has not noted it down in any register. There is no muddamal register kept at Meghaninagar which according to him is kept at Gandhinagar but, he has not deposited the said muddamal at Gandhinagar Office on the 11th. He, of course, insisted that, the said muddamal had been kept in his lock and key, but as regards the handing over to Crime Writer Head or noting it down in any register and thereafter handing it over back to Mr.Polra, there is nothing on the record. This takes this Court to the last conclusion that, even if disregarding the deposition of PW8 PW9, depositions of Dy.SP (PW2) and P.I. Mr.Polra (PW4) are taken into consideration, it speaks of seizure of a huge quantity of charas. Undoubtedly, there does not arise any question of implanting such a huge quantity of contraband article and therefore, seizure of the same needs to be held as record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court cannot regard those facts and as the informant has died during the pendency of this trial, his alleged confession u/s.67 of NDPS Act would hardly be of any use as he himself is not being tried in for the trial before learned Judge at Vadodara. Again his arrest was not by either SP Mr.Bhati or P.I. Mr.Polra of CID Crime so as to drive him to start the kind of crusade against them. The Court also cannot disregard the fact that there had been no criminal antecedent of the said person and believing it for a moment that he was trafficking in the drugs as alleged by the NCB by being an informant himself, there is nothing that has come on the record except his bare allegation and even assuming that he so did and he was not caught by the police, the fact remains that, he continued to be an informant and in that event, it would have been necessary for him to remain in the good book of the police and that also would prevent him from going against the police force and making such wild allegation against the Sr.Officers. With the very identity of Jaswantsingh Punjabi being doubtful and the accused no.1 said to be a stooge, the Court is of the firm opinion that benefit should go to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court held that the trial vitiated and conviction unsustainable. It is also held that the provisions of S.42 of the Act is mandatory and question whether any prejudice was caused to the accused on account of strict non-compliance of the provision was immaterial. In another decision relied upon by the defence reported in 1994 (3) Crimes Pg.1048 (H.P.) in cases of Tawarsu @ Kancho Baba v. State of H.P. the secret information which was received by the police was sent to the police station for registration of the case and the case was accordingly registered but, the copy of that was not sent to the superior officer which was held noncompliance of s.42 (2) of the Act, which is mandatory and the trial was held to be vitiated. In the first place as per the decision of the Apex Court in the case of Rajendra v. State of M.P. reported in (2004) 1 SCC 432, S.42 will not be attracted. The decision states as follows. S.42 comprises two components : one relates to the basis of information i.e. : (I) knowledge, and (ii) information given by person and taken down in writing. The second is that the information must relate to commission of an offence punishable under Chapter IV and/or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s this Court to another vital issue which is much debated of an offer s.50 of the Act. Firstly taking the legal aspect on this point, in the authority reported in 2003 SCC (Cri.) P.14 in the case of Vinod v. State of Maharashtra, it is held by the Apex Court that, police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or Gazetted Officer. In absence of specific evidence, there is noncompliance held of mandatory requirement of S.50 and therefore, it was concluded that if the complaint and the panchnama cannot be used to established offer of search of the person of the accused, his possession of the brown sugar cannot be held to have been proved. The Court also said that before conducting the search, the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or a gazetted officer for the purpose of search but must inform him of his right under the law. Reliance is placed on the judgment in the case of K.Mohanan v. State of Kerala reported in 2000 SCC (Cri.) P.1228, H.P.High Court in 1996 (2) Crimes, Pg. 245 did not find offer in writing given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nchnama or in the separate offer made in writing that it is his right to be examined by either of them and that is also one of the grounds. Of course, the witnesses have stated that they had been particularly communicated that it was their right but, substantiating documents are not there. Seizure of charas when was not reported to Magistrate, provision of S.102 103 was held directory, but substantial compliance thereof was considered to be necessary, trial was held vitiated. As far as the accused no.3 is concerned, as reflected hereinabove 130 gms of narcotic drugs alleged to have been seized from him when the raid was carried out at accused no.2's place admittedly, the said sample had not been sent to the FSL as no reserve sample had been drawn from the article which had been found from him and as it is not proved that the article seized from him was charas or nay other contraband article as defined under the NDPS Act, in the opinion of this Court that fact itself would entitle him to be given the benefit of doubt. Over and above, as the raid has been taken as a continuous raid, noncompliance of mandatory provision and other provisions which question-mark the custody a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he station diary. He continued to retain the muddamal and that samples prepared from it till the same were handed over to Mr.Polra on 12.6.2001 in the morning. No mention is made in the register maintained. Thus, according to learned trial Judge the prosecution has failed to prove its case beyond reasonable doubt and, on the contrary, the manner in which investigation made an attempt to implicate the accused, clearly emerging from the deposition of DW-2 and DW-3 is rightly believed by learned trial Judge. We are in agreement with the law laid down by the Apex Court in the case of Sanjeev Kumar (supra) and Aadam Ajmeri (supra) that equal weightage shall have to be given to the defence witness and that of prosecution witness. 24. That collective and cumulative effect of the discussion, as above, result into dismissal of the appeal filed by the State of Gujarat warranting no interference in exercise of powers under Section 378 read with Section 386 of the Code of Criminal Procedure and the appeal is hereby rejected. The impugned judgment and order of acquittal dated 21st April 2005 of the respondents herein for the offence punishable under Sections 20 (b), 8 (c) read with Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
