HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 13 Case :- CRIMINAL APPEAL No. - 4194 of 2016 Appellant :- [ENTITY] Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY] Counsel for Respondent :- G.A. Hon'ble [ENTITY]-I,J.
Order on Bail Application in Criminal Appeal No. 4194 of 2016 This bail application has been moved by the appellant - accused [ENTITY] for being released on bail during pendency of appeal filed against the judgment and order dated 30/6/2016 passed in [CASE NUMBER] (State vs [ENTITY]) arising out of [CASE NUMBER], PS Gwaltoli, District Kanpur Nagar, whereby accused has been awarded punishment under [SECTION] [ACT] of 10 years rigorous imprisonment and fine of Rs. 1 lakh and in default of payment of fine additional rigorous imprisonment of one year The facts of the case as gathered from the certified copy of the judgment enclosed are that the police party headed by SO, [ENTITY] were busy in checking of 2 wheelers. At 19.30 one person riding a scooter was indicated to stop, but instead of stopping the vehicle he accelerated the same and as a result of that he fell down and was caught. He disclosed his name to be [ENTITY] and confessed that he had 8 Kg [ENTITY] in a bag kept in the scooter and beneath the petrol tank he had a cavity, in which he had kept 1 Kg [ENTITY]. He was apprised of his right to be searched in front of the Gazetted Officer or Magistrate, but he declined and opted to be searched by them only. Upon being searched, 8 Kg [ENTITY] in four packets and 1 Kg [ENTITY] in the fifth one (2 packets of half Kg each) was recovered. He failed to produce any licence to keep them. Besides this Rs. 1000/- in the currency of 100 rupee denomination was also recovered. He also stated that he supplies this material to his customers in the city, peddling the same. The said recovered material was weighed and it was found to be 1 KG [ENTITY] and 8 KGs [ENTITY]. The separate samples were taken of 50 - 50 grams each. The accused was apprised that he had committed an offence under [SECTION] of [ACT] and needed to be arrested. The recovered [ENTITY] and the currency notes were sewn in a cloth while [ENTITY] was kept back in the same bag and was sewn and both the items were separately sealed and samples of seals were prepared. No one from the public became ready to be a witness of this recovery fearing incurring enmity. The recovery memorandum was prepared on the spot and a copy of the same was given to the accused after obtaining his signature thereon.
The learned Court below has examined as many as 6 witnesses which include 2 witnesses of recovery as well, others being formal and thereafter recorded statement of the accused under [SECTION] of the [ACT], wherein the accused took the plea of false implication because the police demanded 5 lakhs from him, which he was unable to provide.
The learned Court below found the case proved against the accused and accordingly punished him under [SECTION] [ACT] with 10 years RI and 1 lakh rupees as fine and in default of payment of fine one year additional RI.
The learned counsel for the appellant has argued that although 4 packets of [ENTITY] weighing 8 KGs and 2 packets of [ENTITY] weighing 1 KG are shown to have been recovered from the accused but the samples were taken only from 2 packets, while from each packet recovered, the sample ought to have been taken, to be sent to FSL for testing. No public witness has been sought to be taken at the time of recovery from the accused. It was also not brought on record as to from who the balance (weighing machine) was brought for weighing the recovered material. No proof of the police party being dispatched from the police station has been produced. The compliance of [SECTION] of the [ACT] has been violated by not apprising the accused of his right that he could opt to be searched before the Gazetted Officer/Magistrate. The scooter, in which the alleged contraband is shown to have been concealed, has not been seized. The accused has already been in jail for 3 long years and there is no likelihood of the appeal being heard in near future due to heavy docket.
From the side of the prosecution each argument of the accused appellant has been rebutted and it is stated that in the present case [SECTION] of the [ACT] shall not be applicable because the recovery of contraband was not made from the person of the accused, rather the same was recovered from the scooter, which was in possession of the accused. It is further stated that the rest of the arguments made are not significant in view of heavy recovery of commercial quantity of contraband which was not likely to be planted. It was admitted that it was not mentioned in the recovery memo as to from where the weighing machine was obtained for weighing the contraband, but it was submitted that if there was any such doubt regarding recovery of the contraband, all these questions ought to have been put by the learned counsel of the appellant during the trial before lower Court, at least by placing such suggestions to the witnesses examined. If such kind of cross questioning or giving of suggestions has not been resorted to during the trial, the same may not be raised at the time of appeal.
It may be mentioned here that [SECTION] of [ACT] provides for the following considerations while granting bail to an accused from whom commercial quantity of contraband has been recovered. For the sake of convenience the same is reproduced herein below: -
"37. Offences to be cognizable and bailable.-(1) Notwithstanding anything contained in the [ACT], -
(a) Every offence punishable under this Act shall be cognizable;
(b) No person accused of an offence punishable for offences under [SECTION] or [SECTION] or [SECTION] and also for offences involving commercial quantity shall be released on bail or on his own bond unless -
(i) The public prosecutor has been given an opportunity to oppose the application for such release, and
(ii) Where the public prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the [ACT], or any other law for the time being in force on granting of bail."
At the very outset I may mention that not a word has been mentioned about the above-mentioned 2 important considerations as per the provision under [SECTION] of the Act, by the learned counsel for the appellant. But I presume that whatever infirmities have been pointed out in the impugned judgment, he believes that they would suffice to vitiate the recovery and hence the consequent acquittal of the accused.
The first and foremost important argument is that the provision of [SECTION] of the [ACT] has not been followed in this case by the prosecution, because the accused appellant was not conveyed his right to be searched in presence of a gazetted officer/Magistrate, hence the whole recovery vitiates and consequently conviction would not stand. In this regard the learned counsel for the appellant has relied upon following case laws.
The appellant has cited [PRECEDENT]. The Supreme Court has observed as follows:
"4. Now, the learned counsel for the appellant submits that in the instant case, from the search notice (at Annexure P - 1), it will appear that the requirement of [SECTION] of the [ACT] has been complied with. From the said notice, it appears that the accused was informed that he has the option of being searched either in the presence of gazetted officer or Magistrate and it appears that the accused wanted to be searched in the presence of gazetted officer. The learned counsel for the appellant submits that by giving the option to the accused, the appellant has complied with the requirement under [SECTION] of the [ACT].
5. The obligation of the authorities under [SECTION] of the [ACT] has come up for consideration before this Court in several cases and recently, the Constitution Bench of this Court in the case of [ENTITY] vs State of Gujarat, (2011) 1 SCC 609 has settled this controversy. The Constitution Bench has held that requirement of [SECTION] of [ACT] is a mandatory requirement and the provision of [SECTION] must be very strictly construed.
6. from the perusal of the conclusion arrived at by this Court in [ENTITY]'s case, it appears that the requirement under [SECTION] of the [ACT] is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in paragraph 2, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings an endeavour should be made by prosecuting agency to produce the suspect before the nearest Magistrate."
The other case law relied upon by the learned counsel for the appellant is [PRECEDENT]. The relevant paragraphs are quoted herein below: -
"(5) The Constitution Bench of this Court in [PRECEDENT] has considered various aspects of the compliance with [SECTION] of the Act. The Bench has laid down the propositions of law of which the first and second are extracted below:
57. (7) That when an empowered officer or a duly authorised officer acting on prior information is about to such a person, it is imperative for him to inform the person concerned of his right under [SECTION] of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused.' (6) If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a Gazetted Officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW 1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that [SECTION] of the Act was not complied with."
It is apparent from both the above rulings that merely asking the accused whether he would like to be searched in presence of Gazetted Officer or a Magistrate would not be sufficient compliance of the provision of [SECTION] of [ACT], rather the accused would have to be informed of his right to be searched in presence of gazetted officer or Magistrate. Non-compliance of this would result in vitiation of the recovery and consequently the conviction.
Per contra the learned AGA argued that in this case the recovery is made by police party engaged in routine checking of vehicles. All of sudden it came across the accused and recovered from his scooter the above-mentioned contraband items. These items being recovered from the scooter could not be equated with "person" of the accused, hence as per the law laid down by Supreme Court in [PRECEDENT] the provision of [SECTION] shall not be applicable. The relevant paragraphs of this judgment are as follows: -
"1 - In view of difference of opinion between two Ld. Judges who heard the appeal, the matter has been placed before this larger Bench and the question for consideration is whether the safeguards provided by [SECTION] of the [ACT] (for short the [ACT] or the Act') regarding search of any person' would also apply to any bag, briefcase or any such article or container etc., which is being carried by him.
3 - The State of Himachal Pradesh preferred the present appeal by special leave challenging the judgment of acquittal passed by the High Court. The appeal was initially heard by Bench of 2 learned Judges. Hon'ble [ENTITY], J, held that the view taken by the High Court that the report of the chemical examiner could not be taken into consideration, was not correct. The finding recorded by the High Court that the prosecution had failed to prove that any incriminating substance had been recovered from the possession of the accused was accordingly reversed. Regarding the applicability of [SECTION] of the [ACT], after referring to [PRECEDENT], his lordship held as under:
"The answer to the real question in cases where the line of separation is thin and fine can be obtained by applying the test of inextricable connection and then conclusion reached as to whether the search was that of a person' or not. If the search is of a bag which is inextricably connected with the person of the accused, [SECTION] of the [ACT] will apply, and if it is not so connected, the provisions will not apply The offending article was found in the bag which accused/respondent was carrying. The test of inextricabe connection between the person searched and object recovered is demonstrably applicable. It cannot be held that [SECTION] has no application merely because the offending article was in the bag which the accused was carrying with him"
Finally it was held as under:
On this fact situation, it cannot be held that the search was not of a person but was of a bag. Both are inextricably connected. It has to be held that search was that of the respondent's person. Clearly, [SECTION] of the [ACT] was applicable but was not complied. Therefore, the conviction of the respondent could not be sustained and the High Court rightly held that [SECTION] had been breached."
Hon'ble [ENTITY], J., Expressed agreement with the view that the report of chemical examiner could not be excluded but on the question of applicability of [SECTION] of [ACT], held that the said provision was applicable only in the case of search of a person and not when search of a bag which is being carried by a person on a shoulder or back, is conducted. His lordship accordingly held that having regard to the purport and object of [ACT], the language of [SECTION] cannot be given any history and meaning so as to frustrate the legislative purpose. It was thus held that there was no infraction of the requirement of [SECTION] and the finding to the contrary recorded by the High Court was clearly wrong. In view of this difference of opinion, the appeal has been placed before the present Bench.
4 - The controversy turns round [SECTION] of the [ACT] and the same (at the relevant time) read as under:
"50 - Conditions under which search of persons shall be conducted . - (1) When any officer duly authorised under [SECTION] is about to search any person under the provisions of [SECTION], [SECTION], 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] or the nearest Magistrate.
(2) 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).
(3) The gazetted officer or the Magistrate before whom any such person is brought, shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) no female shall be searched by any one excepting a female."
5 - The question, which requires consideration, is what is the meaning of words "search any person" occurring in [SECTION] of the Act. Learned counsel for the accused has submitted that the word "person" occurring in [SECTION] would also include within its ambit any bag, briefcase or any such article or container, etc., being carried by such person and the provisions of [SECTION] have to be strictly complied with while conducting search of such bag, briefcase, article or container , etc. . Learned counsel for the State has, on the other hand , submitted that there is no warrant for giving such an extended meaning and the word "person" would mean only the person himself and not any bag, briefcase, article or container, etc., being carried by him.
6 - The word "person" has not been defined in the Act. [SECTION] of the Act says that the words and expressions used herein and not defined but defined in the [ACT] have the Meanings respectively assigned to them in that Code. The [ACT], however, does not define the word "person". [SECTION] of the Code says that the words and expressions used therein and not defined but defined in the [ACT] have the meanings respectively assigned to them in that Code. [SECTION] of the [ACT] says that the word "person" includes any company or association or body of persons whether incorporated or not. Similarly the definition of the word "person" has been given in [SECTION] of the [ACT]. Therefore, these definitions render no assistance for resolving controversy in hand.
7 - One of the basic principles of interpretation of the statute is to construe them according to plain, literal and grammatical meaning of words. If that is contrary to or inconsistent with, any express intention or declared purpose of the statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say, lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity. (See Craies on a Statute Law, seventh Edition, pages 83 - 85). In the well-known treatise - Principles of Statutory Interpretation by Justice [ENTITY], learned author has enunciated the same principle that the words of the statute are first understood in their natural, ordinary or popular sense and phrases and sentences are constructed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary. (See the Chapter - The Rule of Literal Construction - Page 78 - ninth edition). The Court has also followed this principle right from the beginning. In [PRECEDENT], [ENTITY] J. Said:
"The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation.
9 - We are not concerned here with a wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases, search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section, it naturally means a human being or living individual unit and not an artificial person. The word has to be understood in a broad common sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilised society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
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 bag, briefcase, a suitcase, a tin box, a thaila, a jhola, a gathari, 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 word "person" occurring in [SECTION] 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 in contact with or shall have to be touched by the person carrying out search, it will be search of a person. Some indication of this is provided by [SECTION] of the Act, which provides that no female shall be searched by anyone excepting the 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 other article or container, etc., they would not normally move along with the body of the human being unless some extra or a 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 carriers 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 of tangle from which it is impossible to get free.
12 - The scope and ambit of [SECTION] of the Act was examined in considerable detail by the Constitution Bench in [PRECEDENT], and Para 12 of the reports is being reproduced below:
"12 . On its pain reading, [SECTION] would come into play only in the case of a search of a person as distinguished from search of any premises, etc However, if the empowered officer, without any prior information as contemplated by [SECTION] of the Act, makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the [ACT] is also recovered, the requirements of [SECTION] of the Act are not attracted."
The Bench concluded its conclusion in Para 57 of the reports and [SECTION] are being reproduced below:
"57. On the basis of the reasoning and discussion above, the following conclusions arise:
(1) That when an empowered person or a duly authorised officer acting on prior information is about to search the person, it is imperative for him to inform the person concerned of his right under [SECTION] 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 person concerned 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 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] of the Act
(6) That in the context in which the protection has been incorporated in [SECTION] for the benefit of the person intended to be searched, we do not express any opinion whether the provision of [SECTION] are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from [SECTION], may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law."
13 - The above quoted dictum of Constitution Bench shows that the provisions of [SECTION] will come into play only in the case of personal search of the accused and not of some baggage like article or container, etc, which he may be carrying."
From the position of law which is clarified in [PRECEDENT], it is clear that in the case at hand the facts reveal that the [SECTION] of [ACT] shall not be applicable because the recovery is made not from the person of the accused, rather from a scooter which was in his possession. Therefore it cannot be treated to be a case of personal search, hence the provision of [SECTION] of [ACT] would not be available to the accused. Moreover in this case the arrest of the accused is sudden and not pursuant to any secret information being received by police I have gone through the entire impugned judgment. From its perusal it is apparent that this is a case in which the accused came in contact with the police party, which was busy in checking of vehicles at about 19.30 hrs. when the accused aboard a scooter drove towards Company Bagh intersection; he was instructed to stop, but he accelerated his motor towards Anand Palace, seeing the police. Becoming suspicious about him, the police party chased him, as a result of which he fell down and was caught. Thus it was sudden arrest. When he disclosed to be in possession of illegal [ENTITY] and [ENTITY] he was offered to be searched in presence of a Gazetted Officer or a Magistrate, but the accused declined and consented to be searched by the police party itself. It is also mentioned that the recovered contraband was sealed in separate bundles after taking out samples of 50 grams each which were separately sealed and the sample seal were also prepared . The sample was sent to forensic science lab, Lucknow in sealed condition, and both were respectively found to be [ENTITY] and [ENTITY]. The Court below has given a clear finding that the recovered contraband remained in sealed condition right from the moment it was recovered till it was examined by the FSL, hence there was no occasion for any kind of tampering to be made with the sample or the main packets which was lodged in the Malkhana. The small variation in the weight of the samples has not been found material by the Court below because they were weighed as 48 gram [ENTITY] and 54 gram [ENTITY] in the lab while according to prosecution 50 grams of each were sent there. It is also recorded in the judgment that after arrest of the accused with the said contraband, higher authorities were informed through RT set. It is also come on record that a report in this regard was also presented by SHO [ENTITY] (paper number 11 Ka/9) before SSP [ENTITY]. Hence compliance of [SECTION] of the [ACT] also appears to have been made. The Court below has not found any kind of lacuna serious enough not to find the accused guilty. It is also apparent that the quantity recovered from the accused is much higher than the lower limit of the commercial quantity of charas and [ENTITY], which would be difficult to be planted taking into consideration its high cost/price.
As is apparent, the [ACT] is a separate Act having complete Code for trial of the accused persons. To deal with the menace of dangerous drugs flooding the market, the Parliament has provided that a person accused of offence under this Act should not be released on bail during trial unless the mandatory conditions provided under [SECTION], that there are reasonable grounds for holding that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail, are satisfied. So far as the first condition is concerned, apparently the accused has been found guilty and has been convicted. It may be mentioned here that not a word has been argued by the learned counsel for the appellant in regard to the above considerations for grant of bail as provided under [SECTION] of the Act.
Under the general law of bail the period for which the accused has been in jail is also one of the considerations for granting bail to the accused. In this case against the total sentence of 10 years Rigorous Imprisonment, the accused has not even completed half the period, as he is in jail since 28/5/2014.
Therefore, taking all facts into consideration, the Court is of the view that this is not a fit case in which accused may be granted bail. The bail is accordingly rejected.
Order Date:- 23.10.2017/A.Mandhani