IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.48 of 2013 Md. Tahir Ansari, S/o Late Ashraf Ansari @ Ashraf Mian, resident of village- [ENTITY], P.S.-Forbesganj, District-Araria. Appellant/s Versus The [ENTITY] Respondent/s Appearance : For the Appellant/s : Mr. [ENTITY], Senior Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate. For the Respondent/s : Mr. [ENTITY], Assistant Solicitor General. CORAM: HONOURABLE MR. JUSTICE [ENTITY] Date: 27-02-2013 Heard the parties. 2. The instant appeal is directed against the judgment dated 30.11.2012
and the order dated 6.12.2012 passed in [CASE NUMBER] corresponding to [CASE NUMBER] by the learned 1 st Additional Sessions Judge-cum-Special Judge, Araria whereby the sole appellant after being held guilty for the offence punishable under [SECTION] of the [ACT] (hereinafter referred to as the Act) has been sentenced to undergo R. I. for ten years and to pay a fine of Rs.1, 00,000/-. In default of payment of fine, the appellant has been directed to further undergo R.I. for one year.
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3. On 10.1.1993 the appellant was apprehended by the Inspector Customs, Forbesganj. He was produced in the court of the learned Chief Judicial Magistrate, Araria on 11.01.1993. The learned Chief Judicial Magistrate remanded him to judicial custody.
4. The prosecution case, in brief, is that on 10.1.1993 in course of preventive checking by the customs officials, the vehicles on Araria Forbesganj Road were being checked and when they checked the bus bearing registration no. BR-10H-0447, they noticed that one person was sitting in the bus with a [ENTITY]. When the constables of the Customs Department brought him outside the bus with the [ENTITY] it was searched and 2 kgs of ganja were recovered from the [ENTITY]. The Conductor of the bus, namely, [ENTITY] stated that the [ENTITY] belonged to the appellant. In presence of two independent witnesses and the accused the said ganja was seized and seizure list was prepared. It has further been contended in the prosecution report that the appellant confessed his guilt. The confessional statement was recorded by one [ENTITY]. The appellant was also interrogated by the complainant and his interrogatory statement was also recorded.
5. On the basis of the said prosecution report, the learned Chief Judicial Magistrate took cognizance of the offence and committed the case to the court of sessions for trial. The trial court framed charge under [SECTION] of the Act to which the appellant pleaded not guilty 3 Patna High Court [CASE NUMBER] dt.27-02-2013 and claimed to be tried. In course of trial, in order to prove the charge, the prosecution examined only the complainant of the case. While being examined in court, the complainant has proved the seizure list, [ENTITY], confessional statement of the appellant, interrogatory statement of the appellant, arrest memo, prosecution report and the test report of the seized ganja which have been marked as Exts.1, 2, 3, 4, 5, 6 & 7 respectively.
6. P.W. 1, the complainant, has corroborated the prosecution case as narrated in the prosecution report. Apart from what has been stated in the prosecution report, he has made one more disclosure. He has stated that when the appellant got down from the bus, he was asked as to whether he wanted himself to be searched before the Magistrate. However, the appellant expressed his unwillingness to go before the Magistrate. While being cross-examined, P.W. 1 has stated that when the bus in question was signaled to stop the other officials of Customs Department were sent inside the bus. He admitted that he himself had not entered inside the bus. He has further admitted that the [ENTITY] in question was recovered from the roof rack (luggage rack) of the bus. However, he immediately changed his version and said that the "[ENTITY]" was kept on the seat of the appellant. He has further admitted that there were almost 40-50 passengers inside the bus at the time of occurrence. He admitted that he came to know from the conductor of the bus that 4 Patna High Court [CASE NUMBER] dt.27-02-2013 the [ENTITY] belonged to the appellant. He also admitted that he has not mentioned in the prosecution report that the appellant was given option to get himself searched in presence of the Magistrate. He has stated that the confessional statement was recorded immediately after the recovery was made. According to him, the witnesses to the seizure were co- passengers and were resident of Forbesganj. He has denied the defence suggestion that the [ENTITY] in question was never recovered from the possession of the appellant.
7. It is relevant to note here that the sample of the seized ganja was sent to the Government Opium and Alkaloid Works, Ghazipur, U.P. for examination. The examination report shows that the sample is ganja. As noted above, apart from the complainant, no other witness was examined on behalf of the prosecution in course of trial.
8. Mr. [ENTITY], learned senior counsel appearing on behalf of the appellant, has submitted that the prosecution has miserably failed to bring home the charge levelled against the accused. The conviction has been recorded on the uncorroborated statement of the complainant alone. The witnesses to the seizure were never examined in the court and none came forward to support the probative value of the expert report which has been marked as Ext. 7.
9. Learned senior counsel further submitted that the scribe and the witnesses to the alleged confessional statement have also not 5 Patna High Court [CASE NUMBER] dt.27-02-2013 been examined in course of trial. He submitted that none of the occupants, including the driver and conductor of the bus, has been examined by the prosecution in course of trial.
10. Finally, learned senior counsel submitted that search and seizure made by the complainant were against the mandatory provision prescribed under [SECTION] of the Act.
11. On the other hand, Mr. [ENTITY], learned counsel for [ENTITY] submitted that the complainant has fully corroborated the prosecution case. The search and seizure was made in accordance with law. The expert report clearly shows that the sample of the seized substance sent for examination was ganja. According to him, there is no bar in law to convict a person on the sole testimony of a witness. It is quality of the evidence and not the quantity which matters.
12. Having heard the rival submissions, I find substance in the arguments advanced on behalf of the appellant There is no explanation on behalf of the prosecution for non-examination of the witnesses to the search and seizure, the scribe who recorded the confessional statement, the members of the raiding party, the driver and conductor of the bus and the passengers of the bus. The court would, thus, draw an adverse inference against the prosecution for their non- examination in terms of [SECTION] of the [ACT].
13. I further find that neither in the prosecution report nor 6 Patna High Court [CASE NUMBER] dt.27-02-2013 in the [ENTITY] there is any mention that the accused was told of his right to be searched in presence of a Gazetted Officer or Magistrate in terms of [SECTION] of the Act. Of course, the sole witness examined on behalf of the prosecution has stated in court that he conveyed the accused the following information "if you want to get yourself searched before the Magistrate you can do so". He has further stated that the appellant expressed his unwillingness to be examined before the Magistrate and uttered the following words "where I will go before the Magistrate".
14. Learned counsel appearing for the [ENTITY] submitted the aforesaid communication made to the accused would be treated to be substantial compliance of the provision of [SECTION] of the [ACT].
15. In [ENTITY] v. The State of Gujarat since reported in 2011 (1) SCC 609, a Constitution Bench of the Apex Court crystallized the issue before it in para 1 as under:
"The short question arising for consideration in this batch of appeals is whether [SECTION] of the [ACT] (for short "The [ACT]") casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to 7 Patna High Court [CASE NUMBER] dt.27-02-2013 whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section"?
16. The issue framed by the Constitution Bench was answered in para 29 in the following terms:
"29. In view of the foregoing discussions, we are of the firm opinion that the object with which the right under [SECTION] of the [ACT], by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorized officer under [SECTION] of the [ACT] is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
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17. It is, therefore, apparent that the precise question that was before the Constitution Bench in [ENTITY] (Supra) was as to whether the consent memo would be said to be an information conveyed as to his right under [SECTION] of the Act.
18. The constitution Bench made it clear that a consent memo could not be said to be such information as the provision of [SECTION] of the Act were mandatory and strict compliance was called for and any deviation from the information would foist the prosecution.
19. It was further held that it was not necessary that this information should be in written form but the information had to be conveyed in some form and manner which would depend on the facts of the case.
20. The Constitution Bench in [ENTITY] (Supra) held that failure to comply with the provision of [SECTION] of the Act would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of recovery of the illicit article from the person of the accused during search.
21. An identical issue was considered by the Apex Court in [PRECEDENT]. In the said case the Narcotics Central Bureau had challenged the judgment and order dated 11.1.2002 passed by the High 9 Patna High Court [CASE NUMBER] dt.27-02-2013 Court whereby the High Court, on consideration of the facts and the legal position of the case, was pleased to hold that the mandatory provision of [SECTION] of the Act had not been complied with and the violation of the said Act had vitiated the conviction and on that ground, the High Court had set aside the conviction and did not examine any other fact of the case.
22. The argument of the appellant in Narcotics Central Bureau (Supra) was that by giving the option to the accused, the appellant had complied with the requirement under [SECTION] of the Act. The Apex Court after hearing the parties held in paragraph nos. 5 & 7 as under:-
"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] v. State of Gujarat [(2011) 1 SCC 609]: (AIR 2011 SC 77: 2010 AIR SCW 6800: 2011 AIR SC (Cri) 110) has settled this controversy. The Constitution Bench has held that requirement of [SECTION] of the [ACT] is a mandatory requirement and the provision of [SECTION] must be very strictly construed".
"7. That being the law laid down by the Constitution Bench of this Court on interpretation of [SECTION] of the [ACT], we do not think that the obligation under [SECTION] of the Act has been 10 Patna High Court [CASE NUMBER] dt.27-02-2013 discharged statutorily by the appellant in this case. We, therefore, find no reason to interfere with the finding made by the High Court. The appeal is, accordingly, dismissed."
23. Thus, taking into consideration the law laid down by the Apex Court and the facts of the present case, I am of the considered opinion that the prosecution had failed to comply with the mandatory requirement under [SECTION] of the [ACT], while effecting the search and seizure of the contraband from the appellant. The appellant was never told of his right. The object, with which the right under [SECTION] of the Act, by way of a safeguard has been conferred on the suspect, is to check the misuse of power in causing harm to innocent person and minimize the foisting of false case by the law enforcement agency. The law requires that the empowered officer must apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate.
24. In the present case, neither in the prosecution report nor in the seizure memo there is any mention that the appellant was made aware of his right to be searched before a Gazetted Officer or a Magistrate. Even in course of trial what the complainant uttered does not quality to be a proper communication in terms of [SECTION] of the Act. Since, the prosecution has failed to comply with the mandatory provision as prescribed under [SECTION] of the Act, the recovery of the 11 Patna High Court [CASE NUMBER] dt.27-02-2013 illicit articles becomes suspect and the conviction of the appellant is vitiated as the same has been recorded only on the basis of recovery of the ganja from the person of the appellant.
25. In that view of the matter, I set aside the impugned judgment of conviction dated 30.11.2012 and the order dated 6.12.2012 passed in [CASE NUMBER] corresponding to [CASE NUMBER] by the learned 1st Additional Sessions Judge-cum-Special Judge, Araria. The appellant, who is in custody, is directed to be released forthwith, if not wanted in connection with any other case. The Patna High Court ([ENTITY], J.) The 27th February, 2013 AFR/SANJEET