4^ 0 / HIGH COURT OF CHHATTI8GARH. BILASPUR Crimiaal Apoeal Ho. 105 of 2005 Shailendra Kzimar Jum Versus State ofChhattisgai'h C^isziis&al Asaeal No. 165 of 200S Ishwar Kawde & aiiother Versus State ofChhattisgarh '<<K;'W & Criminal Aooeal No. 253 of 2005 Ishwar Kawde & tvvo ofhers Versvs The State of Chhattisgai'h JUDGMENT -N Postfor: 24.05.2007 Sd- SuniiKumar Sinha Judge 23.05.2007 Al^ HIGH COURT OP CHHATTISGARH. BILASPUR Criminal Appeal No. 105 of 2005 APPELLANT RESPONDEHT APPELLAHTS RESPOHDENT APPELLAII're RBSPONDENT Shailendra Kumar Jurri, S/o Garibram Jurd, aged about 20-21 years, R/o viUage Telgai^, P,S. Charama, Distiict Nortii Bastar Kaiiker (C.G.) Versus State of Chhattisgai'h tJirough the police station Charaxaa, District North Bastar Kaiiker(C.a) Criminal Aooeal No. 165 of 2003 1} Ishwar Kawde, Aged aboiit 25-26 yeai's, S/o- Risauram, Occupation- Agriculturc, R/o Komalpiir, P.S. Kaiiker, Distt. Kauker (C.G.) 2} Santosh Kumar, Aged about 25-26 years, S/o- Sukhlal, Occupation- Agriculture, R/o- Komalpur, RS, Kanker, Distt. Kanker (C.G.) Versus State of Chhattisgarh, Thi'ough-P.S. Charaixia, Distiict Noi-th Bastar Kanker (C.G.) & Criminal Aooeal No. 253 of 2005 1) Ishwar Kawde, S/o Risaiirani, Aged about 25-26 years, Occupation- Agriculturist, R/o Komalpur, P,S, Kaiiker 2) Saiitosh Kumar, S/o Sukhlal, Aged about 25-26 years, Occupation- 2Agriculturist, R/o Komalpur, P,S. Kaaker 3) Brijlal, S/o Ram Smgh, Aged about 18-19 years, Ocx)upation Labour, R/o Hatbharan (Bhan^aad) Police Chowki Kuudai, P,S. Raidhar, Distt. Nawraagpur (Orissa) Versiis The State of Chhattisgarh, Through P.S. Chai'ama, District Nortli Bastai' Kaaker Cr.A. Nos. 105/2005.165/2005 & 253/2005 .!• -^ (Aooeals under Section 374 (21 ofCr.P.C.l Appearasice: Shri Vishiiu Koshta, Advcx^ate, appears for the appeUaiit m Cr.A. No. 105/2005, Shri Pawan Shrivastava, Advocate appeai^ for the appeUaate iii Cr,A. No. 165/2005 & Slui Gautaia Khetorapal, Advocatc appesrs for the appeUants in Cr.A. No. 253/205. Shri D.K. Gwalrc, Additional Pziblic Prosecutor, appears for fhe State iii all fhe 3 appcals. JUDGMENT (24.0S.2007) Saail Kamar Siaha. J. 1< These appeals have been du'ected against fhe jiidgment of convictiou aiid orcler of seutence dated 4.1.2005 passed m Special Case No. 22/2004 by the Special Judge, Narcotic Drugs and Psychoti'opic Subste^ices Act, 1985 (For short N.D.RS. Act or tiie Act), Bastar at Jagdalpur, wbereby, the said Cozirt after holdiiig the appellaiits guilty of offence punishable under Section 20 (b) (ii) (C) of the N.D.P.S. Act, sentenced tiiem to undergo RJ. for 10 yeej-s aiid to pay a fine ofRs.1,00,000/-, ui defanlt ofpayinent offiiie to fiii'ther undergo RJ. for 5 years. 2. At the veiy oiitset, Shri Gautam Kheti-apal, leanied couusel for the appeUaiits m Cr.A, No. 253/ 2005^ submite that he is not pressing tliis appeal on behalf of appellante- Ishwar Kawde and Sautosh Kumar because eai'lier to this appeal, Cr,A. No. 165/2005 was filed on their behalf In view of the above, Cr.A. No. 253/2005, so far as it relates to appellants No. 1 & 2 therein Le, appeUaiits" Ishwar Kawde aad Saiitosh Kumar is dismissed as not pressecl, Now Cr.A, No. 253/2005 sheJI staiid for appellaiit No.3 only Le. Brijlal. Cr.A, Nos. 105/2005.165/2005 & 253/2005 3. The brief facts ai^ that in ftie intervening night of 5th-6th May 2004, tlie Flying Scott of forcst departineiit was checking various vehicles near forest baiTier, Charama. At abouf 3.45 a.m./ a vehicle fTata Sunio) beaiing registi'ation No. MP-63/D 0008 came over therc. The four appellants were tlie occupants of the vehicle. Tlie vehicle was being driven by appeUaiit- ShailendiR Kumajr Juni, When a search was made by the Dy. Raager naGiety" K,S, Thakiir (RW,-3), Ganja in quaiitity of 24 Kg. was found kept iii the vehicle. P.W.-3- K.S. Thakur prepared a TalcisH Panclifiama (Ex-P/1) and he also prepared a seiziire memo (Ex,-P/9). The aforesaid search aiid sei^ure memos were prepared iii presence of 2 Panch witnesses naiiiely" Sobharaisi and Roop Singh (P.W.-l & PAV.-2). The accused pei^ons were also arrested by the seJd foi^st ofScer ai^d tlie exercise undertaken about search aiid seizzire by the Dy. Ranger- K,S. Thakui' (P.W.-3) was uiformed to the range ofEcer- L.K, Choudhaiy (P.W.-8), who in turn wrote a menio dated 6.5.2004 to the S.H.O. poUce station, CharsLmia, which was received by STib-Iiispector- K.R. Karsaal (P.W.-4) based on which a FJ,R. vide Ex.-P/14 was lodgecl by him, The luvestigating Officer, K.R. Kai'saal (P,W.-4), prepared a seizzire memo Ex,~P/8 arsd on prodiiction of vehicle, Ganja ui quantity of 24 Kg aiid aa index Edoiig with various documents showiag flie uivestigatioii couducted by the forcst depailmeut^ sei^ed tiliem from flie possession of Ranger- L.K, Choudhaiy (P,W,n8), Thereajter, Ganja was takeu iiito custody of the police departinent aiid after 1 ^ Cr.A.Nos. 105/2005.165/2005 & 253/2005 ~< its measurenient and fui-tlier after takiag out sainples, it was sealed aiid was kept ia safe custody. The accused persons were aiTested and aii iDformation to fhis eflfect was sent to higher autliority. The samples were sent for chemical exammation to Forensic Science Laboratoiy, Raipur 011 11.5.2004, from where the x^port was received, acconling to which, tlie articles seized were Ganja. After completion of usiial iEivestigation as stated above, the charge-sheet was filed. 4. Leamed Special Judge, held tliat the Ganja w. coinmercial quaiitity was seized from the aforesaid vehicle of which tlie appeUants werc occupants, thercforc, fhey were Uable for punishment uuder Section 20 (b) (ii) (C} oftiieN.D.P.S. Act aiid sentenced fhem as aforementioned, The Ganja was directed to be confiscated aiid for the vehicle, it was directed fhat a separate proceedmg be dxawn iinder Section 60 (3) ofthe N.D.P.S, Act !t is agaiiist fhis jzidgment ofconviction aiid order of seutence, the appeUauts have filed these criixiinal appeals. 5. Learaed counsel for the appeUants raised tivo fold arguments. Their first submission was fhat there was non comipliance of maadatoiy provisions of Section 42 (1) of fhe N.D.P.S, Act as tiie proceedings of search aad sei^ure were conipleted by the forcst officers, who were not the empowercd officers under the N,D.P.S. Act, tiierefore, the entii'e proceeding vitiates. They secondly argtied that so far as the police officer is concemed, he has seized fhe Ganja and fhe veliicle from. fhe possession of the forest offlcer, tlierefore, there is no Cr.A. Nos. 105/2005.165/2005 <S 253/2005 uidependent rccovety froni the appellants aiid recove^ so niade canjiot be attributed to flieni, particiilarfy, wheu both the witnesses of rccoveiy naiaely- Sobharam & Roop Siiigh (RW.-l & P.W.-2) have tumed hostile aiid tliey have not supported tiie case of prosecution, so fai' as the alleged search aiid seizure froni the accused pei^ons are coacenied. 6. On the otlier hend, leanied counsel for the State opposed tliese arganients aad supported- tlie jzidgment passed by tlie Special Court. He raised the poiate that siiice fhere was no prior knowledge or infomiation abput contrabaiid, therefore, the provision ofSectiou 42 ofthe said Act would not be applicable. 7. I have heard leanied counsel for fhe parties at length and have also perused fhe rccords oftlie special case. 8. The Apex Court in fhe matter of Sfrcife of Punfab -Vs- BedblrSingh^ AER 1994 SC 1872, dealiiig with the provisions ofSeclions 41 (1), 41 (2), 42 (1), 42 (2) alongwith other Sections ofthe N,D.P.S. Act, set out the following conchisions: (1) If a police ofHcer wifhozit any prior mforniation as contexnplated under fhe provisions of tlie NDPS Act Biakes a search or arrests a person in fhe noroial course of itivestigation itito an oflfence or suspected offeuce as proxdded under the provisions ofCr.RC. and when siich search is coinpleted at that stage Section 50 offlie NDPS Act woiild not be attracted aad fhe question of coniptying with fhe requirements thercunder would not arise, If during such search or arrest there is a chance (of| rccoveiy of any narcotic dnig or psycotrophic substance fhen the poUce officer, who is not enipowered, should mform the empowered officer who shoidd thereafter proceed in accordaiice with the provisions of tiie NDPS Act Ifhe happens to be aa einpowei-ed of&cer also, then from that stage onwards, he should carr}r out '....-' ..^ Cr.A. Nos. 105/2005.165/2005 & 253/2005 --€ the investigatioxi in accordaace with the ofher provisions offiieNDPSAct. (2A) Under Section 41 (1) only an einpowered Magistrate c/aa issue wan'aat for the aiTest or for fhe search m respect ofoffences punishable under Chapter IV of the Act etc., when he has reason to beUeve that such offences have been committed or such substaaces are kept or concealed ia any btulding, conveyance or pLace, When such wan'aat for arrest or for search is issued by a Magistiate who is not empowered, then such search or arrest if carried out would be itlegal. Likewise only enipowercd officens or dufy aiifhorized officers as eiiuitierated ia Ss, 41 (2) aad 42 (1) caii act under the provisions ofthe NDPS Act Ifsuch £irrestor search is made under fbe provisions of ttie NDPS Act by ajay one other than such officers, the sacae would be iUegal, (2B) Under Section 41 (2) ouly the empowered officer caii give fhe aufhorization to his subordiaate officer to cony out flie arrest ofa pcrson or search as mentioued fhereicL. If fhere is a contravention fhat wouM affect fhe prosecution case and vitiate fhe conviction, (2C) Under Section 42 (1) the einpowered ofEcer ifhas a prior taformation given by aay person, tliat should necessarily be taken down m writmg, But if he has reason to beUeve froBi personal kaowledge fhat ofiences imder Chapter IV have been committed or materials which uiay fumish evidence of conimission of such offences arc conce^lexl m any biulding etc,, he may csrry out the arrest or search without a wai-raiit bet^veen szinrise and suuset and this provision does not maiidate fliat he should i-ecord his reasons of belief. But under the proviso to Section 42 (1) if such officer has to carxy out such search between suiiset aiid smuise, he must record fhe grounds ofhis belief To fhis extent these provisions are siandato^ end contraventioa of tlie saiae woiild affect the prosecufion case aiid vitiate fhe trial, (3) Under Section 42 (2) snch empowered officer who takes down any infoiTaation m wiitiiig or rccords tlie grounds uuder proviso to Section 42 (1) should forthwith send a copy thereof to his miinediate ofl&cial superior. If fhere is total non-compUance of fhis provision the same affects the prosecution case. To that extent it is inaadatory. Biit if there is delay whefher it was uiidue or whether the sam.e has been explauied or not, wffl be a question of fact iti each case. (4A) If a polfce officer, even if he happens to be aa Cr.A. Nos. 105/2005.165/2005 & 253/2005 ^empowered^ ofEcer while effecting aii aiTest or search during nomial investigation into offences purely under tfae provisions ofCnRC, fails to strictty compty with fhe provisions of Sections 100 and 165, Cr.P.C. iacluding the requircment to record reasons, such failurc woiild only amouiit to aii irregularity. (4B) If aii enipowered officer or an autliorized officer under Section 41 (2) of fhe Act caines out a seaix^h, he would be doing so under fhe provisions of Cr.P.C. namely Sections 100 aud 165, Cr,P.C, and iffhere is no strict compliance wifh fhe provisions of Cr.P.C. then such search would not per se be illegal aiid would iiot vitiate fhie triat The effect of such fallure has to be bonie in uiiad by the couils whUe appreciatmg tlie evidence ia the facts aiid circumstances ofeach case, (5) On prior iafomiation, fhe empowered officer or authoiized officer wlule actiiig uiider Sections 41 (2) or 42 shoizld comply wifh t2ie provisions of Section 50 before the search of the person is niade and such person should be informed fhat if he so requircs, he shaU be produced before a gazetted oflScer or a Diagistrate as piDvided fhercimder, It is obligatoty on tlie part of such officer to iiifoiTa the person to be searched, Failure to uifoiin the person to be seai'ched aiid if siich person so rcquires, failzire to take him to tihLe gazetted of&cer or tfae uiagisteate, would atxiouixt to iioix-coxiipUaiice of Section 50 which is mandatory and thus it would affect fhe prosecution case aaid vitiate fhe trial. After beuig so mforoied whetlier such person opted for such a course or not would be a question offact. (6) The provisions of Sections 52 and 57 which deal wifh fhe steps to be t^ken by fhe offic/ers after making arrcst or seizure under Sections 41 to 44 are ^y fheinselves uot niandatory. Ifihere is non-coiapliaiice or tf fhere are lapses like delay etc,, then the same has to be exauiined to see whefber any prejudice has been caused to fhe acciised aad such faUure wiU have a beariiig on the apprcciation ofevidence regai^ling aiTest or seizure as weU as on nierits of the case. 9. In tlie matter of Beekodan. Abdul Rahifmxn -Vs- State of X'crato, AJR 2002 SC 1810, the Apex Court held tliat keepmg in the mind the grave consequences which are tikely to foUow on proof of possession of illicit articles uuder the Act, naiiiely, the _^ Cr.A. Nbs. lft5/2»Q5.K»&2< &A253^2005 !|Nte l^ \- shifiang of fhe onus to the accused and severe punishiaent to which he becomes liable, tihe Legislature has enacted and provided certani safeguards m various proyisions Of the Act includmg Ss. 42 and 50 offhe Act The harsh provisions of the Act cast a duty upon the prosecution to strictfy foUow fhe procedure and compUance of tfae safeguards. In tlie said case afier recoxduig the miformation, fhe wito^esses has not shown to have coiaplied with fhe niandate of sub-sectioii (2) ofS. 42 ofthe Act. Similarly the provisions of S. 50 were not compUed with as fhe accused has not been given any option as to whether he wanted to be searched m presence of a Ga^tted Officer or Magistrate. The Court said that the compUance of S. 50 cannot be held to have been lulfilled on officer asking the acciised "whether I should search him in the presence of senior officers or Gazetted Officerft. The Court said that the accused was reqnired to be apprised ofhis right conferred ziader S. 50 giving him the option to be searched in prcsence of gazetted officer or the Magisteate. The accused has not been shown to be apprised of his right nor any option offercd to him for search bemg conducted in fhe presence of the Magistrate. The Apex Court said that the provisions ofsub-sec. (2) ofS. 42 and the mandate of S. 50 werc not complled with by fhe prosecution which rendered the case as not estabUshed aiid in view offhe violation of the maadatoiy provisipns of the Act, the appellant was entitled to be acqmtted. In this case, fhe Apex Court has rcferrcd to fhe decision of Balbir Singh's case (supra) aad has also Cr.A. Nos. 105/2005.165/2005 & 253/2005 \J referred to the decisions ofS^o^e ofPwsSeSii—Vs-Bafdev Sinch. AXR 1999 SC 2378 and SaSsiesd M®hAS^SsiwS. Uvnxa- SeAyaiS. - Vs-Stas^efGsdre^ 199SAmSCW^.8S3 10. A perusal ofSections 41 (2) aiid 42 (1) ofthe N.D.P.S. Act would show that only the enipowered officers or the authori%td officei-s as enuGieiuted in these sub-sectious caii take down tlie procednre of search and seisure under the N.D.RS. Act eiid tf fhe see*rch and seizure is miade by tibe officers, who BK not aiithorized or enipowered under fhe N.D,P.S, Act, tlie saiiie would render fflegal. The safeguards m fhe natare of these provisions ere mtended to protect tlie peraon agaiust false accusation aiid also to give credibility to fl-ie search and sei^ure conducted by the empowered officer and iftihie empowercd officer fasls to coniply wifh fhe niaiidatoiy rcquirenients offhe N.D.P.S, Act, fhe prosecution is to suffer the consequences fliereof 11. In the present case, adiiiittedty, tlie seai'ch aod seizure was made by the oflScers of the forest department, who were nbt flie esnpowered officers or duly aiifhorized officei's under fhe N.D.P.S. Act What has happened is fhat they were rsieldng a general checkiag at flie out-post, CharaiTia, durmg which, they also checked tlie said Tata-Sunio, is which, fhe contrahand (Ga?ya) was found, Accordmg to K.S. Thalnir (P.W.-3), when the Ganja found in search, he took it m possession and at about 7,00 a,m., it taken to a Kirana shop for measurcinent. He li£is deposed vide Para-5 fhat he he.s also prepared the Talashi Pand^icmia ofthe vehicle (Ex.-P/ 1) at 4,00 a.m. when it '^. -"' -@r 10 ^p Cr.A. Nos. l<»&?2005.Ki5/2005& 253^05 ^ / • - L~ was iatended to be searched. He has further deposed fhat he had made a To? Pafu^fuzama olso vide Ex-P/2 and had seizcd the contiabaad by prcparmg a seiCTire memo vide Ex.-P/9. Not outy this, at about 8.15 a.ni. on 6.5.2004 that means after preparmg these docunients, he had arrested fhe aGcused persons and had prepared their arrcst niemos vide Ex.-P/10, Ex.-P/11, Ex."P/ 12 & Ex.-P/13 aad thereafter aii oral information ia fhis rcgard was given by him to range officer L.K. Choudhary (P.W.-8), t2< Mr. L.K. Choudhaiy (P.W.-8) deposed fhat he had given a written report (Ex.-P/14) of the iacident to the police station- Charama on 6.5.2004 at 9.00 a.m. While giving fhe report, he had also haaded over the vehicle as weU as contrabaiid and accordiag to fhe list, aiinexed to fhe report, docunients 1 to 8 were also handed over by him. Vide para-11 of his exammation- in-chief, he has admitted fhat the ofBcers of fhe forest department were having no aufhbrity to draw the proceedmg underthe N.D.P.S. Act 13. The above fact has not been disputed by the prosecution. The question arises as to whefher fhe niandatory provisions of Sections 41 (1) &42 (1) were complied with in this case or not ? aiid what procediire should have beea adopted by tfae forest authorities when a discoveiy ofcontraband was niade by tliem ? 14< Admiittedty, this was a case of chance recoveiy as noue of the officers said that they were having aay mformation regardmg transportatiou of GFanja by fhe said vehicle and in fact, while n 11 Cr.A. Nos. 105/2085. KiS/2005 & 253/2005 they werc makmg search for forcst produce, fhe Gcmya was discovered by them. So far as the provisions ofSections 41 (1) & 42 (1) of N.D.P.S. Act are concemed, as is clear froni fhe language of sections itself aad also from fhe judgment of the Apex Court rcndered m the matter of Balbir Singh (supra), these provisions are inaadatoiy and contravention of fhe sasie would affect the prosecution case and vitiates fhe trial. Under fhe procedure laid down in the N.D.P.S, Act, onty the azithorized officer aad the eiapowercd officer are to undertake fhe exercise of search and seizure, which adniittedly fhe forest officers werc not, fhercforc, it is clear that tfae niandatory provisions were not complied wifh ia this case. 1S< About fhe procedure ia a chaiice rccovery, the Apex Court laid down in fhe matter of Balbir Singh tliat if a police officer, wifhout any prior infoniiation as conteinplated under fhe provisioas of fhe N.D.P.S. Act, inakes a search or arrests a persoa ia tfae normal course of investigation into aa ofFence or suspected offence as provided under fhe provisions of Cr.P.C, aad when such search is completed at ffaat stage S. 50 of the N.D.P.S. Act would noi be attipcted and the question of coniplying wifh fhe requirenients fhereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic dnig or psychoto>pic substance then the poUce ofiicer, who is not empowercd, should mform the empowered officer who should fhereafter proceed in accoidance wifh fhe provisions of the N.D.P.S. Act. The Apex Court has further said that if the t^ -^' 12 Cr.A. Nos. 105/2005.165^005 & 253/2005 n" L- police officer happens to be an empowered officer also, then froni that stage onwards, he should cany out the uivestigation in accoixiarice with fhe otihier provisions ofthe N.D.P.S. Act 16. In the present case, when the forest officers canie to know fhat there was Gcmja in fhe vehicle aad they were faced wifh instance chance recoveiy, then it was uicunibexit upon tiiem to inform fhe empowered officer who should have immediatefy taken the charge pf investigation aad should have proceeded with fiirther investigation ia accordance wifh fhe provisions of N.D.P.S. Act Adnuttedly this was not done by tfae forcst officers aad fhey fhemselves stepped into fartfaer investigation aad pn^ceeded with xaakiag sei^ure niemo, Tol Pdncfzfzamja, and affectiing fhe arrest ofthe accused persons and thereafter on fhe next iiioraing, when fhe iavestigatiou was conipleted by them accused pei^ons along with vehicle and contrabaad were handed over by them to the poUce. Thereafter, the police officer inade aaother recoveiy inenio iinder Ex.-P/8 and took fhe above articles along wifh 8 documents in his possession. 17. The contents of the Ex.-P/S would show fhat the said seizure was inade froia fhe possession of L.K. Choudharay (P.W.-8) again. in the presence ofsame Panc/z witnesses naniety-" Sobharam & Roop Siagh, before whom the seizure by the forest officers were niade. That is to say fhat even ifwe take the seizure by police officer as an iiidependent seizure, it is clear fhat fhe saiae was inade froiii the possession of forcst officersjinot froni the possession of fhe accused persons. That means nothuig was 13 Cr.A. Nos. 105/2005.165/2005 & 253/2005 done by the empowered oflScer or the authorteed officer aiid after doiag formal inyestigation only, the charge-sheet was filed by them. Therefore, it is clear fhat the mandatory provisions of Sections 41 (1) & 42 (1) have not been coniplied wifh and even ffae seizure of the contraband from the possession of fhe appellants by the empowered officer has not been proved as the saiae was physicall^^ seized froin the forest azithority and even ofherwise also, a possibility offalse miplication by a 3rd agency ^ cannot be fuU}^ ruled out in this case. 18< Thereforc, the proseczition has not been able to prove that fhe mandatoiy provisions werc compUed with aiid that m fact, the Ganja was seized fix?m the possession of the appellants by the enipowered ofEcer. 19. In fhe result, the appeals are aUowed. The conviction aiid sentences awarded to each of the appeUaats are set aside. They are acquitted for the charges fraiaed agaiast them, Sunil Kumar Sinha Judge vatti