CRIMINAL APPEAL No. 187 OF 2010 AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE, DATED 11TH AND 12TH OF NOVEMBER, 2009, RESPECTIVELY, PASSED IN TRIAL NO. 23 OF 2006, BY SHRI SHAILESH SHARAN SRIVASTAVA, ADDITIONAL SESSIONS JUDGE-III, WEST CHAMPARAN (BETTIAH) AKLOO MIYA @ AKLOO MIAN, SON OF BHANNU MIAN @ BHANNU MIYA, RESIDENT OF VILLAGE – TULA TAMGHAT, P.S. – CHANPATIYA, DISTRICT – WES CHAMPARAN (BETTIAH) -------------------------------------Appellant Versus THE STATE OF BIHAR -----------------------------------Respondent For the Appellant: Mr. Ram Adya Singh, Advocate Mr. Arjun Prasad No. 1, Advocate Mr. Pramod Ranjan, Advocate For the State: Mr. A. K. Sinha, APP P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ***** Mridula Mishra & Dharnidhar Jha: The solitary appellant, Akloo Miya @ Akloo Mian, was put on trial in Trial No. 23 of 2006, before the Additional Sessions Judge, 3rd Court, Bettiah (West Champaran) on charges under sections 20 (c) and 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act for short) and vide judgment dated 11.11.2009, was held guilty of committing the two offences and was, accordingly, convicted. After hearing the appellant of sentence on 12.11.2009, the learned Trial Judge directed the 2 appellant to undergo rigorous imprisonment for 15 years on each of the above counts as also to pay fine of Rs. One lac under either of the sections of the N.D.P.S. Act and in default to pay the fine, was directed to suffer rigorous imprisonment for three years. The sentences were directed to run concurrently. 2. The appellant appeals against the above order of conviction and sentence, passed against him. 3. The prosecution case is contained in the self-statement of S.I., Binay Kumar, the then Officer Incharge, Chanpatia Police Station (P.W. 4), who stated that he got some secret information that a person was about to leave Chanpatia Railway Station Chowk with some narcotic substance, who had traveled by train from outside. P.W. 4, entered the above secret information into the station diary and informed his superior Officer, i.e., SDPO, Sadar and as per his direction left the Police Station along with the Circle Inspector of Police, namely, Shyam Kishore Prasad (P.W. 11); S.I. Jaglal Ram (P.W. 10); ASI Amarendra Bahadur Singh (P.W. 9); Vishwanath Ram (P.W. 8); Constable, Prem Chandra Paswan (P.W. 6); Bhagrasan Sah (P.W. 7) and Home Guard No. 5757, 3 Sugriv Pandey, the Driver of the Police Jeep for verifying the above information at Railway Station Chowk, Chanpatia. 4. The informant reached Railway Station Chowk at 11.30 a.m. and when he was in front of a sweetmeat shop of one Bharath Sah, he found that a person seeing the Police Jeep started running away. The informant stated that the suspect was chased and caught and when the reason for running away was asked from the suspected person, he could not give any satisfactory replies. P.W. 4, thereafter, searched the person of the apprehended man in presence of Rajendra Sah (not examined) and Raju Thakur, P.W. 2. It was found that the man had tied around his belly something and had covered the same with his cloths and, lastly, it was found out to be four polythene packets, containing some Charas like substance. The apprehended person was questioned on his possession, but again he could not give satisfactory replies nor could he produce any document authorizing the possession of the same. It was this appellant who was the person caught and, accordingly, he was formally arrested and the seizure memo was prepared in presence of the seizure list 4 witnesses, P.W. 2 and Rajendra Sah (not examined). The copy of the seizure memo, as per the written report (exhibit 2) was handed over to the appellant. As may appear from the evidence of P.W. 4, Binay Kumar and P.W. 10, SI Jaglal Ram the Investigating Officer of the case, the written report was filed at the Police Station where the apprehended accused was brought along with the seized article and on that basis the FIR of the case (exhibit 4) was drawn up, entrusting the investigation to P.W. 10, SI, Jaglal Ram. 5. P.W. 10, Jaglal Ram, after taking the charge of the investigation, examined the witnesses, inspected the place of occurrence and drew the sample from the contraband article and sent the same for chemical analysis to FSL, Muzaffapur. It may appear from the evidence of P.W. 10 that he could not receive the report finally from the FSL, but still sent the present appellant up for his trial, which ultimately ended in the conviction of the appellant. 6. We were taken through the evidence of witnesses by the learned counsel appearing for the appellant. It was contended by making reference to the evidence mainly of P.W.s 4 and 10 that the 5 mandatory provisions of section 50 of the N.D.P.S. Act have not been complied with. There is no satisfactory evidence indicating that even the obligatory provisions on other aspects of investigation were observed. The evidence of drawing the samples, sealing the sampled articles also appear completely unacceptable and the evidence of P.W. 10 itself indicates that there were fundamental defects in the sealing and packaging of the sampled part of the substances, as a result of which the FSL, firstly, refused to accept the packet for verifying out chemical analysis. It was contended that there was immense delay in dispatch of the sampled article to the FSL and the report was also submitted after analyzing the alleged contraband substances after unexplained delay. It was contended that these aspects of the case were overlooked by the learned Trial Judge, who fell in error of law to record the order of conviction and thereon passed the sentence upon the appellant. Shri Singh cited before us some of the decisions of the Supreme Court, reported in 1994 (3) SCC 299 (State of Punjab Vrs. Balbir Singh); 1998 (8) SCC 655 (Mohinder Kumar Vrs. State of Punji, Goa); 1999 (6) SCC 172 (State of Punjab Vrs. Baldev Singh) and also a couple of decisions of this court reported in 6 1998 (1) PLJR 154 and 2010 (2) PLJR 228 (Kallu Seikh Vrs. State of Bihar) to impress upon us that the evidence adduced in the present case required application of the laws laid down in the above judgments. 7. Shri Ashwani Kumar Sinha, the learned Additional Public Prosecutor placed before us a Supreme Court decision reported in 2005 SCC (Criminal) 1010 (State of Rajasthan Vrs. Ram Chandra) and submitted that if the raiding party was consisting of any Officer, who was holding a gazetted post then the mandatory requirements of section 50 of the N.D.P.S. Act were duly complied with. As such the case must not fail on that account. 8. Because our judgment mainly hinges upon the application of the provision of section 50 of the N.D.P.S. Act in the sets of facts of the present case we have been careful in considering the Constitution Bench decision of the Supreme Court reported in 1999 (6) SCC 172 (State of Punjab Vrs. Baldev Singh). This decision arose out of many references being made by different Benches of the Apex Court for ironing out the differences of opinion of the Hon’ble Judges forming different Benches of the 7 Apex Court. The points were formulated as may appear from paragraphs 1 and 2 of the judgment in Baldev Singh (Supra) and in light of the points, which were referred to for decision by the Constitution bench, the issue as to what could be the effect of the non-compliance of the provisions of section 50 of the N.D.P.S. Act, was formulated as may appear from paragraph 15 of the judgment. The Hon’ble the Chief Justice of India, who was writing the judgment for the Court answered the question as to what is the impact of the expression “if such persons so requires” as appears in section 50 of the N.D.P.S. Act of taking a person to the Gazetted Officer or Magistrate and after noticing different decisions of the Apex Court, some of which were also considered by the same Constitution Bench, the final opinion was expressed in paragraphs 24 and 25 of the judgment. We are tempered to quote the above two paragraphs of the judgment in Baldev Singh: 24. It would, thus, be seen that none of the decisions of the Supreme Court after Balbir Singh case have departed from that opinion. At least none has been brought to our notice. There is, thus, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search 8 of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a gazetted officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a gazetted officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad. 25. To be searched before a gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the 9 search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the Court, that the requirements of Section 50 were duly complied with. 9. After having set down the law that the Officer empowered to make search and seizure of a person on account of having prior information about the possession of some contraband was obliged to do so and failure on his part to do so, shall rendered the search illegal and the conviction and sentences of the 10 accused bad, the Apex Court went on to point out as to why this was a mandate. The discussions appeared in paragraphs 26, 27 and 28 of the judgment to point out that because the procedure to be followed has to be just and reasonable at the same time fair as well. The non-compliance with the provisions of section 50 of the N.D.P.S. Act especially of informing the accused of his right of being taken to a Gazetted Officer or to a Magistrate for the search of his person was the mandate of law and the evidence of search and seizure, in case the provision is not complied with, shall be rendered not acceptable or inadmissible; though the same evidence might be used for the purposes of other proceedings like the Income Tax Act or any other Act, except the N.D.P.S. Act. Thus it stands concluded by the judgment in Baldev Singh (Supra) that the accused has a right to be informed that he could be searched only before a Gazetted Officer or a Magistrate, if there is prior information about the possession of some contraband article by any such person. If the recovery is made suddenly without any prior information then in that situation there is no mandate of law that such an accused could be informed or taken to Gazetted Officer / Magistrate 11 for search purposes. Likewise, if the search has to be made in respect of buildings, vessels, vehicles, etc. that is to say, except the person of a person, then in that case also provisions of section 50 of the N.D.P.S. Act do not appear mandatory, it could simply be directory even if there is prior information about the search or otherwise of any such contraband article at any of such places. 10. Coming to the facts of the present case, what appears from the very inception of the case, that is the self-statement of P.W. 4, is that the informant has an information that a man was likely to pass through Chanpatiya Railway Station, who had traveled up to that place with some contraband article. Law requires, as may appear from the reading of section 41, 42 and 43 that an entry to the above effect has to be made in writing. The informant, P.W. 4 says that he had made an entry in the station diary about the receiving of secret information to the above effect. The same provisions required that after having got the information reduced into writing, the Officer empowered to make a search, shall have to inform his superior Officers. That also appears stated by P.W. 4 in his self statement that he had informed the 12 Dy.S.P., Sadar, who directed him to go to the relevant place for making the search of the person as also for verifying the truth of the information. But what we find is that neither the station diary has been produced nor the Dy.S.P. has come forward to depose that he had really been informed about the receiving of the secret information by P.W. 4 and he had permitted him to verify the truth and observe other legal formalities. As such that part of the compliance of the provision of section 42 or 43 appears to us not met. 11. As regards the right of the present appellant of being informed after being caught on chase of being searched in presence of a Gazetted Officer or a Magistrate and his right of being taken to such an Officer is concerned, we may note that in fact, as soon as the man was caught, his person was searched. It is an admitted fact that the Police Officer, i.e., S.I. Binay Kumar, P.W. 4 had prior information that the appellant might be in possession of some contraband substance. In view of this admitted position, it was required of S.I. Binay Kumar, P.W. 4 that he ought to have informed the appellant that he had a right, firstly, of being taken to a Gazetted 13 Officer or a Magistrate and secondly being searched in presence of such an Officer. The reason for such mandatory provision has been indicated by the Supreme Court in Baldev Singh (supra) and we need not revert back to those aspects of the matter. We may point out that besides the reasons pointed out by the Apex Court the other reason is indicated by section 50 of the N.D.P.S. Act itself by virtue of its sub-section 3, which reads as under: “50. (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.” 12. It may be a possibility that as soon as an apprehended person is produced before a Gazetted Officer or a Magistrate, such an Officer may see no reasonable ground for search and in this eventuality, he has a duty cast upon him to discharge the person forthwith. This could probably inform us the importance in more clear terms of the right of an accused of being informed and being taken the Gazetted Officer or the Magistrate. Here in the 14 present case nowhere it has been stated, either through evidence or otherwise, that P.W. 4 or any Officer accompanying him had even care to remind themselves that there was a duty legally cast upon them of informing the appellant of being right of his informed as also of being taken to a Gazetted Officer / a Magistrate for his search. 13. It was contended by Shri Sinha by citing before us 2005 Supreme Court Cases (Criminal) (State of Rajasthan Vrs. Ram Chandra) that if the team of Officers was consisting of an Officer in the gazetted rank then it was compliance of the provisions of section 50 of the N.D.P.S. Act. But after having considered the decisions and findings recorded by the Apex Court in paragraphs 13 and 25 of the judgment referred to by Shri Sinha, what we find is that in the case of Ram Chandra (Supra) also the Supreme Court was not diluting the constitution bench decision as it could never have diluted the provision being a mandate and it was rather reiterating the position of law that in any case and at any rate such an accused has to be informed about his legal right as is contained in section 50 of the N.D.P.S. Act. Thus, we find that the judgments cited before us by Shri Sinha 15 does not appear applicable to the facts of the present case, rather it supports the contention of the defence. 14. The evidence is that after having recovered the article the same was kept in Police Station Malkhana. P.W. 4 has stated this fact in paragraph 3 of his evidence. He has further stated in paragraph 8 that the Investigating Officer had sent the samples to the FSL for chemical analysis. We assume that when the informant was making the above statement in paragraph 8, he was telling the court below that the sampling had been done by P.W. 10, Jaglal Ram, who has stated that he had himself taken the sampled articles to FSL, Muzaffarpur on 14.05.2006. But because the seal was found defective, it was not accepted there and he had to come back with it. He had to take the same next time. P.W. 10 in paragraph 15 has stated that the defect as pointed out by the FSL was in sealing and weighing of the sampled seazed article. As such, he had to obtain the orders of the Special Judge for resampling and resending of the seazed article to the FSL. If we revert back to the provisions of section 55 of the N.D.P.S. Act, we may find that as soon as any narcotic substance is delivered to the Officer Incharge of the 16 Police Station by any Officer, he has to affix the seal over the seazed property. The provision further requires that the Officer Incharge had allowed the Officer, who had made the seizure, to take samples and the samples so taken has to be sealed, both by the Officer Incharge of the Police Station and the Officer seazing the substance, and both of them are further required to secure the sampled article by putting their respective seals. We find from the evidence of P.W.s 4 and 10, that there was no compliance of the provisions of section 55 of the N.D.P.S. Act. The purpose of putting seals of the Officer Incharge and the Officer seizing is very sacrosanct. It attempts to eradicate any chances of adulteration, replacement etc. of the seized article by some other substances, so as to manipulating the reports in favour of the prosecution. Worst was that there is no evidence before us to indicate that any entry in the Malkhana Register was made after keeping the seized substance in the Malkhana or the storage thereof was certified by deputation of a Magistrate. These are all requirements of different provisions of the N.D.P.S. Act. 15. As is admitted by P.W. 10 himself, there 17 was defect in the sealing when the samples were first carried to the FSL on 14.05.2006. When the resampling was again done is not known to us. However, the report of the FSL, which has been marked as exhibit-5, by the learned trial court indicates that the sealed packet was received in the office of FSL on 12.12.2006, i.e., after about 10 months of the seizure of the article. As may further appear, the sampling was probably done on 17.11.2006, i.e., after about 9 months of the seizure of the article. Worst was that the report was finally prepared on 05.02.2008. As has been pointed out by the Constitution Bench of the Apex Court in Baldev Singh (supra) the provisions of the N.D.P.S. Act are severe as regards the punishment prescribed under the Act for reasons which has been pointed out by noticing the different provisions of the N.D.P.S. Act which provide for stringent punishments for commission of offences defined by the Act. Investigation and other steps in it have to be in a manner as may not smack of any suspicion or leave a room to suspect that any manipulation had been done. It was the reason that in Valsala Vrs. State of Kerala, 1994 Criminal Law Journal, 1, the Supreme 18 Court had acquitted the appellant on account of the delayed dispatch and delayed preparation of the FSL report. 16. These are some of the reasons on which, we find that the judgment of conviction rendered by the Additional Sessions Judge, Bettiah (West Champaran) and the order of sentences passed against the appellant are not sustainable. The two are hereby set aside. The appeal is allowed. The appellant who is in custody now is directed to be released forthwith, if not wanted in any other case. Patna High Court, Patna Dated: 25.11.2010 AFR / Shashi Kant Mishra (Mridula Mishra, J.) (Dharnidhar Jha, J.)