1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT SANWARRAM vs. STATE OF RAJ. SB Criminal Appeal No. 437 of 2005 under Section 374 Cr.P.C. against the judgment dated July 16, 2004 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 27 of 2003 convicting and sentencing the accused appellant under section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 11 years' RI and pay a fine of Rs. 1.00 lakh and in default of payment of fine to further undergo Three years' RI. REPORTABLE Date of Order : September 17 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. M.L.Vishnoi) for the appellant. Mr. V.P.Vishnoi) Mr. Peeyush Kumar ), Public Prosecutors. Mr. Pradeep Shrimal) BY THE COURT : The appellant Sanwar Ram filed this appeal against the judgment dated July 16, 2004 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 27 of 2003 convicting and sentencing the accused appellant under section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 11 years' RI and pay a fine of Rs. 1.00 lakh and in default of payment of fine to further undergo Three years' RI. 2 2. Brief facts of the case are that on May 29, at 11.30 a.m. Chenaram Sub Inspector, Incharge Police Station (PW.4) received information from an informant that Truck No.RJ 19 G 3115 coming from Bhilwara which is being plied by Driver Sanwarram is containing full of crushed capsule of opium poppy. Information was recorded by the SI in Ex. P.9, reads as under : “इस समय मुझ SI चैनाराम को काया[लय मɅ उपǔःथत हो कर मुखबीर ने ईतला Ǒद Ǒक शक नं0 RJ 19 G 3115 एल.पी. जोधपुर बोडȣ Ǒक है। ǔजसका चालक सावरराम है। शक के उपर िमिलशȣ रंग का ितरपाल डाला हआ है। जो अभी ु -2 भीलवाड़ा से िनकली है। शक मɅ मादक पदाथ[ डोडे भरे हवे है। जो ु डोडे बोरो मɅ भर रखे है। जो शक मɅ िमल सकते है।" At 11.30 a.m. Incharge Police Station Nasirabad Sadar (Ajmer) sent the information under section 42 NDPS Act (Ex.P.10) to the Superintendent of Police Ajmer on May 29, 2003 at 11.30 a.m. Same reads as under : "सेवा मɅ ौीमान पुिलस अधी¢क महो0 ǔजला अजमेर ǒवषय : अवैध मादक पदाथ[ ( डोडा) Ǒक सूचना अÛतग[त धारा 42 NDPS Act . महोदयजी उपरोƠ ǒवषय अÛतग[त िनवेदन है। Ǒक मुझ SI चेनाराम थाना नसीराबाद सदर का आज Ǒदनांक 29.5.2003 समय 11.30 AM पर जǐरये मुखबीर ईतला िमली Ǒक शक न0 RJ 19 G 3115 एल.पी. जो जोधपुर बोडȣ Ǒक है। ǔजसका चालक सावरराम है। जो भीलवाड़ा Ǒक तरफ से डोडो के बोरे भरे हवे लेकर अजमेर Ǒक तरफ आ रहा है। इसकȧ काय[वाहȣ के िलए ु मन SI चैनाराम व चार मय जाƯा के रवाना होता हॅ◌ू। िलǔखत सूचना ौीमान को ूेǒषत है।" Copy of it was also sent to the Addl. S.P.(R) Ajmer. Thereafter SI alongwith police constables proceeded to Byepass Magari. At Byepass Magri SI, gave notice Ex. P.1 to Bhanwar lal Head Constable (PW.3) to bring independent witnesses. Bhanwarlal (PW.3) brought witnesses Umrao Singh (PW.1) and Jagdish Singh (PW.2) who gave consent for becoming 3 witnesses. He alerted guards to stop entry of vehicles coming from the side of Bhilwara. Truck driver on seeing the stopping of entry of vehicles moved the truck back and he was stopped at some distance. One person from the truck ran away and the driver of the truck disclosed his name Sanwarram. SI Chenaram (PW.4) gave notice Ex. P.3 to Sanwarram of section 50 of NDPS Act and asked him whether he is interested for searching his vehicle by a Magistrate or a Gazetted officer. Notice Ex. P.3 reads as under : आपको उपरोƠ मोतǒबरान के सम¢ सुिचत Ǒकया जाता है Ǒक मन SI चेनाराम को मुखबीर से इतला िमली है Ǒक आपके शक No. RJ 19 G 3115 मɅ मादक पदाथ[ डोडा पोःत भरा हआ है। ǔजसकȧ तलाशी ली जानी है आपको ु इसके िलए ःवतंऽता है Ǒक आप Ǒकसी भी मǔज0 सा0 या राजपǒऽत अिधकारȣ के सम¢ तलाशी िलवा सकते है।आप अपना जवाब िलǔखत मɅ पेश करे । Sanwarram gave his consent to be searched by a Gazetted officer or Magistrate. He stated in writing on Ex. P.3 as under : मɅ मेरȣ व शक Ǒक तलाशी Ǒकसी राजपǒऽत अिधकारȣ या मǔजःशेट से िलवाना चाहता हॅ◌ू। sd/- सावरराम Head Constable Bhanwar Lal (PW.3) was sent in a Govt. Jeep to Nasirabad. Bhanwarlal (PW.3) brought Sharavan Lal Gurjar, Tehsildar (PW.8). Sharavan Lal Gurjar was introduced to Sanwarram and he gave his consent Ex. P.2 for search by him. Extracted portion of consent reads as under : इसी वƠ माǑफक इतला मोके पर ौी ौवण लाल गुज[र तहसीलदार नसीराबाद मौके पर पधारे ǔजनका पǐरचय देते हये सावर राम को ु अवगत कराया Ǒक यह राजपǒऽत अिधकारȣ है आप चाहे तो इनके सम¢ तलाशी िलवा सकता है। इस पर सावर राम ने बताया Ǒक आपको मेरे शक मɅ डोडा पोःत होने कȧ पूण[ सूचना िमली है तो मɅ अपनी तलाशी मोके पर उप0 तहसील दार साहब के सम¢ आपको देने कȧ सहमित ूकट करता हॅ◌ू । On Ex. P.2 Sanwarram put his signature at place G to H. E to F is signature of Jagdish Singh 4 witness and A to B is signature of Umrao Singh and Sarvanlal Tehsildar put his signature at place I to J. In the Truck 59 Gunny Bags full with Capsule of Poppy were found. Chenaram PW.4 sent Sohanlal Constable to bring weighing material. Ratanlal (PW.6) and Gopal (PW.7) came with weighing material. On weighing Gunny Bags total weight 2341.500 Kgs. were found. From 10 seized Gunny Bags 1 kg. two samples each were collected and all were marked A 1 to A 20. All these Gunny Bags were also sealed and marked as B l to B 10. Rest of the Gunny Bags were also sealed and marked as B 11 to B 59. The seizure memo of seized material is Ex. P.4. Accused Sanwarram was arrested and his truck was also seized. Sanwarram was arrested vide arrest memo Ex. P.6 and Truck was seized vide seizure memo Ex. P.6. At the time of arrest the accused Sanwarram was searched and from his pocket Rs. 3115 were recovered with one notice under section 50 of the NDPS Act. PW.4 Chenaram on reaching Police Station, deposited the recovered material. Report about it is Ex. P.11 and FIR Ex. P.12 was chalked out. Information under section 57 of the NDPS Act was sent to the higher police officers vide Ex. P.16. PW.9 Laxminarain Constable took samples to FSL on June 4, 2003 along with forwarding letter of SP Ex.P.21. SP Ajmer sent letter Ex. P.22 . After depositing the sampels to FSL, FSL gave receipt Ex. P.20 and after examination of samples sent the report Ex. P.31. After completion of investigation, the police filed challan against the accused appellant under section 8/ 15 NDPS Act. The case was registered as Sessions Case No. 27 of 2003 State vs. Sanwarram in the court of Special Judge NDPS Cases Ajmer. The Special Judge charged the accused under section 8/15 5 of the NDPS Act. The accused denied the charge and claimed to be tried. The prosecution examined 11 witnesses in support of its case. The accused appellant was examined under section 313 Cr.P.C. The appellant in his statement stated that he was servant (Khalasi) in Truck No. RJ 19 G 3115. Truck driver filled up Bags of rice chaff. Truck was stopped near police station and the SI demanded Rs. 1000/- which driver refused to give. On this Chenaram and driver fought with each other and driver ran away and hence this forged case was lodged. In defence he produced two witnesses. After completion of trial, the Special Judge convicted and sentenced the accused appellant vide his judgment dated July 16, 2004 as mentioned above. 4. Mr. M.L. Vishnoi, learned counsel appearing for the accused appellant argued that no offence under section 8/15 of the NDPS Act is made out against the accused on the evidence produced by the prosecution. The learened counsel averred that the independent witnesses PW.1 Umrao Singh and PW.2 Jagdish Singh, who were motbirs were declared hostile and hence in the absence of proof of narcotic drug recovered from the accused appellant, the jdugment of conviction is liable to be set aside. The provisions of section 42 of the NDSPS Act have not been complied with. PW.6 Ratan Lal and PW.7 Gopal, who weighed the material loaded in the truck but both these witnesses did not support the prosecution case and both of them have been declared hostile. In these circumstances, the case of the prosecution cannot be believed and it is concocted case. The independent witnesses produced by the prosecution have all been declared hostile and the accused appellant should not be convicted on the basis of evidence of one department only. The material sealed was not resealed at the police 6 station and hence the provisions of sections 55 and 57 of the NDPS Act has not been complied with and thus the judgment of conviction and sentence is liable to be set aside. Sanwarram was only servant (Khalasi)and not driver and he was not knowing about the narcotic drug loaded in the truck and thus he is entitled to be acquitted. Chenaram was not SHO Police Station and he was only Incharge and thus he was not authorised under section 42 of the NDPS Act to proceed and thus the whole proceedings are liable to be quashed. The samples placed in the malkhana were tempered and thus the same could not be handed over to the FSL in sealed condition and thus the whole proceedings is liable to be set aside. The defence witnesses produced by the accused appellant proved before the court that accused appellant Sanwarram was not the driver of the truck as he was not knowing driving and he was simply servant (Khalasi) and he has been falsely implicated in the case. In support of his contentions, the learned counsel for the appellant relied upon the cases reported in Noor Aga vs. State of Punjab and anr. 2008 R.Cr.D. 592 (SC) Jitendra and anr. vs. State of M.P. (2003-04 Cr.L.r. (SC) Supp.) 699, Gaunter Edwin Kircher vs. State of Goa (1993 SCC (Cr.) 803) Rohtas vs. State of Rajasthan 2006 (1) R.Cr.D. 376 (Raj.), Guneshgar vs. State of Rajasthan (S.B.Cr. Appeal No. 715 of 2006 decided on August 7, 2008 at Jopdhpur),State of Rajasthan vs. Daulat Ram 1980 Cr.L.R. (SC) 84, State of Rajasthan vs. Gurmait Singh 2005 R.Cr.D. (SC) 554), Bhanwar lal vs. State (S.B.Cr. Appeal No. 481 of 2001 decided on October 17, 2005 at Jodhpur), Kailash Chandra vs. State of Rajasthan (S.B.Criminal Appeal No. 921 of 2003 decided on July 24, 2008 at Jodhpur) and State of Rajasthan vs. Gurmail Singh 2005 (3) SRJ 422). 5. The learned Public Prosecutor on the 7 other hand supported the judgment of conviction and argued that Narcotic Substance was recovered from the accused appellant. The trial court rightly convicted the accused appellant. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellant has been rightly convicted and sentenced. The learned Public Prosecutor placed reliance on Karamjit Singh vs. State (2003) 5 SCC 291), Aher Raja Khima vs. State of Saurashtra (AIR 1956 SC 217), State of Maharashtra vs. P.K. Pathak )AIR 1980 SC 1224) and Tulsi Prasad vs. State of Rajasthan 2006 (1) Cr.L.R. (Raj.) 15) 5. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it is necessary to have a look at the relevant provisions of the Sections 42, 50 and 57. of the NDPS Act in particular. 6. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation 8 cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought beforesuch a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. On its plain reading, Section 50 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 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also 9 recovered, the requirements of Section 50 of the Act are not attracted. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect thecredibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage 10 onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. The Apex Court in Balbir Singhs case (1998 ) 2 SCC 724 after referring to a number of judgments, opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. What is the import of the expression if such person so requires he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ? Section 57 of the NDPS Act provides that whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official. 7. At this stage, relevant case of the Apex 11 Court, is necessary to be examined. Their Lordships of the Supreme Court in State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 propounded following conclusions : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 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 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 and the failure to do so must be viewed by the higher authorities seriously inviting action 12 against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband 13 on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption 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. The above conclusions are not a summary of our judgment and have to be read and considered in the light of the entire discussion contained in the earlier part. 8. On the basis of the above conclusions of their Lordships of the Supreme Court it is necessary to have a look at the evidence adduced before the trial court by the prosecution. PW.1 Umrao Singh, one of the independent Motbir of the recovery was declared hostile. He admitted his signature on Ex.P.1