1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT MOHD. MOFJUL vs. STATE OF RAJ. SB Criminal Appeal No. 233 of 2006 under Section 374 Cr.P.C. against the judgment dated December 10, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 9 of 2004 convicting and sentencing the accused appellant under section 8/21 of NDPS Act for 10 years RI with fine of Rs. 1,00,000 in default of payment of fine to suffer Two years RI. REPORTABLE Date of Order : September 7 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Miss Rajesh Kandwal, Amicus Curiae for the appellant. Mr. Pradeep Shrimal, Public Prosecutor. BY THE COURT : The appellant Mohd. Mofjul filed this Jail appeal against the judgment dated December 10, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 9 of 2004 convicting and sentencing the accused appellant under section 8/21 of NDPS Act for 10 years RI with fine of Rs. 1,00,000 in default of payment of fine to suffer Two years RI. 2. Brief facts of the case are that on April 10, 2 2004 Constables Shrimanlal, Bheem Singh and Chandra Prakash of Police Station GRP Ajmer were on patrolling duty, at that time in Purna to Ajmer Train No. 582 two suspects were seen having one plastic bottle and two bags. On asking about their names, they perturbed, thereafter one person disclosed his name Mohd. Rafikul Islam and another Mohammed Mofjul. As both persons were perturbed a doubt was created that they were having contraband and both of them were got down from the train to platform Nos. 4-5 on south side Bridge. On this Shrimanlal, Constable handed over a written report Ex.P.1 to the Incharge Police Station GRP, Ajmer through Bheem Singh, Constable (PW.4). On this as the Incharge Police Station Shivdutt Singh was on leave, Officiating Incharge Police Station Bhawani Singh (PW.6) sent that report to Deputy Superintendent of Police GRP, Jaipur through Chandra Prakash Sharma (Constable). Thereafter Chandra Prakash Sharma (PW.1) Dy. S.P. under Section 42 of the NDPS Act sent the information vide Ex. P.3 to the SP. The Officiating Incharge Police Station with investigating box reached at the place where the accused were at Platform. Bheem Singh, (PW.4) constable was sent with notice to Chief T.C. of Railway Station Ajmer for arranging two independent witnesses. Bhanuprakash (PW.2) and Ramprasad Gotam T.Cs. gave their consent for becoming indepdent witnesses vide Ex. P.7. Accused Mohammed Mofjul was given notice under section 50 of the NDPS Act Ex. P.20. Accused agreed for searching by Chandra prakash Sharma, Dy. S.P. and for that he has given his consent Ex. P.9. Chandra Prakash Sharma, Dy. S.P. first got himself searched before the independent witnesses prepared Fard Jamatalasi Ex.P.10 and thereafter he searched the accused who was having Plastic Casrol with him. Inside plastic casrol (article for keeping hot food) one polythine bag having tap over it having contraband in dried 3 condition was found. Recovered dried narcotic drug was examined by Narcotic detection kit and it was confirmed that the accused was having narcotic drug, for which he was not having any licence. On weighing the Narcotic dried substance it was found one kilogram and 250 gms. Two samples of each 30 gms. were sealed. The remaining narcotic substance weighing one kilogram and one hundred and ninty gms was separately sealed along with polythene packets. Bag along with clothes were also sealed. Accused was further searched and from his pocket one notice under section 50 NDPS Act Ex. P.20 and some papers were found which were recovered through Ex. P.16. The accused was given notice Ex.P.17 under section 52 of the NDSPS Act and arrested vide Ex. P.18 arrest memo. Sealed material along with accused taken to Police Station and in Rojnamcha report Ex. P.24, entries were made and FIR Ex. P.26 was chalked. Sealed packets were deposited in the Malkhana Register Ex.P.33 and information under section 57 of the NDPS Act was forwarded to the higher officers through Ex. P.25. For examination of the sealed material, the same were sent to FSL. Vide Ex. P.28 the FSL opined that in packet marked A 1 gave positive tests for the presence of Diacetylemorphine (HEROIN). Lalit Maheshwari (PW.7) prepared the NaksaMoka Ex. P.29 and after investigation filed the challan against accused Mohammed Mofjul. After hearing arguments, the accused was charged for the offence under section 8/21 of the NDPS Act, to which he denied. The prosecution in support of its case examined 10 witnesses and exhibited 37 documents. Statement of accused under section 313 Cr.P.c. was recorded. After hearing arguments of both the sides the trial court vide its judgment dated December 10, 2005 convicted and sentenced the accused appellant as indicated above. 4 3. Miss Rajesh Kandwal, learned counsel appearing for the accused appellant placing reliance on Paramjeet Singh and anr. vs. State of Rajasthan (2008 (2) Cr.L.R. (Raj.) 1338) and State of Rajasthan vs. Onkar lal (2008) (2) Cr.L.R. (Raj.) 1247) argued that the prosecution has not been able to prove the case against the accused appellant beyond reasonable doubt, hence he be acquitted for the offence charged against him. No independent witnesses were made available to identify the recovered HEROIN, compliance of the mandatory provisions of the NDSPS Act has not been made, thus, the order of conviction passed by the trial court is liable to be quashed. 4. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that Narcotic Substance was recovered from the accused appellant. The trial court rightly convicted and sentenced 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. 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 Sections 42, and 50 of the NDPS Act. 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 5 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 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 6 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 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 7 100 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 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 8 right ? 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 9 must be viewed by the higher authorities seriously inviting action 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 10 be used as evidence of proof of unlawful possession of the contraband 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. 7. 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 and documents exhibited before the trial court by the prosecution. PW.1 Chandra Prakash Sharma, Dy S.P. Stated that on 10.4.2004, he was posted as CO GRP Ajmer. At 9.55 p.m. the Incharge Police Station GRP Ajmer informed him about the suspects having narcotic 11 drugs as reported by Police constable Shrimanlal. On this information under Section 42 of the NDSPS Act, was sent to the SP GRP Ajmer and he along with Constable Pooranchand with investigating box and narcotic detection kit reached at Platform No.4-5 Railway station Ajmer where Constables, Chandra Prakash, Bheem Singh and Shrimanlal along with two suspects were available. On this he asked constable Bheem Singh to bring two independent witnesses from Head TC and about this notice was given to him in writing. Constable Bheem Singh brought two independent witnesses Bhanuprakash Bayala and D.P.Gotam, TC. Both the persons were asked to become independent witnesses and in writing their consent was obtained. In presence of both the independent witnesses one suspect Mohd. Mofjul was given notice under section 50 of the NDPS Act and it was stated to him that they want to search him and his bags and he has a right and option to be searched before the Gazetted officer or before the nearest Judicial Magistrate. On this Mohd. Mofjul gave consent for search by witness Dy.S.P. and for which he has given consent in writing. On this the witness Dy. S.P., first searched himself before the independent witnesses and thereafter they searched Mofjul. Mofjul was having one Jute brown bag. Inside the Jute bag along with wearing clothes one Casrol, in which hot food can be kept. Since the Casrol was weighty, its cover was opened. Inside it a brown colour plastic bag was found which was containing brown colour dried material. In the bottom of Casrol one more brown polythene bag was found inside it there were three more brown polythene bag which were also of same colour. The material was checked through narcotic detection kit and it was found to be HEROIN. On this all the five polythene bags were mixed in one polythene and on weighing it was found to be 1 Kg. and 200 Gms. Out of which samples of 30 gms. each were taken from it. Accused Mofjul was 12 asked about any licence with him for keeping this narcotic drug on which he refused to keep any such licence. Thereafter accused Mofjul was given notice under section 52 of the NDPS Act and he was informed that he has commmitted offence and thereafter he was arrested. Thereafter another suspect was searched. The required documents were prepared by one Constable Pooranchand under the instructions of witness. Thereafter both the accused were taken to Police Station from the Railway Platform and recovered material seized were given to Incharge Malkhana. Ex.P.1 is the report given by Shrimanlal Constable to him where he has directed for Police Karyawahi C to D and put his signature E to F. Ex.P.2 is report of Shrimanlal recorded in Rojnamcha and Aamad of constable Bheem Singh, copy of which is Ex. P.2A. Information under section 42 of the NDSPS Act was sent, which is Ex. P.3, where he has put his signature A to B. On Ex. P.3 C to D is signature of SP GRP regarding receipt of information. Ravanagi of Constable is Ex. P.4 and Aamd of his is Ex. P.5, copies of which are Ex. P 4A and Ex.P.5A. The witness gave a notice to Bheem Singh in writing for giving it to Head TC. for making available two witnesses. Copy of which is Ex. P.6 over which he has put his signature A to B. Head TC sent two Tcs. B.P. Gotam and B.P. Bapna for which he made endorsement and his signature C to D. The witnesses were produced before him by Constable Bheem Singh, who has made endorsement over it as E to F. The witnesses were asked to become witnesses over which they gave in writing Ex.P.7 where he has put his signature A to B. Witness Bhanupratap gave in his manuscript about his consent C to D and witness B.P. Gotam gave his consent E to F and his signature is G to H. The accused Mofjul present in court was given notice under section 50 NDPS Act which is Ex. P.8 where the witness put his signature C to D. Bhanupratap signed at E to F and B.P. Gotam signed over it G to H 13 Mohd. Mofjul also made his signature. Accused gave his consent but since he was not knowing Hindi, on consent letter Ex.P.9 was written by the witness himself, where he has put his signature A to B and Banupraptap put his signature E to F and B.P. Gotam at place G to H. Before searching accused, the witness himself searched before the witnesses and accused, to which he prepared Ex.P.10, where C to D is signature of Bhanuprakash and E to F is signature of B.P.Gotam. Accused was having narcotic drug for which Ex. P.11 is prepared where the witness put his signature A to B., C to D is signature of Bhanuprakash, E to F is signature of B.P. Gotam and G to H is signature of Mohd. Mofjul and I to J is signature of Bheem Singh and K to L is signature of Shriman Constable. At X place namuna seal was affixed, which was used for affixing on sealed packets. Fard Namuna seal was separately prepared which is Ex. P.12 where A to B is signature of witness, C to D is signature of Bhanuprakash and E to F is signature of B.P. Gotam and X place is namuna seal. On sealed packets Namuna seal and chit were affixed, the copies of which are Ex. P.13 to Ex. P.16. where A to B is signature of witness, C to D is signature of Bhanuprakash and E to F is signature of B.P. Gotam and at X place is namuna seal. Ex.P.17 is notice given to accused under section 52 of NDPS Act where A to B is signature of witness, C to D is signature of Bhanuprakash and E to F is signature of B.P. Gotam and G to H is signature of accused. At the place of incident Fard Girftari of accused was prepared which is Ex.