1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT RAVI PRASAD vs. STATE OF RAJ. SB Criminal Jail Appeal No. 238 of 2005 under Section 374 Cr.P.C. against the judgment dated January 13, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Jaipur in Sessions Case No. 8 of 2004 convicting and sentencing the accused appellant under section under section 8/20 of NDPS Act for 7 years RI with fine of Rs. 75,000 in default of payment of fine to suffer six months RI. REPORTABLE Date of Order : September 4 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Miss Ashish Joshi, for the appellant. Mr. Pradeep Shrimal, Public Prosecutor. BY THE COURT : The appellant Ravi Prasad filed this Jail appeal against the judgment dated January 13, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Jaipur in Sessions Case No. 8 of 2004 convicting and sentencing the accused appellant under section under section 8/20 of NDPS Act for 7 years RI with fine of Rs. 75,000 in default of payment of fine to suffer six months RI. 2. Brief facts of the case are that on March 30, 2 2004 at 5.00 p.m. one informer informed the SHO Raghuveer Singh, Police Station Sindhi Camp that one person of aged 25 years having one black colour Bag having marked “Splender” on it having charas waiting for customers on Platform No.2 at Kota Booking counter. Upon this information the SHO sent information under section 42 of the NDPS Act to the higher authorities through special messenger Virendra Singh. For bringing independent witnesses Ramchandra, Constable was given notice and asked to arrange two independent witnesses at Plat Form No.2 of Kota Bookings counter. The SHO, with ASI Vidhyadhyar, HC Kalyan Singh, Constable Sagarmal, and constable Dhoodsingh with investigation box reached at 5.30 p.m. on Plat form No.2 near Kota Bookings counter where constable Ramchandra with two independnet witnesses Budharam and Ramesh were found. The SHO informed the independent witnesses for action and they agreed for independent witnesses. Thereafter the SHO with independent witnesses as per the informer's report chased the boy as per the identification, over which he started running. He was having black colour bag with him. SHO gave his identity to him and asked for searching him under section 50 of the NDPS Act. It was also stated to him that he has a right to be searched in presence of Gazetted officer or Judicial Magistrate over which he replied that he is ready to be searched from SHO himself. One copy of information under section 50 was also given to the suspect. Upon this the suspect gave bag to the SHO and stated that it contained Charas. Farad consent was prepared and thereafter search was made and from bag in the polythene convered with bed sheet black colour material was recovered which on weighing found 976 Gms. Two samples of 10 gms each were taken from the material and sealed in the presence of the two independent witnesses and remaining 3 charas was also sealed in separate Hand bag. Accused was informed about his guilt and arrested. After arrest the accused was taken to police station and investigation was started. The sealed samples were sent to the FSL and after completion of investigation, the police filed challan before the trial court. The trial court after hearing the accused framed charge under section 8/20 of the NDPS Act against him. The accused denied the charge and claimed to be tried. In support of its case the prosecution examined Ramkaran, PW.1, Sagarmal, PW. 2, Virendra Singh, PW.3, Budharam, PW.4, Ramchandra, PW.5, Vidhyadhar PW.6, Kalyan Singh, PW.7, Vidhyaprakash PW.8, and Raghuveer Singh PW.9. The accused appellant was examined under section 313 Cr.P.C. and he did not produce any evidence in defence. After hearing both the parties, the trial court vide judgment and order dated January 13, 2005 convicted and sentenced the accused appellant as indicated above. 3. Miss Ashish Joshi, learned counsel appearing for the accused appellant placed reliance on Prema alias Prem Singh vs. State of Rajasthan (2007 Cr.L.J. 4638) wherein this Court reduced the sentence of accused from 10 years RI to sentence already undergone by the accused, which was 7 years in that case. Fine of Rs. 1,00,000 was reduced to Rs. 10,000/-. In that case 35 Kgs. Of Poppy Straw was recovered from the vehicle of accused. The learned counsel argued only for reducing the sentence of the accused appellant and does not press for arguments on merit. 4. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that Narcotic Substance was recovered 4 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. The trial court already taken the lenient view and in place of 10 years RI and fine of Rs. 1,00,000, sentence of 7 years RI with fine of Rs. 75,000 was imposed for contravention of the provisions of section 8/20 of the NDPS Act as from his possession 976 Gms. charas was recovered. 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 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 5 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 recovered, the requirements of Section 50 of the Act 6 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 onwards the provisions 7 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 ? Their Lordships of the Supreme Court in State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 propounded following conclusions : 8 (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 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 9 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 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 10 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 Ramkaran, Head Constable Sindi Camp Police Station, stated that on March 30, 2004 he was incharge Malkhana. On that day CI, SHO handed over four packets to him, to which he made entry at No.350 in the Malkhana Ex. P.1,for which coy of it is Ex. P1A. On March 31, 2004, Ramchandra Constable was given packets marked A and A 1 with the letter of SHO Ex. P.2 for getting it forwarded through SP South. In the entries Ex. P.1 he has put his signature E to F and Ramchandra put his signature I to J. Ramchandra deposited the packets in the FSL on the same day. 11 PW.2 Sagarmal stated that he was posted as Constable at Sindhi Camp Police Station on 30.3.2004, at that time Raghuveer Singh was SHO. SHO informed him at 5 p.m. that one suspect is having narcotic drug, and they have to proceed for that. Constable Ramchandra was given notice to bring witnesses. Thereafter he along with other police officials reached Platform No.2 at Sindhi Camp Bus Stand, where Ramchandra was there along with two witnesses Budhram and Ramesh. Consent of these two witnesses was obtained by the SHO on Ex. P.5. Thereafter suspect was stopped and asked about his name to which he answered his name Ravi Prasad. SHO disclosed his identity before him and stated that he is having narcotic drug and they want to search him. On which the suspect agreed for search. Notice of his consent is recorded in Ex. P.6 and Ex. P.7, which is written by him. From the possession of suspect 976 gms. of Charas was recovered, out of which two packets of 10 gms. each were prepared and sealed. Accused was thereafter arrested. PW.3 Virendra Singh, Constable stated that the SHO Raghuveer Singh handed over him three envelops containing the information about charas to S.P. Addl. S.P. and C.O. the information was under section 42 of the NDPS Act in Ex. 8 where A to B is signature of Sangram Singh C.O. Copy of Ravanagi Rapat is Ex.P.9 and Returning rapat is Ex. P.10 copies of which are Ex.P.9A and Ex. P. 10 A. PW.4 Budharam is independent witness, in whose presence search was made. But he was declared hostile. Even after declaration of hostile he attested his signatures on Ex. P.6, Ex. P.7, Ex. P.11, Ex. P.12, Ex.P.13, Ex. P.14, Ex. P.15 and Ex. P.16. But again he refused to say that portion A to B statement was not given by him to the police. Again 12 he admitted his signature on article l A to B. PW.5 Ramchandra , stated that he was posted as Constable at Sindhi Camp Police Station. The SHO given him in writing notice Ex. P.4 for bringing two independent witnesses for which his Ravangi was made as per Ex. P.17, copy of which is Ex. P.17A. He brought Budhiprakash and Ramesh at Platform No.2 Sindhi Camp Bus Stand and report of it prepared Ex. P.4 where he has put his signature C to D. Thereafter the SHO at Plot form No.2 Sindi Camp caught the suspect and disclosed his identity that he is SHO and wants to search him. If he is interested in search by a Gazetted officer or Judicial Magistrate, he may do so. But the suspect stated that he is ready to be searched by SHO. The suspect was searched in presence of both the independent witnesses and in the black colour bag contraband kept by him was recovered, which on seeing was suspected to be Charas, for which the accused was not having any license. The same was seized in presence of both the independent witnesses in two packets of 10 gms. each. After doing all formalities the accused was arrested. PW.6 Vidhyadhar ASI, and PW.7 Kalyan Singh HC, Police Station Sindhi Camp stated the same story as was stated by other prosecution witnesses. PW.8 Vidhyaprakash SHO Sadar investigated the matter and recorded the statements of the witnesses and thereafter sent the file to the SHO concerned. PW.9 Raghuveer Singh, SHO Sindhi Camp fully supported the prosecution case and stated about how the information was received and how he dealt with the case in accordance with law. In the statement under section 313 Cr.P.C. 13 Accused stated that he is innocent. The documents produced by the prosecution may also be looked into. Ex.P.1 Copy of the entries in the Malkhana register of the seized articles and material deposited in the malkhana. Ex.P.2 is the forwarding letter written by the SHO Sindi Camp to the SP South Jaipur for sending the seized material's samples for examination by the FSL. Ex. P.3 is receipt received from the FSL after depositing the seized samples by constable Ramchandra. Ex.P.4 is notice of summoning two independent witnesses. Ex. P.5 is consent of the independent witnesses obtained by the SHO before searching the accused. Ex.P.6 is search memo of searching accused by the SHO in presence of two independent witneses. Ex. P.7 is consent of accused Raviprasad for seaching him by the SHO himself where he has put his signature G to H and E to F is consent by him. Ex.P.8 is the carbon copy of the information sent to the higher officers for searching the suspect. Ex.P.9 A is the copy of the rojnamcha dated 30.3.2004. Ex.P.10 A is the photocopy of the rojnamcha dated 30.3.2004. Ex.P.11 is seizure memo of recovery of charas from accused Raviprasad over which E to F is signature of the accused Ravi Prasad. G to H is the signature of Ramesh independent witness and A to B is the signature of Budhha independent person. C to D is the signature of the SHO. Ex.P.12 is the Namuna seal where the SHO put his signature C to D. E to F is the signature of accused Ravi Prasad, G to H is the signature of Ramesh independent person. A to B is the signature of Budhram independent person. Ex.P.13 is the seizure memo of seal. Ex.P.14 is information to accused Raviprasad, regarding contraband with him, where his signature is E to F. Ex.P.15 is the arrest memo of accused Ravi Prasad. Ex. P.16 is the statement of Budhram. Ex.P.17 A is the copy of the Rapat of Rojnamcha sending of 14 constable No.3480 to bring two independent witnesses. Ex.P.18 A is the photostat copy of Rajnamchana Aam. Ex.P.19 is forwarding letter of SP South to the FSL for sending the sealed packets of seized material. Ex.P.20 A is again copy of the majmoon report . Ex. P.21 is crime details report. Ex.P.22 is telephone slip recovered from the accused Raprasad, where SHO put his signature A to B. Ex. P.23 is the original traveling ticket of railway, traveling ticket of roadways and telephone call slip and telephone numbers of callers. Ex.P.24 is copy of Majmoon report of the SHO for proceeding to