1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT JUGRAJ vs. STATE OF RAJ. SB Criminal Appeal No. 1205 of 2002 under Section 374 Cr.P.C. against the judgment dated September 4, 2002 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 21 of 2000 convicting and sentencing the accused appellant under section under section 15 (c) of NDPS Act for 10 years RI with fine of Rs.1,00,000 in default of payment of fine to suffer six months RI. REPORTABLE Date of Order : September 9, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. S.L.Songara & Mr. V.K. Mishra, for the appellant. Mr. Piyush Kumar, Public Prosecutor. BY THE COURT : The appellant Jugraj filed this appeal against the judgment dated September 4, 2002 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 21 of 2000 convicting and sentencing the accused appellant under section under section 15 (c) of NDPS Act for 10 years RI with fine of Rs.1,00,000 in default of payment of fine to suffer six months RI. 2. Brief facts of the case are that on May 8, 2000, SHO Pisangan received information at 2.00 from 2 an informant that Jugraj son of Phool Chand Tated resident of Govindgarh, at his residence Govindgarh is doing the business of Poppy Capsule and large quantity of it is available with him. He stated that if immediately his house is searched Poppy Capsule can be recovered from him. Finding this information to be true, report about this was prepared and sent to the Superintendent of Police with constable Vishnuprasad. Thereafter SHO in a jeep reached Govindgarh Bus Stand. At Gopvindgarh Bus Stand Mahaveer Singh was asked to arrange two witnesses. On this Mahaveer Singh brought two Panchayat Members Jagpal Singh and Noratmal, for becoming witnesses. The witnesses were informed about the information received from the informant and they were taken to Tated Mohalla at the residence of Jugraj and reached there at 3.00 p.m. Jugraj house was opening towards North. One person came out from his house and on asking him he stated his name to be Jugraj son of Phoolchand by Caste Tated Mahajan aged 72 years. Jugraj was informed about the information received from informant and in presence of both the witnesses notice under section 50 of NDPS Act was given to him. On this Jugraj stated to be searched by the SHO himself. Upto 3.30 p.m. SHO waited for higher police officials as information was already tendered to them. At 3.30 Lokesh Sonwal, Dy. superintendent of Police reached there. In his presence and in presence of witnesses and Jugraj owner of the house, his house was searched. In third number room and on west side inside room Three Gunny bags of Poppy Capsule were recovered. The witnesses were shown these three Gunny bags. Jugraj was asked to produce licence of keeping this huge quantity of Capsule of Poppy over which he stated that he is not having any licence. All the three Gunny Bags containing Capsule of Poppy were taken to the Flour Mill of Kalukhan where the same were weighed and one Gunny bag was found to be 30 Kgs. Second one was weighing to be 20 3 Kgs and third one was 18 Kgs. From these Gunny bags 100 gms two Sampels from each in total 6 packets were taken and Bags were sealed. For sending to FSL the packets were marked as ABC. For keeping material in Malkhana marked D, E, and F. One Gunny bag was mark A -1 and others were marked B 1 and C 1. Accused was arrestred. The accused and the sealed material were taken to the police station at 5.45 p.m. and FIR was registered. Report about all these were given to the Superintendent of Police. Seized material was deposited in Malkhana. Further investigation was handed over to Addl. Superintendent of Police Mangliawas, who prepared the site map and recorded the statements of the witnesses. The seized material was sent to the FSL. and challan was filed before the Court on June 3, 2000. The trial court framed charge against the accused appellant on August 2, 2000 for offence under section 8/15 of the NDPS Act. Accused denied to have committed any offence and claimed to be tried. 9 witnesses were examined in support of the prosecution case and 18 documents were exhibited. The statement of the accused under section 313 Cr.P.C. was recorded and after hearing the arguments the accused was convicted and sentenced vide judgment dated September 4, 2002 as mentioned above. . 3. Mr. S.L.Songara and Mr. V.K. Mishra, learned counsel appearing for the accused appellant placing reliance on Dharampal Singh vs. State of Rajasthan 2006(3) R.Cr.D. 167 (Raj.) stated that the accused appellant, who is aged about 80 years and remained in imprisonment for more than 7 years be released for the period already undergone by him in confinement. The learned counsel argued that the compliance of the provisions of the NDPS Act have not been made, which are mandatory in character 4 and thus the accused appellant is entitled to be released for the period already undergone by him. In the cited case the accused were sentenced to six years and five years imprisonment respectively and they served more than 3 years sentence they have been released for the period already undergone by them as meager quantity of opium was recovered from them. The independent witnesses produced by the police were declared hostile. 4. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that huge quantity of Capsule of Poppy 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, 50 and 57 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 5 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 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 6 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 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 7 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 right ? Section 57 of the NDPS Act provides that whenever any person makes any arrest or seizure under this 8 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. 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 9 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 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 10 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 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 Mahaveer Singh stated that on 8.5.2000 he was Head Mohrir Malkhana Incharge. On that day Three Gunny Bags sealed and samples of six packets in sealed conditions were given to him for deposit in 11 Malkhana. He entered the same in Malkhana register which is Ex. P.1 over which entries are contained from place A to B. On 11.5.2000 he handed over sealed packets to Constable Madanlal for delivery of same to the FSL. On 14.5.2000 the sealed packets were received by the FSL for which receipt was issued and entries for it were made in Ex. P.1 at place C to D. Copy of it is Ex. P 1 A. PW.2 Kalyanmal, who is Assistant Secretary in Govindgarh Panchayat Samiti stated that he knows Jugraj and Ex.P.2 is attested copy of Patta of house of Jugraj which was issued to him. PW.3 Jagpal Singh was declared hostile. But he admitted his signature on seizure memo Ex. P.3 at place A to B. He also admitted his signature on Ex. P.4 arrest memo at place A to B. PW.4 Noratmal was declared hostile. But he admitted his signature on seizure memo Ex. P.3 at place C to D. He also admitted his signature on Ex. P.4 arrest memo at place C to D.. PW.5 Jaypal Singh stated that on May 8, 2000, he was SHO Pisangan and on that day he received information at 2.00 from an informant that Jugraj son of Phool Chand Tated resident of Govindgarh, at his residence Govindgarh doing the business of selling of Poppy Capsule and large quantity of it is available with him. Finding this information to be true, report about this was prepared and sent to the Superintendent of Police under section 42 of NDPS Act vide Ex.P.7, where he put his signature A to B with constable Vishnuprasad. Additional SP was also informed over telephone. Thereafter SHO in a jeep reached Govindgarh Bus Stand. At Gopvindgarh Bus Stand Mahaveer Singh was asked to arrange two witnesses. On this Mahaveer 12 Singh brought two Panchayat Members Jagpal Singh and Noratmal. The witnesses were informed about the information received from the informant and they were taken to Tated Mohalla at the residence of Jugraj and reached there at 3.00 p.m. Jugraj house was opening towards North. One person came out from the house and on asking him he stated his name to be Jugraj son of Phoolchand by Caste Tated Mahajan aged 72 years. Jugraj was informed about the information received from informant and in presence of both the witnesses notice under section 50 of NDPS Act Ex.P.8 was given to him. He was informed about his right to be searched by a Gazetted Officer or a Judicial Magistrate. On this Jugraj stated to be searched by the SHO himself. Consent of Jugraj was written on Ex. P.9 over which he signed at place A to B and E to F is signature of Norat and G to H is signature of Jagpal. At 3.30 p.m. Lokesh Sonwal, Dy. superintendent of Police reached at Govindgarh. In his presence and in presence of witnesses, House of Jugraj was searched. In third number room, on west side inside room one Big Gunny bag and two Gunny bags of Capsule Poppy were recovered. The witnesses were shown these three Gunny bags. Jugraj was asked to produce licence of keeping this huge quantity of Capsule of Poppy over which he stated that he is not having any licence. Three Gunny Bags containing Capsule of Poppy were taken to the Flour Mill of Kalukhan where the same were weighed and one Gunny bag was found to be 30 Kgs., and other two Gunny bags were found to be of 20 Kgs and 18 Kgs. From Big Gunny bag and from two short Gunny Bags 100 each gm. Sampels in total 6 packets were taken and Bags were sealed. For sending to FSL the packets were marked as ABC. For keeping material in Malkhana marked D, E, and F. Big Gunny bag was marked A -1 and other two Gunny Bags were marked B 1 and C 1. Accused was arrested. The 13 accused and the sealed material were taken to the police station at 5.45 p.m. and FIR was registered. Report about all these were given to the Superintendent of Police vide Ex. P.12 where he put his signature A to B. For ownership of house of Jugraj Ex.P.2 Patta was obtained where he put his signature A to B. Seized material was sent to FSL and receipt of FSL is Ex. P.13. For sending material to FSL, SP gave forwarding letter Ex. P.14. The investigation was handed over to Devisingh SI, SHO Mangliawas and thereafter file was received by him. Memo of sample seal was prepared which was given to witnesses which is Ex. P.15 and where he put his signature A to B. and at place X the sample seal was affixed. PW.6 Kalukhan was declared hostile. He only stated that his son stated that some police personnel came at his Flour Mill and got some articles weighed. PW.7 Inderkumar stated that he is residing in the vicinity where Jugaraj was residing. His house is situated in North side. PW.8 Devi Singh stated that on 8.5.2000 he was posted as SHO Mangliyawas. He was informed over telephone for further investigation in the NDPS Case . On this he took statements of witnesses . On 9.5.2000 he prepared the map of place of incident. In village Govindgarh site map of house of Jugraj was prepared, which is Ex. P.17 where he put his signature A to B. He received the report of FSL Ex. P.18. PW.9 Madana Lal stated that on 11.5.2000 he received three packets from Mahaveer Singh for handing over to FSL. He first prepared letter from SP office and thereafter handed over the sealed packets 14