1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT GOPAL vs. STATE OF RAJ. SB Criminal Appeal No. 1105 of 2004 under Section 374 Cr.P.C. against the judgment dated September 28, 2004 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Chhabra in Sessions Case No. 67 of 2002 convicting and sentencing the accused appellant under section 8/18 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 1, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. R.S.Rathore, for the appellant. Mr. Pradeep Shrimal, Public Prosecutor. BY THE COURT : The appellant Gopal filed this Jail appeal against the judgment dated September 28, 2004 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Chhabra in Sessions Case No. 67 of 2002 convicting and sentencing the accused appellant under section 8/18 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 November 4, 2001 on the information received from Mukhbir, a 2 raid was conducted by Satish Kumar SHO Chhabra at village Ghatakhedi at the residence of the accused appellant that he is having 450 gms. of opium. This information was entered in the Rojnamcha Register. After effecting the said recovery of opium, the Police started further investigation into the matter and seized the articles, prepared the required memos and the material documents were brought on record and exhibited Ex. P. 1 to Ex.P.29 and as many as about 18 witnesses were brought on record and their statements were recorded. The trial court after perusal of the entire record, examining the statements of witnesses and hearing both the sides, vide its judgment dated September 28, 2004 convicted and sentenced the accused appellant as indicated above. 3. Mr. R.S. Rathore, learned counsel appearing for the accused appellant argued that the witnesses of the reocovery Ex. P.1, PW.1 Radhey Shyam and PW.1 Nane Khan, were declared hostile by the trial court, and hence no conviction could have been based on the testimonies of these witnesses. The mandatory compliance of the provisions of section 42 of the NDPS Act have not been made by the investigating agency before taking the search. The information of the incident for making raid and in making recovery of the contraband was sent by the investigating agency to the higher authoriteis at a belated hour. There is no direct evidence to show that the alleged opium which is said to have been recovered from the house of the accused appellant was in the exclusive possession of the appellant. While sending the material articles of recovery were not properly sealed, nor CFCL form was deposited, which creates serious doubt in the manipulation of the recovered opium by the prosecution. No independent witnesses were made available to identify the 3 recovered opium, the non compliance of the mandatory provisions of the NDSPS Act, the order of conviction passed by the trial court is liable to be quashed. The accused appellant was not found indulging in illegal activities under the NDPS Act on the date of raid at the time of possession, search and recovery, therefore the benefits of doubt should have been extended in favour of the accused appellant. There are material improvements and contradictions in the statements of the prosecution witnesses. The witnesses produced in the case are highly interested witnesses and as such their testimony ought not to have been believed. The sentence recorded is too harsh, which deos not conform to the constitutional validity, the same 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 4 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 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 5 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 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 6 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 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 7 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 : (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 8 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 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; 9 (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 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 Radhey Shyam, was declared hostile as he has not supported the prosecution case. He simply 10 supported the prosecution case to the extent that search of house of accused Gopal was to be done by the police personnel but actually they were searching the Bada of his brother Saligram. He also supported the prosecution case in cross examination that on consent letter for becoming witness his signature was obtained. PW.2, Nanne Khan, who was the person to whom the police called for becoming witness to the search. He was also declared hostile by the prosecution. He in his statement stated that the Bada of Saligram was searched by the police. He accepted his signatures on Ex. P.2 from C to D. He also admitted his signature on Ex. P.3 from C to D whereby accused Gopal was arrested. PW.3 Bachhusingh, Constable, Police Station Chhabra stated that he along with Satish Kumar SHO, Udhamsingh, Rajbuksh, Jajir, Naresh Kumar,driver, in the morning at 5.30 on November 4, 2000 went to Ghatakhedi at the house of Gopal. Villagers were also called. Nanekhan and one another person were made independent witnesses. The accused concealed himself in another house. Firstly the accused was arrested and he was told that in his house opium is lying. Opium was recovered from a room inside the house packed in a Potli. On weighing the opium it was found to be 4500 gms. Out of this two samples of 25 gms. each were sealed in a separate packets. He admitted that he signed on Ex. P.3 which is arrest memo of accused appellant at place E to F. PW.4 Satish Kumar, SHO Police Station Chhabra stated that on 4.11.2001 he received information from a Mukhbir that in village Ghatakhedi at the residence of Gopal opium is lying. This information was recorded and the higher police officials were informed about this. On receiving information he along with ASI Udham Singh, Bachhusingh, Jakir 11 Hussain Rajbhakat and other went in a jeep to village Ghatakhedi at the residence of Gopal. Gopal was present at that time at his residence but ran away. With the help of police personnel he was caught. For bringing independent witnesses one notice was given to Rajbhakat. At that time Dy. SP. Dhanpatrai also reached there. Nanekhan and Radhey shyam two independent witnesses were brought by Rajbhakat constable. Consent of Radhey Shyam and Nanne khan was obtained for becoming independent witnesses. The suspect who wanted to run was asked about his name to which he disclosed his name Gopal. The witness stated to Gopal that at his residence opium is lying and about this they have information. He was also informed that he has a right to be searched by a Gazetted officer or a Judicial Magistrate. Upon this Gopal was ready to get himself searched by Dy. S.P. Dhanpat Rai and he also gave his consent and thereafter search was made in the house of Gopal accused and inside the house in one room one Red Bag was found and on opening it was found containing opium, for which Gopal was not having any licence. On weighing opium along with Bardana it was 450 Gms. out of which two packets of 25 gms. each were taken and the same were sealed. The sealed opium and the sealed packets were deposited in the Malkhana. Accused Gopal was arrested. Ex.P.1 was prepared which is the recovery memo of opium recovered from the possession of Gopal accused from his residence at Ghatakhedi. I to J is signature of Gopal accused. C to D is signature of Nanekhan. A to B is signature of Radhey Shyam. E to F is signature of C.O. Where G to H and M to N are the signatures of SHO Police Station Chhabra. Ex. P.2 was prepared which is consent of witnesses Radhey Shyamand Nanne Khan. Signature of Nanekhan on Ex. P.2 is at C to D. Radheyshyam signed on Ex. P.2 at A to B. Witness signed on Ex. P.2 at E to F. Accused Gopal was arrested vide Ex.P.3. On this document 'Gopal accused' signed at I to J. C to D is 12 signature of Nannekhan. A to B is signature of Radheyshyam. After reaching at Police station Ex.P.6 FIR was chalked out at Police Station Chhabra at 12.40 p.m. on November 4, 2001. Ex.P.7 is the notice given to Constable Rajbhakat for bringing two independent witnesses at the residence of Gopal accused at Ghatakhedi wherein A to B is his signature. E to F is signature of Rajbhakat. For bringing two independent witnesses Rajbhakat made entry on Ex. P.7 from C to D. Vide Ex.P.8 which is notice to accused Gopal where he has put his signature A to B. Ex. P.9 is related to Namuna Seal where he has put his signature A to B. Rojnamcha rapat is Ex. P.10 where he has put his signature A to B. Ex.P.10 A is copy of Rapat No. 179 of Rojnamcha. Ex.P.11 is rapat No.181 where he has put his signature A to B. Copy of of Rapat No. 181 Rojnamcha is Ex. P.11 A. Copy of Rapat No.180 is Ex. P.12 and where he has put his signature A to B and copy of which is Ex.P.12 A. Ex.P.13 is rapat No. 285 copy of which is Ex.P.13 A. Rapat No. 206 is Ex. P.14 and copy of which is Ex.P.14 A. Rapat No.252 is Ex. P.15 and copy of it is Ex.P.15 A. Rapat No.203 is Ex. P.16 and copy of which is Ex.P.16 A, where A to B is signature of Tejsingh. Under Section 42 of NDPS Act notice Ex. P.17 was sent to SP Baran. Information under section 57 was given to SP Baran by Ex.P.18 where he has put his signature A to B. During investigation Naksa Moka Ex.P.19 was prepared where he has also put his signature A to B. Under section 57 letter Ex.P.20 was sent to SP Baran where he has put his signature A to B and C to D is signature of SP Baran. Ex. Ex.P.21 copy of information under section 42 NDPS Act received by SP at 8.30 a.m. on 4.11.2001 where he has put his signature Ato B and C to D is signature of S.P. Baran. PW.5 Pannabai, who is Sarpanch stated that 13 Gopal and Saligram are real brothers. She was declared hostile, but she accepted his signature on Ex. P.22 A to B certificate issued by her. PW.6 Saligram was also declared hostile, he is brother of accused Gopal. PW.7 Jamnalal was also declared hostile. He refused to give statement Ex. P.25 recorded by the police. PW.8 Chain Singh was also declared hostile. He refused to give statement A to B in Ex. P.26. PW.9 Ishtiyak Ahmed, who is Incharge Malkhana stated about the receipt of sealed bag and packets in the Malkhana in sealed condition and thereafter giving of them to Constable Rajbhakat in sealed condition for handing over to the FSL. After deposit of packets receipt received from FSL was Ex. P.27. He stated that in Ex. P.9 all entries were made by him where A to B is signature of Satishkumar, C to D is signature of Rajbhakat and E to F is his signature. G to H in Col.8 is his short signature. PW.10 Rajbhakat constable posted at Police Station Chhabra stated in his statement that on 4.11.2001 he was posted at PS Chhabra. On that SHO Satishkumar received information from a Mukhbir and on that information he went with the police personnel in jeep at village Ghatakhedi at the residence of accused Gopal. When they reached in village, accused Gopal tried to escape but he was caught by the police personnel. The SHO sent him for bringing two independent witnesses vide Ex. P.7. In compliance of its he brought two independent witnesses Radhey Shyam and Nanekhan. In Ex. P.7 compliance by me is C to D and E to F is his signature. When he went to bring independent witnesses Dy. S.P.