1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT UMESH KUMAR OJHA vs. STATE OF RAJ. SB Criminal Jail Appeal No. 674 of 2005 under Section 374 Cr.P.C. against the judgment dated April 13, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Gangapur City in Special Case No. 02 of 2004 convicting and sentencing the accused appellant under section under section 8/20 (2)(c) 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, for the appellant. Mr. Pradeep Shrimal, Public Prosecutor. BY THE COURT : The appellant Umesh Kumar Ojha filed this Jail appeal against the judgment dated April 13, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Gangapur City in Special Case No. 02 of 2004 convicting and sentencing the accused appellant under section under section 8/20 (2)(c) 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 March 1, 2004 at 1.45 p.m. Constable Yashpal Singh 2 No.810 stated that when he was on watch and ward duty in Janta Express Train along with other Constables Phalsingh, Ramanlal, and Shyamsingh went to Bayana. When they were returning back in Train No. 5063 Avadh Express, on reaching Gangapurcity in General Coach one suspect having red blanket in hand was seen he was having contraband with him. Information under section 42 NDPS Act was prepared for informing to higher officers. On this information Dy S.P. Kota gave directions for proceeding as per the NDPS Act and informed that SHO Sawai Madhopur is reaching at the spot. Dulheram, Incharge PS Gangapurcity along with investigating box with Constable Yashpal Singh reached at Platform No.2 Railway Station Gangapurcity. At 6.15 p.m. from Avadh Express Ganesh Lal SHO GRP Sawai Madhopur reached at the platform, having constable with him. Information under section 42 of the NDPS Act was sent to SP Ajmer. Ganesh Lal, SHO gave Tehrir to Yashpal for bringing two independent witnesses. On which Yashpal brought Akram and Ajij witnesses. SHO obtained consent of Ajij and Akram for giving evidence in NDPS Case. Thereafter the SHO informed the accused about his legal rights that he has a right to be searched by a Judicial Magistrate or Gazetted Officer. The accused gave his consent to be searched by SHO himself. At the spot Dulheram searched Sub Inspector and nothing objectionable was with him, thereafter Ganesh Lal searched accused. Accused was having red blanket in his hand and on opening it, found two brown colour packets. Out of two packets, one packet was opened and weighed, it was One Kilogram and Fifty grams and another bag was found to be Five hundred fifty gms. On checking the material by the SHO, it was found to be Charas. From both these packets samples of 30 gms. were taken and sealed in two bags and Namuna seal was affixed and 3 marked as A l A 2 and B 1 and B 2. Seals put on the packets were also sealed. On further searching accused one railway ticket from Kapatanganj to Baroda and one notice under Section 50 NDSPS Act and Rs. 160 were found with him. Thereafter the accused was taken to the Police Station and FIR was registered. 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 10 witnesses. 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 April 13, 2005 convicted and sentenced the accused appellant as indicated above. 3. Miss Rajesh Kandwal, 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 from the accused appellant. The trial court rightly 4 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 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 5 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 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, 6 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 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 7 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 : (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 8 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 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 9 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 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 10 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 Netram, on March 3, 2004 was posted as Constable No.714 GRP Police Station Gangapur City. From GRP Gangapurcity two seized packets were given to him for handing over to FSL. Both packets were marked A 1 and B 1 along with other papers. Firstly he went to the office of SP GRP and got forwarding letter and thereafter reached FSL Jaipur. At FSL he deposited the packets and papers and got receipt. He stated that when packets were received by him and deposited with the FSL, were in sealed condition. In Rojnamcha Aam he entered his Ravangi and after coming back he noted his Aamad in Rojnamcha. Ex.P.1 is Ravanagi in Rojnamcha and Ex. P.2 is Aamad in Rojnamcha after returning back. Copies of Ex.P1 and Ex. P2 are Ex.P.1 and Ex. P.2 A, on which he put his signatures A to B. Receipt of FSL is marked as Ex. P.3. PW.2 Radhey Shyam Yadav, was posted as constable in SP office at Ajmer. On March 4, 2004 he received information under section 57 NDPS Act from Police Station GRP, Gangapur City. He entered the same in Aamad and original information was receipted by him at No. 1860 dated 4.3.2004. PW.3 Nihal Singh posted as Constable on 11 1.3.2004 at GRP Police Station Gangapur City. At that time Duleram and Jagdish Prasad constable were also available at Police Station. At 1.45 p.m. constable Yashpal Singh reached at the Police Station and informed that in Avadh Express one suspect was found and they had apprehension that he is having Narcotic drug and got down the suspect from Avadh Express and two constables are on watch and ward duty at the Plat form. Upon this Dulheram gave information to the higher officiers. Rapat was also marked in the Rojnamcha Ex. P.4 where he put his signature A to B. PW.4 Shivram stated that on 1.3.2004 he was posted as Constable at GRP Police Station. On that day envelop containing information under Section 42 of the NDPS Act was taken away by him to SP office. He handed over the said envelop to SP Sb. He got receipt of it on Rod (written note) Ex. P.5 where SP put his signature A to B. Ravanagi from Police Station was entered in the Rojnamcha Aam, which is Ex. P. 6, where he put his signature A to B. On returning back his Aamad was also recorded in Rojnamcha Ex. P.7 where also he put his signature. Copies of Ravanagi and Aaamd are Ex. P.6 A and Ex. P.7A. PW.5 Ganesh Lal, SHO GRP, Sawai Madhopur stated that on 1.3.2004, DY. S.P. GRP Kota directed him on telephone that Superintendent of Police received information from Gangapur City Platform that one suspect having narcotic drug is detained. As per this direction he along with Chandan Singh reached at Gangapur City Railway Platform where Avadh Express was to reach at 6.15. At platform No.2 Head Constable Incharge Thana GRP Gangapur City Dulhe Ram with investigating kit and Constables Yashpal, Shyam Singh, Raman Lal, Phal Singh met them with one suspect, to whom asking about his whereabout he 12 disclosed his name Umesh Kumar Joshi. Head Constable Dulheram handedover the information supplied by Yash pal Constable, witness endorsed his comments and put his signature. Constable Yash Pal Singh was given Tahrir to bring two independent witnesses, who brought two witnesses Akram and Ajij, to whom the witness asked them to become witnesses in narcotic drug case. For this Fard was prepared, which is Ex. P.8 where at place A to B is his signature and C to D and E to F are the signatures of witnesses and G to H and I to J were the signature of constables with him. Information given by Dulheram regarding suspect having narcotic drug under Section 42 of NDPS Act is Ex. P.4 where he put his endorsement C to D and E to F is his signature. After obtaining consent of the witnesses, accused Umesh Kumar was informed about his legal rights, for which Fard Ex. P.9 was prepared where A to B is his signature and C to D and E to F, G to H and I to J and K to L are the signatures of witnesses. Copy of this was given to accused. The accused was informed about his legal rights that he has a right to be searched by a Judicial Magistrate or Gazetted Officer, over which he gave his consent to be searched by Sub Inspector Ganesh Lal. Consent letter is Ex. P.10 where A to B is his signature and C to D, is signature of accused, E to F, G to H and I to J are the signatures of witnesses. Thereafter Fard seal was prepared, which is Ex. P.11, where he put his signature A to B, C to D and E to F are the signatures of witnesses and at place X seal Namuna was affixed. Thereafter the witness put himself to be searched over which no objectionable article was found with him. Fard of search was prepared which is Ex. P.12 where C to D is his signature and A to B is signature of Dulheram and E to F and G to H are the signatures of witnesses. Thereafter the accused was searched and with him two packets were found containing Charas. Dulheram weighed one packet and found weight l Kg. and 50 gms. Umesh Kumar was asked 13 about the licence for keeping narcotic drug, to which he denied. From the packets two sampels of 30 gms were taken out and marked as A 1 and A 2. The witness further stated that weight of another packet was also taken and it was found 550 Gms. from which two samples 30 gms. were taken for examination by FSL. The articles were marked as B 1 and B 2. All the articles and the recovered material were sealed for which seizure memo Ex. P.13 was prepared, over which he put his signature A to B, C to D is signature of accused, E to F and G to H and I to J are the signatures of witnesses and at place X namuna seal was affixed. The Namuna seal was also sealed in one brown packet for which seizure memo Ex. P.14 was prepared, over which he put his signature A to B, C to D is signature of accused, E to F, G to H are the signatures of witnesses. The accused was arrested vide Ex. P.15. Ex. P.16 is Railway ticket recovered from the accused which is from Kaptanganj to Baroda. On Ex. P.16 he put his endorsement and signature at place A to B, C to D is signature of accused, and E to F and G to H are signatures of witnesses. During search one notice under section 50 NDPS Act was also recovered. Ex.P.17 to Ex. P.23 are the copies of the chits and seals put on the seized material and samples taken from the material. After recovery of