1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT MOHD. RAFIKUL ISLAM vs. STATE OF RAJ. SB Criminal Appeal No. 232 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. 10 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 : Sept. 4, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. S.L.Songra, Amicus Curiae for the appellant. Mr. Pradeep Shrimal, Public Prosecutor. BY THE COURT : The appellant Mohd. Rafikul Islam 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. 10 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, 2004 Constables Shrimanlal, Bheem Singh and Chandra Prakash of Police Station GRP Ajmer were on 2 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.20 to the Incharge Police Station GRP, Ajmer through Bheem Singh, Constable (PW.3). On this as the Incharge Police Station Shivdutt Singh was on leave, Officiating Incharge Police Station Bhawani Singh (PW.4) sent that report to Deputy Superintendent of Police GRP, Jaipur through Chandra Prakash Sharma (Constable). Thereafter Chandra Prakash Sharma (PW.2) Dy. S.P. under Section 42 of the NDPS Act sent the information vide Ex. P.21 to the SP. The Officiating Incharge Police Station with investigating box reached at the place where the accused were at Platform. Bheem Singh, constable was sent with notice to Chief Collector of Tickets Railway Station Ajmer for arranging two independent witnesses. Bhanuprakash Bayla and Ramprasad Gotam T.Cs. gave their consent for becoming independent witnesses vide Ex. P.1. Accused Mohammed Rafiqul Islam was given notice under section 50 of the NDPS Act Ex. P.17. Accused agreed for searching by Chandra prakash Sharma, Dy. S.P. and for that he has given his consent Ex. P.3. Chandra Prakash Sharma, Dy. S.P. first got himself searched before the independent witnesses and thereafter he searched the accused who was having Plastic Bottle with him. Inside plastic bottle one white polythine having tap over it polythine bags having contraband in dried condition was found . On cheking bag of the accused along with clothes one Bread packet was found. Recovered dried narcotic drug was examined by 3 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 400 gms . Two samples of each 30 gms. were sealed and marked as A 1 and A 2. The remaining narcotic substance weighing one kilogram and three hundred forty gms was separately sealed alongwith polythine packets and marked A . Bag along with clothes were also sealed and marked B. Mohammed Rafikul Islam was further searched and from his pocket one notice under section 50 NDPS Act Ex. P.17 and some papers were found which were recovered through Ex. P.16. The accused was arrested vide Ex. P.15 arrest memo. Sealed material along with accused taken to Police Station and in Rojnamcha report Ex. P.25, entries were made and FIR Ex. P.26 was chalked out. Sealed packets were deposited in the Malkhana and information under section 57 of the NDPS Act was forwarded to the higher officers through Ex. P.24. For examination of the sealed material, the same were sent to FSL. Vide Ex. P.31 the FSL opined that in packet marked A 1 gave positive tests for the presence of Diacetylemorphine (HEROIN). After investigation the challan was filed. 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 40 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 and order dated December 10, 2005 convicted and sentenced the accused appellant as indicated above. 3. Mr. S.L. Songra, 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 4 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, and on account of non compliance of the mandatory provisions of the NDSPS Act, 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 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 5 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 of any premises etc. However, if the empowered 6 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 NDPS Act also. However, when an empowered officer 7 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 ? Their Lordships of the Supreme Court in 8 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 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 9 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 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 10 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 Bhanuprakassh Bayla, T.C. Railway Ajmer stated that on April 10, 2004 he was posted as TC, at Railway Station Ajmer. On that day his duty was from 10 p.m. to 6.00 a.m. In the night at 10.15 p.m. one Constable came to Head T.C. Office and stated that two persons are in confinement at Platform No. 4-5 and for that two T.Cs. for evidence are required. Head TC Rajkumar orally directed me and Bahoran Prasad Gotam to go to Platform No. 4-5 11 and help in the proceedings. Thereafter I and Bahoran Prasad Gotam went with the Constable at Platform 4-5. When they reached, Dy. S.P. Shri C.P. Sharma with three four constable met them and they detained two persons with narcotic drug namely Mohammed Mofjul and Mohammed Rafikul. Mohammed Rafiqul was having one water bottle and one black bag. Deputy Saheb gave in writing to us and ask for searching him. On this I searched C.P. Sharma. C.P.Sharma thereafter gave in writing to Rafiqul for searching him. C.P.Sharma while searching Rafiqul found one water bottle with him and opened it. On opening it found that polythine covered it with muddy colour polythine having tape on it. In the bottom of bottle two polythine bags of brown colour with covered tape having brown material were found. All the four bags were weighed and it was found that they were One kilogram and four hundred gms. From four bags two bags were opened and from that packets of 30 gms. each sample were obtained. Samples were tested at the platform and found that it is HEROIN. At the spot the samples and the bags were sealed and all the formalities were completed. On recovery memo Ex. P.1 he put his signature A to B. On notice Ex. P.2 under section 50 of the NDPS Act he has also put his signature A to B. (The advocate of the accused objected that Ex.P.1 and Ex.P.2 are the carbon copies) Ex. P.3 is consent of Rafiqul where he has put his signature A to B. Ex. P.4 is searching memo by C.P. Sharma where he has put his signature A to B. Ex. P.5 is recovery memo where he has put his signature A to B. and at place X the seal is affixed. Ex. P.6 is Namuna seal where also he has put his signature A to B. Ex. P.7 and Ex. P.14 pasting of Namuna seal,he also put his signature A to B. Ex. P.14 A is compliance of Section 52 of the NDPS Act where he has put his signature A to B. On Notice Ex. P. 16 he has put his signature A to B. On Ex. P.17 notice under section 50 of the NDPS Act he has put 12 his signature A to B. Fard Jabti seal is Ex. P.18 where also he has put his signature A to B. Naksa Moka Ex. P.19 is containing his signature A to B. PW.2 Chandra Prakash Sharma, Dy S.P. Stated that on 10.4.2004, he was posted as CO GRP Ajmer. At 10.00 p.m. the Incharge Police Station GRP Ajmer informed him about the suspects having narcotic drugs as reported by Police constable Shrimanlal are in confinement at Platform of railway. On this information under Section 42 of the NDSPS Act, 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 Bahoran Prasad. Both these persons were asked to become independent witnesses and in writing their consent were obtained. On asking the suspects about their names they disclosed their names to be Mohammed Mofjul and Rafikul Islam. Thereafter as per rule search of Mohammed Mofjul was made and from him narcotic drug was recovered. Thereafter notice under section 50 of the NDPS Act was given to Mohammed Rafikul and he was informed about his right to be searched by a Gazetted Officer or Judicial Magistrate. For which he was asked to give his consent. On this Rafiqul agreed to be searched by Dy. S.P. On this the independent witnesses were asked to first search him and thereafter as per rules search of accused Rafiqul was made and in his right hand one Catlee was found over which brown plastic polythience bag was wrapped and bottom of it one more brown polythience bag was found in which brown material was available. Besides this one more black bag was found with the accused it contained bread 13 and clothes and two more brown coloured polythine bags were found in which brown material was available. All the four brown polythine bags material mixed and weighed, it was found 1 Kilogram and 400 Gms. and on detecting from narcotic detection kit it was discovered to be HEROIN. Accused Rafiqul was asked about any licence with him for keeping this narcotic drug on which he refused to keep any such licence. Two samples of 30 gms. each narcotic material was sealed and rest of narcotic material was also sealed which was 1 Kg. And 340 Gms.. Thereafter accused Rafiqul was given notice under section 52 of the NDPS Act and he was informed that he has commmitted offence and thereafter arrested. On further searching him one notice under section 50 of the NDPS Act was recovered from his pant pocket, Rs. 1500 cash, one wrist watch, one Railway ticket from Daloda to Ajmer, one identity card of Election Commission of India and one visiting card of hotel were seized by the police. The seal which was used in seizing the material was kept in match box and same was also sealed. Thereafter both the accused were taken to Police Station from the Railway Platform and recovered material seized were given to Incharge Malkhana. Ex.P.20 is the report given by Shrimanlal Constable to him where he has directed for Police Karyawahi C to D and put his signature A to B. Information under section 42 of the NDSPS Act was sent, which is Ex.