IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.185 of 1996. Date of decision: 25.2.2010 State of H.P ..Appellant Versus Roshni Devi & anr. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Shri Vivek Singh Thakur, Additional Advocate General. For the respondents: Mr.Vinay Thakur, Advocate for respondent No.1. Mr.Parneet Gupta, Advocate for respondent No.2. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgement of the learned Additional Sessions Judge (I), Shimla in Sessions Trial No.33-S/7 of 1993, decided on 30.12.1994 whereby she acquitted the accused of having committed an offence punishable under Section 20 of the 2 Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’). The prosecution story, in brief, is that PW/8 Sh.Sunder Lal, Deputy Superintendent of Police, CID, Shimla received secret information that respondent No.1 Roshani Devi who was working as mid-wife in the Vidhan Sabha Dispensary was indulging in the sale and purchase of charas. On receipt of this secret information, PW/8 formed a raiding party consisting of a number of officials and proceeded towards the Vidhan Sabha Dispensary. On the way, they found the accused No.1, Roshani Devi at a short distance from their office itself which is near the dispensary. She was standing on the side of the road. She was searched by two lady constables and 850 grams of charas was found in her purse. Respondent No.2, Arvind Chopra was standing next to her. He was also searched and 25 grams of charas was found wrapped in a piece of paper in his pocket. Both the accused were arrested. Two samples of 25 grams each from the charas recovered from respondent No.1 and one sample of 10 grams from the charas recovered from respondent No.2 were 3 separated and sealed in separate parcels. The samples were sent to the Chemical Examiner, C.T.L. Kandaghat for examination. Other codal formalities were completed and the accused persons were arrested. While respondent No.1 was in custody, the house of respondent No.1 was firstly searched soon after her arrest. Nothing except weights, measure and a cutter was recovered at that time. It is the case of the prosecution that in the night, the respondent No.2 was further interrogated. Next day, the house of respondent No.1 was again searched and at that time, she made a disclosure statement under Section 27 of the Evidence Act and on the basis of this disclosure statement, the police recovered 3.5 kilograms of charas kept behind the bushes near the house of the said accused. The samples were taken from this charas also and sent to the Chemical Examiner, C.T.L. Kandaghat. All the samples were found to be of charas and the resin content was found to be 26% and 35.7%. On the basis of this evidence, challan was filed and the accused were charged with having committed an office punishable under Section 20 of the 4 Act. The accused pleaded not guilty and claimed trial. After trial, the accused were acquitted. Hence the present appeal. The learned Trial Court acquitted the accused mainly on the ground that the provisions of Section 42 and 50 of the Act had not been complied with and also that there were material contradictions in the statements of the prosecution witnesses. In this case, we are concerned with two recoveries. The first recovery was made on the road outside the Vidhan Sabha Dispensary. In this search, 25 grams of charas was recovered from the pocket of Sh.Arvind Chopra and 850 grams of charas was found in the purse of Roshani Devi. As far as this recovery is concerned, the provisions of Section 42 of the Act are not applicable since the search took place in a public place. Therefore, even though there was prior information the provisions of Section 42 would not applicable and it is Section 43 which would apply. As far as the accused Arvind Chopra is concerned, admittedly, the recovery was made from his 5 pocket. Therefore, the provisions of Section 50 of the NDPS Act had to be complied with. Roshani Devi was searched by Savitri Devi, PW/2. According to the prosecution, 850 grams of charas was recovered from her purse. Nobody has clearly stated whether the purse was being carried by Roshani Devi in her hand or it was being carried inside her clothes. Since Savitri Devi who searched Roshani Devi did not clearly state where the purse was, the provisions of Section 50 would apply in her case also. None of the witnesses except PW/8 has stated a word about any option being given to the accused as to whether they wanted to be searched by the raiding party or by any other Gazetted Officer or Magistrate. In fact, the law requires that they should not only be given an option but they should be told that they have a right to be searched in the presence of either a Gazetted Officer or Magistrate. A Constitution Bench of the Apex Court in State of Punjab versus Baldev Singh, 1999(6) SCC 172, has clearly held that the accused has a right to be made aware of his right to get searched before a Magistrate or 6 Gazetted Officer. Having regard to the Miranda clause as enunciated by the Supreme Court of the United States of America in Miranda v. Arizona [384 US 436], the Constitution Bench held that, although, such communication itself may not necessarily be made in writing but as far as possible such communication should be made in the presence of some independent and respectable persons witnessing the arrest and search. It was thereafter held as follows: “57 On the basis of the reasoning and discussion above, the following conclusions arise: (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 person concerned 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 person concerned about the existence of his right to be searched before a gazetted officer or Magistrate would cause prejudice to an accused.” (emphasis supplied) A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat 2007 (1) 7 SCC 433 noticed the aforementioned dicta laid by the Constitution Bench in Baldev Singh (Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted officer or a Magistrate. As far as respondent No.2 is concerned, there is no manner of doubt that Section 50 of the Act applies. Violation of the provisions of Section 50 is writ large and, therefore, the acquittal of respondent No.2 is upheld. In case of Roshani Devi, if for the sake of argument, we assume that she was carrying the purse and Section 50 of the Act is not applicable, then also there are glaring contradictions in the prosecution case. According to the Investigating Officer, PW/8, after he received the information he formed a raiding party and Kishori Lal, PW/3 was included in the same. He further stated that the lady police officials searched the purse which Roshani Devi had with her and charas was found in the purse. He took two samples of 50 grams each and the bulk charas as well as the sample charas was sealed with seal ‘KSD’. According to him, thereafter, 8 the house of Roshni Devi which was at a short distance was searched. Though one cutter, scales and weight were recovered but no charas was recovered. According to him, he had some information that Roshni Devi was keeping charas at his house so he again took her to her residence on the next day, i.e., 26th September and associated Bhagat Singh and Ram Singh from the locality, when she disclosed that she had kept the charas in the bushes. Thereafter, the charas was recovered from the bushes. This witness admitted in cross-examination that various facts which he had stated in the Court were not mentioned in the Ruka which he sent from the spot. According to him, the place where the first recovery was made was about 120-150 feet from the gate of his office and not visible from his office. He associated Kishori Lal, independent witness just outside his office. When confronted with the material mentioned in the Ruka, he had no explanation but to say that he had forgotten certain facts. He however, admitted that in the Ruka, it was mentioned that Roshani Devi was under surveillance and when Arvind Chopra approached her, Roshani Devi 9 handed over one packet to him. This version given in the Ruka Ext.PF is totally different from what the witnesses have stated in Court. In Court, it has been stated that on prior information being received, when they went outside on the roadside, Roshani Devi and Arvind Chopra were apprehended and charas recovered from them, as detailed above. It is, therefore, apparent that the Investigating Officer did not conduct the investigation impartially and fairly. This witness also admitted that he did not try to associate any persons from the Vidhan Sabha or the HPSEB Office which were near to his office. When a search is being made on prior information, the least which is expected from an impartial Investigating Officer is that he should associate independent witnesses. Kishori Lal is not an independent witness, as will be pointed out here- in-after. The witnesses have given different versions about the place where the first recovery took place. As pointed out above, the Investigating Officer stated that the recovery took place at a distance of 120-150 feet 10 from his office. However, Inspector Kahan Singh who appeared as PW/1 stated that the recovery was made at a distance of 2-3 yards from his office. This is a glaring contradiction. There is a lot of difference between 2-3 yards and 40-50 yards. This witness also admitted that there are a number of offices near his office. According to him, the recovery did not take place from the road but at the side of the office. According to him, Kishori Lal was visible from the spot and was thereafter, associated with the raid. This is also contradictory to what the Investigating Officer has said. This witness was confronted with various contradictions between the statement made before the police under Section 161, Cr.PC and the statement made in Court. He stated that thereafter, the house of Roshani Devi which is at a distance of 2-3 furlongs was searched and Bhagat Ram was associated with the search. He categorically stated that Bhagat Ram was associated between 3.15 p.m to 3.30 p.m on 25.9.1992. The Investigating Officer however, stated that Bhagat Ram was not at all associated with the search 11 which took place on 25.9.1992 but was only associated with the second search which took place on 26.9.1992. Bhagat Ram appeared in the Court as PW/4. According to him, for the first time, he was associated with the police on 26th September, 1992. This shows that the statement of PW/1 is totally false. Whereas the Investigating Officer stated that the personal search took place at a distance of 120-150 feet from his office on 25.9.1992, PW/1 stated that it took place on the side of the office at a distance of 2-3 yards. PW/2 Savitri Devi who searched Roshani Devi gives a totally different version. According to her, the search was conducted inside the dispensary in which Roshani Devi was working. She stated that the Vidhan Sabha Dispensary is at a distance of 100 yards from the CID office. Therefore, now the distance from the CID office has become 300 feet. In cross-examination, Savitri Devi gave another version. In this version, she stated that Roshani Devi was apprehended at a distance of 100 yards from the CID office and that Roshani Devi was visible from the office itself. 12 PW/3 Kishori Lal, the so-called independent witness did not support the prosecution version at all. According to him, he was called by the police and taken to the CID office where the lady and the charas were already there. He admitted that he runs his business in the Sabzi Mandi next to Police Station, Sadar, Shimla. It is apparent that this witness is a totally unreliable witness. His presence at the spot is doubtful and it appears that his signatures were procured later on. PW/6, ASI Govind Ram stated that he was posted in Police Station, Boileauganj, Shimla at the relevant time and four packets of samples and two packets of case property were deposited with him by the Dy.S.P, PW/8. He did not mention the seals which were on the case property. He had also not produced the register of the Malkhana. PW/9, Garib Dass is a Head Constable. According to him, he does not remember the date when he took the parcels from Shimla to any place or to the Forensic Science Laboratory. He does not remember the number of packets given to him. He does not remember 13 the seal impressions. Therefore, with regard to the first search even if Section 50 is not held applicable qua Roshani Devi, the search itself is totally doubtful. There are following four different versions about the place where the search took place. (1) Search took place immediately outside the office at a distance of 2-3 yards. (2) It was at a distance of 40-50 yards. (3) It was at a distance of 100 yards on the road side. (4) It was inside the Vidhan Sabha dispensary. Here we are dealing with a case where the independent witness had turned hostile and there are glaring contradictions in the statements of the official witnesses. The presence of Kishori Lal at the spot is extremely doubtful. He is a small vender selling vegetables in the Sabzi Mandi near the Police Station, Sadar, Shimla. There is no explanation as to what he was doing at Kennedy House during his business hours. Therefore, his version that he was called by the police to the office to sign the papers appears to be correct. 14 According to PW/1, Kahan Singh, Bhagat Singh was associated with the search which took place in the house of Roshani Devi between 3.15 to 3.30 p.m on 25.9.1992. However, all the other witness denied this fact. Even Bhagat Singh stated that he was associated with this case on 26th September. Therefore, the place and the manner in which the recovery took place has not been proved by the prosecution. Even link evidence in this case is totally missing. After the case property was sealed and kept in the police station, it was the duty of the Incharge of the Police Station to have resealed the case property. This was not done in the present case. Neither the Malkhana Register nor the road certificate were produced. PW/9 Head Constable who is purported to have taken the sample to the Forensic Science Laboratory has not supported the prosecution version at all. He does not remember the date, the number of packets and the place where he took the samples. In fact, there is nothing to show that even if he carried some samples, they related to the present case. No seal impression of the sample was 15 prepared and none of the witnesses stated that the seal impression was sent to the Forensic Science Laboratory. Therefore, it is not clear how the Forensic Science Laboratory in its report mentioned that the seals on the parcel were compared with the sample seal impression. The link evidence in this case is totally missing. As far as the second recovery is concerned, PW/8 in his statement clearly stated that he had secret information that Roshani Devi had hidden some charas in her house and, therefore, despite the fact that no charas was recovered on 25th September, 1992, he again interrogated her and took her to her house on 26th September, 1992 when from the bushes, 3.5 kilograms of charas was recovered. Even as per the case of the prosecution, this is clearly a case of prior information. Section 42 of the Act reads as under: “42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy 16 or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and subset,- (a) Enter into and search any such building, conveyance or place; (b) In case of resistance, break open any door and remove any obstacle to such entry; (c) Seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) Detail and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such 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 (2) Where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso 17 thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” The Apex Court in State of Punjab vs. Balbir Singh, (1994) 3 SCC 299, Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513, Karnail Singh vs. State of Rajasthan (2000) 7 SCC 632 and in many other cases has held that the provisions of Section 42 are mandatory in nature and non-compliance thereof renders the search illegal. Power to make search and seizure as also to arrest an accused is founded upon and subject to satisfaction of the officer as the term "reason to believe" has been used in Section 42. Such belief may be founded upon secret information that may be orally conveyed by the informant. This must then be recorded in writing. Draconian provision which may lead to a harsh sentence having regard to the doctrine of 'due process' as adumbrated under Article 21 of the Constitution of India require striking of balance between the need of law and enforcement thereof, on the one hand, and protection of citizen from oppression and injustice on the other. 18 The Apex Court in Balbir Singh’s case (supra) referring to Miranda v. Arizona [(1966) 384 US 436] while interpreting the provisions of the Act held that not only the provisions of Section 165 of the Code of Criminal Procedure would be attracted in the matter of search and seizure but the same must comply with the right of the accused to be informed about the requirement to comply with the statutory provisions. The Apex Court times without number has laid great emphasis on recording of reasons before search is conducted on the premise that the same would reflect the earliest version which would be available to a court of law and the accused while defending his prosecution. The provisions contained in Chapter-V of the Act are a group of sections providing for certain checks on exercise of the powers of the concerned authority which otherwise would have been arbitrarily or indiscriminately exercised. The statute mandates that the prosecution must prove compliance of the said provisions. If no evidence is led by the prosecution, the Court will be entitled to draw the 19 presumption that the procedure had not been complied with. Section 42 of the Act clearly lays down that the authorized officer is entitled to enter into or search any building if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance liable for seizure or forfeiture under the Act is kept or concealed in such building. The Investigating Officer has not stated that he recorded the information received by him in writing. This is a mandatory provision of law and non-compliance of the same makes the search illegal. Proviso to Section 42 provides that if the Officer receiving such information has reason to believe that a search warrant cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of an offender, he may enter and search the building after recording the grounds of his belief. In the present case the Investigating Officer did not make any attempt to obtain search warrants and he 20 also did not record the grounds for making the search without obtaining the search warrant. This also amounts to non-compliance of the provisions of Section 42. Section 42(2) of the Act provides that the Officer taking down any information in writing under sub- section (1) or recording the grounds for his belief under the proviso thereto shall within 72 hours send a copy thereof to his immediate official superior. This provision has also not been complied with at all. Therefore, there is total non-compliance with the provisions of Section 42 of the Act. There is no evidence whatsoever to show that any of the provisions of Section 42 of the Act were complied with. Whenever any secret information is received by any person, the same should be taken down in writing. This is provided under Section 42(1) itself. This was admittedly not done. Section 42(2) starts with the words ‘where an officer takes down any information in writing under sub section (1), he is within 72 hours required to send a copy thereof to his immediate official superior’. This provision has been held to be mandatory in a number 21 of decisions cited here-in-above. This has also not been done in the present case. Thus the search and seizure operation is illegal as the same has not taken down in writing. In view of above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 25th February, 2010 (Sanjay Karol) (m) Judge