// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. Criminal Appeal No.1157/2003 Ashok Kumar Sharma S/o Shri Tanna Lal Versus The State of Rajasthan through P.P. Date of Judgment :::: 9th February, 2007 PRESENT Hon'ble Mr. Justice Narendra Kumar Jain Shri V.R. Bajwa, with Shri V.P. Bishnoi, Counsel for accused-appellant Smt. Nirmala Sharma, P.P., for the State #### //Reportable// By the Court:- Accused Ashok Kumar Sharma has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, against the judgment and order dated 25.7.2003, passed by the Special Judge, N.D.P.S. Act Cases, Jaipur, in Sessions Case No.6/2001, whereby he was convicted under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter shall be referred to as 'the Act, 1985') and sentenced to ten years rigorous imprisonment and a fine of Rs.1,00,000/- (Rupees one lac); in default of payment // 2 // of fine, to further undergo two years simple imprisonment. Briefly stated the facts of the case are that PW-1 Mehtab Singh, the Additional Superintendent of Police (Crimes), Jaipur City, Jaipur, received a secret information from one informer at Police Station, Malviya Nagar, Jaipur, where he had gone for official work, which was reduced in writing by him vide Exhibit P-1 on 25th of February, 2001, at about 3.00 P.M., that one Ashok Kumar, resident of 11/1358, Malviya Nagar, Jaipur, will supply smack to some person near Nandpuri under-bridge. The said information was sent by him to his superior officer i.e. D.I.G., Range-I, Jaipur, vide Exhibit P-2. Thereafter he proceeded for the place as informed by the informer. He also called two independent witnesses through Constable, who brought Lal Chand (PW-3) and Rameshwar (PW-4). One Gauri Shankar (PW-7), the goldsmith, was also called for weighing the contraband. At about 4.55 P.M. one scooter came at the place as informed by informer, which was stopped by PW-1 Mehtab Singh, and, on his asking, the scooter- rider stated his name as Ashok Kumar, resident of Sector No.11, Malviya Nagar. PW-1 gave his // 3 // identification and informed him that he has an information that accused (suspect) is having smack in his possession. A notice Exhibit P-3 was given under Section 50 of the Act, 1985, to accused (suspect) to get himself searched either before Magistrate or Gazetted Officer or before him, who is also a Gazetted Officer. The accused (suspect) gave his consent in writing on Exhibit P-3 itself that he has full confidence in him and he may search him. Thereafter, a search was made and two packets from right-pocket and two packets from left-pocket of his pants were recovered, which were found to be smack from its colour and smell. The contraband was weighed by Gauri Shankar (PW-7), and the weight of each packets was found thus - 100 grams + 100 grams + 92 grams + 52 grams, and the total weight of all packets was 344 grams. From each packet two samples were taken weighing ten grams and they were sealed. The remaining packets were also sealed separately. The samples were marked as A-1, A-2, B-1, B-2, C-1, C-2, D-1, and D-2, and remaining packets were marked as A, B, C, D. The accused was arrested vide arrest-memo Exhibit P-5. The scooter of the accused was also seized vide Exhibit P- 6. A written-report was lodged by the Additional Superintendent of Police Mehtab Singh (PW-1), to the // 4 // Station House Officer, Police Station, Malviya Nagar, Jaipur, who registered F.I.R. No.112/2001 (Exhibit P- 8) under Section 8/21 of the Act, 1985. The specimen seal produced by PW-1 was seized by the S.H.O., vide Exhibit P-9. The site-plan was prepared. The samples of contraband were sent vide letter dated 26.2.2001 (Exhibit P-14), to the Rajasthan State Forensic Science Laboratory, Jaipur. The report of Public Analyst is Exhibit P-19 and, according to it, the result of analysis was given that on micro-chemical examination, the sample in each of the packets marked A-1, A-2, B-1, B-2, C-1, C-2, D-1, and D-2, gave positive tests for the presence of diacetylmorphine (HEROIN). After completion of investigation, a challan was filed against the accused. The learned trial court framed charge against the accused under Section 8/21 of the Act, 1985, which was denied and he claimed to be tried. The prosecution, in support of its case, examined 14 witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-19. Thereafter the statement of the accused was recorded under Section // 5 // 313, Cr.P.C., wherein he stated that a false case was registered against him. The learned trial court, after hearing the arguments from both the sides and considering the oral as well as documentary evidence on the record, convicted and sentenced the accused-appellant, as mentioned above. The learned counsel for the appellant, Shri V.R. Bajwa, contended that the trial court, in the facts and circumstances of the present case, has committed an illegality in convicting and sentencing the accused-appellant and, therefore, the judgment and order of the trial court is liable to be set aside by this Court. He contended that from the recovery-memo of contraband (Exhibit P-4) it is clear that the contraband was recovered from pants-pocket of the accused, therefore, Section 50 of the Act, 1985, was attracted in the present case. In this connection he referred the decision of the Hon'ble Supreme Court in the case of State of Himachal Pradesh Vs. Pawan Kumar – (2005) 4 SCC 350, wherein their Lordships considered and interpreted the words “Search of person”, used in Section 50 of the Act, 1985. Their Lordships held // 6 // that search of a bag, briefcase or any such article or container, etc., which is being carried by accused, is not a search of the person, hence Section 50 would not apply in such a case. But the word “person” would mean a human being with appropriate coverings, clothings and footwear. So far as the present case is concerned, there is no dispute that the contraband was recovered from the pants-pocket of the accused, and clothings of a person have been included in the word “person” used in Section 50, therefore, Section 50 of the Act, 1985, is attracted in the present case. In this background of the matter and presuming that Section 50 of the Act, 1985, is applicable in the present case, the learned counsel for the accused-appellant contended that there is violation of provisions of Section 50 in the present case and for that purpose he referred to the document Exhibit P-3 - the notice given to the accused under Section 50 and Exhibit P-4 - the seizure-memo, and, on that basis he contended that PW-1 Mehtab Singh, who himself was an authorized officer under Section 42 of the Act, gave option to the accused for his search before himself as he was a Gazetted Officer also, and, after obtaining the consent of the accused, // 7 // a search of contraband from the person of accused was made in presence of PW-1 Mehtab Singh himself, therefore, PW-1 Mehtab Singh, who was authorized officer under Section 42 of the Act, acted in dual capacity i.e. under Section 42 as well as Section 50 of the Act, 1985, both, and, in view of the law laid down by the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Ram Chandra – (2005) 5 SCC 151, an Officer, who acts in dual capacity, is not treated sufficient compliance of Section 50 of the Act. He referred Para 21 of the above judgment in support of his contention. He further contended that the provisions of Section 50 have been held to be mandatory and, therefore, non-compliance thereof would defeat the entire prosecution case and entire proceedings are liable to be declared as vitiated. He also referred to the following decisions - 1. Babulal and Others Vs. Union of India – 1996 Cri.L.J. 1864 2. Nadeem Vs. State of Rajasthan – 1998 Cr.L.R. (Raj.) 392 3. Anil Vs. Union of India – 2004 (2) Cr.L.R. (Raj.) 1165 4. Shyam Lal Versus State of // 8 // Rajasthan – 2005 (1) Cr.L.R. (Raj.) 60 5. Ram Chandra Versus State of Rajasthan – 2003 (1) Cr.L.R. (Raj.) 455 6. Azad Singh & Another Versus The State of Rajasthan – 2000 Cr.L.R. (Raj.) 480 7. Munna Ali Versus State – 1999 (1) EFR 287 The learned counsel for the appellant also contended that necessary link evidence in the present case is missing relating to compliance of Sections 55 and 57 of the Act, 1985. It is contended that the provisions of Sections 55 and 57 may not be mandatory in nature but the Hon'ble Apex Court has held that compliance of the provisions of Sections 55 and 57 is necessary. In this connection, he referred to the decisions in the following cases – 1. Gurbax Singh Versus State of Haryana – JT 2001 (2) SC 330 2. Faglu Ram and Another Versus State of Rajasthan – 2001 (2) R.C.C. 961 3. Prakash Singh Versus State of Rajasthan – 2001 Cr.L.R. (Raj.) 147 4. Gopal Lal Versus Union of India – 2006 (1) Cr.L.R. (Raj.) 532 // 9 // The learned counsel for the appellant has also contended that it was necessary to be mentioned in the notice given under Section 50 of the Act, 1985, that the accused has a “right” of his search either before a Magistrate or a Gazetted Officer and, if the fact of “right” has not been mentioned then the notice will be treated as invalid and it will be treated violative of mandatory provisions of Section 50. In this connection, he referred to the decisions in the following cases - 1. K. Mohanan Versus State of Kerala – (2000) 10 SCC 222 2. Chandra Kailash Hanuman Versus The State of Rajasthan – 2004 (2) Cr.L.R. (Raj.) 1049 3. Dilip & Another Versus State of M.P. - 2006 (8) Supreme 914 On the basis of above referred judgments, the learned counsel for the appellant further argued that description of the accused was not mentioned in the information (Exhibit P-1) and, in absence thereof, it was not possible for PW-1 Mehtab Singh to identify the accused. The description of vehicle, which was to be used by the accused, was also not mentioned. The prosecution witnesses have not // 10 // stated that the informer also accompanied with PW-1 Mehtab Singh for the site. The learned counsel for the appellant further contended that from the recovery- memo of contraband as well as arrest-memo of the accused, it is clear that so-called notice under Section 50 of the Act, 1950, was not recovered from the possession of the accused, therefore, it should be presumed that no notice was given to him and it should be treated as violation of mandatory provisions of Section 50 and the accused should be acquitted. It is further contended that the seal, which was used on the recovery-memo (Exhibit P-4), was not sealed at the spot, nor any memo of specimen seal was prepared. He also referred 'maalkhana' register, wherein no entry was found as to when the samples were taken out and sent for chemical examination. He, therefore, contended that the prosecution has failed to prove the case against the accused beyond all reasonable doubts and he is entitled to be acquitted. Per contra, the learned Public Prosecutor – Smt. Nirmala Sharma, contended that the submissions of the learned counsel for the accused-appellant are not tenable in the facts and circumstances of the present case as well as in view of the settled position of // 11 // law. She supported the impugned judgment of the trial court. It is contended on behalf of the State that description of the accused was given which is clear from the information Exhibit P-1 itself. His name itself was mentioned with his address. She referred the statement of PW-5, who stated that the informer had also gone at the spot with PW-1 Mehtab Singh to identify the accused. It is further stated that a notice under Section 50 of the Act, 1985, was given to the accused and there is no cross-examination from the prosecution witnesses as to whether the same was given, or not, therefore, even if, it is not mentioned in the recovery-memo (Exhibit P-4) or arrest-memo of the accused (Exhibit P-5) about recovery of notice from the possession of the accused, it hardly makes any difference. It is further contended that PW-7 Gauri Shankar is an independent witness in the case, who proved the prosecution case. PW-12 Manish Kumar has stated that PW-7 Gauri Shankar was present at the spot. PW-12 has further stated that the informer was also present to identify the accused at the spot. In support of her arguments, the learned Public Prosecutor referred to the decisions in the following cases:- // 12 // 1. Balubhai Nathalal Bharada Versus State of Maharashtra – (2004) 13 SCC 628 2. Bhanwar Singh Vs. Union of India – 2006 Cri.L.J. 3585 3. State of Punjab Vs. Swaran Singh – (2005) 6 SCC 101 In State of Himachal Pradesh Vs. Pawan Kumar – (2005) 4 SCC 350, their Lordships of the Hon'ble Supreme Court considered the meaning and scope of word “person” in the context of Section 50 of the Act, 1985, and held that the word “person” has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word “person” appears to be “the body of human being as presented to public view usually with its appropriate coverings and clothing”. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Para 10 of the judgment is reproduced as under:- “10. We are not concerned here with the wide definition of the word “person”, which in the legal world includes corporations, associations or // 13 // body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word “person” appears to be - “the body of a human being as presented to public view usually with its appropriate coverings and clothing”. In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of other without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For // 14 // interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word “person” would mean a human being with appropriate coverings and clothings and also footwear.” In State of Rajasthan Versus Ram Chandra – (2005) 5 SCC 151, their Lordships of the Hon'ble Supreme Court considered the provisions of Section 50 of the Act, in detail, and, in Para Nos.12, 13, 18, 19 and 21, held as under:- “12. It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under Section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed or intended, the court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or straitjacket formula. 13. Section 50 does not involve any self-incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his // 15 // right to be searched if so required by him before any of the specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transparency in the process of search has been given primacy. In Raghbir Singh Vs. State of Haryana – (1996) 2 SCC 201 the true essence of Section 50 was highlighted in the following manner: (SCC pp.204-05, paras 8-11) “8. The very question that is referred to us came to be considered by a Bench of two learned Judges on 22.1.1996 in Manohar Lal v. State of Rajasthan – (1996) 11 SCC 391. One of us (Verma, J.), speaking for the Bench, held: 'It is clear from Section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available gazetted officer or the nearest available Magistrate. The choice of the nearest gazetted officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused.' 9. We concur with the view taken in Manohar Lal case. 10. Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him // 16 // to prove that he was not in contravention of its provisions and it renders him liable to severe punishment. It is, therefore, that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a gazetted officer or a Magistrate, depending upon who is conveniently available. 11. The option under Section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a gazetted officer or of being searched in the presence of a Magistrate. The use of the word 'nearest' in Section 50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, gazetted officer or Magistrate.” 18. If the person so requires, the officer referred to under sub-section (1) of Section 50 may detain the person to bring him before the gazetted officer or the Magistrate, as the case may be. As was noticed in Raghbir Singh case the Act affords the person to be searched a safeguard to the effect that he may require the search to be // 17 // conducted in the presence of a senior officer. The senior officer may be a gazetted officer or a Magistrate depending upon who is conveniently available. That being the purpose of the Act, if any gazetted officer even if he is a police officer of a particular rank is present nearby when the accused is detained, the accused may be asked as to whether he would like to be searched in the presence of that officer or a Magistrate. The foundation of the stand taken by the accused-respondent which found favour with the High Court is that if he is a member of the raiding party the requirements of Section 50 are not met. This is not legally tenable, and in any event on the facts of the present case it was not so because PW 3, the Deputy Superintendent of Police reached the spot after the person was detained. 19. As noted above, in Raghbir Singh case the option given to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available gazetted officer or the nearest available Magistrate. The choice of the nearest gazetted officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused. In the instant case all the options were made known to the accused and he himself opted to be searched in the presence of the Deputy Superintendent of Police (PW 3). 21. The conclusions of the High Court would have been correct if the officer proposing to effect the search is a gazetted officer and he gives option to be given under Section 50 to the person detained to be searched in his presence. In that event, the requirement of Section 50 would not be met because the officer proposing to // 18 // effect the search cannot act in dual capacity; first as an officer authorized under Section 42 to search a person and second as the gazetted officer in whose presence the accused may opt to be searched.” In Babulal Vs. Union of India – 1996 Cri.L.J. 1864, a Single Bench of the Madhya Pradesh High Court held that taking a Gazetted Officer along with the raiding party makes such person impliedly interested in raid, hence it is not sufficient compliance of the mandatory provisions of Section 50. In Nadeem Vs. State of Rajasthan – 1998 Cr.L.R. (Raj.) 392, a Single Bench of this Court held that when a Gazetted Officer is with the raiding party then his evidence becomes doubtful. The provision does not require to carry the officer to the accused for witnessing the search. In Anil Versus Union of India – 2004 (2) Cr.L.R. (Raj.) 1165, this Court held that the accused- persons were not informed about their right that a Magistrate or Gazetted Officer, if sees no reasonable ground for search, shall discharge the appellants and on that ground the conviction of the accused was set aside. // 19 // In Shyam Lal Vs. State of Rajasthan – 2005 (1) Cr.L.R. (Raj.) 60, a Single Bench of this Court held that S.H.O. did not inform appellant about his right to be searched either before a Magistrate or Gazetted Officer, and he himself effected search and seizure and thus played role of a Magistrate or Gazetted Officer, and in these circumstances it was held that the appellant was not made fully aware of his right under Section 50 of the Act, 1985, and the accused was acquitted. In Ram Chandra Vs. State of Rajasthan – 2003 (1) Cr.L.R. (Raj.) 455, it was held that an option given to accused to get himself searched in presence of Dy. S.P., who was a member of the raiding party, the same was found to be fatal to the prosecution case and it was held that mandatory provisions of Section 50 have not been complied with and accused was acquitted. In Azad Singh & Another Versus The State of Rajasthan