Alla Baksh vs State of Andhra Pradesh

This is an appeal by the sole accused in S.C. No. 17/93 on the file of the Special Judge for trial of cases under Essential Commodities Act-cum-III Addl. Metropolitan Sessions Judge, Hyderabad. By the judgment, dated 6-7-1995, the accused has been convicted for the offences u/S. 8(c) r/w. Ss. 18 and 20(b)(2) and 20(b)(1) of NDPS Act and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- and in default, to suffer R.I. for five years for the offence under S. 18 of NDPS Act and further sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- for the offence under S. 20(b)(2) and he was further sentenced to undergo R.I. for 3 years and to pay a fine of Rs. 10,000/- for the offence u/S. 20(b)(1) of NDPS Act. The sentences of imprisonment are ordered to run concurrently.

The prosecution case in brief, is as follows :

PW-1 J. Narasinga Reddy, the then Inspector of Police, CID, Narcotic Cell received information at about 2 p.m. on 24-7-1993 that a person was selling drugs near the Govt. Junior College for Boys at Nampally, Hyderabad. He secured panchas, PW-2 Godugu Sandeepraj and another and proceeded to the place and found the appellant-accused near the main gate of Govt. Junior College for Boys, Nampally holding a green colour rexin Zip bag (M.O. 1). PW-1 took the accused into custody and interrogated him in the presence of PW-2 and another panch witnesses and seized M.O. 1 the Zip bag from the possession of the accused. On search of M.O. 1, it contained Opium (M.O. 2) of 400 gms. in polythene bag, cheras of about 130 grams (M.O. 3) in the white polythene bag and 24 paper pockets containing Ganja (M.O. 4). PW. 1 took three samples from the polythene bags containing Opium, Cheras and Ganja and kept them in polythene bags and seized them in the presence of mediators. The panchanama Ex. P-1 was drafted in the presence of the panch witnesses PW-2 and another and it was attested by them. One sealed paper containing sample of Opium, one sealed paper containing sample Cheras and one sealed paper containing Ganja were given to the accused and obtained his aknowledgement. PW-1 also explained to be accuse the reasons for his arrest and also appraised him that he will be produced before the nearst Magistrate for search if he is willing. After completion of panchanama Ex. P-1, PW. 1 brought the accused and M.Os. 1 to 4 to the office of the Director General of Police, C.B.C.I.D. and submitted his report Ex. P-2 for registering a case under Ss. 19 and 20 of N.D.P.S. Act. As per the directions of the Director General of Police, C.I.D., PW-5 took up further investigation. PW-5 registered Ex. P-2 which contained the endorsement of DIG, CID forwarding it for further investigation, as a case in Cr. No. 38/91 and issued the FIR Ex. P-7. PW-5 sent the accused to the IX Metropolitan Magistrate for remand. He deposited M.Os. 1 to 4 in Court and submitted a requisition Ex. P-9 with a letter of advice under Ex. P-3 to send the samples to Central Forensic Science Laboratory for analysis and report. PW-3 took up further investigation in this case. PW-4, The Dy. Director, incharge of the Central Forensic Science Laboratory received the samples and he analysed the samples and sent his report Ex. P-5 along with the covering letter Ex. P-6. He submitted his report stating that on analysis, he found Opium containing 1.7% of Morphin and the other two are Cheras and Ganja. After completing the investigation, PW-3 laid the charge-sheet against the accused.

(ii) The accused, when questioned, pleaded not guilty to the charges under Ss. 8(c) r/w. 18, r/w. 20(2)(b) and r/w. 20(b)(1) of Narcotic Drugs and Pschotropic substances Act, 1985 (hereinafter called N.D.P.S. Act) framed against him and claimed to be tried.

(iii) To prove it''s case, the prosecution examined PWs. 1 to 5 and marked Exs. P-1 to P-9 and M.Os. 1 to 7.

(iv) The accused when examined u/S. 313, Cr. P.C. with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, stated that he had been falsely implicated, and that he is an innocent person. The accused did not choose to examine any defence witnesses.

(v) On a consideration of the oral and documentary evidence placed before him, the learned Special Sessions Judge held that the accused in guilty of the charges framed against him and convicted him and sentenced him as stated earlier.

Questioning the said verdict convicting and sentencing him to imprisonment, the accused has come up with this appeal.

Heard the learned counsel for the appellant-accused and the Public Prosecutor at length. The learned counsel for the appellant took me through the entire evidence on record and also the impugned judgment.

The learned counsel for the appellant raised the following contentions :

(i) The provisions of S. 41(1) and 41(2) of the Act have not been complied with and as such trial is vitiated.

(ii) The provisions of under S. 50 of the Act are not complied with before effecting search on the person of the accused and as such, the entire proceedings are vitiated and the accuse is entitled for acquittal.

(iii) The prosecution failed to produce the authorisation given to PW-1 for effecting search under the Act and as such, PW-1 is not competent to search and seize the contraband under the Act.

(iv) The alleged seizure of the contraband from the possession of the appellant-accused is false. The testimony of PWs. 1 and 3 should not be relied upon as they are police officers, that PW-2 is a stock-panch witness for the police officers, that the scribe of Ex. P-1 panchanama is not examined.

The learned Public Prosecutor submitted his arguments is support of the impugned judgment.

Before considering the contentions raised on behalf of the appellant, I may indicate that as per Ex. P-5, report of the Chemical Examiner (PW. 4), the samples which were sent for chemical examination were found to be Opium, Cheras and Ganja as defined under the relevant provisions of the NDPS Act. PW-4 the Dy. Director, Central Forensic Science Laboratory, Government of India, Hyderabad deposed that he received the sample packets in time, that the seals on the samples were intact and tallied with the specimen seal provided in the letter of advice, that got them examined in the laboratory and found them as Opium, Cheras and Ganja.

As regards the first contention raised by the learned counsel for the appellant, it is submitted that PW-1 Inspector of Police, CID, Narcotic Cell, Hyderabad received the information to the effect that one person aged about 60 years having grey-hari-dyed, holding a green colour Rexine bag is trying to sell Narcotic Drugs near the Govt. Junior College for Boys, Nampally, Hyderabad and on such information, it is mandatorily required to be taken down in writing and copy thereof has to be sent forthwith to the Superior Officer and PW-1 having not done so, there is non-compliance of provisions of Ss. 42(1) and (2) of the Act and as such, the trial is vitiated. It is not disputed that PW-1 along with his Staff and panchas proceeded to Govt. Junior College, Nampally on credible information to the effect that one person aged about 60 years, holding a green colour Rexine bag in his bag and selling Narcotic drugs. There are averments to that effect in Ex. P-1, the Panchanama drafted for seizure of the drugs and arrest of the accused. PW-1 also informed by his letter Ex. P-2 addressed to the Director General of Police, CID, that he had information to that effect. In his examination in chief, PW-1 stated as follows :

"On 24-7-1991 as about 1-30 p.m. ............ I received credible information to the effect that one person aged about 60 years having grey-hair dyed holding a green colour rexine bag is trying to sell Narcotic Drugs near the main gate of Govt. Junior College for Boys, Bazarghat, Nampally, Hyderabad. Immediately I summoned two panch witnesses i.e. Godugu Sandeepraj alias Raju and K. Khallel Ahemed to my office to act as panch witnesses I explained to the panch witnesses about the information received by me. Thereafter, I along with my staff and the said two panch witnesses proceeded in my office jeep to the Govt. Junior College for Boys, Nampally, Bazarghat, Hyderabad and found the accused, nor present in the dock of the Court hall, standing near the main gate of the Govt. Junior College for Boys, Nampally, Bazarghat, Hyderabad holding M.O. 1 green colour rexine Zip bag. I along with my staff arrested the accused."

In his cross-examination, PW-1 has categorically stated that "I did not note down the information received by me in my office on any paper." PW-1 also did not specifically say in his evidence that he sent the information received by him forthwith to his superior officer before taking up any action on such information. Under S. 42(1) and 42(2) of the Act, PW-1 is obliged to send a copy of such information to his superior officer. PW-1 having not reduced the information received by him into writing and having not forwarded the said information forthwith to his superior officer, which he is mandatorily required to do, there is non-compliance of the provisions of S. 42(1) and 42(2) of the Act. In State of Punjab Vs. Balbir Singh, , the Supreme Court held inter alia, that under S. 42(1) of NDPS Act, the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing and non-compliance of this provisions in contravention of the same would affect the prosecution case and vitiate the trial. It has also been held that under S. 42(2) of the Act, such empowered officer, who takes down any information in writing, should forthwith send a copy thereof to his immediate superior official and if there is a total non-compliance of this provision affects the prosecution case. This decision has been followed with approval by the three Judges Bench of the Supreme Court in Mohinder Kumar Vs. The State, Panaji, Goa, . In that case, the Court found that the mandatory requirements of the proviso of S. 42(1) and 42(2) of the Act had not been adhered to. On that ground, the conviction of the accused was set aside. Hence, the non-compliance of S. 42(1) and 42(2) of the Act in the this case also is definitely fatal to the prosecution.

As regards the second contention, it is contended by the learned counsel for the appellant-accused that the provisions under S. 50 of the Act are not complied with before effecting search on the person of the accused and as such, the entire proceedings are vitiated and the appellant-accused is entitled for acquittal.

There is much force in this contention. Sub-secs. (1) and (2) of S. 50 provide as under :

"50. Conditions under which search of persons shall be conducted :- (1) When any officer duly authorised under S. 42 is about to search any person under Provisions of S. 41, S. 42, or S. 43 he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in S. 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred in sub-sec.(1)."

Under this section, it is obligatory on the part of the empowered person to inform to the person to be searched before search is being effected that he would like to take to the Gazetted Officer or Magistrate. It has been held by the Supreme Court in catena of cases that provisions of S. 50 of the Act are mandatory and non-compliance thereof vitiates the conviction vide "Balbir Singh" case (1994 Cri LJ 3702) (SC) case (supra) Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, , Mohinder Kumar Vs. The State, Panaji, Goa, . T. P. Razak Alias Nagappan Razak v. State of Kerala 1995 Suppl. (4) SCC 256.

In the instant case, that on credible information that a person aged about 60 years was selling drugs at the main gate of the Government Junior College for Boys, Nampally, PW-1 proceeded to that place with his staff and panchas and having found the accused with green colour rexine bag (M.O. 1) and on search, the bag contained Opium 400 gms., cheras 130 gms and 24 paper backets containing Ganja. PW. 1 also took samples from those packets of Opium, Cheras and Ganja under the Panchanama Ex. P-1 in the presence of panchas PW. 2 and another. It is true that PW-1 has stated in his examination in chief that he explained to the accused for the reasons of his arrest and that he told the accused that he will produce him before the nearest Magistrate for search if he is so willing and that the accused refused. PW-2 Godugu Sandeepraj alias Raju who is said to be one of the panchas for the arrest of the accused and seizure of the contraband drugs also deposed that the Inspector of Police told the accused that he will take him to any nearest Magistrate for search and the accused refused stating that earlier he was booked by the Habibnagar Police for drug trafficking. The learned counsel for the appellant-accused contends that there are no recitals to that effect in Exs. P-1 and P-2. Ex. P-1 Panchanama which was said to have been prepared at the same time. He further contends that in Ex. P-2, the letter addressed by PW-1 to the Director General of Police, CID, there are no recitals to that effect and if really PW-1 had informed the accused that he will take him to any nearest Magistrate or Gazette Officer, he would not have failed to mention the same in these documents Exs. P-1 and P-2 which were brought into existence contemporaneously. The learned counsel for the appellant-accused further contends that the present version in the evidence of PWs. 1 and 2 is an improvement to get over the laches in the part of the prosecution. There is much force in this contention. It is no doubt true that PWs. 1 and 2 stated to that effect in their evidence, but there is no mention of the same in the two documents Exs. P-1 and P-2 which have been drafted at that time. As earlier stated, Ex. P-1 is the panchanama drafted at the time of the seizure and arrest of the accused. If really, the accused was informed of that fact, there would have been a mention of the same in Ex. P-1. In view of the omission in the panchanama Ex. P-1 and the letter Ex. P-2, no reliance can be placed on the testimony of P.Ws. 1 and 2.

Having regard to the fact that Exs. P-1 and P-2 do not mention about the appellant having been asked before search was conducted as to whether he would like to be produced before the Gazetted Officer or the Magistrate, I am in view that the prosecution has failed to establish that there was compliance of provisions of S. 50 of the Act before conducting search of the appellant. In view of the non-compliance of the mandatory provisions of S. 50 of the Act, no reliance can be placed on the alleged search of the appellant-accused and the alleged recovery of the contraband from his possession. It is held in Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, that the contraband seized as a result of illegal search or seizure cannot be used to fasten as unlawful possession of the contraband on the person from whom the contraband has allegedly been seized in any illegal manner.

The learned Public Prosecutor has raised the contention that the act of informing the accused of his right of search before any Gazetted Officer or a Magistrate as required under S. 50 of the Act was an official act to be performed by a Police Officer and therefore, the presumption should be raised under S. 114, illustration (e) of the Indian Evidence Act to that effect. In "Balbir singh''s" case (1994 Cri LJ 3702) (SC) (quoted supra), it has been held that it is an imperative requirement that a police officer intending to search any person or articles kept under NDPS Act, should inform him that he had a right to be searched if he so chooses in the presence of a Gazetted Officer or Magistrate. It is held in that decision under (paras 17, 19 and 21) :

"In the context in which this right has been conferred, it must naturally be presumed that it is an imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right.

Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. It is obvious that the Legislature while keeping in view of the menance of illicit drug trafficking deemed it fit, to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to the innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, S. 50 is enacted.

Therefore, it is to be taken as an imperative on the part of the officer intending to search to inform the person to be searched of his right, that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus, the provisions of S. 50 are mandatory."

This decision has been followed with approval in the later decision in Saiyad Mohd. Saiyad Umar Saiyad and Others Vs. State of Gujarat, by the Supreme Court. It is observed in this decision in para 7 which reads thus :

"Having regard to the object for which the provisions of S. 50 have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under S. 114. Illustration (e) of the Indian Evidence Act, 1872. By reason of s. 114 a Court "may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case." It may presume that judicial and official acts have been regularly performed. There is no room for such presumption because the possession of illicit articles under the NDPS Act has to be satisfactorily established before the Court. The fact of seizure, thereof, after a search, has to be proved. When evidence of the search is given all that ranspired in its connection must be stated."

The learned public prosecutor also contends that even if the provisions of S. 50 of the Act are mandatory, it is applicable only when the "person" of the accused is searched and not the articles which are found in the possession of the accused are searched. As seen from the impugned judgment, this contention was raised even before the trial Judge and the trial Judge, relying on the decision of the Bombay High Court in 1994 Cri LJ 1987 held that S. 50 applies to cases of body search and not to the contraband recovered from bag in hand of accused. But, the approach of the learned trial Judge is absolutely incorrect.

In Ebanezer Adebaya Alias Monday Obtor Vs. B.S. Rawat, Collector of Customs, R and I, New Delhi and another, , the Full Bench of the Bombay High Court in Criminal Appeal No. 531 of 1993 has considered as to what meaning can be assigned to the phrase "to search any person" used in the Act. The Full Bench in para 5 of the judgment has considered "Whether "to search and person" means

(a) search of articles on the person or body of the person;

or

(b) would include search of articles in immediate possession such as bag and other language carried by him or in physical possession of the person to be searched;

or

(c) would include search of bag or luggage which are presumed to be in possession of the person even though it may be lying in a house, or railway compartment or at the airport;

and

(d) whether application of S. 50 can be extended to a case of search of a place, a conveyance or a house if the accused is physically present at the time of the search."

After considering the relevant cases and provisions of the Act, it was held that the phrase "to search any person" contained in S. 50 of the Act would be confined to clauses (a) and (b) and it does not include and cannot be extended to clauses (c) and (d).

In "Namdi Francis Nwazor v. Union of India 1997 CCR 27 SC, the Apex Court held that if a person is carrying a hand bag or like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with S. 50 of the Act. In para 3 of the judgment, their Lordships observed thus :

"On a plain reading of sub-section (1) of S. 50, it is obvious that it applies to cases of search of any person and no search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to sub-section (4) of S. 50 which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary fro searching the goods of female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position of law that the said article was not being carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying hand bag or like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with S. 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused is found, and on search, incriminating articles are found therefrom, it cannot attract the requirement of S. 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case, it is difficult to hold that S. 50 stood attracted and non-compliance with that provisions was fatal to the prosecution case."

The learned counsel for the appellant-accused canvassed some other submissions based on some inconsistencies and discrepancies in the prosecution evidence and that PW. 2 is only a stock-panch witness of the police Officers. However, since I am with him on his submissions that there is no compliance of the mandatory provisions of Ss. 42(1) and 42(2) and S. 50 of the Act, and since these submissions go to the root of the mater, it is not necessary for me to deal with other submissions of the learned counsel for the appellant-accused.

For the aforesaid reasons, the appeal is allowed. The impugned judgment convicting and sentencing the appellant-accused is set aside. The appellant-accused is ordered to be released forthwith unless required in any other case. The fine amount if paid, is ordered to be refunded to the appellant-accused.

Appeal allowed.