Harish Chandra & Others vs State Of Uttarakhand & Others

R. C. Khulbe, J

Since these criminal appeals arise from the similar questions of facts and law, therefore, these are taken together and decided by a common judgment.

The present appeals are preferred by the convicts-Harish Chandra, Mahesh Garg and Ramesh Pal challenging the judgment and order dated 30.07.2005, passed by the learned Additional Sessions Judge/Special Judge, N.D.P.S. Dehradun, in Special Trial No.47/2000, Case Crime Nos.65,66 & 67/2000, under Section 8/20 (b) (ii) (B) N.D.P.S. Act, Police Station Rishikesh, District Dehradun, respectively convicting and sentencing each of the appellants three years' rigorous imprisonment and a fine of Rs.20,000/- each.

The factual matrix of the case is that on 07.02.200 PW1 Sayyed Munnawar Hussain while patrolling with his companion police personnel was coming from Bairaj to Rishikesh, in the meantime, the informer informed him that three persons are coming from Bairaj to Rishikesh and they are having illegal charas. Believing on this information, the police personnel attempted to take public witnesses but no one became willing to give evidence. When the accused came near and started to run away all the accused were caught at 10:30 p.m. near the guest house. When their name and address was asked, they disclosed their names as Rameshpal, Mahesh and Harish Chanda. They were told that their search will be made before the Gazetted Officer or Magistrate. The accused gave their consent. Constable Narendra Kumar was sent to call the S.D.M. Rishikesh and constable Vinod Kumar was asked to bring the weighing machine. At 11:15 p.m., S.D.M. Rishikesh reached and the constable Vinod Kumar came with weighing machine. Before the S.D.M. the accused were searched and 350 gms contraband article charas was recovered from the right pocket of the trouser of Ramesh, 400 gms charas was recovered from the trouser of Mahesh 250 gms charas was recovered from the possession of Harish Chandra. Fard recovery Exhibit Ka-1 was prepared at the spot and sample was taken. On the basis of Fard recovery Exhibit Ka-1, chick FIR Ka-13 was lodged on 08.02.2000 at 1:30 a.m.

After completing the investigation, charge sheets Exhibit Ka-7, Exhibit Ka-8 and Exhibit Ka-9 were filed against the appellants and charges were framed on 24.03.2001 under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, to which they pleaded not guilty and claimed trial.

In order to prove its case, the prosecution produced as many as four witnesses, namely, PW1 Sayyed Munnawar Hussain, PW2 Const. Vinod Kumar, PW3 S.D.M. Rajesh Tyagi and PW4 Harak Singh (I.O.).

PW1 Sayyed Munnawar Hussain and PW2 Vinod Kumar stated that they were posted at police chowki I.D.P.L Rishikesh on 07.02.2000. On that day, they were going from Bairaj to Rishikesh. Informer informed them that three persons, who are carrying illegal charas are coming from Rishikesh. Believing this information they stopped behind the Wall of guest house. After some time three persons were seen who were coming from the opposite direction. The informer told them that they are the persons who have charas, thereafter, the informer went away. All the three persons turned back and tried to run away but they were caught at 10:30 p.m. and disclosed their names as Rameshpal, Mahesh Garg and Harish Chanda. The police personnel told that their search will be made before the Gazetted Officer or Magistrate. They became ready for search. Constable Narendra Kumar went to call S.D.M. Rishikesh. He reached at the spot at 11:15 p.m. The accused were searched and 350 gms charas was recovered from Ramesh, 400 gms charas was recovered from Mahesh and 250 gms charas was recovered from Harish Chandra. Fard recovery Exhibit Ka-1 was prepared at the spot.

PW3 Rajesh Tyagi, S.D.M. narrated the same story as stated by the PW1 Sayyed Munnawar Hussain and PW2 Vinod Kumar.

PW4 Harak Singh is the Investigating Officer. Investigation was entrusted to him, he inspected the spot and prepared the map Exhibit Ka-6, recorded the statements of witnesses and submitted the charge sheets Exhibit Ka-7 to Exhibit Ka-9.

After completion of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. In their separate statements they denied the prosecution story.

After hearing both the parties, the learned Additional Sessions Judge found the accused guilty under Section 8/20 of N.D.P.S. Act and awarded the sentence as above. Feeling aggrieved by it, the accused filed the present appeal.

Heard learned counsel for the parties and perused the entire material brought on record.

As per the prosecution story, the accused were caught at Bairaj Guest House near I.D.P.L. and on their personal search 350 gms charas was recovered from Ramesh, 400 gms charas was recovered from Mahesh and 250 gms charas was recovered from Harish Chandra. At the time of recovery PW1 Sayyed Munnawar Hussain, PW2 Vinod Kumar and PW3 Rajesh Tyagi, S.D.M. Rishikesh were present. As per prosecution story fard recovery was prepared at the spot.

As per prosecution story the contraband charas was recovered from the possession of the accused. The question Whether PW1 Sayyed Munnawar Hussain and PW3 Rajesh Tyagi, S.D.M. who had conducted the search on the person of the appellants had complied with the procedure as laid down under Section 50 of the N.D.P.S. Act?

Learned counsel for the appellants drawn my attention towards the provisions as envisaged in Section 50 of the NDPS Act and argued that in the present case the arresting party did not comply with the provisions of Section 50 of the NDPS Act, which was mandatory as directed by the Hon'ble Apex Court in the State of Punjab Vs. Baldev Singh (1999) 6 SCC 172.

Before going into the provisions of Section 50, it is necessary to note down the history of the NDPS. Prior to the passing of the NDPS Act, 1985 control over narcotic drugs was being generally exercised through certain Central enactments, though some of the States also had enacted certain statutes with a view to deal with illicit traffic in drugs. The Opium Act, 1857 related mainly to preventing illicit cultivation of poppy, regulating cultivation of poppy and manufacture of opium. The Opium Act, 1878 supplemented the Opium Act, 1857 and made possession, transportation, import, export, sale, etc. of opium also an offence. The Dangerous Drugs Act, 1930, was enacted with a view to suppress traffic in contraband and abuse of dangerous drugs, particularly derived from opium, Indian hemp and coca leaf etc. The Act prescribed maximum punishment of imprisonment for three years with or without fine, insofar as the first offence is concerned and for the second or the subsequent offence the punishment could go up to four years' RI. These Acts, however, failed to control illicit drug traffic and drug abuse on the other hand exhibited an upward trend. New drugs of addiction known as psychotropic substances also appeared on the scene posing serious problems. It was noticed that there was an absence of comprehensive law to enable effective control over psychotropic substances in the manner envisaged by the International Convention on Psychotropic Substances, 1971. The need for the enactment of some comprehensive legislation on narcotic drugs and psychotropic was, therefore, felt. Parliament with a view to meet a social challenge of great dimensions, enacted the NDPS Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalties particularly for trafficking and various other offences.

When the matter came up for consideration before the Constitutional Bench in Baldev Singh's case, the different High Courts had different views regarding the personal search as envisaged in Section 50 of the Act. The Constitutional Bench of the Hon'ble Apex Court in Baldev Singh's case (supra) laid down the following conditions:-

"(1) That when an empowered officer or a duly authorized 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 gazette 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 gazette 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 gazette officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazette 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 left 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 official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a 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 the 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 provided by Section 50-a. 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 the 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 person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search.

(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act."

From the perusal of the recovery memo Exhibit Ka-1, it is clear that the appellants were only apprised that they can be searched before the Magistrate or Gazetted Officer, if they so wish and the appellants stated that they are ready.

The question arose before the Apex Court was whether Section 50, NDPS Act casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a gazette officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the Section 50?

The Hon'ble Apex Court in Vijaysingh Chandubha Jadeja Vs. State of Gujarat (2011) 1 SCC 609 has held that:

"It is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the N.D.P.S. Act to be searched before a gazette officer or a Magistrate. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazette officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision"

The object of Section 50(1), NDPS Act is to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting. In order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered officers, the safeguards provided by the legislature have to be observed strictly.

From the perusal of the recovery memo Exhibit Ka-1, it is clear that they had only informed the accused that they can be searched before any Gazetted Officer or Magistrate. While as per the judgment of Hon'ble Apex Court in Vijaysingh Chandubha Jadeja Vs. State of Gujarat (Supra) It is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the N.D.P.S. Act to be searched before a gazetted officer or a Magistrate. It was an obligation on the part of the empowered officers to inform the accused or the suspect of the existence of their right as envisaged under Section 50 of the N.D.P.S.Act, if so required by him. Only if the accused do not chose to exercise the right in spite of apprising them of their right then the empowered officer could conduct the search on the body of the person himself. While in the present case, the empowered officer had only informed the accused that they can be searched before the Magistrate or the Gazetted Officer. The Empowered Officer had not apprised to the accused that it is your right to be searched before the Gazetted Officer or the Magistrate.

From the perusal of the evidence, it is clear that in the present case the empowered Officer had not complied with the provisions of Section 50 as laid down by the Hon'ble Apex Court in Vijaysingh Chandubha Jadeja's case.

Joint Communication & Joint Consent

The communication of the right as envisaged under Section 50 of the N.D.P.S. Act has to be clear and unambiguous. The accused must be made aware of the existence of such right.

Now the question may arise here whether there are more than one accused? Whether joint-communication can be given or there must be separate information? Whether joint consent can be obtained?

The above questions came up for consideration before the Hon'ble Supreme Court in State of Rajasthan Vs. Parmanand, (2014) 5 SCC 345 in which the Hon'ble has held that a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality.

In the present case, it is clear that neither communication was given to the accused individually nor the empowered officer took the separate consent from them. Even no consent letter was obtained from the appellants.

General Diary (reg. Rawangi from Police Station to the Spot and returning from the place of occurrence to the Police Station).

As per recovery memo (Exhibit Ka-1), the police personnel proceeded from the police station on 07.02.2000. In this regard, PW1 Sayyed Munnawar Hussain stated that they proceeded from police station on 07.02.2000 at 14:30 hours and returned at police station on 08.02.2000 but the prosecution has failed to prove this fact because no such G.D. was produced before the Court, which casts a doubt on the prosecution story whether they actually proceeded from the concerned police station on 07.02.2000 or not?

From the perusal of fard recovery Exhibit Ka-1 in the bottom date is mentioned as 08.02.2000 while as per prosecution story the fard recovery was prepared at the spot on 07.02.2000 which shows that the S.D.M. signed in the fard recovery on 08.02.2000 the next day. From the perusal of the fard recovery, it is also clear that the copies of the fard recovery were given to the accused on 08.02.2000, which shows that the copies of the fard recovery had not been given on date of alleged occurrence.

Disposal of Contraband Narcotic and Psychotropic Substances

Lastly, the learned counsel for the appellants centred his argument on the provision of 52(A) of the Act and submitted that as per the dictum of Hon'ble Apex Court in Union of India Vs. Mohan Lal & Anr. (2016) 3 SCC 379 and Union of India Vs. Jarooparam (2018) 4 SCC 334 if the contraband is not disposed of as per the provisions of Section 52(A) during trial, the accused is entitled for acquittal.

Section 52(A) of the Act deals with the provisions of disposal of seized narcotic drugs and psychotropic substances as under:-

"52A. Disposal of seized narcotic drugs and psychotropic substances.-

(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyances or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drug or psychotropic substance, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence]."

From the impugned judgments and orders dated 30.07.2005 passed by by the learned Additional Sessions Judge/Special Judge, N.D.P.S. Dehradun, it is clear that till that date the said charas was not disposed of by any authority as per the procedure laid down under Section 52(A) of the Act and it was lying before the police without any cause.

From the record, it is clear that the inventory has not been prepared as per the mandate of Section 52(A) of the NDPS as much as certification and photocopy etc. of the recovered contraband has not been done in the present case.

Hon'ble Apex Court in Union of India Vs. Mohan Lal & Anr. (2016) 3 SCC 379, has held that:-

"19.... There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions."

From the perusal of record, it is clear that in the present case, the prosecution did not comply with the provisions of Section 52A of N.D.P.S. Act

From the perusal of the statement of PW4 Harak Singh, it is clear that he did not investigate the matter properly. Even he never recorded the statement of empowered Officer PW3, S.D.M. Rajesh Tyagi in whose presence search was made. In the cross-examination, he admitted that he did not obtain the statement of S.D.M.

In view of the foregoing discussion, this Court has come to the conclusion that the compliance of the mandatory provisions of NDPS Act has not been done in the present case and the prosecution has failed to prove its case against the appellants beyond reasonable doubts. Consequently, the appeals succeed. Impugned judgments and orders dated 30.07.2005, passed by the learned Additional Sessions Judge/Special Judge, N.D.P.S. Dehradun, in Special Trial No.47/2000, Case Crime Nos.65,66 & 67/2000, under Section 8/20 (b) (ii)(B) N.D.P.S. Act, Police Station Rishikesh, District Dehradun, respectively convicting and sentencing each of the appellants three years' rigorous imprisonment and a fine of Rs.20,000/- each is hereby set aside.

Accordingly, the appellants, namely, Harish Chandra, Mahesh Garg and Ramesh Pal are acquitted.

Appellants need not to surrender before the Courts below. Accordingly, the bail bonds of the appellants are cancelled and sureties are discharged from their liabilities. If any amount has been deposited in any Court, the same shall be released in favour of the appellants forthwith.