In re : Madhu Limaye, A.I.R.1969 Supreme Court 1014.

P.K. Jain, J.

State of Haryana has preferred this appeal against the judgment dated 19.7.1991, passed by the Additional Sessions Judge, Hissar, whereby the respondent has been acquitted of the charge under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act'').

The facts necessary for the disposal of this appeal, which can be gathered from the record of the trial Court, are that on May 22, 1990, ASI Baljit Singh of Police Station, City Hissar, along with his other companions was present near the Forest Office, Hissar. Karela Ram son of Jhanda Ram, a resident of Hissar, joined the Police Party. In the meanwhile the respondent, while carrying a bag, and a lady namely Tulsa Devi were sighted while coming from the side of byepass. On seeing the police party, they tried to conceal themselves. On suspicion, both of them were overpowered and detained. Opium weighing 20 Kgs. was recovered from a tinbox in possession of Tulsa Bai and separate proceedings were conducted against her.

ASI Baljit Singh expressed a suspicion, that the respondent was carrying some narcotic, like charas, etc. in his bag and that if so desired, the respondent could be searched either before a Gazetted Officer or a Magistrate. A memo (Exhibit PD) was prepared. The respondent declined the offer and reposed confidence in ASI Baljit Singh vide his reply Exhibit PD/1. On conducting search of the bag Exhibit P.1, charas weighing 1 Kg. was recovered. A sample weighing 50 Gms. was separated. The sample and the remaining contents were converted into two separate parcels, sealed with the seal bearing impression `PS'' after taking the same from Karela Ram (PW1) and the seal after use was returned to the said witness. Recovery memo (Exhibit PF) was prepared. Ruqa Exhibit PH was sent to the Police Station, on the basis of which formal F.I.R. copy of which is Exhibit PH/1, was recorded at Police Station, City Hisar. Rough site plan Exhibit PG of the spot of occurrence was prepared and statements of the witnesses were recorded. The appellant was arrested. The case property (the sealed parcels) as well as respondent were produced before Inspector Jai Narain (PW2), who happened to be incharge of the Police Station. After verifying the facts, Inspector Jai Narain affixed his own seal of the impression `JN'' on the case property and made his endorsement Exhibit PE/1 under the report Exhibit PE. On his directions, ASI Baljit Singh deposited the case property with the MHC. Sealed sample parcel was sent to the office of Central Forensic Science Laboratory and the report Exhibit PA was received. After completing the investigation a chargesheet was submitted to the Court.

A charge under Section 20(b)(i) of the Act was framed against the respondent to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined three witnesses. Karela Ram (PW1) is the witness of recovery. ASI Baljit Singh (PW3) had detained, searched the respondent and recovered the contraband in question from his possession, and had also investigated the case. Inspector Jai Narain (PW2) was the Officerincharge of Police Station, City Hissar, on the said date before whom the case property and the respondent, were produced. He had affixed his own seal on the case property after verifying the facts and had also made an endorsement under the report Exhibit PE prepared by ASI Baljit Singh. Three affidavits (Exhibits PB, PC and PJ) duly sworn by H.C. Partap Singh, Constable Suresh Kumar and Constable Dhan Singh, respectively, and Exhibit PAthe report of the Assistant Chemical Examiner, were tendered in evidence by the prosecution.

In his examination under Section 313 of the Code of Criminal Procedure, the respondent denied the allegations of the prosecution and pleaded false implication. He did not produce any evidence in defence.

On an appraisal of the evidence produced on the record, the trial Court came to the conclusion that provisions of Sections 50 and 52 of the Act were not complied with and accordingly acquitted the respondent of the said charge. Feeling aggrieved, State of Haryana has come in appeal.

We have heard the learned counsel for the parties, and have gone through the record of the trial Court with their active help.

Shri N.K. Sanghi, learned Deputy Advocate General, Haryana, appearing on behalf of the appellantState, has argued that the reasons recorded by the trial Court while acquitting the respondent are contrary to the wellsettled law regarding compliance of Sections 50 and 52 of the Act. It has been pointed out by the learned Deputy Advocate General that after having a suspicion that the appellant might be carrying some narcotic, he was apprised of his right to be searched before a Gazetted Officer or a Magistrate and a consent memo. Exhibit PD was prepared to that effect, and when the appellant declined the offer and reposed confidence in ASI Baljit Singh, his reply was also reduced into writing (Exhibit PD/1). It has also been pointed out by the learned Deputy Advocate General that one independent public person Karela Ram (PW1) was present at the spot when the respondent was apprised of his said right and his option was recorded, and also when his search was conducted. It is thus urged that Exhibit PD and PD/1 are legal and valid and the judgment of this Court rendered in Amrit Singh v. State of Haryana, 1990(2) R.C.R. (Crl.) 525 : 1990 C.L.R. 437 , is not attracted to the facts of the case in hand. It has also been argued on behalf of the State that the provisions of Section 52 of the Act were duly complied with; even otherwise, the same are not mandatory in nature, and violation thereof would not affect the prosecution case unless some prejudice is shown to have been caused to the respondent. In support of this plea reliance has been placed upon a judgment of the Supreme Court in a wellknown case reported as State of Punjab v. Balbir Singh, 1994(1) R.C.R. 737 : A.I.R. 1994 S.C. 1872 .

On the other hand Shri B.S. Walia, learned counsel for the respondent has argued that the provisions of Sections 50 and 52 of the Act had not been complied with as found by the trial Court, which is fatal to the prosecution case, and that Exhibits PD and PD/1 are not admissible in evidence. It has also been argued by the learned counsel there is no just or proper ground to reverse the finding of acquittal recorded by the trial Court.

We have given our careful thought to the respective arguments advanced at the Bar. The first ground on which the respondent has been acquitted of the charge, is noncompliance of the provisions of Section 50 of the Act. This aspect has been dealt with by the trial Court in para 9 of the judgment as follows :

"I find force in the contention of learned defence counsel. As per the Investigating Officer he had given notice to the accused that if he wanted he could be searched before a gazetted officer or a Magistrate and the offer was declined by the accused. The notice tantamount to the statement before the police and is hit by Section 162 Cr.P.C. and as such inadmissible in evidence. The Investigating Officer should have taken the accused to the gazetted Officer or a Magistrate. According to both the witnesses the office of the Forest Department is near the place of recovery yet the Investigating Officer had not taken the accused before the gazetted officer."

The learned trial Court sought support from a decision of this Court in Amrit Singh''s case (supra).

The aforesaid finding is contrary not only to the facts on the record but to the statutory provisions contained in the Code of Criminal Procedure (hereinafter referred to as `the Code'') and the Act. It has been established by the testimony ASI Baljit Singh (PW3) and Karela Ram (PW1) that the respondent was detained along with Tulsa Bai on suspicion. ASI Baljit Singh informed the respondent about his suspicion that the respondent might be carrying some narcotic like charas etc., and also apprised him of his right to be searched either before a Gazetted officer or a Magistrate, and a memo. (Exhibit PD) to that effect was prepared. The respondent waived his right and reposed confidence in ASI Baljit Singh vide his reply Exhibit PD/1. After the respondent had exercised his option, ASI Baljit Singh (PW3) conducted the search of the bag being carried by the respondent and recovered charas weighing 1 Kg. The respondent was informed of his right envisaged by Section 50 of the Act and his reply was recorded and thereafter his search was conducted in the presence of Karela Ram (PW1). It is, thus, evident, that Exhibits PD and PD/1 were prepared much before the recovery of the charas and accordingly before the commencement of any investigation. The investigation commences only on the receipt of an information relating to the commission of a cognizable offence and not earlier thereto. Therefore, the trial Court fell in error in holding that the offer given to the respondent vide memo. Exhibit PD and his reply reduced into writing as Exhibit PD/1 are hit by Section 162 of the Code. The obvious reasons is that till such time these documents were prepared, no information regarding the commission of a cognizable offence had been received by the concerned Police Station or ASI Baljit Singh (PW3). Even in Amrit Singh''s case (supra) no such law has been laid down.

In Balbir Singh''s case (supra), their Lordships of the Supreme Court, while interpreting the provisions of Section 50 of the Act, pointed out that it is an imperative requirement 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. Their Lordships further clarified as under :

"After being so informed whether such person opted for such a course or not would be a question of fact."

In State of Punjab v. Jasbir Singh and others, JT 1995(9) S.C. 308, the Apex Court made the following observations :

".....Protection given by Section 50 is a valuable right to the offender and compliance thereof intended to be mandatory. In case the Police Officer had prior knowledge that illegal transport of the contraband is in movement and persons are in unlawful possession and intends to intercept it, conduct search and consequentialy to seize the contraband, they are required to inform the offender that he has the right that the search will be conducted in the presence of a gazetted officer or a Magistrate. Thereafter on their agreeing to be searched by the Police Officers, the search and seizure of the contraband from their unlawful possession would become legal and valid."

In State of Punjab v. Labh Singh, 1997(1) RCR (Crl.) 565 : JT 1996(6) S.C. 598 , the Apex Court laid down the following law :

"The question was considered in State of Punjab v. Balbir Singh, 1994(1) RCR (Crl.) 737 : JT 1994(1) SC 427 : 1994(3) SCC 299 . Subsequently, another Bench of this Court in State of Punjab v. Jasbir Singh, JT 1995(9) SC 308 : 1996(1) SCC 288 has pointed out that it would be open to the search officer to inform the suspect, at the time of search, that he is entitled to be searched in the presence of a Gazetted Officer and also to take in writing from the accused that he has been so informed and that the accused has waived that right. Thus it would form part of the record as contemporaneous evidence. Thereafter, it may not be open to the accused to take the plea of noncompliance of Section 50. It would be for the Court to consider at the trial, whether the officer who conducted the search, had, as a fact, informed the accused of that right and whether the accused had waived that right of being searched only in the presence of a Gazetted Officer."

Still further, in Manohar Lal v. State of Rajasthan, 1996(1) RCR (Crl.) 660 : JT 1996(1) S.C. 480 , their Lordships interpreted the provisions of Section 50 of the Act as under :

"It is clear from Section 50 of the N.D.P.S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking 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."

What emerges from a reading of the aforesaid decisions of the Apex Court is that when an authorised officer suspects a person to be in possession of some narcotic drug or psychotropic substance in contravention of any provision of the Act, he shall inform the person to be searched about his right contained in Section 50 of the Act and prepare the contemporaneous record regarding informing the person to be searched of his said right and the exercise or waiver of that right by such person. Once the person to be searched has waived his right to be searched in the presence of a Gazetted Officer or a Magistrate, it shall not be open to him to take the plea of noncompliance of Section 50 of the Act.

In the present case, the respondent was apprised of his right to be searched before a Gazetted Officer or the respondent in the presence of Karela Ram (PW1), an independent public person, and memo. Exhibit PD was prepared. The respondent waived his right and reposed confidence in ASI Baljit Singh vide his reply Exhibit PD/1. There is nothing in the testimony of ASI Baljit Singh (PW.3) and Karela Ram (PW1) to disbelieve them on this aspect of the case. Interestingly, this part of their testimony was never challenged in their crossexamination. The learned counsel for the respondent has also failed to point out anything on the record to show that ASI Baljit Singh had any oblique motive in falsely framing the respondent in this case. Nor any reason has been put forward by the learned counsel for the respondent as to why Karela Ram (PW1) would depose falsely against the respondent. It is not the case of the respondent that Karela Ram (PW1) is a witness at the beck and call of the police. Thus, there is cogent and credible, oral as well as documentary evidence on the record to establish that the respondent was apprised of his right as contained in Section 50 of the Act, and on his waiving his said right and reposing confidence in ASI Baljit Singh (PW3), he was searched by the said ASI and 1 Kg. of charas was recovered from his bag (Exhibit P.1). In other words, the respondent was searched after duly complying with the provisions of Section 50 of the Act. The finding of the trial Court in this respect is erroneous on facts and in law.

The second ground on which the respondent has been acquitted by the trial Court is that the provisions of Section 52 of the Act, which are mandatory in nature, were not complied with and the grounds of arrest were not given in writing to the respondent. This finding is also erroneous in law. In Balbir Singh''s case, 1994(1) RCR (Crl.) 737 (supra), the Apex Court considered the nature and scope of the provisions of Sections 52 and 57 of the Act and observed as under :

"The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay etc., then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

Thus, it becomes evident that the provisions of Section 52 are directory in nature and noncompliance thereof is not fatal to the prosecution case unless some prejudice is shown to have been caused to an accused. Therefore, the trial Court fell in error in taking the provisions of Section 52 of the Act to be mandatory.

Another aspect of the finding of the trial Court is that the grounds of arrest ought to have been communicated to the respondent in writing. This finding is again erroneous in law. Section 52(1) of the Act reads as under :

"(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest."

There is nothing in this provision making it obligatory upon an officer arresting a person to communicate the grounds of arrest in writing. There is a basic and fundamental difference between the person to be detained under the provisions of law providing for preventive detention and detention of person arrested on accusation of commission of an offence. In the case of preventive detention, the person is detained without trial and he has only the right to make a representation. The purpose of communication of the grounds to the detenu is to enable him to make purposeful and effective detention. Therefore, under Article 22(5) of the Constitution the basic facts constituting the "grounds" have to be imparted effectively and fully to the detenu in writing in a language which he understands. Further, in the case of a person arrested on accusation, he is required to be produced before Magistrate within 24 hours. The purpose of communication of the grounds of arrest is to enable him to apply for release on bail when he is produced before the Magistrate. Therefore, the principles laid down and the decisions in cases of preventive detention and the provisions of Article 22(5) of the Constitution cannot be pressed into service for appreciating the ambit and scope of provisions of Section 52(1) of the Act.

In England whenever an arrest is made without a warrant, the arrested person has a right to be informed not only that he is being arrested but also of the reasons or grounds for the arrest. In Christie v. Leachinsky, 19471 All ER 567, the House of Lords went into the origin and development of this rule, and laid down several propositions. For our purposes, the third proposition is relevant and reads as under :

"3. The requirement that the person arrested should be informed of the reasons why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained."

"Lord Simonds gave an illustration of the circumstances where the accused must know why he is being arrested:

"there is no need to explain the reasons of arrest if the arrested man is caught redhanded and the crime is patent to high Heaven."

The aforesaid decision of the House of Lords and the said propositions were approved by their Lordships of the Supreme Court In re : Madhu Limaye, A.I.R. 1969 Supreme Court 1014.

Turning to the case in hand, it may be repeated that after complying with the provisions of Section 50 of the Act, search of the bag (Exhibit P.1) being carried by the respondent, was conducted and charas weighing 1 Kg. was recovered therefrom. These circumstances, in themselves, are enough to make the respondent know the substance of the offence against him and the reasons for his arrest. Therefore, it cannot be said that there was noncompliance of Section 52(1) of the Act, nor there is any requirement of law under the Act to furnish the grounds in writing to the respondent. Therefore, the finding of the trial Court on this aspect of the case is also erroneous in law.

We have ourselves carefully gone through the oral and documentary evidence available on the record. Unimpeachable testimony of ASI Baljit Singh (PW.3) and Karela Ram (PW1) goes to establish that on May 22, 1990, the respondent along with one Tulsa Bai was detained by a police party near Forest Office, Hissar. It has been further established that ASI Baljit Singh (PW3) made known his suspicion to the respondent and also apprised him regarding his rights under section 50 of the Act. The testimony of these two witnesses further goes to prove that 1 Kg. of charas was recovered from the bag (Exhibit P.1), being carried by the respondent. There is no inconsistency in the testimony of these two witnesses that 50 gms. of the contents were separated by way of sample. The sample and the remaining charas were converted into two separate sealed parcels with the seal of `PS'' and the seal after use was handed over to Karela Ram (PW1). It is further established by the testimony of these two witnesses read with the testimony of Inspector Jai Narain (PW2) that both the sealed parcels along with the respondent were produced before Inspector Jai Narain who was Officerincharge of the Police Station, City Hissar, on that day, and after verifying the facts, Inspector Jai Narain had affixed his own seal on both the sealed parcels and on his directions ASI Baljit Singh (PW3) deposited both the sealed parcels with the Moharrir Malkhana. Affidavits Exhibits PB and PC sworn by Constable Partap Singh and by Constable Suresh Kumar go to show that the sealed sample parcel having the seal impressions of `PS'' and `JN'' intact was taken out of the Malkhana on 31.5.1990, and was deposited in the office of the Forensic Science Laboratory, Madhuban (Karnal). Exhibit PA, report of the Assistant Chemical Examiner, further proves that the seals over the sealed packet were intact and the contents of the sample gave positive test for charas. It is also established that ASI Baljit Singh had prepared his report (Exhibit PF) as envisaged by Section 57 of the Act and submitted the same to Inspector Jail Narain (PW2), who after going through it had signed the same. It may also be stated that the copy of the F.I.R. was received by the Ilaqa Magistrate on 22.5.1990 at 8.00 p.m. at his residence. In other words, the provisions of Sections 55 and 57 of the Act were also fully complied with. The learned counsel for the respondent has not been able to point out any material on the record to disbelieve or doubt the credibility of the three prosecution witnesses discussed above. No oblique motive has been even alleged against ASI Baljit Singh or Inspector Jai Narain to implicate the respondent falsely in this case. We have, thus, no hesitation in holding that the prosecution has successfully proved its case against the respondent beyond doubt.

We are aware of the rule of caution sounded by the Apex Court from time to time not to disturb the order of acquittal made by the trial Court unless the conclusions of the trial Court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable. We have demonstrated above that the approach of the trial Court in this case is contrary to law and findings are erroneous even on facts. In these circumstances, we are constrained to reverse the order of acquittal recorded by the trial Court.

As a result of the above discussion, This appeal is accepted. The order of acquittal passed by the Additional Sessions Judge, Hissar, is set aside. The respondent is convicted for an offence under section 20(b)(i) of the Act. Keeping in view the facts and circumstances of the case, the respondent is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/ (Rupees One lac), and in default of payment of fine to further undergo rigorous imprisonment for one year. The respondent is on bail. His bail bonds are cancelled and he is directed to surrender to custody to serve his remaining sentence forthwith.