Kamal Singh Thakur vs State of M.P.

R.S. Garg, J.—Being aggrieved by the judgment dated 6-10-98 passed in Special Case No. 64/98 by the learned Special Judge (N.D.P.S.) Raipur convicting the appellant u/s 20(b)(1)/8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act''), sentencing the appellant to undergo R.I. for 4 years and pay fine of Rs. 4000/-, in default of payment of fine to further undergo R.I. for 3 months, the appellant has filed this appeal.

The prosecution case in brief is that on 1-1-98 one Head Constable Anand Tiwari posted at Police Station Keshkal received an information that in one Bus No. MP. 23/J-429 certain persons were importing/transporting Ganja from Jagdalpur towards Raipur. The said information was recorded by the said head constable in Sanha No. 9 and thereafter he sent radio message to Sub-Inspector G.S. Keshariya who was on patrolling. After receiving the information the said G.S. Keshariya came back to the Police Station, yet prepared another memo and sent the information to the Superintendent of Police and thereafter with the guards proceeded towards the bus. After laying down a trap the bus was stopped. Thereafter, a notice was given to the driver Bhuvanlal and conductor Radhelal. After obtaining their no objection the bus was searched in presence of panch witnesses namely; Ghasiya and Bhola Prasad. Finding that two persons were sitting with their luggage in the middle row seat with bag and attache, he gave notice to each of them u/s 50 of the Act and after obtaining no objection certificate, he took their search. In the search he could recover contraband from the possession of the present accused Kamal Singh and the other accused persons namely Ram Charan, Mohanlal and Ram Pratap. After the search of the bag and the attache belonging to the accused 5-10 kilogram Ganja was respectively recovered. The weighment panchnama and seizure panchnama were prepared on the spot itself. The samples were drawn and were later on sent for analysis. After his return to the Police Station the said Keshariya recorded the first information report and sent the message to the higher officials. After receiving the analytical report the challan was filed against the accused. After recording the evidence and hearing the parties the learned trial Court convicted and sentenced the accused as referred to above.

Shri Singh learned counsel for the appellant submits that as the independent witnesses specially the conductor of the bus P.W. 3 Radhelal has not supported the prosecution therefore, P.W. 6 G.S. Keshariya cannot relied upon. According to him in absence of independent corroboration the statements of P.W. 6 G.S. Keshariya are not sufficient to record the conviction of the accused. While critisizing the evidence of P.W. 6 Keshariya it was contended that the statements made before P.W. 6 were not admissible in evidence as the investigation had already commenced. He also submitted that though a notice u/s 50 of the Act was served upon the accused but as he was not informed that to be searched before a Magistrate First Class or a Gazetted Officer was a right of the accused, it must be held that there was no compliance of Section 50 of the Act.

Placing reliance upon the judgment of the Supreme Court in the matter of Bhugdomal Gangaram and Ors. v. State of Gujrat (1983 SC 906), Tej Bahadur Singh Vs. State of U.P., and State of Punjab Vs. Baldev Singh, etc. etc., , it was contended that as prosecution has failed to prove the case and has not proved the observance of mandatory requirement of the Act the accused deserves to be acquitted.

Shri D.S. Thakur learned counsel for the State submits that the statements of P.W. 6 G.S. Keshariya are natural and even if he has not been supported by the independent witnesses his testimony cannot be brushed aside just for nothing. According to him the said Keshariya had no axe to grind against the accused and looking to the quantity of Ganja plantation is also ruled out. He submits that as the accused was informed that his search could be taken either before the Gazetted Officer or before the Magistrate the accused can not contend before the Court that there was non-compliance of Section 50 of the Act. I have heard the parties at length and have perused the records.

P.W. 6 G.S. Keshariya has stated that after receiving the information from Anand Tiwari he came back to the Police Station. The information was already registered in Rojnamcha-Sanha No. 9. Sanha has been proved at Annexure P-13. This witness had separately registered the information and sent a copy of the same under Ex. P-1 to the S.D.O. (Police) Kanker. It was sent through constable Tulsiram and an entry was made in Rojnamcha-sanha No. 10 proved at Ex. P-14. According to the witness, after laying the trap they could stop the bus. A notice was given to the driver Bhuvanlal and conductor Radhelal for taking the search of the bus. Finding that certain persons were sitting with their luggage in the middle row and in the last seat, he interrogated the present accused and the other three namely; Ramcharan, Mohanlal and Ram Pratap. The present accused was having his luggage under his feet. Luggage consisted of an attache and a bag. After giving the accused a notice u/s 50 of the Act (Ex. P-7) and also after obtaining the no objection, the witness took the search of the attache and bag in presence of P.W. 4 Ghasiya and P.W. 5 Bhola. In the attache he could recover 10 kilogram Ganja while in the bag he could recover about 5 kilogram contraband. The motor-bus ticket was also seized from the possession of the accused. The articles from the bag and attache were recovered and samples were drawn, weighment panchnama were prepared on the spot. Seizure memos were prepared and the articles were properly sealed. Thereafter he came to the Police Station and recorded his return in Rojnamcha-Sanha and immediately thereafter sent the information to his higher officials. From his statement prima facie it does not appear that he is not speaking the truth but the learned counsel for the appellant submits that as P.W. 3 Radhelal, P.W. 4 Ghasiya Ram and P.W. 5 Bhola Prasad have not supported him, his statement must be disbelieved.

True it is that P.W. 4 Ghasiya Ram and P.W. 5 Bhola Prasad have not supported the prosecution except admitting their signatures on Ex. P-7 to Ex. P-10, they have not stated anything in the Court as to why they had affixed their signatures on Ex. P-7 to Ex. P-10. Ex. P-7 is the notice given to the accused u/s 50 of the Act, while Ex. P-8 is the search panchnama. Ex. P-9 is the seizure memo and Ex. P-10 is the arrest memo of the accused. The availability of the signatures of these two witnesses on Ex. P-7 to Ex. P-10 would clearly prove their presence on the spot. They may or may not support the prosecution but the facts remain that Ex. P-7 to Ex. P-10 bear signatures of these two witnesses.

P.W. 3 Radhelal had stated that after stopping the bus at about 9.00 a.m., the police took their no objection for the search of the bus. He has admitted that Ex. P-5 was served upon him. He has further admitted that Ex. P-5 bears his signatures and signatures of the driver. Learned counsel for the appellant submits that from the cross-examination of the witness it would appear that the said Sahamati Patra was signed at about 4-5 p.m., therefore, it would appear that the document was later on concocted. The first information report Ex. P-16 has been registered at 3.00 p.m. It contains the statement that the permission to take the search of the bus was obtained from the conductor and the driver. From the narration made in the first information report which was registered at 3.00 p.m. it is not possible to hold that Ex. P-5 was served on P.W. 3 at about 4-5 p.m.. If the statements of P.W. 3 Radhelal are read in their true perspective, it would appear that immediately after the bus was stopped, notice Ex. P-5 was served on the driver and the conductor.

The submission of the learned counsel for the appellant is that, as P.W. 3 Radhelal has not stated anything regarding service of the notice to the accused it must be presumed that these documents were subsequently prepared. I am not convinced by this argument. P.W. 3 Radhelal is not a witness to Ex. P-7 to Ex. P-10. Ex. P-7 the notice was served upon the accused and thereafter at about 12.30 noon as it is apparent from Ex. P-8, search was taken. The search was taken in presence of Bhola Prasad and Ghasiya Ram. It is not expected of a witness that he would give the details of all such documents to which he was not a party.

Learned counsel next contends that the statement of the accused made before G.S. Keshariya that the luggage belonged to him would be inadmissible in evidence because the investigation had already commenced. Section 24 of the Indian Evidence Act, 1872, though sought to be applied by the learned counsel for the appellant would not be applicable to my mind. Section 24 of the Indian Evidence Act reads as under :

Confession caused by inducement, threat or promise when irrelevant in criminal proceedings :-- A confession made by accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceedings from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Section 24 of the Act simply provides that a confession made by an accused would be irrelevant if it is shown to the Court or it appears to the Court that the same was caused by any inducement, threat or promise. In the present case, there is no evidence on the record to show or suggest that either an inducement was given, threat was extended or promise was made to the accused. Learned counsel next contends that in view of Section 25 of the Indian Evidence Act when a confession is made to the police officer the same would not be admissible in evidence as according to Section 25 no confession made to a police officer, shall be proved as against a person accused of any offence.

Before Section 25 of the Indian Evidence Act can be made applicable, it has to be proved to the satisfaction of the Court that there was some confession relating to commission of an offence; confession was made by an accused and the confession is sought to be proved by the prosecution against the accused. In the present case though P.W. 6 G.S. Keshariya had received the information but even after receiving the information he did not know as to who was the accused or the person who was carrying the contraband. At this stage, Shri Singh referring to the judgment of the Supreme Court in the matter of Aghnoo Nagesia Vs. State of Bihar, , submits that the confession made by the accused cannot be proved because of the bar contained in Section 25 of the Indian Evidence Act.

The Supreme Court in the matter of Aghnoo Nagesia (supra) has observed that Section 25 is imperative, and a confession made to a police officer under no circumstances is admissible in evidence against the accused. The Supreme Court has further observed that the section covers a confession made when the accused was free and not in police custody, as also the one made before an investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. The confession as understood by the law Courts means that an admission made by an accused infact is an inculpatory statement which makes the accused or the person making the statement liable under the penal acts.

In the present case, I am unable to read that the accused made any confession before P.W. 6 G.S. Keshariya. On the inquiry made by P.W. 6 G.S. Keshariya as to whom the attache and the bag belonged, the accused stated that the articles belonged to him. It was not a confession relating to contraband or commission of a crime. Section 25 of the Indian Evidence Act would come into play where the accused makes a confession to a police officer in relation to commission of a crime. He may make statement to the police which may contain inculpatory and/or exculpatory statement; but there must be some confession by the accused which if held admissible can be used against him to fix his liability. In the present case, upto the point of time when the accused admitted the ownership, nobody knew anything and the admission was in relation to the ownership of the luggage and nothing beyond that. The prosecution does not say that the accused admitted before P.W. 6 G.S. Keshariya or confessed before him that the contraband belonged to him. If such was the statement, obviously it would have been hit by the provision of Section 25 of the Indian Evidence Act. I am unable to hold that the admission of ownership made by the accused is inadmissible in evidence. Even if this admission of the accused is not taken into consideration then too, from the statements of P.W. 6 it would clearly appear that the accused was keeping the said luggage under his legs. At this juncture, learned counsel for the appellant contends that the natural conduct of the accused would have been to get rid of the luggage, immediately after finding that the bus was likely to be searched by the police and not to keep the contraband or the luggage in the close vicinity or within his control. The argument lost sight of the fact that how a particular person would behave in a particular situation would depend upon such person. Whether the accused had sufficient time to get rid of the articles or to change the seat would depend upon the circumstances of the case. In the present case, from the statement of P.W. 6 G.S. Keshariya it appears that the accused was sitting in the middle row and was keeping his legs on the luggage. True it is that the others who had said that the luggage belonged to the accused have not been examined by the prosecution, but the same is not going to cut any ice because P.W. 6 G.S. Keshariya has proved that the luggage was within the control of the accused.

So far as non-compliance of Section 50 of the Act is concerned, learned counsel for the appellant referring to the judgment of the Supreme Court in the matter of State of Punjab Vs. Baldev Singh, etc. etc., contends that as the accused was not apprised of his right and as he was not informed that it was his right to be searched before the Gazetted Officer or the Magistrate First Class is concerned, the conviction is bad. Learned counsel has also placed his strong reliance on the judgment of this Court reported in Anil Kumar Ram Avtar Gupta Vs. State of M.P., . The facts in the case of Anil Kumar Ram Avtar Gupta (supra), were totally different. In the said case the investigating officer informed the accused that his search could be taken before the Magistrate. The High Court found that this was a partial or half-hearted compliance. The High Court observed that mandate of Section 50 requires the empowered officer to inform the accused that his search could be taken either before the Gazetted Officer or before the Magistrate. In the present case a perusal of the notice Annexure P-1 would clearly show that both the options were given to the accused. Under Ex. P-7 one can clearly read that the accused was informed that his search could be taken either before the Magistrate or before the Gazetted Officer. The principles of law laid down in the matter of Anil Kumar (supra) do not apply to the facts of the present case.

In the matter of State of Punjab v. Baldev Singh, learned counsel has referred to paragraph 15 of the said judgment which reads as under :--

What is the import of the expression "if such person so requires" he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ?

Learned counsel appearing for the State of Punjab as also the learned counsel appearing for the State of Gujrat argued that it would not be proper to read into the provisions of Section 50, any legislative intent of prescribing a duty on the part of the empowered officer to inform the suspect that if he so requires the search would be conducted before a Gazetted Officer or a Magistrate, as the case may be. According to the learned counsel, the view expressed in State of Punjab v. Balbir Singh (supra), laying down that it is obligatory on the part of such an officer to so inform the person to be searched or if such person requires, failure to take him for search before the Gazetted Officer or the Magistrate, would amount to non-compliance with the provisions of Section 50 and would affect the prosecution case and vitiate the trial requires reconsideration. As a matter of fact, the order of the referring bench itself, centres around whether there is any requirement of Section 50, making it obligatory for the empowered officer, who is about to search a person, to inform him of his right of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search if he so requires. Learned counsel for the parties, however, agree that in case the obligation to inform the suspect of his right to be searched before a Gazetted Officer or a Magistrate is read as a duty cast on the empowered officer, then failure to give information regarding that right to the suspect would be a serious infirmity amounting to denial of a valuable right to an accused and would render his conviction for an offence under the NDPS Act bad and unsustainable".

The Supreme Court has observed that the empowered officer is under an obligation to inform the person that he has such a right. In paragraph 55 of the said judgment the Supreme Court had also observed that when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50. The Supreme Court also observed that failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. Taking shelter under the observations made by the Supreme Court, learned counsel submits that communication of the information to the accused is not sufficient but under the law accused must be apprised of his statutory right and existence of the same. Section 50(1) of the Act provides that when any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 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 Section 42 or to the nearest Magistrate. Section 50 requires the empowered officer to take the person to the nearest Gazetted Officer or the nearest Magistrate. It is required to be done when such person so requires. The Supreme Court in the matter of State of Punjab Vs. Balbir Singh, and again in the matter of (supra) has observed that such an option has to be given to an accused. The words "so requires" have been taken to be the right of the accused. The right of the accused which flows from the Language of Section 50 so also from the judgment of the Supreme Court is the right of information. The right only is that he can be taken to the nearest Gazetted Officer of any department or the nearest Magistrate. Neither Section 50 nor the judgment of the Supreme Court requires the empowered officer to inform the accused that the accused or the suspect has a right of information therefore he is being informed that his search can be taken before any Gazetted Officer or Magistrate. What learned counsel wants to contend is that accused should be given the information as of a right and should also be told that to be searched before Gazetted Officer or Magistrate is his right. In my opinion the law only requires that such person should be informed that if he so requires, his search could be taken before Gazetted Officer or Magistrate, and supply of this information infact is the right of the accused. When the information is supplied or given to the accused requirement of Section 50 would be deemed to be complied with. It is not expected of the empowered Officer that while giving or supplying the information to the accused either orally or in form of a memorandum, he would also ask the accused that the information or option is given to him as the same is his statutory right. Once the accused is informed that his search could be taken either before the Gazetted Officer or before the Magistrate, the requirement of Section 50 would stand complied with. The Supreme Court in the judgment of State of Punjab v. Baldev Singh has simply observed that it is imperative for the empowered officer to inform the concerned person of his right under Sub-section (1) of Section 50. If the observations of the Supreme Court are read in their true perspective, it would only mean that the accused must be informed that his search can be taken before the nearest Gazetted Officer or the nearest Magistrate. The accused must be informed that some right exists in his favour to be searched before a Gazetted Officer or a Magistrate. When such an information is served upon the accused or he is informed that his search can be taken either before a Gazetted Officer or before the Magistrate, then it cannot be further read in the statute that the accused must also be informed that to be searched before either of the officer, is his right. The argument raised by the learned counsel for the appellant deserves to and is accordingly rejected.

From the language of the provisions of law and after taking into consideration the judgments of the Supreme Court, I am unable to hold that right to be informed or right of information would mean that suspect should be informed first that he has right under the statute and then the information should be supplied to him. The right to be informed would only mean that an information should be supplied to the accused which is his right and is an obligation of the empowered officer.

On the facts I am unable to hold that the prosecution has failed in proving the commission of the offence. The prosecution is not required to prove a foolproof case. It has to prove the case to a reasonable certainty. If everytime in every case foolproof evidence is demanded from the prosecution, supply of the same would become almost impossible. The prosecution is obliged and required to prove the case to a reasonable certainty. To what extent the certainty should be, can be simplified by saying that if the said evidence satisfies the judicial conscience of the Judge, the evidence can be accepted to form a foundation for recording the conviction. In the present case, the prosecution has proved the commission of the offence by leading cogent evidence. On the legal question, I am unable to concede to the argument raised by the learned counsel for the appellant. I am unable to hold that the learned Court below was unjustified in convicting the appellant-accused.

It is lastly submitted that as another accused Mohanlal who was carrying about 17 kilogram Ganja has been sentenced to 3 years R.I. in Criminal Appeal No. 2873/98, the question of sentence be also considered. Taking into consideration the above fact, I am of the opinion that sentence deserves to be reduced while maintaining the fine amount and the default sentence, I reduce the jail sentence from 4 years to 3 years R.I.. The appeal to the extent indicated above, on the question of sentence only is allowed.