Smt. Taro vs State of Rajasthan

P.C. Jain, J.—This appeal is directed against the judgment dated 24.11.1995 passed by the learned Special Judge, N.D.P.S. Cases, Sri Ganganagar whereby the accused-Appellant Mst. Taro was convicted of the offence u/s 8 read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act (No. 6 of 1985) and sentenced to 10 years rigorous imprisonment together with a fine of Rs. 1,00,000 and in default of payment of fine, to further, undergo rigorous imprisonment for one year.

The brief facts leading to this appeal are; that on a secret information received from a Mukhbir P.W. 4 Richhpal Singh S.H.O. Police Station, Kotwali, Sri Ganganagar seized contraband opium from one Jasmer Singh. That secret information was recorded in the Rojnamacha Aam at serial number 1443 (Ex. P. 7). Jasmersingh was arrested and was interrogated by the Police. On terrogation, he told the police that he had purchased the above contraband opium from accused-Appellant Mst. Taro, who was selling the same openly in Sabji Mandi, Beerbal Chowk, Sri Ganganagar. Hereupon, ichhpalsingh proceeded towards Sabji Mandi along with one Lady Constable F.C. Mst. Ramesh Kumari and some other constables at 7.00 p.m. When they reached Sabji Mandi. Jasmersingh pointed at Mst. Taro sitting with a green bag in her hand. Richhpalsingh went to Mst. Taro along with police party and gave notice of the fact that he would conduct her search and gave option to her that if she desired, search may be conducted by a Magistrate. However, Mst. Taro desired that search may be made by P.W. 4 S.H.O. Richhpalsingh himself. Thereupon, search was made by Lady Constable F. C. Ramesh Kumari in the presence of Motbirs Mohanlal and Sohanlal. On search, contraband opium weighing about 10 Kgs. was recovered from the possession of the accused-Appellant.

The accused-Appellant Mst. Taro did not possess any legal permit to sell the above commodity. Out of the above recovered commodity, two samples of 30 grams each were taken and they were got sealed separately. The remaining recovered opium was also got sealed and a Memo Ex. P. 2 was prepared. The thumb impression of accused-Appellant Mst. Taro was also obtained at place X on Ex. P. 2. The specimen of the seal with which the above article was sealed was also affixed on a separate paper. After returning to the Police Station, a case u/s 8/16 of the N.D.P.S. Act, was registered vide F.l.R. No. 483 of 1988 against the accused-Appellant. The Superintendent of Police was informed about this incident vide letter Ex. P. 9. Two sample packets and the other packet containing recovered opium were deposited in the Malkhana. Thereafter, the Superintendent of Police sent those sample packets to the Forensic Science Laboratory, Jaipur for chemical examination in sealed condition. The State Forensic Science Laboratory, Jaipur vide its report Ex. P. 12 opined that each of the packet marked ''A'' and ''B'' contained brownish black semi solid substance with characteristic smell weighing approximately 30 gms. In each case and wrapped in separate polythene wrappers and they were found to be of opium having 2.47% and 2.64% morphine respectively. After collecting the above incriminating evidence against the accused-Appellant Mst. Taro, challan was filed before the learned trial court.

The learned Special Judge to whom the case was committed for trial framed the charges u/s 29 read with Section 18 and Section 8 read with Section 18 of the N.D.P.S. Act. The plea of the accused-Appellant was recorded. She pleaded not guilty to the charges and claimed to be tried. The prosecution examined 8 witnesses in support of its case. The statement of the accused-Appellant was recorded u/s 313; Code of Criminal Procedure died all the allegations and alleged that she had been falsely and maliciously implicated in the case. She alleged that on 29.10.1988, she and her sister Mst. Indo were coming from Sardulshahar to Kheruwala by Bus. In that Bus. Jasveer Kumar Constable was also sitting. When she and her sister Mst. Indo wanted to come down from the Bus at Kheruwala, Jasveer Kumar did not allow her sister to get down; Jasveer Kumar took her sister Mst. Indo with him and committed rape on her. A case u/s 376 I.P.C. was registered against Jasveer Kumar. In that case, she deposed against Jasveer Kumar. She also alleged that Jasveer Kumar is the man of P.W.4 Richhpalsingh who pressurised her not to depose against Jasveer Kumar and in case she would depose against him, she would have to face dire consequence. She alleged that since she deposed against Jasveer Kumar against the wishes of P.W. 4 Richhpalsingh, this false case has been foisted on her. She did not produce any defence.

The learned Special Judge after appreciation of the evidence came to the conclusion that it has been proved beyond reasonable doubt that contraband opium was recovered from the possession of accused-Appellant Mst. Taro. Regarding the argument relating to the mandatory requirement of the compliance of the provisions of Section 42 of the N.D.P.S. Act, the learned Special Judge was of the opinion that since the search was made and seizure was effected in public place, the provisions of Section 42 of the Act shall not be applicable to the case on hand and the case would fall u/s 43 of the Act. Regarding the compliance of the provisions of Section 50 of the Act, the learned Special Judge found that it was done as is proved from the statement of P.W. 4, S.H.O. Richhpalsingh. The learned Special Judge also discarded the defense version that a false case has been launched against the accused. He, therefore, vide his impugned judgment dated 24.11.1995 convicted and sentenced the accused-Appellant as aforesaid.

I have heard Mr. Ram Rakh Vyas, learned Counsel appearing for the accused-Appellant and Mr. S.K. Vyas, the learned Public Prosecutor for the State and have very carefully gone through the record of the case.

Mr. Ram Rakh Vyas, the learned Counsel appearing for the accused-Appellant has vehemently assailed the conviction and sentence of the accused-Appellant on the ground that there is no legally accepted evidence against the accused-Appellant. In this case, the investigating Officer made P.W. 5 Kaluram and P.W. 6 Sohanlal as Motbir witnesses. When these witnesses were examined in the Court, they turned hostile to the prosecution and did not support the search and seizure allegedly made by P.W. 4 Richpalsingh. According to Mr. Vyas, Section 42 of the Act empowers any such Officer (being an Officer superior in rank to a peon, sappy or constable) to arrest or to enter into, search any such building, conveyance or place and to seize such commodity. Sub-section (2) of Section 42 of the Act further empowers such an Officer to take down any information in writing under Sub-section (1) or to record grounds for his belief under the proviso thereto; he should forthwith send a copy thereof to his immediate official superior. In the instant case, the Investigating Officer has contravened the above provisions and the above contravention has vitiated the whole trial. In support of his contention, Mr. Ram Rakh Vyas has placed reliance on Chhogararn v. State of Rajasthan 1995 CriLR 667 : 1996 (1) EFR 420 (Raj) and Santu. Doss v. State of Rajasthan, 1996 Cr LR 858 (Raj).

On the other hand Mr. S.K. Vyas, the learned Public Prosecutor appearing for the State has stoutly controverter the above argument on the ground that this argument proceeds on a wrong assumption inasmuch as the accused was searched while she was selling contraband opium while sitting in Sabji Mandi, which is a public place and hence, the provisions of Section 42 of the Act cannot be invoked when the search is made not in any building, conveyance or in close place. Since the search was made in a public place, the provisions of Section 43 of the Act would come into play. He has submitted that though the provisions of Sections 42 and 43 of the Act may appear to be the same, there is a marked distinction between these two provisions. Section 42 of the Act applies to entry, search and seizure made in any building, conveyance or in a close place. On the other hand, the provisions of Section 43 of the Act apply to such cases where the recovery is made from an open place. Since in the instant case, the recovery was made from the person of the accused in a public place, the provisions of Section 43 of the Act would be applicable to the case on hand.

I have gone through the rival contentions made at the bar. In the instant case, as per the statement of .W. 4 Richhpalsingh, search and seizure were affected in the Sabji Mandi where the accused-Appellant Mst. Taro was selling vegetables. Sabji Mandi is a public place and hence, the provisions of Section 43 of the Act would be applicable to the case on hand, in this connection. I would like to refer a decision of this Court in Umesh Kumar Chobay v. State of Rajasthan 1995 CriLR 82 . In that case also, search was not made from building; conveyance but was made from a public place and, therefore, it was held that provisions of Section 43 of the Act would be applicable.

It was next contended by Mr. Ram Rakh Vyas, the learned Counsel appearing for the accused -Appellant that the Investigating Officer P.W. 4 Richhpalsingh has blatantly contravened the mandatory provisions contained in Section 50 of the Act. Section 50 of the Act deals with personal search of the accused. It provides that when any officer, duly authorised u/s 42 of the Act, is about to search any person under the provisions of Section 41, 42 or 43 of the Act, he shall, if such person so requires, take such person, without unnecessary delay, to the nearest Magistrate or any Gazetted Officer mentioned u/s 42 of the Act. In the instant case, P.W. 4 Richhpalsingh himself has stated that he informed the accused that if he so desires, search may be made before a Magistrate but she declined the offer and expressed her desire that search may be made by Richhpalsingh himself. Thus, it is clear that P.W. 4 Richhpal Singh, Investigating Officer did not offer the accused the option to be searched before a Gazetted Officer and as such, only partial compliance of the provisions of Section 50 of the Act has been made. Partial offer seeking option amounts to noncompliance of the provisions of Section 50 of the Act. In support of this contention, Mr. Vyas has relied on Laxman Jena v. State of Orissa. 1995 CTU 2993.

On the other hand, Mr. S.K. Vyas the learned Public Prosecutor appearing for the State has contended that an option was given to the accused to the effect that if she desired, search may be made of her person in the presence of a Magistrate. It cannot be gainsaid that Investigating Officer P.W. 4 Richhpalsingh omitted to give option with reference to the search to be made before a Gazetted Officer. The same would not affect the merits of the case inasmuch as the accused did not want any search to be made in the presence of any other authority. She declined such offer and volunteered to be searched by Investigating Officer P.W. 4 Richhpalsingh himself.

I have considered the arguments. A bare reading of the provisions of Section 50 of the Act shows that there is a requirement of the Arresting Officer to take the accused to the nearest Gazetted Officer of any department mentioned in Section 42 or to the nearest Magistrate. In Section 50 of the Act there is implicit legislative mandate regarding the person to be searched to be informed by the person intending to take search that the former has the legal right to require that he is searched in the presence of the concerned Gazetted Officer or the Magistrate. The option to be searched A. Cr.R. 54 before the Gazetted Officer or before the Magistrate has to be given by the Arresting Officer to the accused and after that option is given, it is his choice to opt for the Gazetted Officer or for the Magistrate. The requirement of the law is that such an option must be given by the Investigating Officer in letter and spirit so that it is not rendered nugatory. This mandate has to be met by the prosecution. The expression "if such person so required" occurring in Sub-section (1) of Section 50 of the Act clearly presupposes that the person is told at the very inception that the law invests him with the right to insist that he be searched in the presence of the concerned Gazetted Officer or the Magistrate. The aforesaid requirement is mandatory and non-compliance therewith is fatal to the prosecution. The purpose of informing a suspect that search could be taken in the presence of a Gazetted Officer was to ensure that there was safeguard against planting any incriminating article. These provisions have been made in order to protect the interests of the citizens from irregular and illegal invasion on his liberty by the authorities as well as in the interest of the State to secure the evidence bearing upon the commission of the crime. The object of making it preemptory on the part of the officer as to ensure that the officer, who is charged with the duty of conducting the search to conduct it properly and not to harm or wrong, such as planting of offending drugs by any interested party and to prevent fabrications of any evidence.

Now adverting to the facts of the case, P.W. 4 Richhpalsingh in his examination-in-chief has stated that when he wanted to search the accused, she was given an option that if she desires, she may be searched before a Magistrate. The accused did not exercise the option and preferred that search may be taken by P.W. 4 Richhpalsingh himself. It may be noted here that by giving the above option, P.W. 4 Richhpalsingh has not fully complied with the provisions of Section 50 of the Act. Section 50 of the Act provides a legislative mandate regarding the person to be searched no be informed by the person intending to take search that the former has the legal right to require that he is searched in the presence of the concerned Gazetted Officer or the Magistrate. These two options are permitted by law. It is the duty of the person intending to search the culprit to give both the options. If he omitted to give one option only, it can only be said that he has partially complied with the provisions of Section 50 of the Act. In this connection, I may place reliance on a decision of Orissa High Court in Laxman Jena v. State of Orissa 1995 CTU 2993. In that case, the Investigating Officer only asked the accused for a search before the Gazetted Officer. No option was given to the accused for a search before a Magistrate. On those facts, it was held that it was a partial compliance of the provisions of Section 50 of the Act and such a partial offer amounts to non-compliance of the provisions of Section 50 of the Act.

My conclusion, therefore, is that the provisions of Section 50 of the Act are mandatory in nature and the law also stands so settled by the judicial pronouncements. In the instant case, as stated above, there was only one offer to the accused for a search before the Magistrate, which amounts to non-compliance of the provisions of Section 50 of the Act. Hence, the trial stands vitiated and the accused-Appellant is entitled to acquittal on account of the deprivation of the above statutory right conferred on him by Section 50 of the Act.

Before concluding, one more aspect of the case must be highlighted. While narrating the facts, it was stated that at the instance of Jasmersingh, P.W. 4 Richhpalsingh could reach the accused and she was found selling opium in Sabji Mandi like vegetables. The transactions of contraband opium are always held in a very clandestine and clever way. It cannot be conceived even for a moment that a person can sell opium with a stock of 10 kgs. While sitting in Sabji Mandi like vegetables. In this context. I am tempted to refer to the statement of the accused Mst. Taro wherein she has alleged that she has been falsely and maliciously implicated in this case because Jasveer Kumar in her presence detained her sister while they were traveling in a bus and he took her with him and committed rape on her. She lodged a criminal complaint against him and a case u/s 376, I.P.C. has been registered against Jasveer Kumar. She further alleged that on account of that prosecution, Richhpalsingh being an intimate friend of Jasveer Kumar brought pressure on her but she did not agree and hence, this false case has been foisted on her at the instance of Richhpalsingh. The accused is not obliged to prove the explanation which she offers while giving his/her statement u/s 313, Code of Criminal Procedure but its probability can be taken note of judicially. In the peculiar facts of the case, the fact has not got a ring of truth that Richhpalsingh found the accused Mst. Taro selling opium in Sabji Mandi like vegetables. Both the Motbir witnesses have turned hostile and have not supported the search and seizure of opium. Hence the prosecution story also does not appear to be probable and convincing.

For the above reasons, I accept this appeal, set aside the impugned judgment dated 24.11.1995 passed by the learned Special Judge, N.D.P.S. Cases, Sri Ganganagar and acquit her of the offence u/s 8 read with Section 18 of the Act. The accused-Appellant Mst. Taro is in Jail. She be set at liberty, if not required in any other case.