Yogesh Kumar alias Tillu vs State of U.P. and Another

R.R.K. Trivedi, J.—By this petition, Petitioner Yogesh Kumar alias Tillu has challenged the legality of First Information Report dated 27th September. 1992 which has been registered as Grimes No. 416 to 420 of 1992 u/s 18 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (Act No. 61 of 1985) hereinafter referred to as ''Act'', and has preyed that the aforesaid First Information Report be quashed and the Respondents be restrained from proceeding with the investigation and brrest of the Petitioner on the basis of the same. In alternative, it has also been prayed that in case this Court comes to the conclusion that the interference with the aforesaid First Information Report is not possible then the bail application of the Petitioner may be directed to be considered same day by the competent court in the event of Petitioner''s surrendering before the competen court for the offences disclosed in the First Information Report. The legality of the First Information Report has been questioned mainly for non-observance of certain conditions required before making search and seizure of the goods possession of which'' constitutes offence under the Act and the consequent arrest under Sections 42 and 50 of the Act.

The facts giving rise to this petition are that on 11-9-92 Station House Officer, G.P. Yadav while he was on duty with other police officials at Bus Station of town Sumerpur district Hamirpur, received information that the Petitioner alongwith other persons is inside his residential house and is possessed of large quantity of Ganja, Opium, Chares and Bhang and is negotiating to sell the same. He also received information that in case swift, prompt and immediate action is not taken the aforesaid Articles snail be transferred and removed to other place. The aforesaid Police Officer placing reliance on the aforesaid information preceded to the site and condueled the raid at about 10.00 P.M. in the night and recovered therefrom large quantity of Narcotic substances it if further disclosed from the First Information Report that on seeing the police Petitioner ran away with the bag in his hand. He was chased by the police. However Petitioner made his escape good after throwing the bag in his hand form which 7 kgs. of opium was recovered. Four persons who were sitting inside the same room namely Sukkhu. Ram Singh. Lallu and Surendra Kumar were arrested with the large quantities of narcotic goods mentioned against them, which are under:

Sukkha son of Dulla -Tow bags of Bhang weighing about 80 kgs. 2. Ram Singh son of Behari Yadav -Four bags of Ganja weighing about 1 qts 3. Lallu son of Ram Nath -2 bags and I katta (half) about 80 kgs., 1 bag Bhang weighing 10 kgs. dges and Charas 1430 grams in a poly thine bag and tin box with certain weighing instru- ments and some coins were recovered. 4. Phatt alias Surendra son of -1 S.B.B.L. gun factory Gaya Prasad. made with some catri- dges and Charas 1430 grams in a polythine bag and tin box with certain weighing instru- ments and some coins were recovered.

It has been further mentioned in the First Information Report that the aforesaid persons were required to show the licence for possessing the aforesaid contraband goods and the gun but they could not produce any such authorisation. On being asked whether they want to be produced before the Magistrate or a Gazetted Officer, they refused. On the basis of the aforesaid recoveries a memo of recovery was prepared at the spot and on the basis of the same the First Information Report was lodged at about 12.30 A.M. in the night.

The learned Counsel for the Petitioner has submitted that the aforesaid Police Officer has failed to take down in writing information received by him as required u/s 42(1) of the Act and further as the search was conducted between sun-set and sun rise he has failed to record the grounds of his belief that in case immediate search was not taken it shall afford the opportunity for the concealment of evidence or facilitate escape of offender, as otherwise search during sun-set and sun-rise could only be done under the search warrant or authorisation issued by the competent Magistrate or Officer as required under the proviso of Section 42 of the Act. The learned Counsel has also submitted that so far persons arrested at the spot with narcotic substances are concerned, the compliance of Section 42 of the Act has not been done as they were not asked to express themselves us to whether they wanted to be searhed in presence of the Gaze; ted Officer or the Magistrate. The learned Counsel has further submitted that the provisions contained in Sections 42 and 56 of the Act are mandatory and the Police Officer is under the legal obligation to fulfil all the conditions before making the search and seizure and arrest under the Act, As the mandatory provisions have not been complied with the entire action taken is vitiated in law and the Petitioner cannot be prosecuted for the same as First Information Report is nullity. The Respondents cannot be permitted to proceed with the investigation and to arrest the Petitioner during investigation for the alleged offences and the First Information Report is liable to be quashed. The learned Counsel has taken us through various provisions of the Act and has submitted that as provisions of the Act are very harsh and provide for a severe punishment and also contained strict provisions regarding bail etc. The observance of the requirement ought to have been done which is a valuable safeguard against vexatious, arbitrary and malafide prosecution. It has been further submitted that if Petitioner is allowed to be prosecuted on the basis of the First Information Report it shall be in violation of the fundamental rights of the Petitioner guaranteed under Article 21 of the Constitution. In support of his submissions learned Counsel far the Petitioner also has placed reliance on various authorities which shall be referred to and discussed at relevant places.

Learned Standing Counsel, on the other hand has submitted that from the perusal of the First Information Report and from the memo of recovery it is clear that the provisions of Sections 42 and 50 of the Act have been substantially complied with and there is No. breach of the aforesaid provisions. It has been further submitted that as Petitioner ran away from the spot and escaped from the police, there was No. question of compliance of Section 50 of the Act so far as he is concerned. The persons who were arrested did not require to be searched in presence of the Gazetted Officer or the Magistrate. So far as, compliance of Section 42 of the Act is concerned the learned Standing Counsel has submitted that the Police Officer has mentioned in so many words his grounds of beliefs that in case search was not immediately conducted it would have afforded opportunity to the offender to escape and to conceal evidence. Learned Counsel for the State has placed reliance on cases Surajmal Kanhaiyalal Soni v. State of Gujarat 1991 (1) EFR 58 (Guj), Santokh Singh Vs. State, and Ramesh Kumar alias Raju Kishun Kumar v. State 1992 (2) EFR 49 by which a learned Single Judge of this Court after relying on the view expressed by Hon''ble Supremo Court refused to grant ball for violation of Sections 42, 43 and 50 of the Act.

We have heard learned Counsel for the Petitioner and learned Standing Counsel and given our serious considerations to the rival contentions. The important question involved in the present writ petition is as to whether for the alleged breach of Sections 42 and 30 of the Act, which fall under Chapter 5 dealing with the procedure regarding entry, search setzure and arrest by various authorities of the suspected offenders will tender search and recovery of the contraband goods illegal and the investigation consequent thereof and all follow up actions should be quashed at this stage. Strong reliance has been placed by the learned Counsel for the Petitioner in case of K.L. Subbayya Vs. State of Karnataka, which has been followed by this Court in case of Divakar Srivastava v. Station Officer P.S. Husainganj Lucknow 1990 LLJ 240 and Kamlesh Pratap Singh v. State of Uttar Pradesh Alld. DN 593, Mahesh v. Union of India 1986 LLJ 142 for quashing the First Information Report and the investigation in consequent there on. Learned Counsel for the Petitioner has also relied on the case Sewa Ram v. State 1992 (2) EFR 39 in which a learned single judge of this Court discussed the provisions of Sections 42 and 50 of the Act in detail and after noticing certain breaches granted bail. Learned Counsel has also referred to case of Bhunu pratap v. State LCrR 115. Learned Counsel for the Petitioner has also placed reliance on a Division Bench view of this Court in the case of Vikas Book Agencies and Ors. v. State of U.P. and Ors. in Civil Misc Writ Petition No. 9549 of 1992 decided on 27th April. 1992- The Division Bench in this case quashed the First Information Report and the charge-sheet on the ground that the Magistrate had No. competence to issue a search warrant and for that matter to direct search u/s 103 of the Code in respect of the books in question. The Division Bench placed reliance in case of V.S. Kuttan Pillai Vs. Ramakrishnan and Another, .

The learned Counsel has also placed reliance on the view expressed by other High Courts of the country which are being mentioned below:

Paul Osumba v. State of Haryana 1991 (1) EFR 19 (P & H), State of Himanchal Pradesh v. Sudershan Kumar 1990 (1) EFR 15 (HP) and Md. Jairulabdin alias Nahamacha v. State of Manipur 1991 (2) FER 404 (Gau.) The learned Counsel for the Petitioner has also referred to and pieced reliance in case of State of Haryana and others Vs. Ch. Bhajan Lal and others, and the guidelines laid down therein for quashing prosecution at the threshold.

In our considered opinion, the plea raised in this writ petition is based on the rule of exclusion of evidence obtained as a result of illegal search and seizure This question arose before a constitution bench of Hon''ble Supreme Court in case of Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, , Hon''ble Supreme Court after noticing the provisions of Constitution and the law of evidence and various American and English judgments concluded that the evidence collected on the basis of illegal search and seizure cannot be shut out from being considered by the courts against the person from whose custody it was seized and No. writ of prohibition restraining use can be granted The Hon''ble Supreme Court observed as under:

In other words, search and seizure for the purposes of preventing or detecting crime reasonably enforced was not inconsistent with the constitutional guarantee against search and seizure. It was held in that case that the search of the Appellant by a Police Officer was not justified by the warrant nor was It open to the Officer to search the person of the Appellant without taking him before a Justice of the Peace. Nevertheless it was held that the Court had a discretion to admit the evidence obtained as a result of the illegal search and the constitutional protection against search of person or property without consent did not take away the discretion of the court. Following 1955 AWC 197 the court held that it was open to the court not to admit the evidence against the accused if the court was of the view that the evidence had been obtained by conduct of which the prosecution ought not to take advantage. But that was not a rule of evidence but a rule of prudence and fair play, it would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.

The similar view has been expressed by Hon''ble Supreme Court in case of State of Maharashtra Vs. Natwarlal Damodardas Soni, . The Hon''ble Supreme Court after referring to its judgments in Radhakishan Vs. State of U.P., Shyam Lal Sharma, etc. Vs. State of Madhya Pradesh, and State of Andhra Pradesh Vs. Y. Prabhakara Reddy, and also after noticing certain American decisions concluded that It may be observed that the police bad power under the Code of Criminal Procedure to search and secure those gold if they had reason to believe that the cognizable offence has been committed in respect thereof. Assuming arguments that the search is illegal then also it will not effect the validity of the seizure and further investigation by the custom authorities or the validity of the trial which followed on the complaint of the Assistant Collector of the Customs. Similarly Hon''ble Supreme Court In case of Dr. Pratap Singh v. Director of Enforcement Foreign Exchange Regulation Act AlR 1985 SC 989, 8 after placing reliance on the view taken by the Constitution bench in Pooran Malls case (supra) concluded as under:

Assuming that it is obligatory upon the officer proceeding to take search or directing a search to record in writing the grounds of his belief and also to specify in such writing, so far as possible, the thing for which the search is to be made, is mandatory and that non-recording on his reasons would result in the search being condemned as illegal, what consequence it would have on the seizure of the documents during such illegal search. The view taken by a learned single Judge of the Calcutta High Court in New Central Jute Mills Co. Ltd. Vs. T.N. Kaul and Others, . that once the authorisation for carrying out the search is found to be illegal on account of the absence of recording of reasons in the formation of a reasonable belief, the officer who has seized documents during such search must return the documents seized as a result of the illegal search is against the weight of judicial opinion on the subject and does not commend to us In fact this decision should not detain us at all because virtually for all practical purposes it can be said to have been overruled by the decision of the Constitution Bench in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, . This Court held that courts in India and even in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. If therefore the view of the learned single Judge of the Calcatta High Court were to be accepted meaning thereby that if the search is shown to be illegal, anything seized during such illegal search will have to be returned to the person from whose premises the same was seized It would tantamount to saying that evidence collected during illegal search must be excluded on the ground alone. This was in terms negatived by the Constitution Bench. It has been often held that the legality in the method, manner or initiation of a search does not necessarily mean that anything seized during the search has to be returned. After all in the course of a search, things or documents are required to be seized and such things and documents when seized may furnish evidence. Ille-gHllty of the search does not vitiate the evidence collected curing such illegal search The only requirement is that the court or the authority before which such material or evidence seized during the search shows to be illegal is placed has to be cautious and circumspect in dealing with such evidence or material. This is too well-established to necessitate its substantiation by a precedent However, one can profitably refer to Radhakishan Vs. State of U.P., wherein the court held that assuming that the search was illegal the seizure of the Articles is not vitiated It may be that because of the illegality of the search the court may inclined be to examine carefully the evidence regarding seizure but no other consequence ensues State of Maharashtra Vs. Natwarlal Damodardas Soni, .

If the question Involved in the present writ petition is considered in the light of the view expressed by Hon''ble supreme Court in the aforesaid three judgments and the other judgments mentioned therein, in our opinion, it cannot he accepted that as the search was illegal and In contravention of the provisions of sections 42 and 50 of the Act, the first information report and the investigation in consequence thereof and the trial of the Petitioner should be quashed. It is noteworthy that the Constitution or Act nowhere provides to exclude evidence collected on the basis of the illegal search and seizure. The view taken by the Hon''ble Supreme Court squarely applies to the facts and circumstances of the present case also. It is no doubt true that three Division Benches of this Court quashed the first information report on the ground of breach of the provisions relating to search and seizure but none of the aforesaid Division Benches considered the view expressed by the constitution bench and the other benches which followed it in subsequent judgments of the Hon''ble Supreme Court. Case of K.L. Subhayya''s had come before Hon''ble Supreme Court after full-fledged trial and the view taken therein cannot, in our opinion, be relied on for closing the prosecution of the offender of the heinous offences like trafficking in drugs, at the threshold. It is altogether different matter to appreciate the evidence strictly and with more caution where the alleged breaches are found during trial at the time of appreciating evidence, than to quash the first information report and to shut out the evidence at the threshold and not to allow prosecution of the offender under the Act. Normally as other Division Benches of this Court relied on case of K.L. Sobhayya and quashed the first information report, instead of taking a contrary view, the case should have been referred to the larger bench but in our opinion, in the present case, in view of definite view expressed by Hon''ble Supreme Court through a constitution bench and other judgments, it does not appear necessary to refer the matter to a larger bench which will only cause delay in the prosecution. Another reason is that in K.L. Subhayya''s case Hon''ble Supreme Court was considering the question of taw regarding illegal search and seizure after fail trial and the view expressed therein cannot be utilised as a guide for quashing first information report. Thus the view expressed by the Division Benches of this Court, mentioned above, cannot be said to be good law in view of the clear position of law pronounced by the constitution bench We cannot ignore serious menace which present day society is facing from drug trafficking. The severe penalty and strict provisions have been enacted by the legislature to prevent the serious threat to the very existence of the society and if the prosecution is closed, it shall defeat the very purpose of this Act. Further delay may only cause prejudice and damage the prosecution. The legislature while providing strict measures to deal with this menace of drug trafficking has also provided the safeguard u/s 58 of the Act for punishing officer for vexatious entry, search, seizure and arrest. The Petitioner will have full opportunity to defend himself at the time of trial. We do not find anything otherwise to prohibit the investigation on the basis of the search mentioned in the first information report.

Learned Counsel also referred to several Judgments of the other High Courts. We have considered the judgments. All the judgments have been given in appeals where the offenders were convicted after facing the fulfledge trial, The judgments and the ''views expressed therein, in our opinion cannot be followed in the present writ petition where the prosecution has been sought to be quashed at the threshold. For that reason it is not necessary for us to express any view is respect of the judgments relied on.

Learned Counsel for the Petitioner also attempted to persuade us to go into the other details regarding the photography of the place of occurrence and the distances of the police station and bus stand there from but we refuse to go into these details for quashing the first information report as opinion, expressed at this stage may prejudice the prosecution or the defence. Similarly we are also not expressing any view in respect of the compliance of sections 42 and 50 of the Act and we leave it open to the Trial Judge to assess the evidence in accordance with law.

In this case on behalf of the Petitioner, it has also been prayed that the ball application of the Petitioner be considered on the same day in case Petitioner surrenders before the competent court. Two Division Benches of this Courts have considered this question at length and have concluded that No such right exists in favour of an accused that his bail application may be directed to be considered on the same day by the courts below. However it has been said that this Court may exercise discretion only in certain cases where such a direction is extremely necessary to avoid hardship. The view has been expressed in Criminal Misc. Writ Petition no of 1992, Dr. Hidayat Husain Khan v. State of U.P. and Ors. decided No. 14th May, 1992 and Writ Petition No. 919 (M.B.) of 1992. Noor Mohammad v. State of U.P. and Ors. decided on 14th May, 1992. We express our respectful agreement with the aforesaid view and in our opinion, the Petitioner who is a suspect of serious offence of possessing Narcotic substances, does not deserve any interference by this Court under Article 226 of the Constitution except that in case Petitioner surrenders and makes an application for bail, same shall be considered and decided in accordance with law expeditiously and without any unreasonable delay by the court below.

For the reasons recorded above, in our opinion, this writ petition has No. force end is, accordingly, dismissed.