(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeals are directed against the judgement and order passed by the learned Special Judge in Sessions Case (NDPS) No.98/06, whereby the learned Judge has convicted A1 (appellant of Criminal Appeal No.1129/07) for the offence under section 20(2) read with sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) and has imposed sentence upon A1 with 10 years RI and fine of Rs. 1 lakh and further 1 year SI for default in payment of fine and has imposed sentence upon A2 (appellant of Criminal Appeal No.1146/07) with 7 yeas RI with the fine of Rs.50000 and 6 months SI for default in payment of fine.
2. As per the prosecution case, Shri N.B. Chudasama, PSI, Special Operation Group, Junagadh, p.w.6, on 12.10.2006 received information at about 11.30 that two persons named Jusab Juma and Abdul Gaffar, possessing quantity of charas were to pass on highway on Hero Honda motorcycle No.GJ 10S5742 for selling the same to Mangrol and they were to pass on the highway touching the village Sheel. The said information was recorded by him in writing and the intimation was also given to his immediate superior officer. He instructed to call for panchas and thereafter they reached to the spot and it was found that two persons were coming on Hero Honda motorcycle of the same number and therefore the same was intercepted and the person driving the motorcycle was Abdul Gaffar (A1) and the pillion rider was Jusab Juma (A2). He had asked both the persons as to whether they are desirous to be searched in presence of gazetted officer or magistrate or through police. As per the said police officer, they agreed to be searched through the police and thereafter, the search was made. It was found that A1 in his bag which was in his hand was having charas since it was smelling like intoxicated material and therefore, the person for weighment was called and it was found that the quantity was 2 kg 130 gms. The sample was taken. The same was sealed and remaining material was also sealed. It was also found that A2 in his pocket of the pant at the waist was having 900 gms of charas in the small bag. The sample was also taken and the same was sealed and the remaining muddamal was also sealed. Thereafter, the complaint (exhibit 66) was filed with Sheel Police Station.
3. As per the prosecution case, the complaint was further investigated and ultimately, as sufficient material was found, the chargesheet was filed and the case was committed to the competent court of the learned Special Judge being Sessions Case (NDPS) No.98/06.
4. The prosecution in order to prove the guilt of the accused examined 15 witnesses and the prosecution also produced the documentary evidences. The learned Special Judge thereafter recorded the statement of both the accused under section 313 of Cr.P.C. wherein the accused denied the evidence against them and in the further statement they stated that they are innocent and that they have not committed any crime and that they have wrongly been implicated and no incriminating material was found in their presence. It was also stated by them that no intimation was given about their right to be searched. The seizure memo/inventory was also not given and the mandatory procedure under the Act have not been followed and they were called from their residence and asked to sit at the police station and the papers were prepared at the police station only and a false case is filed.
5. The learned Judge thereafter heard the prosecution and the defence and ultimately found that the prosecution has been able to prove the case against both the accused and therefore, convicted both the accused for the charged offences. The learned Judge thereafter also heard the prosecution and the accused for the sentence and ultimately imposed the sentences upon the concerned accused as referred to hereinabove. Under the circumstances, the present appeals before this Court.
6. The learned counsel appearing for both the sides have taken use to the entire evidence on record, oral as well as documentary. We have considered the judgment and the reasons recorded by the learned Special Judge. We have heard Mr.Nasir Saiyed for A1 and Mr.PM Lakhani for A2. We have also heard Mr. Pandya, learned APP for the State in both the appeals.
7. The evidence of the raiding officer Narendrasinh Banesinh Chudasama, p.w.6, exhibit 19 if is considered with the evidence of Vinubhai Makanbhai Mokariya p.w.11, exhibit 40, Osmanbhai Bilalbhai, p.w.12 exhibit 46, Ghelabhai Lakhabhai, p.w. 13 exhibit 47 and Dhanabhai Jivabhai, p.w.14 exhibit 48 read with the evidence of IO, Piyushbhai Pragjibhai Pirojiya, p.w.15 exhibit 50, it can be said that the prosecution has been able to prove the case against both the accused on the following aspects
1) The receipt of the information.
2) Recording of the information.
3) Calling for panchas.
4) Existence of charas.
5) FSL report showing that the material was chars.
However, the aspect of compliance of requirement under section 50 of the Act and the effect of the panchas not supporting the case of the prosecution and Jayeshbhai Kalabhai Bharda, person who weighed, p.w.5, not supporting the case of the prosecution, are required to be taken into consideration while the conviction of the accused concerned under the Act.
8. We may consider the aspect of requirement under section 50 of the Act at the time when the search is to be made by the officer authorised under section 42 of the Act. Section 50(1) to which we are required to consider, for ready reference reads as under:
“(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as 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.”
9. The Apex Court in the case of State of Punjab Vs. Baldev Singh reported at AIR 1999 SC 237 had an occasion to consider interpretation of section 50 and further as to whether the accused is required to be informed by the officer specifically that he has a right to be searched in presence of any gazetted officer or magistrate and if such is not conveyed by the officer to the person who is to be searched, what shall be the effect. It was observed by the Apex Court at paras 25 and 26 as under:
“25. To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with.
26. The safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of Illicit Drugs and Narcotic Substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in presence of a Gazetted Officer or a Magistrate is a necessary sequence for enabling the concerned person to exercise that right under Section 50 because after Maneka Gandhi v. Union of India, (1978) 1 SCC 248, it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not reasonable, fair and just and when a statute itself provides for a just procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a Gazetted Officer or a Magistrate, would be violative of the reasonable, fair and just procedure and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be fair, just or reasonable procedure.”
(Emphasis supplied) The Apex Court after considering the other decision for proper implementation of the rights, further observed at paragraphs 31 to 33 as under:
“31. There is indeed, a need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let 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 concerned official so that the laxity on the part of the investigating authority is curbed.
32. However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of non compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50, by intimating to the concerned person about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, would cause prejudice to an accused and 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 during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable.
The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible it cannot be disregarded by the prosecution except at its own peril.
33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the 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 in that section were complied with, it would not be advisable to cut short a criminal trial.”
(Emphasis supplied) And thereafter, it was concluded at paragraph 55 as under:
“55. On the basis of the reasoning and discussion above, the following conclusions arise :
(1) 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 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;
(2) 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;
(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 Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted 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 let 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 concerned official 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 judicial process may come under 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 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 50 have by Section 50 at 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 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 concerned person of his right as emanating from Subsection (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
(9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case.”
10. The aforesaid shows that so as to make the right effective as granted under section 50, it is required to be shown by the prosecution by way of documentary evidence or oral evidence that at the time when the search was to be effected, the concerned officer authorised under section 42 of Act had informed the person about his right available under law to be searched in presence of any gazetted officer or magistrate excluding the officer authorised under section 42 of the Act who may be gazetted officer. Further, if such was not specifically informed to the accused, it may prejudice the rights of the accused and consequently, adversely affect the case of the prosecution.
11. At this stage, we may also refer to the recent decision of the Apex Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat reported in (2011) 1 SCC 609, wherein the Apex Court while considering the strict compliance to the requirement of section 50, considered the above referred decision of the constitutional bench of the Apex Court in the case of Baldev Singh (supra) including the conclusion recorded therein and thereafter, observed at paragraph 24 as under:
“24. Although the Constitution Bench did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of subsection (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted 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 the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.”
12. The aforesaid shows that the law laid down by the constitutional bench of the Apex Court in the case of Baldev Singh (supra) is further reiterated by the constitutional bench of the Apex Court once again in Vijaysinh Chandubha Jadeja (supra) and it has been further observed by the Apex Court that any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. Therefore, in light of the aforesaid legal position, if the facts of the present case are examined, Narendrasinh Banesinh Chudasama, p.w.6, exhibit 19 in his testimony has only stated that he got himself introduced to the accused and he conveyed to the accused that whether they are desirous to be searched in presence of any other gazetted officer or magistrate. He has not stated in his testimony that he had conveyed to both the accused that they have right to be searched in presence of any gazetted officer or magistrate, if they are so desirous. Therefore, there is absence of conveying of the right of the accused under section 50 in the testimony of the raiding officer who has searched both the accused. Further, in the intimation given for search, exhibit 14, it has only been stated that the accused are to be searched and whether they are desirous to be searched through any gazetted officer or magistrate or through police. Even in the said written intimation also there is no whisper about the right available to the accused to be searched in presence of any gazetted officer or any magistrate. Under these circumstances, we find that there is no sufficient compliance to the requirement under section 50 at the time when both the accused were searched by the raiding officer.
13. The next aspect to be considered is the effect of none of the panchas supporting the case of the prosecution and also Jayeshbhai Kalabhai Bharda, p.w. 5, who is said to have weighed the charas not supporting the case of the prosecution. Panchas for the search and seizure are Jitubhai, p.w.3 and Rameshbhai, p.w.4 whose testimonies are at exhibits 12 and 15 respectively. As per him, he was called at the Sheel Police Station and 6 to 7 signatures were taken and he has specifically denied of conveying by the raiding officer and the team. He has also not identified any of the accused. Another panch, Ramesh, p.w.4 in his testimony has stated that one constable had come to call him when he was on the shop of Jitubhai, p.w.3 and he was called at the police station where the police officers were there and about 15 signatures were taken on the paper. He has thereafter, not accompanied the raiding officer and their team. He has also not identified the accused. P.w.1 Dilipkumar as well as p.w.2 Kishorbhai whose testimonies are exhibited at exhibits 9 & 10 respectively they are the panchas for the arrest of he accused and they are panchas for demonstration of the site. They have also not supported the case of the prosecution. As such, when the spot was very well known to the raiding officer, complainant and the members of his team, the demonstration panchnama would not be of any much significance but even if to be considered, the panchas of the said panchnama have also not supported the case of the prosecution.
14. It is in light of the aforesaid factual position, we have to examine the evidence of the raiding officer and the member of the team who accompanied the raiding officer, viz. Dhanabhai Jivabhai, p.w.14 exhibit 48.
15. It is hardly required to be stated that when the offence is under NDPS Act for proving the conscious possession, in normal circumstances, such conscious possession has to be established by the cogent evidence of any independent person who would be panchas. Even if it is considered that the testimony of the complainant who is police officer and the other police officers who are members of the raiding party, are to be considered, then also there should be corroborative material by the evidence of some independent person who would be panchas in such cases. It is unlike the matter for commission of other offence where the requirement is different and the availability of the evidence may also be different. The liability under Act is mainly based on the conscious possession of contraband material. Therefore, we find that it would be unsafe to rely upon the only evidence of the complaintraiding officer and other police witnesses in absence of any evidence of independent witness, may be panchas or any other, known to law. At this stage, we may refer to the decision of the Apex Court in the case of Jagdish Vs. State of MP reported at 2003(9) SCC 159, wherein it was observed by the Apex Court at paragraph 6 that if two panch witnesses do not support the case of the prosecution, stating that their signatures were only taken, it would not be safe to conclude that the prosecution has been able to prove the case beyond reasonable doubt and the Apex Court thereafter in the said case, extended the benefit of doubt to the accused.
16. We may extract the observations made by this Court in the case of Mohmad Jahangirkhan Pathan Vs. State of Gujarat reported at 1994(1) GLR 831 and more particularly the observations made at paragraph 5, wherein this Court, while accepting the principles that merely because the panchas did not support the case of the prosecution that itself would not be a sufficient ground to disbelieve the evidence of the police witnesses, if they are otherwise found dependable. It was emphasized by the Court that under such circumstance, their evidence has to be of a sterling quality, clear enough and beyond any measure of doubt to connect the accused with the crime alleged against him. It was further observed that in NDPS Act matters, the prosecution is also required to prove beyond any measure of doubt the identity of the muddamal sample, i.e., to say the sample seized from the accused and at the time of search by the police officer and ultimately which came to be identified, analysed and found to be the narcotic drug by the public analyst is one and the same by proving that everything is the same only and none other. If the identity of the mudammal falls short of to be established, the benefit of the same would be resolved in favour of the accused.
17. Examining the case on hand, it is not a matter where mere panchas not supporting the case of the prosecution or turned to be hostile would not adversely affect the other requirement of the Act to be proved by the prosecution but it is required to be proved that the material or the substance was found from the possession of the accused at the time of search and that too conscious possession. Such discharge of preliminary obligation on the part of the prosecution is a must before shifting the burden to the accused to prove otherwise. Further, it is also required to be proved by the prosecution that the substance so found from the conscious possession of the accused concerned is a prohibited substance and in order to prove that the same is a prohibited substance, the samples so taken is required to be sealed and thereafter, the samples having been forwarded to the FSL in the same sealed condition. Further, it is also required to be proved by the prosecution that the samples so taken are of the substance found from the possession of the accused. Even on the aspects of quantity found from the possession of the accused, the prosecution has to prove the actual weighment made of the substance recovered from the accused.
18. The person who has weighed is Jayeshbhai Kalabhai Bharda, p.w.5, exh. 16. As per the panchnama, the weighment was made at the spot in presence of panchas. Whereas as per the testimony of Jayesh Patel, p.w.5, exh.16, such weighment was made at the police station and not at the spot and he has categorically deposed that none of the accused were present and only police officers were present. Further, the evidence of Shri Narendrasinh Banesinh Chudasama, p.w.6, exhibit 19 refers to the persons of other police officers as the member of the team but the person examined is only Dhanabhai Jivabhai, p.w.14 exhibit 48. considering the overall deposition of p.w.6 as well as p.w.14, we find that when panchas have not supported the case of the prosecution and if the panchas have said to the contrary and the person who did weighment has also not supported the case of the prosecution, it would be safe to record the conclusion that the requirement of conscious possession of the substance from the accused was proved beyond reasonable doubt and it would also be unsafe to record the conclusion that the substances was having the same quantity as stated by the complainant. Under the circumstances, the benefit in any case would go to the accused.
19. In view of the aforesaid observations and discussions, we cannot agree with the conclusion recorded by the learned Judge for the conviction under the Act of both the accused.
20. In the result, the judgment and order passed by the learned Sessions Judge for conviction and imposing sentence upon both the accused deserves to be quashed and set aside and hence, the same is quashed and set aside.
21. Both the accused be set to liberty forthwith unless their presence is required for any lawful purpose. Appeals are allowed accordingly.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) *bjoy