IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.179/2018 BETWEEN:
State of Karnataka by Police Sub Inspector, Bantwal Rural Police Station, Bantwal, Dakshina Kannada District. Rep. by State Public Prosecutor, High Court Building, Bengaluru-1. ... Appellant (By Sri. M. Divakar Maddur, HCGP) AND:
Imtiyaz @ Mohammed Imtiyaz, Aged 37 years, S/o Hussainabba, R/o. Dasaragudde, Sajeepamunnoru Village, Bantwal Taluk-574 211. ... Respondent (By Sri B.Lethif, Advocate) This Criminal Appeal is filed under Section 378(1)(3) of Cr.P.C., praying to grant leave to file an appeal against the judgment and order of acquittal dated 27.09.2017, passed by the Court of Additional Civil Judge and JMFC I Court, Bantwal, D.K., in C.C. No.61/2013, acquitting the respondent/accused for the offence p/u/s 8(c) r/w 20(b)(ii)(A) of N.D.P.S. Act.
This Criminal Appeal is coming on for Admission, this day, the court delivered the following:
JUDGMENT The present appeal has been preferred by the appellant-State, being aggrieved by the judgment and order of acquittal passed by the Additional Civil Judge & JMFC I Court, Bantwal, Dakshina Kannada in C.C.No.61/2013 dated 27.09.2017.
2. I have heard the learned High Court Government Pleader for the appellant/State and learned counsel for the respondent/accused.
3. The case of the prosecution in brief is that on 20.07.2011 at about 11.00 a.m., the accused was standing near Sajepanadu Junction, Sajepanadu Village, Bantwal Taluk and was trying to sell Ganja to the public. On credible information received by the Investigating Agency, they went to the spot by informing the same to higher Officials and by securing independent witness and raiding party and there, she found accused was in illegal possession of Ganja without any permission or license, he was trying to sell the same to the general public. Immediately, the Investigating Officer apprehended and on search, it was found that the accused was in illegal possession of 100 gms. of Ganja and the same was seized by drawing Mahazar and a complaint was registered in Crime No.164/2011 for the offences punishable under Sections 8(c) read with Section 20(b)(ii))(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the Act’ for brevity). After investigation, the charge sheet was filed. The learned counsel for the Magistrate took cognizance and secure the presence of the accused and after hearing, the learned Assistant Public Prosecutor and learned counsel for the accused, the charges were framed and explained to the accused.
The accused pleaded not guilty, he claims to be tried as such trial was fixed.
4. In order to prove the prosecution case, it got examined ten witnesses as PWs.1 to 10 and marked documents as Exs.P.1 to 10 and produced material objects marked as MOs.1 to 9. Thereafter, the accused was examined under Section 313 of Cr.P.C and he denied the same and incriminating material against him. He has neither led any evidence nor marked any documents. After hearing the learned Assistant Public Prosecutor and learned counsel for the accused, the Court below has come to the conclusion that the prosecution has not proved the guilt of the accused and acquitted him. Challenging the legality and correctness of the said judgment, the appellant-State is before this Court.
5. It is the submission of the learned High Court Government Pleader that the Court below erroneously without looking into the evidence of the prosecution and without proper appreciated has wrongly acquitted the accused. He further submitted that Investigating Agency has fully investigated the case. Even PW.1 is the Gazetted Officer, who herself has conducted personal search of the accused in compliance of Section 50 of the Act. The trial Court ignoring the said fact, has taken and magnified the minor omissions and contradictions and has acquitted the accused. He further submitted that PWs.2 and 3 are the eyewitnesses and PWs.4 to 6 are independent panch witnesses. They have also supported the case of the prosecution and even, PW.8 is Scientific Officer, who has seen that the accused was in illegal possession of Ganja, he has not given any proper explanation. Then under such circumstances, the trial Court ought to have convicted the accused for the alleged offences. On these grounds, he prayed to allow the appeal and set aside the impugned judgment and order.
6. Per contra, learned counsel appearing on behalf of the respondent/accused vehemently argued and submitted that immediately after receipt of the credible information, PW.1 has not made any entry in the Station House Diary as contemplated under Sections 154 of Cr.P.C and also 41(1) of the Act. It is the further submission that when the personal search has to be conducted, the Investigating Officer has to follow the provisions of Section 50 of the Act. He further submitted that the Investigating Officer, immediately before making the search, has to take the accused to any of the nearest Gazetted Officer of any department and he has to comply the said provisions and because of this noncompliance of the said provisions goes to root of the prosecution case. If they have not complied the provisions of the Sections 42 and 50 of the Act, then under such circumstances, the benefit of doubt has to be given to the accused. He further submitted that such defect is incurable, appellant/accused is entitled to be acquitted on this behalf. In order to substantiate his argument, he relied upon the decisions of the Hon’ble Supreme Court in the case of SUKHDEV SINGH v. STATE OF HARYANA reported in 2013 CRI.L.J.841 and in the case of KISHAN CHAND v. STATE OF HARYANA reported in 2013 CRI.L.J.723. It is his further submission that following of the conditions under Section 50 of the Act is not mere formality but it is a procedure to be followed by the person authorized to do so. These are minimum safeguards available to the accused against the possibility of false involvement. The accused should be communicated of this right clearly and in an unambiguous manner. In clear words, he will have the right to be searched in the presence of the Gazetted Officer. In the absence of any compliance of the said provisions by the Investigating Officer, the said act is not considered as completed the procedure under Section 50 of the Act and the accused is entitled to be acquitted. In order to substantiate his argument, he relied upon the decision of the Hon’ble Supreme Court in the case of STATE OF RAJASTHAN v. PARMANAND AND ANOTHER reported in (2014) 5 SCC 345. He further submitted that the trial Court after considering the material placed on record and by looking into the provisions of law has come to the right conclusion and has acquitted the accused. The appellant-State has not made out any good ground to interfere with the judgment and order of the trial Court. On these grounds, he prayed to dismiss the appeal.
7. I have carefully and cautiously gone through the submissions of the learned counsel appearing for the parties and perused the records.
8. PW.1 was working as ASP and she is also the complainant. She received the credible information that the accused was in possession of Ganja and he is trying to sell the same to public. Thereafter, she along with raiding party went to the spot and found that the accused was in illegal possession of 100 grams of Ganja, she secured the accused in presence of panch witnesses and the Ganja was seized by drawing Mahazar as per Ex.P.1 by taking the samples.
9. PWs.2 and 3 are the Police Constables, who accompanied as raiding party. They have reiterated the evidence of PWs.1, 4, 5 and 6 who are witnesses to Spot and Seizer Mahazars as per Ex.P.1 and MOs.1 to 9 were seized. They have supported the case of the prosecution and were treated as hostile.
10. PW.7 is the PSI who partly investigated the case. PW.8 is the FSL Official who examined the seized articles and has given his opinion as per Ex.P.10. In his evidence, he has deposed that the seized articles were Ganja. PW.9 is Head Constable who carried the seized articles to Forensic Science Laboratory and delivered the same. PW.10 is CBI who further investigated the case and filed the charge sheet against the accused.
11. On going through the evidence of all these witnesses, though the prosecution has established the fact that on receipt of credible information, PW.1 along with raiding party went to the spot and they seized 100 grams of Ganja, even, the Scientific Officer has substantiated the fact that the articles were Ganja, all the witnesses have supported the case of the prosecution, the learned counsel for the respondent/accused has rightly pointed out that there is failure in following the provisions of Sections 42 and 50 of the Act. For the purpose of brevity, I quote Section 50 of the Act which reads as under.
“50. Conditions under which search of persons shall be conducted.—(1) When any officer duly authorised under section 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 nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.”
12. On close reading of the said Section, communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the Act would carry stringent punishment and therefore, the prescribed procedures have to be meticulously followed. These are the minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. On going through the evidence of PWs.1, 2 and 3 and other witnesses, it is clear that the provisions of Sections 42 and 50 of the Act are not complied with and they have deposed that they have informed about the right available under Section 42 as well as Section 50 of the Act to the accused.
13. The learned counsel for the accused has relied upon the judgment of the Hon’ble Supreme Court in Sukhchand’s case stated supra, at paragraph No.21, which reads as under;
“21. As per the statement of PW1, no effort was made by him to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay which has to be explained with reasons in writing. On the contrary, in the present case, the Investigating Officer PW 1 had more than sufficient time at his disposal to comply with the provisions of Section 42. Admittedly, he had received the secret information at 11.30 a.m., but he reached the house of the accused at 2 p.m. even when the distance was only 6 kilometers away and he was in a jeep. There is not an iota of evidence, either in the statement of PW 1 or in any other documentary form, to show what the Investigating Officer was doing for these two hours and what prevented him from complying with the provisions ofSection 42 of NDPS Act.”
14. Keeping in view the ratio of the above decision and on perusal that the evidence of PW.1 and other witnesses, it discloses that the Investigating Officer has not made any efforts to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay, no explanation has been given in this behalf. If the said procedure has not been followed as contemplated under the provisions of Section 42 of the Act, then under such circumstances, the said defect is considered to be incurable defect and accused is entitled to be acquitted, so also for the non-compliance of Section 50 of the Act that the communication has to be made to the accused as it is his right as it is held in the case of State of Rajasthan stated supra at paragraph Nos.16 to 20 which has been observed as under:
“16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before the nearest gazetted officer or the nearest Magistrate or before PW 5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent 2 Surajmal is stated to have signed for himself and for Respondent.1 Parmanand. Respondent 1 Parmanand did not sign.
17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval.
18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent 2 Surajmal has signed for himself and for respondent 1 Parmanand. Respondent.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent 2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent 1 Parmanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.
19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-
10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW- 10 SI Qureshi is vitiated.
20. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court’s view is perverse. The appeal is, therefore, dismissed.
15. By going through the ratio laid in the above decisions, it clearly go to show that there is breach and violation of the provisions of Section 50 of the Act. Once the search is vitiated then under such circumstances, the case of the prosecution has to fail. Taking into consideration, the above said ratio laid down by the Hon’ble Apex Court as well as the proposition of law that the Investigating Officer has to follow Section 42 or 50(i) of the Act.
16. Under such circumstances of the fact, the accused is not entitled to be convicted for the alleged offences. Be that as it may, even the independent witnesses who have been examined before the Court have not supported the case of the prosecution. In that light, I feel that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. I have carefully and cautiously gone through the judgment of the trial Court. Though the trial Court has not deliberated on these aspects but ultimately has come to a right conclusion and proceeded to acquit the accused.
Hence, the judgment of acquittal of the trial Court is confirmed and acquittal is upheld. Appeal is devoid of merits, the same is dismissed.
Sd/- JUDGE HA/-