Rekha vs The State Nct Of Delhi
2009 Latest Caselaw 416 Del

                   "REPORTABLE"
*        HIGH COURT OF DELHI AT NEW DELHI

%                      Date of decision : February 06, 2009

+             CRL. APPL. No. 520/2004


#        REKHA                          ..... Appellant
!                   Through : Ms. Ritu Gauba, Adv.


                                Versus


$        THE STATE NCT OF DELHI      .... Respondent
^                Through : Mr. O.P. Saxena, APP

                                 AND

+             CRL. APPL. No. 527/2004


#        SALEEM @ NAWAB                  ..... Appellant
!                Through : Mr. Sumeet Verma, Adv.


                                Versus


$        STATE                           .... Respondent
    ^                 Through : Mr. O.P. Saxena, APP

%
         CORAM:
         HON'BLE MS. JUSTICE ARUNA SURESH

        (1) Whether reporters of local paper may be
            allowed to see the judgment?

        (2) To be referred to the reporter or not?         Yes

        (3) Whether the judgment should be reported
            in the Digest ?                                Yes

Crl.A. Nos. 520/2004 & 527/04                         Page 1 of 16
                         JUDGMENT

ARUNA SURESH, J.

1. The prosecution swung into action when a secret

information was received on 1.8.2000 at about

10.45 AM at Police Station Narcotics Branch that

Salim and Rekha who were indulged in the trade of

supplying smack at Delhi after procuring it from

Madhya Pradesh would be coming in between

12.00 to 1.00 PM for supplying smack in Sector 16,

Rohini. They would be carrying huge quantity of

dated 1.8.2000 was recorded at Police Station

Narcotics Branch, Delhi. Inspector Chandra

Prabha, SHO, Narcotics Branch, was accordingly

informed who in turn informed Mr. M.S. Chikara,

ACP on telephone. Mr. M.S. Chikara instructed her

to carry out immediate raid. Copy of the DD was

also sent to the senior officers by post.

2. SI Attar Singh organized a raiding party consisting

of himself, Inspector Chandra Prabha, HC

Paramjeet, Const. Naresh, Const. Dilawar, Const.

Ravinder, Const. Virender and two drivers namely

Const. Vijay and Const. Surat Singh. Efforts to join

public persons in the raiding party failed.

Nakabandi was made in front of Petrol Pump near

Police Post Sector 16, Rohini. At about 12.15 PM

both the appellants, Rekha and Salim were

apprehended on the pointing out of the secret

informer. The appellants were conveyed of

information with the raiding party and were also

informed that their search was to be conducted and

if they desired their search could be conducted

either before a gazetted officer or a magistrate to

which appellants refused. A notice under Section

50 of The Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as

Act) was also served upon them. The appellants

refused to exercise the option. In the meantime,

ACP M.S. Chikara also reached at the spot. On his

directions Inspector Chandra Prabha recovered the

suitcase from the right hand of Rekha and on

checking the suitcase, besides clothes, it was found

to contain smack weighing 1 kg concealed in

between the two lids at the bottom of the suitcase.

SI Attar Singh recovered black colour cloth bag

from the right hand of appellant Saleem which on

checking also found contained smack among cloths

weighing 1 kg. Thereafter ACP M.S. Chikara left

the spot.

3. Two samples weighing 10 grams each were taken

out from the smack recovered from the possession

of the appellant Rikha and appellant Salim

respectively. The samples and the remaining

recovered smack were sealed and FSL form were

filled in for both the recoveries. The samples and

recovered smack and FSL form were sealed with

the seal of CP by Inspector Chandra Prabha. Seal

was also affixed on the FSL forms. The recovered

smack and the samples were seized. Inspector

Chandra Prabha prepared rukka and sent it

through Const. Virender for registration of the FIR

to Police Station Narcotics Branch. FIR No.

28/2000 dated 1.8.2000 was registered for offences

under Section 21 of the Act. Thereafter

investigation was transferred to SI Dharampal. The

samples were sent to FSL and FSL report Ex.

PW1/A was received which gave positive test and

the contents were found to be diacetylmorphine

(heroin).

4. Both the appellants were convicted for offence

under Section 21 of the Act and were sentenced to

undergo rigorous imprisonment for 10 years and a

fine of Rs. 1 lac in default of payment of fine simple

imprisonment for two years each. Benefit under

Section 428 Cr.P.C. was also given to both the

appellants.

5. Two separate appeals have been filed by the

appellants. Since both the appeals arise out of the

same judgment of conviction and order on

sentence, they are being disposed of by this

common judgment.

6. Ms. Ritu Gauba learned counsel for the appellants

has argued that all the witnesses for the

prosecution are police officers and no public person

was joined in the raiding party despite the fact that

information was received at about 10.45 AM and

the raid was conducted at about 12.15 PM and the

investigating officer had sufficient time to join the

persons from the public in the raiding party. She

has urged that in the absence of public witness the

testimony of the police witnesses is clouded and is

not trustworthy. It is further argued by the learned

counsel that provisions of Section 55 of the Act

have also not been complied with in this case as the

SHO did not affix her own seal on the recovered

articles. It is also argued that provisions of Section

42 and 50 of the Act have also not been complied

with. Compliance of above said Sections is

mandatory and non compliance therefore entitled

the appellants to acquittal.

7. Learned APP for the State while controverting the

submissions of the learned counsel for the

appellants has submitted that all these submissions

have been dealt with by the trial court in detail.

The Investigating Officer complied with the

provisions of Sections 42 to 50 and SHO who

herself was member of the raiding party had

affixed her own seal on the samples and the

remaining recovered contraband. The quantity

recovered from each of the appellants is 1 kg each

and the quantity of diacetylmorphine is found to be

33% and therefore, the recovered heroin is of

commercial quantity. It is further urged that the

prosecution witnesses though, are all police

officials, have fully supported the prosecution case

and even if no person from the public was joined in

the raiding party, the prosecution case does not fall

as non joining of a public witness is only an

irregularity and does not vitiate the trial.

8. Sections 42, 43 and 50 of the Act have been

interpreted by me in Bail Application No.

2449/2008 titled Harish Joshi v. D.R.I dated

16.1.2009 as under:-

"Section 42 of the Act empowers such an officer to enter into, search, seize and arrest without warrant or authorization if he has reason to believe that search warrant or authorization cannot be obtained without affording opportunity of the concealment of evidence or facility for the escape of an offender, may enter and search such building, conveyance or place at any time between sunset and sunrise. Section 43 of the Act speaks of power of seizure and arrest in public place.

Section 50 of the Act lays down conditions under which search of a person has to be conducted. Provisions of Section 50 of the Act are mandatory in nature and therefore,

breach of the condition vitiates the trial, as non compliance would result non relevance of search and consequent seizure of goods. After a person is arrested and before a search is conducted, it is mandatory to inform the accused that he has a right to be searched in presence of a Gazetted officer or a Magistrate. Accused is entitled to benefit of acquittal if there is failure to comply with the provisions.

Section 50 of the Act which refers to conditions under which search of person shall be conducted, provides in its sub-Section (1) that when officer duly authorized under Section 42 is about to search a person under the provisions of Sections 41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Magistrate or Gazetted Officer. Sub- section (2) prescribes that if such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or Magistrate referred to in sub- section (1). It, thus follows that a mandate of the said provision is required to be strictly observed by the officer intending to search a suspect of possessing drugs by informing him of his right to be searched in the presence of the Gazetted Officer or a Magistrate.

(Narcotic Drugs and Psychotropic Substances in India, (Second Edition), by R.P. Kataria).

Bare reading of Section 50 of the Act therefore shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or container or bag or premises or luggage of such person because, luggage does not form part of a person. Wherein the luggage of the accused is a subject matter of search, provisions of Section 50 of the Act would not apply and in such like circumstances it is not legally required by an officer to make an offer to the accused for search in presence of a Gazetted

officer or a Magistrate."

9. In the present case the search was conducted

during day in a public place and the seizure of the

contraband was also effected in a public place as

the appellants were apprehended near Petrol Pump

Police Post Sector 16, Rohini which, admittedly is a

public place. Therefore, provisions of Section 42 of

the Act which relate to search, seizure and arrest

without warrant or authorization of a person

between sunset and sunrise are not applicable to

the fact and circumstances of this case. Besides,

the information was received by SI Attar Singh and

was reduced in writing in the form of DD No. 5 Ex.

PW5/A. As per this DD information was sent to

SHO Inspector Chandra Prabha. Chandra Prabha

in evidence has proved that she had passed on this

information to ACP M.S.Chikara on telephone.

Perusal of DD No. 5 also indicates that copies of

the daily diary were sent to the senior officers

through post. Not only this, ACP M.S.Chikara

himself reached the spot after receipt of the

information and it was at his instance that search

was conducted from the person of both the

appellants. Their personal search was also

conducted in the presence of ACP M.S.Chikara.

10. Therefore, submissions of the learned counsel for

the appellants that prosecution failed to prove

compliance of Section 42 and 43 of the Act is

without any basis. From the evidence adduced on

record, which goes unrebutted, it is clearly proved

that there was no violation of these provisions of

law since recovery was made at a public place.

11. In Megha Singh v. State of Haryana - 1997

SCC (Cri.) 267 the complaint was sent by the

Investigating Officer himself on the basis of which

a formal FIR was lodged. It was held that

Investigating Officer who being the complainant

could not have proceeded with the investigation of

the case.

12. The facts of this case are different. Only DD No. 5

was recorded at the instance of SI Attar Singh.

Rukka was sent by Inspector Chandra Prabha on

the basis of which FIR was registered. Therefore,

the complainant was Chandra Prabha and not SI

Attar Singh. Besides after registration of the FIR

the investigation was transferred to SI Dharampal

who carried out the investigation after the

registration of the FIR.

13. Notice under Section 50 of the Act was duly given

to the appellants by Inspector Chandra Prabha.

These notices are Ex. PW5/B and Ex. PW5/C on the

record. Both the appellants signed their respective

notices in acknowledgement of the receipt of the

notices. Both the appellants refused to get

themselves searched in the presence of a Gazetted

Officer or a Magistrate. Option of the appellants is

recorded as Ex. PW5/D and PW5/E at the bottom of

the notices themselves. Their refusal is also signed

by the respective appellants.

14. While coming to a conclusion that there was

compliance of Section 50 of the Act, the trial court

did consider the fact that a suitcase was recovered

from the right hand of Rekha and a black colour

back was recovered from the right hand of Salim.

It was on checking of the suitcase and the bag that

smack weighing 1 kg each was recovered. Since

recovery was effected from the suitcase and the

bag which were being carried by the appellants, no

notices were required to be served upon the

appellants under Section 50 of the Act. It is

pertinent to state that the search was conducted in

the presence of ACP M.S.Chikara who happened to

be a Gazetted Officer.

15. The trial court adopted a right approach while

rejecting the submissions of the appellants that

Section 50 of the Act was not complied with in an

appropriate manner, considering the facts and

circumstances of this case and the manner in which

the smack was recovered and seized from the

appellants. Recovery from a luggage cannot be

considered to be recovery from the person of an

accused because such recovery is from luggage

carried by the person from whom it is recovered

does not form part of a person. In a case where

luggage of accused is subject matter of search

provisions of Section 50 of the Act do not apply.

16. In such like circumstances, the only legal

requirement is that the Investigating Officer must

make an offer to the accused for search in the

presence of a Gazetted Officer or a Magistrate. As

discussed above, the Investigating Officer did

comply with this requirement while giving written

notices to the appellants thereby giving them

option to be searched in the presence of a Gazetted

Officer or a Magistrate. This option was declined

by the appellants. Inspector Chandra Prabha had

also orally informed the appellants of their right to

be searched in the presence of a Gazetted Officer

or a Magistrate.

17. In Bagru Ram v. State of Delhi - 2000 (3) C.C.

Cases HC 430 secret information was reduced

into writing but copy of the substance reduced was

not forwarded to a superior officer. It was held

that information when not sent to the superior

officer and the notice under Section 50 of the Act

purportedly given to the accused was not on the

record there was violation of mandatory provisions

and the conviction and sentence was set aside.

18. In this case information was sent to the superior

officers i.e. SHO Inspector Chandra Prabha and

ACP M.S.Chikara on telephone as well as by post as

is evidenct from perusal of DD No. 5 itself.

Therefore, this case is of no help to the appellants.

19. In Ahmed v. State of Gujarat - 2000 SCC (Cri)

1407 the accused persons were not given the right

to be searched before another Gazetted Officer or a

Magistrate on the plea that the officer who

conducted the search was himself a Gazetted

Officer and was empowered by the Central

Government or by the State Government by a

general order.

20. In this case the information was received by SI

Attar Singh. The search was conducted in the

presence of the appellants who were informed by

Inspector Chandra Prabha of their right to opt for

their personal search in the presence of a Gazetted

Officer or a Magistrate verbally as well as by a

written notice served upon each of the appellants.

However the appellants did not opt to exercise

their right of being searched in the presence of any

other Gazetted Officer or a Magistrate. Therefore,

this case is also of no assistance to the appellants.

21. Under these circumstances, I do not find any

illegality committed by the Investigating Officer

while investigating this case. Inspector Chandra

Prabha had affixed her own seal on the recovered

smack pullandas as well as the sample pullandas

which were prepared at the spot as well as on the

FSL forms which were filled in at the spot itself.

Therefore, there is no violation of Section 55 of the

Act either.

22. From the evidence of the prosecution witnesses it

is proved that though efforts were made by the

Investigating Officer SI Attar Singh to join the

persons from the public in the raiding party but

none agreed. It is not unusual that the persons

from the public avoid joining the investigation of a

case though, they might gather at the spot and

watch as to what was happening when a person

was detained by the police in a public place. The

recovery of contraband i.e. heroin is of high

quantity and therefore possibility of false

involvement of the appellants in this case is ruled

out. Such a high quantity of heroine which

contained high percentage of diacetylmorphine i.e.

33 % cannot be planted on the appellants specially

when there are no cogent reasons to falsely

implicate them in this case.

23. In view of my discussion as above, I hold that

prosecution had successfully proved its case

against the appellants and met touch stone of

proving the guilt of the appellants without any

dent. I do not find any reason to interfere in the

judgment of conviction dated 1.5.2004 and order

on sentence dated 5.5.2004 of the trial court as the

same is based on proper reasoning and

appreciation of evidence as placed on record.

24. Hence, appeals being without any merits are

hereby dismissed.

25. Trial court record be sent back.

( ARUNA SURESH ) JUDGE February 06, 2009 jk