Intelligence Officer vs Vijay Kumar
2021 Latest Caselaw 421 j&K

              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU

                                                      Reserved on : 23.03.2021
                                                 Pronounced on : 01.04.2021

                                                      CRAA No. 37/2017


Intelligence Officer, N.C.B. Jammu                                .....Appellant(s)

              Through :- Mr. Vishal Sharma, ASGI

                         V/s

Vijay Kumar                                                     .....Respondent(s)

              Through :- Mr. Kapil Sharma, Advocate vice
                         Mr. H.S. Salathia, Advocate

CORAM :

        HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
        HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                 JUDGMENT

Tashi Rabstan-J

1. The instant criminal acquittal appeal arises out of the impugned

judgment dated 30.12.2015 passed by the learned 1st Additional

Sessions Court, Jammu (Special Court under NDPS Act) in Complaint

No. 68/2007, whereby the learned trial Court has acquitted the

accused/respondent herein of the charges framed under Sections

8/20/61 of NDPS Act, 1985.

2. Before we examine the propriety of impugned judgment it will be

necessary for us to refer to the facts giving rise to the present acquittal

appeal filed by the appellant-Intelligence Officer, NCB, Jammu.

2(a) On the basis of secret information received by complainant-

Intelligence Officer NCB, Jammu from reliable source that one

person, namely, Vijay Kumar S/o Bansi Lal R/o Village Phinder, R.S.

Pura will supply the contraband-charas to the smugglers of Punjab on

04.06.2007 at Asia Hotel Chowk, Jammu at about 09:00 am to 10:00

am. The matter was subsequently brought to the notice of Balwinder

Kumar, Superintendent NCB and acting on the said information a

team was constituted and a naka was laid at Asia Hotel Chowk,

Jammu. Prior to laying of naka, complainant Sanjeev Chandel called

two independent witnesses to witness the search operation. At about

10:00 am, a person resembling the identity of the person regarding

whom the information was received got down from the bus at Asia

Hotel Chowk who was subsequently cordoned by the NCB staff.

Upon being enquired about his identity, the person disclosed himself

as Vijay Kumar S/o Bansi Lal R/o Village Phinder, R.S. Pura. The

I.O. Sanjeev Chandel told Vijay Kumar that he is having information

regarding the possession of charas by him and therefore he had to take

his search. He was told about the provisions of Section 50 of the

NDPS Act that he had a right to get himself searched in the presence

of any nearest Magistrate or any gazetted officer. He further informed

that one Balwinder Kumar Superintendent, NCB who is

accompanying the raiding party is also a Gazetted officer. One written

notice to that effect was given to him. On this notice,

accused/respondent gave his consent in writing in Hindi and stated

that he is ready to get himself searched in the presence of Balwinder

Kumar, Superintendent, NCB.. Thereafter, the search of the accused

was conducted by I.O Sanjeev Chandel in presence of Balwinder

Kumar, Superintendent NCB. On opening the carry bag held by Vijay

Kumar a transparent polythene bag tied with tape was recovered and

on opening the same a greenish brown coloured material tied in maize

cover was found which was tested with Drug-Testing Kit and the

material was found to be positive for charas.

2(b) The material, after being separated from maize cover was weighed

which came to be 2 kg, was seized and a recovery-cum-seizure memo

was prepared on the spot, but as there was heavy rush on the spot, the

NCB team along with the accused, independent witnesses and

recovered contraband-charas, returned to NCB Office where necessary

procedure of drawing samples and sealing was followed.

2(c) After recording the statement of the accused under Section 67 of the

NDPS Act, his personal search was made and he was arrested. Arrest

Memo and Jamatalashi was prepared. The seized goods Lot-A,

packing material Lot-B and two samples A-1 and A-2 were deposited

in the godown of NCB, Jammu for safe custody. The test memo was

prepared and one sample was sent to CRCL, New Delhi through

Sepoy Tilak Raj for chemical analysis and after the test a test report

F.No. 1/ND/R/2007/CLD234(N) dated 17.07.2007 received from

CRCL New Delhi revealed that the sample contained charas.

2(d) After completion of the investigation, complaint under Section

8/20/61 of NDPS Act 1985 was laid before the Principal Sessions

Court Jammu against the accused on 01.08.2007. The accused was

charge-sheeted for commission of aforesaid offence vide order dated

18.10.2007, who denied the charges and claimed trial, whereafter the

prosecution was directed to lead evidence. Prosecution, in order to

bring home the guilt against the accused, examined PW-1 I.O.

Sanjeev Chandel, PW-2 Balwinder Kumar Superintendent NCB,

PW-3 Jagdish Saran Chemical Examiner CRCL New Delhi and PW-4

Tilak Raj. The learned trial Judge, Special Court under NDPS Act

after considering the evidence, acquitted the accused which is

impugned in this appeal.

3. We have heard learned counsel for the parties and carefully perused

the record.

4. The ground inter alia taken by the appellant in the memo of appeal is

that the impugned judgment does not satisfy the requirement of

Section 367 Cr.P.C. because the learned trial Court has not only failed

to appreciate the entire evidence but also there is no reference to the

arguments put forth on behalf of the prosecution. Learned counsel for

the appellant has averred that the learned trial Court has acquitted the

accused because of non compliance of Section 50 of NDPS Act, but it

has failed to appreciate that Section 50 of NDPS Act has no

application to the facts of instant case as it is not a case of personal

search because the contraband was found in the bag which the accused

was carrying. Learned counsel for the appellant has placed the reliance

on law laid down by the Constitution Bench in "State of Punjab vs.

Baldev Singh" (1999) 6 SCC 172.

5. On going through the evidence of PW-1 I.O. Sanjeev Chandel and

PW-2 Superintendent Balwinder Kumar, it emerges that the accused

was made aware of his right to be searched in the presence of a

Gazetted Officer or a Magistrate as it is apparent from the written

notice EXT-P1-2 which was severed upon the accused under section

50 of NDPS Act. PW-1 Sanjeev Chandel I.O. has categorically stated

in his cross-examination that he asked the accused that he can give his

search to some Gazetted Officer or Magistrate or Balwinder Kumar

who is also a Gazetted Officer. This fact finds corroboration by the

evidence of PW-2 Balwinder Kumar Superintendent NCB, who in his

cross-examination deposed that being a Gazetted Officer, he was a

competent member of the team and as such he had been shown as

Gazetted Officer by I.O. under Section 50 of NDPS Act. He further

deposed that he remained as Gazetted Officer in 2/3 other cases and in

this case also he was acting as a Gazetted Officer as contemplated

under Section 50 of the NDPS Act. The learned trial Judge acquitted

the accused on the ground inter alia that the Gazetted Officer in the

presence of whom search is to be made in terms of Section 50 of the

NDPS Act cannot be a member of raiding and searching team,

therefore, such search cannot be stated in line with the mandate of

Section 50 of the NDPS Act.

6. The non-compliance with Section 50 of the Act, which is mandatory,

would affect the prosecution case and vitiate the trial (See State of

Punjab v. Balbir Singh (1994) 3 SCC 299). As submitted by learned

counsel for the appellant that Section 50 of the NDPS Act would not

be attracted in case of search of a „bag‟ as in the present case where

the contraband was found in the bag which the accused was carrying

but it is applicable only in case of „personal search‟. It is pertinent to

address this issue before proceeding further.

7. As to what would constitute „personal search‟ has been examined by

the Hon‟ble Supreme Court in the case of State of "Himachal

Pradesh vs. Pawan Kumar" AIR 2005 SC 2265. In this judgment it

has been held:-

"We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as

factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort.

Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.

10 . A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being.

Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.

(emphasis supplied)

8. It is not disputed that the accused was also personally searched in

NCB Office besides the search of his bag at the place of occurrence,

i.e, Asia Hotel Chowk as it is apparent from jamatalashi memo EXT-

P1-3 prepared in this regard. As it is crystal clear from the

aforementioned judgment that a bag would not come within the ambit

of "person" occurring in Section 50 of the NDPS Act, but the

contention of the appellant that Section 50 of the NDPS Act would not

apply in the present case, is not sustainable in view of the judgment of

Hon‟ble Supreme Court in case titled "State of Rajasthan vs.

Parmanand and others" AIR 2014 SC 1384. In this judgment it has

been held:-

12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have

Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent No. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.

9. The next question that the Gazetted Officer in the presence whom the

search is to be conducted cannot be a member of the raiding and

searching time, in terms of Section 50 of the NDPS Act, is no more

res integra and stands settled in view of the Parmanand‟s case

(Supra). It is relevant to quote para 15 of the said judgment as under:-

15. We also notice that PW-10 SI Qureshi informed the Respondents that they could be searched before the nearest Magistrate or before a 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. 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.

10. Thus, the Hon‟ble Supreme Court of India had analysed the law to

the effect that the Gazetted Officer must be an "independent officer"

and must not be one, who is officially involved in the process of

detention, search and arrest. The word "independence" ought to be

understood, regard being had to the spirit of the law, as the

"independence of thought and expression of views." A Gazetted

Officer, who is a part of the raiding party and moves out in pursuit of

a specific information, about commission of offence under the NDPS

Act by person or persons, cannot be said to be independent inasmuch

as he is "dependent" on the pursuit of information, and the "success"

of such information into the apprehension, search and arrest of such

offender. No law should be oppressive, unjust and opposed to the

concept of fairness as enshrined in Article 21 of the Constitution of

India. Criminal law must have its application tested on the touchstone

of fairness. If the fairness in the procedure is to be achieved, the

Gazetted Officer accompanying a team of officers, be it of any of the

Investigating Agencies acting under the NDPS Act and being

interested in conviction of the accused, can never be "independent."

The spirit of the law, especially criminal law, should not be stretched

to an extent where it impairs/abrogates the rights of the people rather

than protecting it. Therefore, trial judge was right in holding that

Gazetted officer before whom search is to be conducted cannot be the

member of raiding and searching team.

11. The another ground taken in this appeal by the appellant is that the

statement of the accused recorded under Section 67 of the NDPS Act

has completely been ignored. It is submitted that this statement is

admissible in evidence and can be relied to convict its author. Hence,

in view of the aforementioned grounds the impugned judgment passed

by the learned trial Judge is not tenable under law and therefore, the

respondent is liable to be convicted, of which he is charged.

12. This ground taken by the appellant is not tenable and therefore cannot

be accepted as it has been recently held by the Apex court and in view

of the the majority opinion expressed in the case of Tofan Singh Vs.

State of Tamil Nadu reported as AIR 2020 SC 5592 (Para 155) it is

held that the officers who are invested with powers under Section 53

of the N.D.P.S. Act are 'police officers' within the meaning of Section

25 of the Evidence Act, as a result of which any confessional

statement made to them would be barred under the provisions of

Section 25 of the Evidence Act, and cannot be taken into account in

order to convict an Accused under the N.D.P.S. Act.

13. The next ground raised by the appellant is that the learned trial Court

has acquitted the accused on the basis of the fact that samples were

not drawn on spot. It is averred that due to the large number of people

gathered on spot it became difficult to proceed further. That is why the

NCB team along with the accused and seized contraband came to the

office of NCB for further proceedings and also it was for the accused

to cross-examine the witnesses and challenge their veracity.

14. The manner of drawing a sample of narcotics has been laid down in

Standing Order 1/88 dated 15.03.1988 issued by the Narcotics Control

Bureau. The relevant para of the Standing Order are reproduced as

under:-

1.5 Place and time of drawal of sample.-Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot.

15. Pari materia with Standing Order 1/88 is the Standing Order No. 1/89

dated 13.06.1989 issued under sub-section (1) of Section 52A of

NDPS Act by the Department of Revenue, Ministry of Finance,

Government of India. Section (II) provides for general procedure for

sampling, storage and the relevant clause 2.1 reads as under:-

            "SECTION II-GENERAL PROCEDURE                       FOR
            SAMPLING, STORAGE ETC.

2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure

16. The sanctity of the Standing Order 1/89 came for consideration before

the Hon‟ble Supreme Court in Noor Aga v. State of Punjab reported

as (2008) 16 SCC 417, where the facts before the Court were that 1.4

kg heroin was found concealed in a cardboard container carrying

grapes. It was held as under:-

89. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-a-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith.

90. Recently, this Court in State of Kerala and Ors. v. Kurian Abraham (P) Ltd. (2008) 3 SCC 582 following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan (2004) 10 SCC 1 held that statutory instructions are mandatory in nature.

17. Therefore, we are of the opinion that the procedure adopted by the

respondent in the present case for drawing samples neither conforms

to the procedure prescribed under Section 52A of NDPS Act nor under

the Standing Orders (supra) as the samples were taken in the office of

the NCB, Jammu and not on the spot i.e. place of occurence. Also

PW1 and PW2 both deposed that due to the gathering of large number

of people on the place of occurrence they had to shift back to the

office of NCB Jammu for further proceedings but to our surprise none

of those people were cited as witnesses who could be regarded as

independent witnesses.

18. The another important aspect of this case which cannot be lost sight

of is that the independent witnesses cited to the recovery and seizure

had not been examined which in our view further dented the

prosecution case and an inference in favour of accused, therefore,

could be drawn for non-examination of independent witnesses.

19. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, the

Supreme Court" said that "While sitting in judgment over an acquittal

the appellate court is first required to seek an answer to the question

whether the findings of the trial court are palpably wrong, manifestly

erroneous or demonstrably unsustainable. If the appellate court

answers the above question in the negative, the order of acquittal is

not to be disturbed."

20. It is well settled that the provisions of the Act, 1985 being harsh in

nature, the procedural safeguards contained therein must scrupulously

be complied therewith.

21. In Gorakh Nath Prasad vs. State of Bihar, AIR 2018 SC 704, the

Hon‟ble Supreme Court held that the N.D.P.S. Act provides for a

reverse burden of proof upon the accused, contrary to the normal rule

of criminal jurisprudence for presumption of innocence unless proved

guilty. But this shall not dispense with the requirement of the

prosecution to having first establish a prima facie case, only where

after the burden will shift to the accused. The mere registration of a

case under the Act will not ipso facto shift the burden on to the

accused from the very inception. Compliance with statutory

requirements and procedures shall have to be strictly adhered to. If

there is any iota of doubt the benefit shall have to be given to the

accused.

22. Thus, going by the number of discrepancies in the prosecution case,

the entire prosecution story vitiates and calls for discrediting its

version. On a close scrutiny of the evidence, these discrepancies are

found comparatively of a major character and go to the root of the

prosecution case.

23. On a detailed examination and scrutiny of the evidence of the

prosecution with a view to find out as to whether the views of the

learned trial Judge were perverse or otherwise unsustainable. After

going through the same, we do not find any compelling and

substantial reasons to interfere with the judgment of learned trial

Court. Therefore, we are in complete agreement with the view taken

by learned trial court and see no reason to interfere with the judgment

and order impugned herein.

24. As a result, the instant appeal is liable to be dismissed and is

accordingly dismissed.

25. Send down the record along with a copy of this judgment.

                                                 (Sanjay Dhar)               (Tashi Rabstan)
                                                      Judge                    Judge
            JAMMU
            01 .04.2021
            Pawan Angotra

                                                       Whether the order is speaking? : Yes
                                                       Whether the order is reportable? : Yes




PAWAN ANGOTRA
2021.04.01 14:54
I attest to the accuracy and
integrity of this document