Jammu & Kashmir High Court
State Of J&K Through Sho Police Station vs Sajad Ahmad Shah on 30 August, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr.No. 01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRAA No. 32/2018
State of J&K through SHO Police Station, .... Appellant(s)
Ramban
Through :- Mr. Pawan Dev Singh, Dy. AG.
V/s
1. Sajad Ahmad Shah, S/o Ghulam ....Respondent(s)
Ahmad Shah, R/o Murasal, Tehsil
& District Kulgam, Kashmir.
2. Gowhar Ahmad Wani, S/o Ghulam
Ruder Wani, R/o Malpura, Tehsil &
District Shopian.
Through :- Mr. Rohit Bhalwal, Advocate.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE.
ORDER
30.08.2024
1. This is an acquittal appeal by the then State of Jammu and Kashmir
(now UT of Jammu & Kashmir) directed against an order and judgment dated
31.10.2015 passed by the learned Sessions Judge (Principal District Judge),
Ramban ["the trial Court'] in file No. 06/NDPS Act in case titled " State v.
Sajjad Ahmad Shah & Anr." whereby the trial Court has acquitted both the
accused (respondents herein) of the offences under Section 8/20 of Narcotic
Drugs and Psychotropic Substances Act, (NDPS), 1985.
2. Briefly stated, the prosecution story is that information was received
by Police Station, Ramban on 20.09.2013 through reliable resources that two
persons i.e. the respondents herein were camping at Ramban with charas in their
possession and were looking for a client to sell the same. On receipt of this
information, FIR No. 143/2013 was registered for offences under Section 8/20
NDPS Act in the Police Station and investigation set in motion. The SHO along
with some police personnel proceeded to the spot and took both the respondents
into custody. The respondents were jointly informed in writing by the
Investigating Officer that they were required to be searched and, therefore, can
make an option to be searched before Dy. S.P or a gazetted Officer. Both the
respondents opted to be searched by Dy. S.P. On search, a carry bag, which was
in the hand of respondent- Sajjad in the first instance but was later delivered to
respondent No.2 on seeing the police, was recovered. From out of this bag, 24
cobs having concealed therein charas like substances were recovered. All the 24
cobs were weighed and it was found that they were 1kg 150 grams. The
recovered contraband was seized. Samples were taken out and sent to FSL for
chemical examination. From FSL, it was found that the samples were containing
charas. On completion of the investigation, final report was submitted before the
trial Court. The charges against the respondents were framed. Both the
respondents pleaded not guilty to the charge and opted for trial.
3. With a view to substantiate the final report, the prosecution examined,
as many as, nine witnesses. All the witnesses examined were Police Officers
except one civilian- PW-Shabir Ahmed and one official from FSL. The matter
was considered by the trial Court in the light of evidence on record and it was
concluded that the prosecution had miserably failed to connect the respondents
with the commission of offences under Section 8/20 NDPS Act as was alleged in
the charge-sheet filed by the police. The trial Court, thus, acquitted both the
respondents in terms of order and judgment impugned in this appeal.
4. That the trial Court has acquitted the respondents primarily for the
following reasons: -
(i) That there are major contradictions in the statements of the
prosecution witnesses. The contradiction is in respect of seizure
of contraband, weight of contraband, their safe custody in
Malkhana etc. etc.
(ii) That despite the fact that at the time of search and seizure, there
were number of civilians available on spot yet none except
Shabir Ahmed was associated in the process of investigation.
The only civilian who was associated also did not fully support
the prosecution case.
(iii) That there has been violation of Section 50 of the NDPS Act, in
that, the personal search of the respondents was not made in
strict compliance with the provisions of Section 50. The trial
Court held that joint information in writing given to the accused
about their personal search and providing them an option was
not permissible in law.
5. Having heard learned counsel for the parties and perused the material
on record, we are of the considered opinion that judgment passed by the trial
Court on merits is perfectly in conformity with law and does not call for
interference in this acquittal appeal. We, however, do not give over imprimatur
to the view of the trial Court that the trial was vitiated for non-compliance with
the provisions of Section 50 of NDPS Act. This is so because in the instant case,
the contraband has been recovered from the bag carried by the respondents and
not from the physical search of the person of the respondents and, therefore,
Section 50 was not attracted at all. This controversy has been set at rest by the
Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Pawan
Kumar, (2005) 4 SCC 350. Paragraph 13 and 26 of the judgment reads thus:-
"13. The scope and ambit of Section 50 of the Act was examined in
considerable detail by a Constitution Bench in State of Punjab v. Baldev
Singh 1999 (6) SCC 172 and para 12 of the reports is being reproduced
below :
"12. On its plain reading, Section 50 would come into play only in the
case of a search of a person as distinguished from search of any
premises etc. However, if the empowered officer, without any prior
information as contemplated by Section 42 of the Act makes a search or
causes arrest of a person during the normal course of investigation into
an offence or suspected offence and on completion of that search, a
contraband under the NDPS Act is also recovered, the requirements
of Section 50 of the Act are not attracted."
The Bench recorded its conclusion in para 57 of the reports and sub- paras
(1), (2), (3) and (6) are being reproduced below :
57. On the basis of the reasoning and discussion above, the following
conclusions arise:
(1) That when an empowered officer or a duly authorized officer acting
on prior information is about to search a person, it is imperative for him
to inform the person concerned 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 person concerned 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 Section50 of the Act.
(4)................................................................................
(5)...............................................................................
(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 person
concerned of his right as emanating from sub-section (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."
26. The Constitution Bench decision in Pooran Mal v. The Director of
Inspection 1974 (1) SCC 345 was considered in State of Punjab v.
Baldev Singh 1999 (6) SCC 172 and having regard to the scheme of the
Act and especially the provisions of Section 50 thereof, it was held that
it was not possible to hold that the judgment in the said case can be said
to have laid down that the "recovered illicit article" can be used as
"proof of unlawful possession" of the contraband seized from the
suspect as a result of illegal search and seizure. Otherwise, there would
be no distinction between recovery of illicit drugs, etc. seized during a
search conducted after following the provisions of Section 50 of the Act
and a seizure made during a search conducted in breach of the
provisions of Section 50. Having regard to the scheme and the language
used, a very strict view of Section 50 of the Act was taken and it was
held that failure to inform the person concerned of his right as
emanating from sub-Section (1) of Section 50 may render the recovery
of the contraband suspect and sentence of an accused bad and
unsustainable in law. As a corollary, there is no warrant or justification
for giving an extended meaning to the word "person" occurring in the
same provision so as to include even some bag, article or container or
some other baggage being carried by him."
6. Besides, while going through the judgment impugned and the record,
we have noticed that in the instant case, there was no compliance with the
mandatory provisions of Section 42(2) of the NDPS Act. Before we proceed, we
deem it appropriate to set out below Section 42(2) of NDPS Act:-
"(2) Where an officer takes down any information in writing
under sub-section(1) or records ground for his belief under the proviso
thereto, he shall within seventy-two hours send a coy thereof to his
immediate official superior.]"
7. In the instant case, admittedly the information was received by SHO
Police Station Ramban, an officer of the rank of Inspector and not a gazetted
Officer. In such a situation, it was incumbent upon him to reduce the prior
information received by him in writing and convey the same to immediate
superior officer at least within 72 hours of receiving such information. In the
instant case, the requisite information was neither reduced in writing nor was the
same submitted to immediate superior officer at any time after making the search
and seizure.
8. It is trite law that provisions of Section 42(2) are mandatory in nature
and any deviation there from would vitiate the trial. The legal position in this
regard is well settled in the case titled "Karnail Singh v. State of Haryana
(2009) 8 SCC 53 wherein Hon'ble the Supreme Court has discussed the issue in
paragraphs 32 and 35 and has held as under:-
"32. Under Section 42(2) as it stood prior to amendment such empowered
officer who takes down any information in writing or records the grounds under
proviso to Section 42(1) should forthwith send a copy thereof to his immediate
official superior. If there is total non-compliance of this provision the same
would adversely affect the prosecution case and to that extent it is mandatory.
But if there is delay whether it was undue or whether the same has been
explained or not, will be a question of fact in each case, it is to be concluded
that the mandatory enforcement of the provisions of Section 42 of the Act non-
compliance of which may vitiate a trial has been restricted only to the provision
of sending a copy of the information written down by the empowered officer to
immediate official superior and not to any other condition of the Section.
33..............................................................................
34..............................................................................
35. In conclusion, what is to be noticed is Abdul Rashid did not require literal
compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham hold that the requirements of Section 42(1) and 42(2) need not be
fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in Sub-
section (1) of section 42) from any person had to record it in writing in the
concerned Register and forthwith send a copy to his immediate official
superior, before proceeding to take action in terms of clauses (a) to (d)
of section 42(1).
(b) But if the information was received when the officer was not in the police
station, but while he was on the move either on patrol duty or otherwise, either
by mobile phone, or other means, and the information calls for immediate
action and any delay would have resulted in the goods or evidence being
removed or destroyed, it would not be feasible or practical to take down in
writing the information given to him, in such a situation, he could take action as
per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical,
record the information in writing and forthwith inform the same to the official
superior .
(c) In other words, the compliance with the requirements of Sections 42
(1) and 42(2) in regard to writing down the information received and sending a
copy thereof to the superior officer, should normally precede the entry, search
and seizure by the officer. But in special circumstances involving emergent
situations, the recording of the information in writing and sending a copy
thereof to the official superior may get postponed by a reasonable period, that is
after the search, entry and seizure. The question is one of urgency and
expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2)
of section 42 is impermissible, delayed compliance with satisfactory
explanation about the delay will be acceptable compliance of section 42. To
illustrate, if any delay may result in the accused escaping or the goods or
evidence being destroyed or removed, not recording in writing the information
received, before initiating action, or non-sending a copy of such information to
the official superior forthwith, may not be treated as violation of section 42. But
if the information was received when the police officer was in the police station
with sufficient time to take action, and if the police officer fails to record in
writing the information received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance being a clear violation
of section 42 of the Act. Similarly, where the police officer does not record the
information at all, and does not inform the official superior at all, then also it
will be a clear violation of section 42 of the Act. Whether there is adequate or
substantial compliance with section 42 or not is a question of fact to be decided
in each case. The above position got strengthened with the amendment
to section 42 by Act 9 of 2001.
9. That apart, the IO has also not complied with Section 57 of the NDPS
Act. For reference, Section 57 of the NDPS Act is reproduced below:-
"57. Report of arrest and seizure
Whenever any person makes any arrest or seizure, under this Act, he
shall within forty-eight hours next after such arrest or seizure, make a
full report of all the particulars of such arrest or seizure to his
immediate official superior."
From a plain reading of Section 57 of the NDPS Act, it is abundantly
clear that whenever any person makes any arrest or seizure under NDPS Act, he
is under an obligation to report such arrest or seizure and make full report of all
the particulars of such arrest or seizure to his immediate superior officer within
48 hours next after the arrest. It is, thus, obligatory on the IO making arrest and
seizure to report the matter to his immediate superior officer along with full
report of particulars of such arrest and seizure within 48 hours of such arrest and
seizure.
10. We find nothing tangible has been done by the IO in the instant case.
Apart from the aforesaid aspects, which were discernible from the bare perusal
of the record, there are so many other serious discrepancies in carrying out the
investigating. In the instant case, as per the prosecution case, 24 cobs containing
charas like material were recovered and only two samples from two cabs were
taken. It is not known as to where the rest of the 22 cobs had gone. There is
serious discrepancy in the weight of the seized contraband. As per the
prosecution witnesses only the samples were deposited with the Malkhana on
20.09.2013 without divulging as to where other 24 cobs containing charas like
material were kept. As per the incharge Malkhana, who entered the witnesses
box, the samples were taken out on 24.09.2013 and were later sent to FSL on
30.09.2013. There is nothing on record to demonstrate as to where these samples
were kept between 24.09.2013 to 30.09.2013. It is equally interesting to note that
samples, as per the statement of incharge Malkhana, were taken out of Malkhana
for sending them to FSL on 30.09.2013. The official of the FSL in his deposition
stated that he received these samples on 29.09.2013. It is only a tip of ice berg
whereas if we go through the evidence in its entirety, there are so many other
major contradictions in the evidence which would make the prosecution case
totally unbelievable. The investigation in the case is completely botched up
probably with a view to help the accused or may be it is total incompetence of
the Investigating Officer. Whatever be the reason, we cannot find any fault with
the well reasoned judgment of acquittal passed by the trial Court.
11. For the foregoing reasons, we find no merit in this appeal and the same
is, accordingly, dismissed.
(Rajesh Sekhri) (Sanjeev Kumar)
Judge Judge
Jammu:
30.08.204
Neha-1
Whether the order is reportable: Yes/No
