Sunna @ Sunita vs The State Of Madhya Pradesh
2022 Latest Caselaw 5336 MP

                                          1                       CRA-2442-2021

              HIGH COURT OF MADHYA PRADESH
                     BENCH GWALIOR

                                 Single Bench

                           Justice G.S. Ahluwalia

                     Criminal Appeal No. 2442/2021

                              Sunna @ Sunita
                                    Vs.
                          State of Madhya Pradesh

-----------------------------------------------------------------------------------
Shri V.K. Sahu, Counsel for the appellant.
Shri C.P. Singh, Counsel for the State.
-----------------------------------------------------------------------------------

Date of hearing                               : 28.03.2022
Date of judgment                              : 12th.04.2022
Whether approved for reporting                :


                             JUDGMENT

(Passed on 12th/04/2022)

This criminal appeal under Section 374 of Cr.P.C. has

been filed against the judgment and sentence dated 26.03.2021

passed by Special Judge (N.D.P.S. Act), Ashoknagar in Special

NDPS Case No.02/2016, by which the appellant has been convicted

for offence under Sections 8(c) read with Section 22(b) of N.D.P.S.

Act and has been sentenced to undergo rigorous imprisonment of

four years and a fine of Rs.10,000/- with default rigorous

imprisonment of six months.

2. The necessary facts for disposal of present appeal in short are

that on 14.02.2016 Manju Makheniya, Sub-Inspector posted in 2 CRA-2442-2021

Kotwali District Ashoknagar received an information that a lady

namely Sunna Ahirwar is standing under the over bridge in Azad

Mohalla, Ashoknagar with an intention to sell smack powder

(heroine) and has concealed the same on her person. In presence of

the witnesses, Panchnama Mukhbir Suchna was prepared. She

informed the SDO(P), Ashoknagar by sending a letter Ex. P-17.

Reader of SDO(P) informed that SDO(P) is out of headquarters being

busy in investigation of Crime No.63/2016 registered at Police

Station Dehat, District Ashoknagar. Manju Makheniya, Sub-

Inspector sent a Constable Hariniwas to bring electronic weighing

machine from market, thereafter, she proceeded towards the place of

incident with police force including Sub-Inspector Ashok Joshi, Sub-

Inspector Akshay Bais, lady Constable Jyoti Raja, Constable Krishna

Pal, Constable Hariniwas, Constable Driver Shakeel along with lady

witnesses, namely, Gorabai & Shanti bai. On the spot, Sub-Inspector

Manju Makheniya found that the appellant was standing under the

over bridge of Azad Mohalla, Ashoknagar. The appellant was

apprised of the information given by the informer as well as of her

right of being searched in presence of a Gazetted Officer or any

Magistrate or by Investigating Officer. A notice under Section 50 of

NDPS Act was given to the appellant and after obtaining her due

consent, Sub-Inspector gave her search to the accused. The raiding

party also gave their search to the accused. No objectionable article 3 CRA-2442-2021

was found and memo in this regard was prepared. Thereafter, Sub-

Inspector Manju Makheniya searched the accused person/appellant

in presence of lady witnesses. During search, a whitish powder

packed in a white polythene was found from left side of shirt of the

appellant. The search panchnama was prepared. Sub-Inspector

Manju Makheniya examined the powder by testing, burning etc. and

found that the same is smack. On weighing, 8 gm white powder was

found. Identification memo of powder and verification memo of

electronic weighing machine were prepared by the Investigating

Officer. Two samples of 2 grams each were drawn from that powder.

The packets of samples and the remaining quantity of smack powder

were duly sealed and samples were marked as Articles A-1 and A-2.

Smack powder was seized vide seizure memo Ex.P/10 and sampling

memo Ex. P/9 was also prepared. The appellant was arrested and

arrest memo was prepared. Dehati Nalishi was recorded by Sub-

Inspector Manju Makheniya on the spot and was sent to the Police

Station through constable Krishnapal. FIR was lodged in Police

Station Kotwali District Ashoknagar for offence under Section 8/21

of NDPS Act. The Investigating Officer and her police force returned

back to the Police Station along with appellant as well as the seized

contraband. The seized contraband was handed over to Head

Constable Moharrir for depositing the same in Malkhana. Certificate

was also obtained in this regard. Entire proceedings were recorded 4 CRA-2442-2021

by Sub-Inspector Manju Makheniya and also wrote rojnamacha

sanha. During investigation, spot map was prepared by the

Investigating Officer R.B.S. Sikarwar. The statements of the

witnesses were recorded. Sample Article A-1 was sent to RFSL,

Gwalior along with draft. As per the FSL report, di-acetyle-morphine

was found in the powder. After completing the investigation, the

charge-sheet was filed against the applicant under Section 8/21 of

NDPS Act.

3. The Trial Court by order dated 28.06.2016 framed the charges

under Section 8/22(b) of NDPS Act.

4. The appellant abjured her guilt and pleaded not guilty.

5. The prosecution in order to prove its case examined the

witnesses namely Gora Bai (PW-1), Krishnapal (PW-2), Ashok Joshi,

S.I. (PW-3), Constable Jyoti Raja Chauhan (PW-4), R.B.S. Sikarwar,

I.O. (PW-5), Manju Makheniya, S.I. (PW-6), Mahesh Sharma, Head

Constable (PW-7), Constable Hariniwas (PW-8), Head Constable

Uma Shankar Sharma (PW-9) and Akshay Singh Bais, S.I. (PW-10).

6. The appellant did not examine any witness in his defence.

7. The Trial Court by the impugned judgment has convicted and

sentenced the appellant for the offences mentioned above.

8. Challenging the judgment of conviction, it is submitted by the

counsel for the appellant that the prosecution has failed to comply

with the provisions of Section 50 of NDPS Act in its strict sense. The 5 CRA-2442-2021

provisions of Section 42 of NDPS Act have also not been complied.

In the Malkhana report, it is not mentioned that who had deposited

the contraband. Malkhan register has not been produced. The

recovery of contraband from the possession of the appellant has not

been proved, therefore, the conviction of the appellant recorded by

the Trial Court is liable to be quashed.

9. To buttress his contention, counsel for the appellant has relied

upon the judgments passed by the Supreme Court in the case of

Kishan Chand Vs. State of Haryana reported in (2013) 2 SCC 502

and State of Delhi Vs. Ram Avtar reported in (2011) 12 SCC 207

and judgments passed by a coordinate Bench of this Court in the case

of Guddu Vs. State of MP passed on 07.12.2021 in Criminal

Appeal No.673/1998 (Indore Bench), Remgul and others Vs. State

of MP decided on 22.10.2002 passed in Criminal Appeal No.1154

and 1177 of 1997 (Indore Bench) and judgments passed in the case

of Tula Ram Vs. State of C.G. decided on 11.12.2009 passed in

Criminal Appeal No. 455/2001 (Chhattisgarh High Court),

Narendra Bhusan Dubey Vs. State of M.P. decided on 20.09.2010

passed in Criminal Appeal No.1634/1995 (Chhattisgarh High

Court) and Chinku Gupta Vs. State of U.P. decided on 24.08.2018

passed in Jail Appeal No.2811/2016 (Allahabad High Court).

10. Per contra, counsel for the State has supported the findings and

conviction recorded by the Court below.

6 CRA-2442-2021

11. Heard the learned counsel for the parties.

12. The Supreme Court in the case of Kishan Chand (Supra) has

held as under :

22.The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance with these provisions in their entirety, the court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevance. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance with the provision.

13. In the present case, the contraband, i.e., 8 gm of smack was

seized from the person of the appellant, i.e., inside her Kurti,

therefore, the provisions of Section 50 of the NDPS Act, would be

applicable.

14. It is submitted by the counsel for the appellant that before

giving an option of search by a Gazetted Officer or Executive

Magistrate or by the Investigating Officer himself/herself,

Investigating Officer should have apprised the appellant to the effect

that such right is available to her under the provisions of Section 50

of NDPS Act.

15. Considered the submission made by the learned counsel for the 7 CRA-2442-2021

appellant.

16. So far as the question of apprising the appellant about the

availability of her right under Section 50 of NDPS Act is concerned,

this Court is unable to accept the contention of the counsel for the

appellant that unless and until it is informed to the accused/appellant

that the safeguard is provided under Section 50 of NDPS Act, mere

communication of her right to get herself searched in presence of

Executive Magistrate or Gazetted Officer or by the Investigating

Officer herself would not be sufficient. It is well established

principle of law that no one can claim ignorance about the provisions

of law. It is not necessary that apart from apprising the accused

regarding safeguard provided under Section 50 of NDPS Act, the

Investigating Officer should also apprise that such safeguard is

provided under Section 50 of NDPS Act. The maxim Ignorantia

juris non excusat may not apply in its true sense, as a villager may

not be knowing the niceties of NDPS Act, but strict compliance of

Section 50 NDPS Act is sufficient even if provision of law is not told

to the accused.

17. The Supreme Court in the case of Prabha Shankar Dubey Vs.

State of MP reported in (2004) 2 SCC 56 has held as under:-

"7. It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under Section 50.

What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named 8 CRA-2442-2021

in the section itself. Since no specific mode or manner is prescribed or intended, the court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or straitjacket formula.

8. Section 50 does not involve any self-

incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transparency in the process of search has been given the primacy. In Raghbir Singh v. State of Haryana [(1996) 2 SCC 201 : 1996 SCC (Cri) 266] the true essence of Section 50 was highlighted in the following manner: (SCC pp. 204-05, paras 8-11) "8. The very question that is referred to us came to be considered by a Bench of two learned Judges on 22-1-1996 in Manohar Lal v. State of Rajasthan [(1996) 11 SCC 391 : 1997 SCC (Cri) 505] . One of us (Verma, J.), speaking for the Bench, held:

'It is clear from Section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available gazetted officer or the nearest available Magistrate. The choice of the nearest gazetted officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused.'

9. We concur with the view taken in Manohar Lal case [(1996) 11 SCC 391 :

1997 SCC (Cri) 505] .

10. Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment. It is, therefore, that the Act affords 9 CRA-2442-2021

the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a gazetted officer or a Magistrate, depending upon who is conveniently available.

11. The option under Section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a gazetted officer or of being searched in the presence of a Magistrate. The use of the word 'nearest' in Section 50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, gazetted officer or Magistrate."

9. As has been highlighted in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] it has to be seen and gauged whether the requirements of Section 50 have been met. Section 50 in reality provides for additional safeguards which are not specifically provided by the statute. The stress is on the adoption of a reasonable, fair and just procedure. No specific words are necessary to be used to convey the existence of the right.

The Supreme Court in the case of Dehal Singh Vs.

State of Himachal Pradesh reported in (2010) 9 SCC 85 has held as

under:

"18. The abovesaid submission of Mr Rai does not commend us at all. In the present case the vehicle was searched and the charas was recovered from the vehicle and the persons of the appellants were not searched. As the recovery has been from the vehicle the provision of Section 50 of the Act, in our opinion, was not required to be complied with. It is relevant here to mention that the appellants were not searched at the place where the vehicle was intercepted and searched but after they were arrested, and brought to the police station, their search was made to find out 10 CRA-2442-2021

the articles possessed by them before lodging them in lock-up. Not only this, the prosecution has also claimed compliance with Section 50 of the Act.

19. Section 50(1) of the Act, which is relevant for the purpose, reads as follows:

"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 the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate."

From a plain reading of the aforesaid provision it is evident that it comes into play only when search of a person other than vehicle, etc. is taken. Further the authorised officer is to apprise the person about to be searched to be taken to the nearest gazetted officer or to the Magistrate, if the person about to be searched so requires. Such an option was given to the appellants and, in our opinion, it is nothing but apprising them of their right. Option to choose is given to an accused when he has the right to choose. It is communication of the right either to accept or reject. Therefore, in our opinion giving the appellants option to be searched satisfied the requirement of Section 50 of the Act.

20. In Dilip [(2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] relied on by the appellants the question which fell for consideration was as to whether Section 50 of the Act if at all required to be complied with and in the background of the fact that before search and seizure of the contraband from the scooter, personal search of the accused was carried out, this Court held that it was so required. This would be evident from para 12 of the judgment which reads as follows: (SCC p. 453) "12. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with."

The Supreme Court in the case of Vijaysinh 11 CRA-2442-2021

Chandubha Jadeja Vs. State of Gujarat reported in (2011) 1 SCC

609 has held as under:-

"23. In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] . We are concerned with the following conclusions: (SCC pp. 208-10, para 57) "(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 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 Section 50 of the Act.

*** (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 the 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 12 CRA-2442-2021

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 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.

(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."

(emphasis in original)

29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such 13 CRA-2442-2021

search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."

The Supreme Court in the case of Ashok Kumar

Sharma Vs. State of Rajasthan reported in (2013) 2 SCC 67 has

held as under:-

"8. We may, in this connection, also examine the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Undisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various laws laid down in this country, leave aside the NDPS Act. We notice that this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorised officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a gazetted officer or a Magistrate warranting strict compliance with that procedure."

18. If the facts of the present case are considered, then the counsel

for the appellant could not point out from the evidence or suggestion

given to any of the witness that lady Magistrate or Gazetted Officer

was available.

19. Section 50 of NDPS Act, reads as under:-

"50. Conditions under which search of persons shall be conducted-- (1) When any 14 CRA-2442-2021

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 the 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.

1[(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.]"

20. Thus, it is clear from Section 50(4) of the NDPS Act that no

female shall be searched by no one excepting a female. An option

was given to the appellant under Section 50 of NDPS Act that

whether she wants to get searched by a nearest Gazetted Officer of

any department mentioned under Section 42 of NDPS Act or nearest

Magistrate. The appellant did not exercise her option of getting her 15 CRA-2442-2021

searched in the presence of Gazetted Officer or Magistrate. Under

these circumstances, it is true that the compliance under Section 50

of NDPS Act should not be a substantial one, but it should be a strict

compliance, but if the option given to the appellant vide Ex P-2 is

considered, then it is clear that the appellant was apprised of the fact

that the Investigating Officer has received an information that she is

hiding smack in her clothes and, therefore, her person is required to

be searched and she is free to get her person searched by any

Gazetted Officer or Magistrate and in case, if she is willing to be

searched by Sub-Inspector, then she can give her consent in writing

and, accordingly, vide Ex. P-3, consent in writing was given by the

applicant and only thereafter her person was searched. Under these

circumstances, this Court is of the considered opinion that the

provisions of Section 50 of NDPS Act were complied with and body

of the appellant was searched in accordance with law.

21. It is next contended by the counsel for the appellant that the

provisions of Section 42 of NDPS Act were not followed because the

search was carried out by Sub-Inspector, whereas her immediate

superior officer was R.B.S. Sikarwar, Town Inspector, but the

information was sent to SDO(P). It is submitted that since SDO(P)

was not immediate superior officer of the Sub-Inspector, therefore,

mandatory provision of Section 42 of NDPS Act was not followed.

22. Heard the learned counsel for the appellant.

16 CRA-2442-2021

23. As per the rojnamcha sanha No. 18, on 14.02.2016 at 15:15,

an information was received that the appellant is standing near the

Azad Mohalla Over Bridge with an intention to sell smack.

Accordingly, at 15:18 an information was sent to SDO(P) Ex. P-19.

At 15:38 constable who was sent to give the information to SDO(P),

came back and informed that SDO(P) has gone in connection with

investigation in Crime No.63/2016 and, accordingly, the said

information was recorded in rojnamcha sanha and, then the police

party reached the police station at 15:45 comprising S.I. Manju

Makheniya, S.I. Ashok Joshi, S.I. Akshay Bais and lady constable

243 Jyoti Raja, constable 368 Krishnapal Raghuvanshi, 402

Hariniwas and lady witnesses Shanti Bai W/o Ramesh Kumar

Ahiwar and Gora Bai W/o Rajkumar Shakya. The appellant was

searched. Contraband was seized & Dehati Nalishi was recorded

Thereafter when the police party came back, the investigation was

taken over by Town Inspector RBS Sikarwar and he recorded the

statement of the witnesses as well as also prepared the spot map Ex.

P-13. Sample of seized smack was sent to FSL, Gwalior and filed

charge-sheet. The word "immediate official superior" mentioned in

Section 42 of NDPS Act does not mean that except "immediate

superior officer", no other officer should be informed under Section

42 of NDPS Act. Thereafter, by the amendment by Parliament Act

No.9/01 which came into force w.e.f. 2001, the word "forthwith" has 17 CRA-2442-2021

been substituted by words "within seventy-two hours". In the present

case, the Dehati Nalishi was lodged by S.I. Manju Makheniya and

thereafter the investigation was taken over by RBS Sikarwar, Town

Inspector. Thus, it is clear that not only, after receipt of information

regarding the fact that the appellant is standing with an intention to

sell smack was given to SDO(P), but immediately after coming back

to the police station, the information was given by S.I. Manju

Makheniya in the form of Dehati Nallishi and on the basis of the said

Dehati Nalishi, RBS Sikarwar (PW-5) lodged the FIR and took over

the investigation. RBS Sikarwar, T.I. is the immediate superior

officer of S.I. Manju Makheniya. Thus, this Court is of the

considered opinion that the provisions of Section 42 of NDPS Act

were also followed.

24. It is next contended by the counsel for the appellant that there

are material variances in the evidence of the witnesses which makes

the recovery unreliable and untrustworthy. By referring to

rojnamcha sanha No. 20, it is submitted by the counsel for the

appellant that constable Hariniwas was sent to market to bring

electronic weighing machine prior to return of constable Krishna Pal

Raghuvanshi who had gone to inform the SDO(P). However,

Krishnapal (PW-2) has stated that after returning back from the

office of SDO(P), the witnesses were summoned and police party

was constituted and, thereafter constable Hariniwas was sent to 18 CRA-2442-2021

market for bringing electronic weighing machine, whereas by

referring to the evidence of Hariniwas (PW-8), it is submitted that

after Krishna Pal Raghuvanshi was sent to office of SDO(P), he was

sent to the market for bringing electronic weighing machine and,

accordingly, he went to the shop of Manoj Soni and brought

electronic weighing machine to the police station. By referring to the

evidence of S.I. Manju Makheniya (PW-6), it is submitted that only

after Krishnapal came back from the office of SDO(P), Hariniwas

was sent for bringing electronic weighing machine and, thus, there

are material omissions and variances in the evidence of the witnesses

as to when weighing machine was summoned.

25. Heard the learned counsel for the appellant.

26. Whether the weighing machine was summoned prior to return

of Krishnapal or it was summoned subsequent to return of

Krishnapal is not a very important aspect. When the Investigating

Officer has already received an information with regard to the fact

that one lady is standing under the bridge with an intention to sell

smack, then preparation was to be made for apprehending her.

Therefore, if the Investigating Officer had already made a

preparation prior to return of Krishnapal from the office of SDO(P),

or the electronic weighing machine was called subsequent to return

of Krishnapal would not make any difference. Furthermore, when a

documentary evidence in the form of Rojnamcha is available to the 19 CRA-2442-2021

effect that Hariniwas was sent for bringing electronic weighing

machine prior to return of Krishnapal from the office of SDO(P),

then there is no reason to disbelieve the rojnamcha sanha because

there may be some variance or departure in the evidence by the

witnesses, but it is well established principle of law that where the

omissions and contradictions are of minor in nature having no effect

on the outcome of the investigation, then the same cannot be given

undue importance.

27. It is next contended by the counsel for the appellant that the

prosecution has not proved that the seized contraband was kept in a

secured manner and the Malkhana register has not been produced.

28. According to S.I. Manju Makheniya (PW-6), on 14.02.2016

she received an information from an informer that the appellant is

standing under the bridge with an intention to sell smack. The said

information was recorded in the rojnamcha sanha and the

information was also sent to SDO(P) through constable Krishnapal

Raghuvanshi, who informed that the SDO(P) is out of headquarters

in connection with the investigation of different case and,

accordingly, the constable Hariniwas was sent to bring an electronic

weighing machine. Thereafter the police force as well as the

witnesses were informed about the information which is Ex. P-1.

Thereafter, they went to the spot, where they found that the appellant

was standing. She was taken in custody and was apprised about the 20 CRA-2442-2021

information given by the informant and was also apprised of her right

to get herself searched either by Magistrate or by Gazetted Officer

and she was also apprised of her right, that she can also give search

to the S.I. herself. Notice under Section 50 of NDPS Act is Ex. P-2.

The appellant gave her consent for her search by the Investigating

Officer and her written consent is Ex. P-3. Before taking search of

the suspect, the appellant was given search of the raiding party and

the search memo is Ex. P-4. When no suspected articles were found

in possession of the raiding party, then the person of the appellant

was searched and with an intention to maintain the dignity of the

lady suspect, the search of the appellant was carried out behind the

pillar of the bridge. The contraband was seized from Kurti of the

appellant, which she was wearing and, accordingly, search

Panchnama Ex. P-5 was prepared. The contraband was identified by

tasting, smell and burning and the identification memo is Ex. P-6.

The smell of smack was coming. Electronic weighing machine was

physically verified and it was found that it was in working condition

and was proper and, accordingly, weighment Panchnama Ex.P-7 was

prepared and after removing the polythene, total weight of smack

came to 8 grams and the Panchnama is Ex. P-6. 8 grams of smack

was seized vide seizure memo Ex. P-10. Thereafter, two samples of 2

grams each were prepared vide panchnama Ex. P-9. Two samples

which were prepared were seized and were marked as Articles A1 21 CRA-2442-2021

and A2. Thereafter, the appellant was arrested vide arrest memo

Ex.P-11 and information regarding the arrest of the appellant was

given to Balram Sen vide Ex.P-14. Thereafter, Dehati Nalishi was

recorded on the spot, which is Ex. P-15. Dehati Nalishi was sent to

the police station through constable Krishnapal Raghuvanshi for

registration of FIR. Statement of this witness was recorded by Town

Inspector. Contraband was deposited in the Malkhana and obtained

the certificate Ex.P-16. The spot map Ex. P-13 was prepared.

Contraband was called from the Malkhana which was identified by

the witnesses in the Court. She specifically stated that on Article A,

her signatures are at A to A and the signatures of the appellant are at

B to B. Slip pasted at Article A2 contains the signature at A to A,

whereas the signature of the appellant are at B to B. Signatures of the

witnesses were also obtained. Contraband was sealed on the spot and

sample Article A1 was sent for RFSL, Bhopal. Thus, this witness has

specifically proved that after coming back to the police station,

seized contraband was deposited in the Malkhana in three packets

containing Article A1 of 2 gram, Article A2 of 2 gram and Article A

of 4 grams smack and the said contraband was entered into the

Malkhana register at Serial No. 29/16 dated 14.02.2016. Thus, it is

clear that the prosecution has proved that after coming back from the

spot, seized contraband was deposited in the police station.

Thereafter, on 15.02.2016, i.e., on the next date itself, a draft was 22 CRA-2442-2021

prepared duly signed by S.P., Ashoknagar for sending the seized

sample Article A1 to FSL, Gwalior which was received by FSL,

Gwalior and report dated 19.02.2016, i.e., within three days of

receipt of sample as it is evident from the report that the sample was

received in a sealed condition on 16.02.2016. As per the report,

18:48 di-acetyle-morphine (heroine) was found in sample Article

A1. Thus, the following situation would immerse:

29. On 14.06.2016 the police party left police station at 15:45. The

appellant was apprised of the information given by the informer at

16:10. She was apprised of her right to get herself searched in

presence of the Gazetted Officer or Magistrate or in the alternative

by the Investigating Officer at 16:10. The raiding party gave their

search at 16:25 and the Panchnama of search of the raiding party

was prepared at 16:45. At 17:00 the appellant was searched and the

contraband was seized from her body. At 17:15 the contraband was

identified. At 17:30, physical verification of the weighing scale was

contained and at 17:45, the contraband was weighed and the total 8

grams of contraband was found. At 18:50 two samples of 2 grams

each were prepared and in the meanwhile, seizure memo was

prepared at 18:00 and the appellant was arrested at 19:00. At 19:10

Dehati Nalishi was recorded by the Investigating Officer at spot

itself. Thereafter the police party came back and deposited the

contraband in the Malkhana and at 19:40, FIR was lodged.

23 CRA-2442-2021

Thereafter, on 15.02.2016 a draft was prepared and on 16.02.2016

sample was deposited in RFSL, Gwalior and FSL report was

prepared on 19.02.2016 and in the FSL report, it is specifically

mentioned that the sample was found in a sealed condition.

Therefore, it is clear that the prosecution has succeeded in

establishing beyond reasonable doubt that after the Article A1 was

prepared, it was deposited along with other packets in Malkhana and

on the very next date, it was sent to RFSL, Gwalior which was

received on 16.02.2016 and the report dated 19.02.2016 was

prepared.

30. It is next contended by the counsel for the appellant that Gora

Bai (PW-1) who was an independent witness of seizure and was a

member of raiding party, is the pocket witness of the police and she

has specifically admitted that being the member of Raksha Samiti,

she visits the police station on daily basis and whenever they go to

the police station, only then they get honorarium otherwise they do

not get any salary.

31. Heard the learned counsel for the appellant.

32. Merely because Gora Bai (PW-1) was the member of Raksha

Samiti and goes to the police station on daily basis, is not sufficient

to hold that she is a pocket witness of the police. Being the member

of Raksha Samiti, Gora Bai (PW-1) has certain duties towards

Raksha Samiti and not towards police force. Even otherwise, it is 24 CRA-2442-2021

well established principle of law that a witness cannot be disbelieved

merely on the ground that he is a police personnel. Raksha Samiti has

been constituted under Section 3 of Madhya Pradesh Gram Tatha

Nagar Raksha Samiti Adhiniyam, 1999. The functions and duties of

Raksha Samiti have been defined under Section 13 of the Adhiniyam,

1999. According to which, members of Raksha Samiti shall guard of

the village/area assigned to them, shall patrol for the purposes of

prevention of crime, shall protect the person and property, shall

assist, when necessary, the ordinary police in maintaining the public

order and peace, shall perform any such duty which may be assigned

to them, from time to time by the State Government or by the

Superintendent, shall arrest proclaimed offenders and absconders and

shall produce arrested person to the nearest police station/outpost

without delay, shall give information regarding suspicious and bad

characters as well as to render necessary assistance to the police in

rescue and relief works connected with natural calamities.

33. The Supreme Court in the case of Govindaraju alias Govinda

Vs. State by Sriramapuram Police Station and another reported

in (2012) 4 SCC 722 has held that it cannot be stated as a rule that if

the testimony of police witness is reliable, trustworthy cogent, and

duly corroborated by other witnesses or admissible evidence, then

the statement of such witness can be discarded only on the ground

that he is a police officer and may have some interest in success of 25 CRA-2442-2021

the case. Only when his interest in success of the case is motivated

by over-zealousness to an extent of his involving innocent people,

then no credibility can be attached to his statement. The presumption

that a person acts honestly applies as much in favour of a police

officer as in respect of other persons and it is not proper to distrust

and suspect him without there being good grounds therefor.

34. The Supreme Court in the case of case Tahir Vs. State

(Dellhi) reported in (1996) 3 SCC 338, has held that no infirmity is

attached to the testimony of police officials merely because they

belong to police force and there is no rule of law or evidence which

lays down that the conviction cannot be recorded on the evidence of

police officials, if found reliable, unless corroborated by some

independent evidence. The rule of prudence, however, only requires

more careful scrutiny of their evidence, since they can be said to be

interested in result of the case projected by them. Thus, it has been

held that where the evidence of a police official, after careful

scrutiny, inspires confidence and is found to be trustworthy and

reliable then it can form the basis of conviction, even in absence of

some independent witnesses of the locality to lend corroboration to

their evidence.

35. The Supreme Court in the case of Girja Prasad Vs. State of

MP reported in (2007) 7 SCC 625 has held as under:-

"25. In our judgment, the above proposition does not lay down correct law on the point. It is well 26 CRA-2442-2021

settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy.

The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.

26. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217 : 1956 Cri LJ 426] , Venkatarama Ayyar, J. stated : (AIR p. 230, para 40) "40. ... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."

(emphasis supplied)

27. In Tahir v. State (Delhi) [(1996) 3 SCC 338 : 1996 SCC (Cri) 515] , dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated : (SCC p. 341, para 6) "6. ... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness 27 CRA-2442-2021

of the prosecution case."

36. Furthermore, in the light of the duties assigned to members of

Raksha Samiti, they are required to assist the police for preventing

crime in the locality. Under these circumstances, if Gora Bai was

included in the raiding party, then it cannot be said that she is not an

independent witness or is having any interest in the conviction of the

appellant. Furthermore, the appellant has not taken any specific stand

in her statement under Section 313 of CrPC. She has merely stated

that she was not having any smack and the police record of her

brother Golu is not good and as she was not disclosing his

whereabouts, therefore, she has been falsely implicated.

37. It is next contended by the counsel for the appellant that the

provisions of Sections 52 and 57 of the NDPS Act were not complied

with. As already pointed out that the arrest of the appellant was

immediately reported to the immediate superior official, i.e., RBS

Sikarwar, T.I. (PW-5) who took over the investigation. Similarly, the

provisions of Section 52 of NDPS Act were also complied with.

Furthermore, the provisions of Sections 52 and 57 of NDSP Act are

not mandatory in nature and they are merely directory in nature.

38. The Supreme Court in the case of Gurbax Singh Vs. State of

Haryana reported in (2001) 3 SCC 28 has held that these provisions

are not mandatory in nature.

39. No other arguments are advanced by the counsel for the 28 CRA-2442-2021

appellant.

40. Considering the totality of the facts and circumstances of the

case, this Court is of the considered opinion that the prosecution has

succeeded in establishing the guilt of the appellant beyond

reasonable doubt. Accordingly, the conviction of the appellant for the

offences under Section 8(c) read with Section 22(b) of the NDPS Act

is hereby affirmed.

41. So far as the question of sentence is concerned, where the

contraband involves quantity lesser than commercial quantity, but

greater than small quantity, the sentence may extend to 10 years

rigorous imprisonment and with a fine which may extend to

Rs.1,00,000/-. In the present case, the Trial Court has awarded the

rigorous imprisonment of four years and a fine of Rs.10,000/-.

42. Looking to the nature of quantity of smack seized from the

possession of the appellant, this Court is of the considered opinion

that the sentence awarded by the Trial Court does not call for any

interference.

43. Ex consequenti, the judgment and sentence dated 26.03.2021

passed by Special Judge (N.D.P.S. Act), Ashoknagar in Special

NDPS Case No.02/2016 is hereby affirmed.

44. The appellant is in jail. She shall undergo remaining jail

sentence.

45. Let a copy of the judgment be immediately provided to the 29 CRA-2442-2021

appellant free of cost.

46. The record of the Court below be immediately sent back along

with the copy of the judgment for necessary information and

compliance.

47. Accordingly, the appeals fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2022.04.12 19:47:00 +05'30'