The State Of Mp vs Nathu Singh
2022 Latest Caselaw 292 MP

                                1
                                                CRA No.559 of 1999

           HIGH COURT OF MADHYA PRADESH
                  BENCH AT INDORE

    (SINGLE BENCH: HON. MR. JUSTICE RAJENDRA
                KUMAR (VERMA))


            CRIMINAL APPEAL NO.559 OF 1999
            THE STATE OF MADHYA PRADESH
                               VS
                  NATHU SINGH SODHIYA
******************************************************
Ms. Archana Maheshwari, learned counsel for the appellant/State.
Ms. Geetanjali Aashirwad Chaurasia, learned counsel for the
respondent.
******************************************************
                         JUDGEMENT

(Passed on 6th day of January, 2022)

1. This criminal appeal is preferred under section 378 of Cr.P.C. by the appellant State being aggrieved by the judgement dated 28.01.1999 passed by Special Judge, NDPS Act, Ratlam in Special Case No.18/1998 whereby the respondent has been acquitted by the learned Trial Court from the offences punishable under Section 8/21 of the Narcotics Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as The NDPS Act).

2. The prosecution story in short is that on 02.02.1998 at about 12.30 PM, the SHO of police Station GRP, Ratlam has

CRA No.559 of 1999

received an information that two persons are standing near the pillar of Main Gate of the Ratlam Railway Station in front of platform no.4 having black and white bags in their hands containing smack. Thereafter, on the information given by the informer, the police prepared a Panchnama vide Ex.P/4 and the SHO alongwith the team has reach on the spot, he had given a proposal and told the right of the accused to be searched in front of Gazetted Officer or Magistrate and prepared Ex.P/5 i.e. declaration of the accused. After taking consent of the accused vide Ex.P/6, the SHO Vinay Sharma has searched the accused in front of the witnesses and members of the team and prepared a panchnama of search vide Ex.P/7. During Search in front of the witnesses, the SHO has found a bag containing a plastic bag in which brown coloured powder was found. On being asked from the accused, the accused itself has told that the powder was smack. Thereafter, the police has prepared a panchnama for arrest vide Ex.P/8 and also prepared a Panchnama for weight and smell of the contraband vide Ex.P/9 and P/10 in which the contraband was found to be of 250grams. Vide Ex.P/11, seized the clothes of the accused, vide Ex.P/13, taken two samples of the contraband of five grams each and vide Ex.P/14 prepared arrest memo of the accused. Vide Ex.P/15 prepared the spot map, sent the appellant to the Police Station and vide Ex.P/20 exhibited the seized article/contraband in the Malkhana. The samples were thereafter sent for chemical examination which

CRA No.559 of 1999

confirmed the substance as "Dy-acetyl Morphine" (Heroin). After investigation and following the due procedure, filed the charge-sheet against the accused under the aforesaid provisions of the Act.

3. The accused abjured his guilt and he took a plea that he is innocent.

4. The prosecution has examined total 09 witnesses namely Ramprasad (PW-1), Kishore Verma (PW-2), Kailashchandra (PW-3), Babu (PW-4), Mukesh (PW-5) Vinod Lohkre (PW-

6), Vinay Sharma (PW-7), Ravindra Singh (PW-8) & Harilal Yadav. In defence, no witness has been examined.

5. The accused was tried and charged under Section 8/21 of the Narcotics Drugs Psychotropic Substances Act, 1985. The learned trial Court, after considering the evidence and material available on record has acquitted the accused, as stated above.

6. The appellant/State has preferred the present appeal mainly on the ground that judgment and order of the trial Court is contrary to law and facts available on record. The learned trial Court committed error in not considering that there is no material contradictions and omissions appeared in the statements of prosecution witnesses. Learned counsel for the appellant has further submitted that the learned trial Court has not considered the statements of prosecution witnesses in its right prospect and discarded the same wrongly which is clear violation of principle of nature justice. Learned counsel for the appellant has vehemently contended that the learned trial

CRA No.559 of 1999

Court has not correctly discussed, analysed and evaluated the prosecution evidence. The learned trial Court has erred in considering that the provisions of Sections 42 and 50 of The NDPS Act have not been complied with. It is also submitted that the SHO has given proper intimation or information about the right of the accused to be searched in front of the Gazetted Officer or before the nearest Magistrate. The search was conducted by the team only after given consent by the accused, therefore, there is an illegality in the judgement passed by the learned trail Court and the learned trial court has wrongly acquitted the accused from the charges under Section 8/21 of The NDPS Act. It is further submitted that the learned trial Court committed grave illegality in acquitting the accused from the serious offence. The learned trial court has not appreciated the evidence available on record, hence, the appeal is liable to be allowed and the appellant may be convicted.

7. Learned counsel for the respondent has opposed the prayer Inviting my attention towards the conclusive paragraphs of the impugned judgment. He supported the judgment and order by submitting that there is no compliance of mandatory provisions of The NDPS Act and there is no evidence against the accused, therefore, according to the learned counsel for the respondent, the appeal deserves to be dismissed. It is further submitted that the learned trial Court has rightly acquitted the respondent because it clearly apparent from the face of the record that the prosecution has not complied with the

CRA No.559 of 1999

provisions of Sections 42 and 50 of the NDPS Act, 1985. The trial Court has considered the Ex.P/5 on which counsel for the State has relied upon, Ex.P/5 itself clearly shows that the compliance has not been done and the learned trial Court has rightly acquitted the accused.

8. I have considered rival contentions of the parties and have perused the record.

9. In the the present appeal, counsel for the State has vehemently argued that the provisions of Section 42 and 50 of The NDPS Act have been complied with and the learned trial Court has committed error. On perusal of the record it is found that in para no.11 of the judgment, the learned Special Judge has categorically mentioned that the the provisions have not been complied by the prosecution neither in preparation of Ex.P/5 nor in preparation of Ex.P/6 which is respectively a panchnama of information of right to accused (Ghosnapatra) and another is a consent panchnama.

10. Counsel for the State place reliance on paragraph nos.11, 12 and 13 of the judgment of Prabha Shankar Dubey vs. State of Madhya Pradesh (2004) 2 SCC 56, Hon'ble the Apex Court has held as under:-

"11. Though there cannot be any quarrel with the general principle highlighted by learned counsel for the appellants that if a thing is required to be done in a particular way it should be done in that way, the position here is different in view of our conclusions that the requirements of Section 50 of the Act were sufficiently complied with. The general principle as noted has been stated illuminatingly in Nazir Ahmad v. King-Emperor (AIR 1936 P.C. 253), and later by this Court in State of Uttar

CRA No.559 of 1999 Pradesh v. Singhara Singh and Ors. (1964 (4) SCR 485). What the concerned officer is required to do is to convey about the choice the accused had. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. The use of the word 'right' at relevant places in the decision of Baldev Singh's case (supra) seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the 'suspect' at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it.

12. The use of the expression 'substantial compliance' was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh's case (supra). A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations.

13. Above being the position, we find no substance in the plea that there was non-compliance with the requirements of Section 50 of the Act."

11. Section 50 of the NDPS Act prescribes the conditions under which personal search of a person is required to be conducted. Being the pivotal provision, the Section, (as amended by Act 9 of 2001 - inserting sub-sections (5) and (6) with effect from 2nd October 2001) is extracted in full. It reads as under;

(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.

(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.

CRA No.559 of 1999 (5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

12. In Vijaysingh Chandubha Jadeja vs. State of Gujarat (2011) (1) SCC 609 a Constitutional Bench of Hon'ble Apex Court has been over ruled the law laid down in Prabha Shankar Dubey (supra) and hon'ble the apex Court in para No.22 has held as under:-

22.In view of the foregoing discussion, we are of the firm opinion that the object with which 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 in so far 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 a 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 search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll14, it is the duty of the courts to get at the real intention

CRA No.559 of 1999 of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus component is, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra)." Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

13. In the case in hand, Vinay Sharma (PW-7) Station House Officer informed the accused that he could be searched by PW-7 himself, or Gazetted officer or by the Magistrate. Vinay Sharma (PW-7) was head of the raiding party and in this case, the option given to the accused has been proved as Ex.P/5, which reads as under:-

"eSa fou; 'kekZ Fkkuk izHkkjh GRP jryke vki ds FkSys esa eknd inkFkZ LeSd gksus dh 'kadk esa vki dh o vki ds FkSys dh ryk'kh ysuk pkgrk gw¡A D;k vki eq>s ryk'kh nsuk pkgsx a s ;k fdlh iqfyl jktif=r vf/kdkjh ;k eftLVªsV egksn; ds le{k ryk'kh nsuk pkgsaxsA "

14. Learned counsel for the respondent has placed heavy reliance on

CRA No.559 of 1999 para no.14 and 15 of the judgement of Hon'ble apex Court passed in case of State of Rajasthan vs. Permanand & Anr. In Criminal Appeal No.78/2005 decided on 28.02.2014. Relevant paragraphs are reads as under:

In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.

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.

CRA No.559 of 1999 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.

15 As it is clear from the language of Ex.P/5, the accused was not made aware of his right that he could be searched in the present of gazetted officer or the Magistrate and that he could exercise such option, the writing does not reflects this important initial requirement of Section 50 of the Act.

16. It is a settled cannon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed. The Theory of 'substantial compliance would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. The Safeguard cannot be treated as formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The law has provided a right to

CRA No.559 of 1999 the accused, and makes it obligatory upon the officers concerned to make the suspect aware of such right. The officer had prior information of the raid, thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial. To secure a conviction under Section 21 of the Act, the possession of the illicit article is a sine qua non. Such contraband article should be recovered in accordance with the provisions of Section 50 of the Act, otherwise, the recovery itself shall stand vitiated in law. Whether the provisions of Section 50 of the Act are complied with or not, would normally be a matter to be determined on the basis of the evidence produced by the prosecution. An illegal search cannot entitle the prosecution to raise a presumption of validity of evidence under Section 50 of the Act.

17. On the aforesaid elaborate discussion, it is clear that the provisions of Section 50 of the Act have not been complied with by PW-7, however, there should be strict compliance of Section 50 of the NDPS Act and the accused to be informed of his right to search before the Gazetted Officer or Magistrate. Hence, in my considered opinion, there are non-compliance of the mandatory provisions of the NDPS Act by the prosecution during raid. The accused is entitled for benefit of such lapse committed by the prosecution for not complying the mandatory provisions of Section 50 of the Act, therefore, and the appeal deserved to be and is dismissed. The judgement and order dated 28.01.1999 passed by Special Judge, NDPS Act, Ratlam in Special

CRA No.559 of 1999 Case No.18/1998, is hereby affirmed.

18. Order of the learned trial Court regarding disposal of property is hereby confirmed.

19. Consequently, other pending applications, if any, shall stand closed.

(Rajendra Kumar (Verma)) Judge amit

Digitally signed by AMIT KUMAR DN: c=IN, o=HIGH COURT OF MADHYA

AMIT PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=18db6b55824fa1834dc7e61d06 ed3c79a81bc156ec0309c5245d47a0a52

KUMAR 604de, pseudonym=713D9BD68EDDADCD6B88 DA2B1BCDCFC0369478F5, serialNumber=62B9B1A094FCDF2F0107 E91326BC51DC9DCF83F25C9D67245FE3 BCCFD0F2DB67, cn=AMIT KUMAR Date: 2022.01.06 17:35:32 +05'30'