TaxTMI 
TaxTMI 
2017 (12) TMI 1510
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....person was coming from the side of Lahartara and would go towards Shivdaspur Mandi. He had heroin with him. If police party promptly reached there he could be arrested. Believing this information to be true PW-1 (Pramod Kumar Pandey, Sub-inspctor) and PW-3 (Shyam Narain Yadav, (Head Constable) along with informer reached near Shivdaspur Mandi tri-section and concealing themselves behind Gomti situated there, waited for the said person to arrive. After some time the said person coming from the side of Lahartara reached Mandi tri-section. The informer pointed him out and went away from there. PW-1 Pramod Kumar Pandey directed that person to stop but looking to the police personnel, he turned around and tried to run away but was caught with the help of PW-3, Shyam Narain Yadav at 20.30 hours. On inquiry from him, he disclosed his name to be Anil Kumar Dubey s/o Vanshi Dhar Dubey. He was told that an information was received that he possessed contraband substance and that, if he wanted, he could be searched in presence of a Magistrate or a Gazetted Officer. At this, the accused stated that as he had already been arrested, therefore, his search could be made by them only. Pursuant to th....
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....n Yadav as PW-3. Out of these witnesses, PW-1 and PW-3 are witnesses of fact while PW-2 is the Investigating Officer. 6. Apart from above oral evidence, the prosecution has proved recovery memo (Exhibit Ka-1), site plan (Exhibit Ka-2), Charge Sheet (Exhibit Ka-3) and report from FSL (Exhibit Ka-4). 7. After closure of evidence of prosecution, the statement of accused was recorded under Section 313 Cr.P.C. on 31.8.1999, in which he denied the recovery to have been made of seven pudias of heroine from him; recovery memo was alleged to have been made falsely; showed ignorance about FIR having been lodged against him on the basis of recovery memo; also showed ignorance about any case having been entered in general diary against him on the basis of FIR; denied preparation of the site plan; stated that charge sheet had been wrongly filed; expressed ignorance about any report having been received about alleged recovered contraband from FSL; stated that the witnesses had given statement against him due to enmity; refused to give any evidence in defense. 7. Learned court below after having considered the arguments of both the sides passed judgment of conviction against accused hold....
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....ommercial quantity of it begins from 250 grams. Therefore, it is evident that the allegedly recovered quantity is far below the small quantity even which could be falsely planted and yet the learned court below has imposed maximum penalty upon accused of 10 years rigorous imprisonment and Rs. 1,00,000/- as fine which is not proportionate to recovery. 9. The next argument made by learned counsel for the appellant is that the FSL report dated 21.11.1994 discloses that the packets of contraband substance sent to them bore seal of PW-1 'P.K. Pandey S.I. U.P.P.' on the cloth wherein these packets were contained. In the statement of PW-1, it has also been stated that the alleged recovered contraband (Heroin) was sealed by him using his own seal, memo of which was 'P.K. Pandey S.I. UPP'. But in the statement given by PW-2, it has been stated in cross-examination that when he had received investigation of this case in the morning of 4.9.1995, the material recovered from the accused was kept in Malkhana. The said material was in front of him because the same was in Malkhana. Malkhana is under his jurisdiction/sub-ordination. During inspection of the material, it is always....
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....rding to the prosecution's case, the accused along with recovered material was taken to the police station on 3.9.1995 while the contraband substance allegedly recovered from the accused had been sent to the FSL on 11.9.1995. There is no evidence given on record by prosecution as to where this contraband substance was kept from 3.9.1995 to 11.9.1995. If the same was kept in Malkhana, no entry of the said contraband substance having been kept in Malkhana has been brought on record by the prosecution. This creates doubt in the mind that there could be possibility of tampering with the recovered contraband substance. It is further argued that on the said contraband substance, no signature of accused has been found. From the evidence on record, it is not reflected that the contraband substance recovered from the accused was produced before court at the time of statement of eye-witnesses. 12. Next argument made by learned counsel for the appellant is that the police party which has made search of the accused had not given their search to the accused nor had they made search of each other to ensure that they did not have any such substance with them which is allegedly recovered fr....
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....punishable with rigorous imprisoment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less tha one lakh rupess but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." 16. Referring to above provision of punishment under unamended Act, it is argued by learned A.G.A. that the court had in its discretion, awarded the accused minimum punishment as provided under the un-amended Act. The accused may not be given any benefit of the fact that there was recovery of Heroin from him of below small quantity, hence, his punishment should be reduced. In the same continuation, it is also argued that since it is not to be taken into consideration as to what quantity was recovered from the accused to determine his punishment, it is quite likely that the investigation agency did not consider it proper to weight the said recovered quantity of Heroin from the accused because punishment, in any case, on being proved that he possessed illegal Heroin, would be not less than ten years and fine would be of n....
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....vealing to the accused of his aforesaid valuable right and recording his consent to be searched by the arresting officer, its compliance should not be taken to be met-with. I have examined the evidence given by PW-1 and P.W.-3 in this regard, who have categorically stated that the accused was revealed of his right being searched in presence of a Gazetted Officer or Magistrate, if he so requires. The provisions of Section 50 of NDPS Act, enumerated above, also speak and make it clear that the person detained and likely to be searched should be searched in presence of a Gazetted Officer or a Magistrate, if he so requires. The words used "if such person so requires" in Section 50, are not meaningless, and, to my mind, are of importance in the sense that the person to be searched, if requires to be searched in presence of Gazetted Officer or Magistrate, he shall, without unnecessary delay, be taken to the nearest Magistrate or Gazetted Officer of any of the Departments mentioned in Section 42 or the the nearest Magistrate. Therefore it is the wish and desire of the detained persons likely to be searched that will prevail and it is not necessary for the officer detaining a person to mak....
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....he should take him to a Gazetted Officer or a Magistrate for search, then accused stated that he himself could take his search. Accused had refused to be taken before a Magistrate or a Gazetted Officer. It was wrong to say that he was giving this statement for the first time in court that the accused had refused to be taken before a Magistrate or a Gazetted Officer. The investigating Officer had recorded his statement on 6.9.1995; he had told that the accused had denied to be taken before a Gazetted Officer or Magistrate, if the investigating officer had not recorded so in his statement, he could not tell its reason. At the time of search being taken, he was accompanied by Shyam Narain Yadav(PW-3), his companion. This other eye-witnesses PW-3, Shyam Narain Pandey(Head Constable) in this regard has stated in examination-in-chief that the accused was asked that because the police had received information about accused having illegal heroin whether he would like to be searched in presence of a Magistrate or a Gazetted Officer. On this, the accused stated that they (police) could take his search, whereafter they had taken his search and recovered the said contraband. In cross-examinati....
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....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; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also ....
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.... conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand case and Jasbir Singh case are not in tune with the correct exposition of law as laid down in Pooran Mal Case" 22. Therefore, it is clear from above provision of law that it is an obligation of empowered officer conducting search of the person of a suspect pursuant to prior information, to inform the suspect that he has a legal right to require his search to be conducted in presence of a Gazetted Officer or a Magistrate. The failure to so inform the suspect of his right, would render the search illegal because the suspect would be deprived of the protection against false implication which is in built in Section 50 of NDPS Act. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in presence of....
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.... 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. 30. As observed in Re Presidential Poll, in (1974) 2 SCC 33 : (SCC P.49, para 13), "13. It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be....
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....arched by the first informant Arvind Singh himself. As far as the calling of Circle Officer by the first informant is concerned, the recovery memo states that upon getting information the Circle Officer was called and he accompanied the first informant Arvind Singh as member of raiding party and the search was taken in his presence in accordance with the provisions of Section 50 of N.D.P.S. Act. ......................" 27. From the above citations it is absolutely clear that the compliance of provision of Section 50 of NDPS Act is extremely important right of the accused, non-compliance of which would make the recovery suspect. In the case at hand in the light of above mentioned statements of the witnesses and also entry made in the recovery memo it is apparent that the accused was given option of being taken before a Magistrate or a Gazetted Officer for being searched to find whether he possessed any contraband substance. It would be noted here that the provisions of Section 50 have been amended with effect from 2.10.2001 by adding Clause 5 and 6 also, but in this case those clauses would not be operational because the occurrence belongs to the year 1995 when the uname....
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....mination this witness has stated that the heroin which was recovered from the accused was sealed by him by applying his own seal bearing memo 'P.K. Pandey' and with that seal the said substance was handed over at police station. At that time of occurrence S.O. Nafees Ahmad was present and the recovered material and accused were taken to P.S. He does not recollect whether S.O. was present or not. Seal of S.O. Maruwadih was not used. The said recovered material was kept in Malkhana. 30. PW-3 Shyam Narain Yadav has stated that seven pudias of brown sugar were taken into possession and after keeping them in the match box they were sealed and sample seal was prepared on the spot, recovery memo was also prepared on the spot in the light of torch and electricity. Thereafter, with the accused and the seized contraband substance and recovery memo they had gone to the police station and the seized substance was kept in Malkhana and accused was lodged in lock up. In cross-examination, nothing has been asked about the seal and the recovered contraband substance. PW-2 Investigating Officer in this regard has stated that recovered contraband substance was sent to FSL, Lucknow through ....
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....ing tasted was the same contrband material which was allegedly recovered from the accused on the spot. 32. It is also noticed by this Court that when the contraband material from the accused was brought to police station with the accused and the recovery memo along with sample seal, the entry of the same ought to have been proved by the prosecution to have been made in the Malkhana register, to prove that the said contraband material along with the sample seal were deposited in Malkhana and were kept there in safe custody till it was taken out for being sent to the FSL and thereafter also when the same material was received back from the FSL with seal which was used by FSL. The same should have been kept at safe place until at the time of trial, when the case property was supposed to be opened before court for being exhibited. Then only it could have been held that substance which was examined and found to be heroin by the FSL was produced before court at the time of examination of witnesses in intact condition. Therefore, link evidence is found to be missing in this case. It may also be mentioned here that the evidence is not on record to the effect that when the statement of P....
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....the arrest of the appellants and seizure of the contraband articles from their jeep on phone but no evidence was led during the trial by the prosecution for proving the aforesaid fact. 18. Another very interesting aspect of the case is that the appellants have been convicted in this case for having committed an offence under Section 20 of the NDPS Act involving commercial quantity. The prosecution case is that 19 bundles allegedly containing ganja, each weighing above 10 kg were recovered from the specifically designed secret cavity in the appellants' jeep but admittedly samples were drawn only from bundle no.1 and bundle no.19 and sent for chemical examination and according to the chemical examiner's report Ext.Ka7, samples were found to contain ganja. No samples having been drawn from bundle nos. 2 to 18 it cannot be held on the basis of the chemical examiner's report pertaining to the samples drawn from bundle no.1 and bundle no.19 that the substanace packed in bundle nos. 2to18 was also ganja. The total weight of bundle no.1 and bundle no.19 together with the weight of the packing material is about 20 kg 535 gm which is slightly above the commercial quantit....
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....994 (3) SCC 299 in paragraph 24 & 25 of the said judgment which is quoted hereinbelow:- "24. Section 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the Cr.P.C. If there. is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused pr....
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....isation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send....
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....evidence regarding arrest or seizure as well as on merits of the case." 39. It is clear from the above position of law that the provisions of Section 57 by itself is not mandatory but it contains certain procedural instructions for strict compliance by the officers. If there is no strict compliance of any of these instructions that by itself cannot vitiate the trial but it would affect the probabative value of evidence regarding arrest or search and in some cases may invalidate arrest or serach. Therefore, it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanantion for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution's case and the courts have to appreciate after perusing evidence what effect would it have on merits of the case. 40. In view of above, this Court is of the view that non-compliance of Section 57 by itself may not be held to vitiate the conviction or trial in this case but certainly it would have adverse impact on probabative value of ....