Oral Judgment:
1. The present appeal is directed against the judgment and order dated 19.08.1995, rendered by the learned Additional Sessions Judge, Nadiad, in Special Case No.6/1995, whereby respondents Nos.1 to 4, original accused, have been acquitted of the charges under Sections20(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (âthe NDPS Actâ, for short) and under Sections 67(A) and 81 of the Bombay Prohibition Act.
2. The case of the prosecution, in brief, based upon the complaint made by PW3 PSI Bharatkumar Dayaramdas Vaishnav, is that on 20.09.1994, at about 10.00 hours, secret information was received by the Police that four persons were sitting on the benches on the road near the Dargah of Lalshah Pir, in village Piplaj. They had a bag and a âThailaâ (cloth bag) containing some suspicious substance, with them. Police Officers and members of the raiding party went to the spot indicated by the secret informant and found three persons sitting on one bench and one person sitting on another bench. Upon being asked their names and addresses, these persons gave the requisite information to the Police personnel. These four persons, who are the present accused, disclosed that they belong to the State of Rajasthan, but can understand and speak the Gujarati language. On being asked by the Raiding Officer what was in the bag and the âThailaâ, the accused are stated to have replied that it was Ganja. Mr.N.J.Jadav, the Raiding Officer, informed the accused persons that he is holding the rank of Police Inspector and whether they would like their searches to be conducted in the presence of an Officer of Superior rank to his. The accused are stated to have declined the offer and agreed to be searched by Mr.Jadav. The Raiding Officer then searched the bag that was lying near the three accused persons, on which âNarmada Urea was written. The mouth of the bag was stitched. On opening the stitching, it was noticed that it contained dried chillies. Beneath the chillies, there was a plastic bag, tied with string. This bag was separated from the chillies and opened. It was found to contain Ganja. A "Thaila" of black rexine was found near the accused who was sitting on another bench. The word âInternationalâ was written in English, on the said "Thaila". From inside the "Thaila", a plastic bag was found with some substance in it, that was found to be Ganja. The accused persons could not produce any pass or permit, authorizing them to possess Ganja. PW10 Abbasmiya Navrangbhai, Head Constable and a member of the raiding party, was sent to procure weighing scales and weights. The contraband in the big bag was weighed and found to be 15 Kilograms and 500 Grams. The contraband in the "Thaila", was found to be weighing 4 Kilograms and 200 Grams. From the bag and the "Thaila", 100 Grams of contraband was taken out as a sample and sealed. A slip with the signatures of the Panch witnesses was attached to it. The Panchnama was prepared at the spot, duly signed by Pws1 and 2. An offence was registered against the accused persons and the investigative machinery swung into motion. Statements of witnesses were recorded and after completion of the investigation, the charge was framed. It was read over and explained to the accused, all of whom denied the allegations against them and claimed to be tried. Accordingly, the case was put to trial.
3. The sample of the contraband was sent to the Forensic Science Laboratory (FSL) in a sealed condition. The Report of the FSL reveals that the substance sent for examination was a narcotic substance as per the NDPS Act, being Ganja.
4. There being sufficient incriminating evidence against the accused, a chargesheet was submitted in the Court of learned Judicial Magistrate, First Class, Nadiad. As the offences under the NDPS Act are exclusively triable by a Court of Sessions, the case was committed to the Sessions Court by the learned Magistrate. The charge, at Exhibit5, was framed against the accused who denied their guilt. The prosecution examined as many as 12 witnesses and produced documentary evidence. In their statements under Section313 of the Code of Criminal Procedure, 1973, the accused reiterated that they were innocent.
5. Having appreciated and evaluated the oral and documentary evidence on record, the Trial Court recorded a findings of acquittal in favour of all the accused, vide the impugned judgment and order, giving rise to the filing of the present appeal.
6. Mr.Himanshu K. Patel, learned Additional Public Prosecutor for the appellant State of Gujarat has submitted that the Trial Court has arrived at an erroneous conclusion regarding the violation of the provisions of Section 50 of the NDPS Act. It is submitted that the testimonies of the prosecution witnesses show that there is sufficient compliance with this provision of law. It has emerged from the Panchnama, as well as the testimonies of the members of the raiding party including PW4, that an offer was made to the accused to get themselves searched by any Superior Officer, which they declined. It is further submitted that the contraband has been recovered from the bag and the "Thaila" in the possession of the accused persons, therefore, there was sufficient evidence on record to bring home the guilt of the accused. It is submitted that the impugned judgment and order is contrary to facts and law, therefore, the same may be quashed and set aside and the appeal allowed.
7. On the other hand, Ms.Falguni Trivedi, learned advocate for respondent No.3, has submitted that the impugned judgment and order is just and proper and need not be interfered with by this Court. It is submitted that there is no evidence to connect the bag and the "Thaila" with the accused. The bag and the "Thaila" were lying in an open space and no evidence worth the name has been brought on record to indicate the possession, leave alone the conscious possession, by the accused.
7.1 It is further submitted that the provisions of Section 50 of the NDPS Act have not been complied with as no offer has been made to the accused to get themselves searched before a Gazetted Officer or a Magistrate. It is not sufficient compliance of the provisions to only inform the accused whether they want to be searched by an Officer superior in rank to the Raiding Officer.
7.2 Lastly, it is submitted that the present is an appeal against acquittal, therefore, when two views are possible, the one favourable to the accused may be adopted. It is submitted that on the above ground, the appeal may be dismissed.
8. Having heard learned counsel for the respective parties and upon scrutiny of the record and proceedings, at this stage, it would be apposite to discuss the salient features of the evidence led by the prosecution, in order to reappreciate and reevaluate the same.
9. PW1 Jakirhusain Hasumiya Malek, whose deposition is at Exhibit11, is one of the Panch witnesses of the Panchanama at Exhibit 16.
This witness does not support the case of the prosecution at all, and denies the contents of the Panchnama.
10. PW2 Bharatbhai Bhailalbhai Patel, who has been examined at Exhibit 12, is the second Panch witness of the Panchnama at Exhibit 16.
This witness has also denied the entire case of the prosecution as well as the contents of the Panchanama. Both these witnesses, who are the only independent witnesses, have been declared hostile. The Panchnama, therefore, has not been proved.
11. PW3 Bharatkumar Dayaramdas Vaishnav, who was the Police Sub-Inspector serving at the Local Crime Branch, Kheda, at the relevant point of time, is the complainant. His deposition, at Exhibit 13, is more or less a reiteration of the contents of the complaint. In cross-examination, this witness states that the bag containing the contraband was lying on the bench on which three accused were sitting. He further states that the "Thaila" was lying on the ground near the bench on which one accused person was sitting. He states that both the bag and the "Thaila" have been recovered from a public place. He further states that he was present at the time of the raid, but does not remember near which of the accused the bag and the "Thaila" containing the contraband, were lying. As per this witness, there were no marks or writing on the bag and the "Thaila" indicating to whom they belonged. He states that he does not remember whether the bag and the "Thaila" containing the contraband were first opened by the Police personnel or by the Panch witnesses. This witness further states in cross-examination that the Panchnama was drawn first in point of time and the complaint was registered later on. This witness was present when the contraband was seized but he does not utter a word about the compliance of the provisions of Section 50 of the NDPS Act. It is not stated by this witness that any offer was made by PW4 to the accused, to get themselves searched before a Gazetted Officer or a Magistrate or to conduct the searches of the members of the raiding party, if they so desired.
12. PW4 Navghanbhai Jesingbhai Jadav, Police Inspector, Local Crime Branch, Kheda, is the Raiding Officer who led the raid. This witness states that when the raiding party reached the spot indicated by the secret informant, they found that a bag was lying near the three accused persons who were sitting on a bench. One accused was sitting on another bench, near whom a "Thaila" was lying. He states that on seeing the accused persons, he got suspicious and asked them their names, in the presence of the Panch witnesses. As they did not give satisfactory answers, the bag and "Thaila" were searched in the presence of Panch witnesses, and the contraband was found. As per the testimony of this witness, the personal search of the accused was conducted thereafter. This witness states that before he searched the persons of the accused, he informed them that he was a Gazetted Officer and inquired whether they would like to get themselves searched by a Superior Officer. The accused declined the offer and this witness, therefore, proceeded to search the persons of the accused.
13. The testimony of this witness belies the recitals in the complaint and the Panchnama, which are to the effect that when the accused was asked what the bag and the "Thaila" contained, they replied that they contained Ganja. This witness categorically states that the accused did not give any satisfactory answer, therefore, the bag and the "Thaila" were searched first and thereafter the persons of the accused were searched. From the deposition of this witness, it is clear that no offer was made by him to get the personal searches of the accused conducted in the presence of a Gazetted Officer or a Magistrate. He merely informed them that he is a Gazetted Officer and asked whether they would like to get themselves searched by a Superior Officer. No mention is made of any offer to search them in the presence of a Magistrate. This witness contradicts the statements made by PW3 in cross-examination that the "Thaila" was lying on the ground, near the bench on which one of the accused was sitting. This witness states that the bag and the "Thaila" were both lying on the benches. Both PW3 and the present witness were present at the spot, but their versions regarding the bag and the "Thaila" differ.
14. PW5, Mansinh Ratansinh, who has been examined at Exhibit 20, was a Police Head Constable, serving at the Local Crime Branch, Kheda. His testimony reveals that he was present at the time of the raid. He states that on reaching the spot, the raiding party found three of the accused sitting on a bench and one accused sitting on another bench. One bag and one "Thaila" were found near them. On questioning, they revealed their names and addresses. Thereafter, the Panch witnesses were called. The bag and the "Thaila" were searched first. This witness states in cross-examination that the accused persons were questioned by PW4 in the presence of Panch witnesses. The testimony of this witness reveals that PW4 informed the accused that he was a Police Inspector and whether they wanted a Superior Officer to be called, or not. It does not transpire from the deposition of this witness that an offer was made to the accused whether they wanted to get themselves searched by a Gazetted Officer or a Magistrate.
15. PW6, Bhemaji Vaghaji was the Head Constable in Nadiad Rural Police Station at the relevant point of time. He has been examined at Exhibit22. Apart from the fact that he has registered the offence against the accused, his testimony does not merit any further discussion.
16. PW7 Somabhai Shanabhai was the Writer Head Constable at Nadiad Rural Police Station at the relevant point of time. He states that the muddamal remained in the said Police Station from 20.09.1994 to 18.10.1994. He further states that there is no particular reason why the muddamal was not sent to the FSL from 20.09.1994 to 18.10.1994. On 18.10.1994, the muddamal was handed over to PW8, Police Constable Kacharabhai Bhikhabhai, but it is stated that he does not have any written proof regarding this.
17. PW8, Kacharabhai Bhikhabhai has been examined at Exhibit 27. He states that the muddamal was handed over to him on 18.10.1994 by PW7. He states in cross-examination that he does not have any written proof regarding his handing over the muddamal to the FSL.
18. PW9 Kanubhai Bastabhai is a Head Constable in the Local Crime Branch, Kheda. He has produced the Entry No.80/44 dated 18.10.1994 made by Police Constable Mansinh in the Muddamal Register before the Court. He states that he has received two packets of muddamal in a sealed condition and has sent the same to the FSL on 24.10.1994.
19. The next prosecution witness is PW10 Abbasmiya Navrangbhai, who has been examined at Exhibit 31. He states that he was the Head Constable in the Anti Dacoity Squad and had accompanied the raiding party. He was told to procure the weighing scales and the weights, in order to weigh the contraband, by the Head of the raiding party. He has stated that he arranged for a person from a nearby shop to come with him along with weighing scales and weights. He further states in cross-examination that when he arrived at the spot, he saw the bag and the "Thaila" lying on the ground near the accused, three of whom were sitting on one bench and the fourth on another bench.
20. He further states that he did not ask the person who had come to weigh the contraband what his name was and neither did that person disclose it to him. This witness states that the accused persons were made to open the bag and the "Thaila" by the Police personnel. He states that no Ganja was recovered from the personal searches of the accused.
21. PW11, Arvindbhai Ranchhodbhai Patel, Police Sub Inspector, Anti Dacoity Squad, Kheda, is the Investigating Officer of the case. His deposition is to be found at Exhibit 32. He gives a detailed description of the secret information received by the Police and the raid conducted as a consequence thereof. He states that before the persons of the accused were searched, PW4, Police Inspector Mr.Jadav, informed them that he was a Gazetted Officer and whether they would like to get themselves searched by another Gazetted Officer. This offer was declined by the accused. Thereafter, PW4 conducted the searches of the accused. In cross-examination, this witness states that from the secret information received by the Police, he did not think that a cognizable offence had been committed, as the secret informant had only raised a suspicion. This witness further states that the bag and the "Thaila" containing the muddamal were recovered from an open place. He further states that the Panch witnesses were called when it was found that the bag and the "Thaila" contained Ganja. Immediately thereafter, this witness contradicts himself by saying that this is not true. He states that he does not know who had weighed the Ganja. This witness further discloses that he has not taken the statement of PW4, Police Inspector Mr.Jadav, during the investigation.
22. The last witness, PW12, is Abbaskhan Ahmedkhan. His deposition is at Exhibit 34. He is the second Investigating Officer of the case. In cross-examination, this witness categorically states that the muddamal was recovered from a public place.
23. The above, in totality, is the evidence adduced by the prosecution.
24. The Panchanama is at Exhibit16.
Though the recitals contained in it are in consonance with the complaint, it has not been proved, as both the Panch witnesses have not supported the case of the prosecution.
25. After appreciating the evidence discussed above, the Trial Court has recorded findings of acquittal in favour of the accused, mainly on the ground that the provisions of Section 50 of the NDPS Act have not been complied with. The second aspect that has weighed with the Trial Court is that the prosecution has failed to prove that the bag and the "Thaila" containing contraband were in the possession of the accused, giving them the benefit of doubt.
26. Insofar as the compliance of Section 50 of the NDPS Act is concerned, the testimonies of the Police witnesses, as discussed hereinabove, reveal that though PW4 has stated that he informed the accused that he is a Gazetted Officer and asked whether they would like to have their searches conducted before any other Gazetted Officer, there is no mention in his testimony or that of the other prosecution witnesses, that an offer was made to the accused that they could have their searches conducted before a Gazetted Officer or a Magistrate.
27. In State of Punjab Vs. Baldev Singh, reported in (1999) 6 SCC 172, elaborating on the provisions of Section 50 of the NDPS Act, the Supreme Court has held as below :
â25. To be searched before a gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with.
26. The safeguard or protection to be searched in presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of illicit drugs and narcotic substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate is a necessary sequence for enabling the person concerned to exercise that right under Section 50 because after Maneka Gandhi v. Union of India, it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not âreasonable, fair and justâ and when a statute itself provides for a âjustâ procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a gazetted officer or a Magistrate, would be violative of the âreasonable, fair and just procedureâ and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be a âfairâ, just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a gazetted officer or a Magistrate, if he so requires, would place any premium on ignorance of law. The argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a âreasonable, fair and just procedureâ.
28. As held by the Supreme Court in the above-quoted judgment, the rationale behind this provisions is that the search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceedings. A Gazetted Officer would not only mean a Police Officer but a Gazetted Officer serving in any other Department. In the present case, though it is stated by the prosecution witnesses that PW4 informed the accused that he, himself, was a Gazetted Officer and made an offer to get themselves searched by any other Gazetted Officer, however, no offer was made to get themselves searched before a Magistrate. As per the dictum of the Supreme Court in the above-quoted judgment, the provisions of Section 50 are required to be complied with scrupulously. After discussing the provisions of Section 50 of the Act and various other decisions of the Supreme Court, certain conclusions have been arrived at by the Supreme Court in the above-quoted judgment. They are reproduced hereinbelow:
â(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 subsection (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.
(4) xxxxxxxxxxx
(5) xxxxxxxxxxx
(6) xxxxxxxxxxx
(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.â
29. The settled legal position of law in this regard is, therefore, that failure to inform the accused regarding the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to the accused. The trial itself may not be vitiated on this count, however, failure to adhere to the provisions of Section 50 scrupulously, would render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused. In a case where the conviction has been recorded only on the basis of the possession of the illicit article, the contraband seized from the person of an accused during search conducted in violation of Section 50 of the NDPS Act cannot be used as evidence of proof of unlawful possession of the contraband against the accused.
30. Applying the principles of law enunciated by the Supreme Court hereinabove to the facts and circumstances of the present case, it is clear from the evidence of the prosecution witnesses that the provisions of Section 50 have not been scrupulously complied with. Partial compliance would amount to noncompliance, as it cannot be said that the mandatory provision of law has been complied with in letter and spirit. It may be possible that the accused would prefer to be searched in the presence of a Magistrate. If this option is never given to them, it would rob them of their valuable right enshrined in the Statute. This would certainly cause prejudice to the accused. In the view of this Court, the findings of the Trial Court that the accused are entitled to acquittal on the ground that there has been a violation of Section 50 of the NDPS Act, is just and proper.
31. Insofar as the possession of the bag and the "Thaila" containing the contraband is concerned, it has come in the evidence of PW3 and PW10 that the bag and the "Thaila" were lying on the ground. In contradiction thereto, other prosecution witnesses have stated that the bag and the "Thaila" were lying on the benches on which the accused were sitting. It has been stated by PW3, PW4 and PW12 that the bag and the "Thaila" containing the contraband have been recovered from a public place. There is no mark or indication on the bag and the "Thaila", linking them to any of the accused.
32. A careful scrutiny of the evidence in the present case goes to show that the prosecution has not been able to prove the possession of the bag and the "Thaila" containing the contraband by the accused, leave alone conscious possession of the same. The recital in the complaint, that on being asked regarding the contents of the bag and "Thaila", the accused stated that they contained Ganja, is not proved from the evidence on record. PW4, headed the raiding party, states in his testimony that on being asked what the contents of the bag and "Thaila" were, the accused did not give any satisfactory answer. It has come in evidence that the bag and the "Thaila" have been recovered from a public place. It has further emerged from the evidence of the prosecution witnesses that the bag and the "Thaila" were lying on the ground, though some witnesses have stated that they were lying on the benches. No connection has been established between the accused persons and the bag and "Thaila", indicating that the said articles belonged to the accused. Under such circumstances, it cannot be said that the bag and the "Thaila" containing the contraband were in the conscious possession of the accused. Though the contents of the Panchanama states that the accused, upon being asked regarding the contents of the bag and the "Thaila" have stated that they contain Ganja, however, as both the Panch witnesses have been declared hostile, the Panchnama has not been proved.
33. The Panch witnesses are the only independent witnesses in the present case but they have not supported the case of the prosecution. Though the evidence of the other prosecution witnesses, who are Police witnesses, cannot be disregarded only for the reason that they are members of the Police force and of the raiding party, however, it ought to find corroboration in material particulars from independent evidence. There are inherent contradictions in the evidence of the prosecution witnesses themselves, which do not inspire confidence and detract from the credibility of their testimonies. Most of the prosecution witnesses are stated to have witnessed the raid, but there is confusion whether the bag and the "Thaila" were lying on the ground or whether they were found on the benches on which the accused were sitting. As conscious possession of the bag and the "Thaila" containing the contraband has not been established by the prosecution, the finding rendered by the Trial Court in this regard, is worthy of acceptance.
34. In a Criminal trial, the onus to prove the commission of the offence rests upon the prosecution. Only when the evidence adduced in a case is consistent with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, can the Court record a finding of guilt against the accused. Where the prosecution has been unable to prove the case beyond reasonable doubt, the accused may be given the benefit of doubt. Further, it is now settled law that where there is a possibility of two views, the one favourable to the accused ought to be taken. The view adopted by the Trial Court that the case has not been proved against the accused beyond reasonable doubt is the only possible and probable view, looking to the evidence in the present case.
35. In the view of this Court, there is no justifiable reason to interfere with the findings of acquittal recorded by the Trial Court.
36. For the aforestated reasons, the appeal fails, and is dismissed.