Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 30TH DAY OF APRIL 2020 / 10TH VAISAKHA, CRL.A.No.244 OF 2006 AGAINST THE ORDER/JUDGMENT IN SC 576/2003 DATED 11-012006 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD APPELLANT/S: ANILKUMAR AGED 42 YEARS S/O.C.K.KRISHNAN, MATTALAI, PILICODE VILLAGE,, PILICODE P.O. KASARAGOD DISTRICT. BY ADVS. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENT/S: STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. R1 BY PUBLIC PROSECUTOR OTHER PRESENT: B.JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2020, THE COURT ON 30-04-2020 DELIVERED THE FOLLOWING:
V.G.ARUN, J.
----------------------------------------------- Crl.A.No.244 of 2006 ----------------------------------------------- Dated this the 30th day of April, 2020
JUDGMENT
The appellant stands convicted for the offence under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and is sentenced to undergo rigorous imprisonment for five years and six months and to pay a fine of Rs.50,000, with a default sentence of one year. The prosecution allegations, based on which the appellant was charged, tried and convicted, reads as under; By around 7:30 PM on 3-8- 2002, the Sub Inspector of Police, Chandera Police Station (PW1) received secret information that a person by name Anil Kumar (appellant) would be reaching the bus waiting shed situated at Matlayi by around 8:30 PM for the purpose of selling the opium in his possession. Immediately, PW1 recorded the information in the General Diary, intimated his Superior Officer, the Circle Inspector of Police, Nileshwaram and proceeded to the spot. The police party lay in wait near the bus waiting shed and by around 8:45 PM, the appellant reached the spot in an autorikshaw and entered the bus waiting shed. Immediately, the Police party rushed to the waiting shed and on the Crl.A.244/06 3 appellant attempting to flee, apprehended him. PW1 thereupon, asked the appellant whether he required the presence of a Gazetted Officer while his body was searched and on the appellant answering in the negative, his body was searched and a plastic packet recovered from the pocket of his pants. On examination, the packet was found to contain opium, for the possession of which the appellant had no licence. The opium was weighed and found to be 350 gms in weight. Two samples of 25 gms each, were collected from the contraband and were packed and sealed separately. The remaining opium was also packed and sealed in the same manner. Ext.P3 seizure mahazar was prepared and the accused was arrested. Exhibit P4 FIR was registered thereafter. Later, Exhibit P8 chemical analysis report was received finding the sample to be opium.
2. In order to prove the prosecution case, PWs 1 to 5, were
examined and Exhibits P1 to P8 documents and M.Os 1 to 3 material objects were marked in evidence. The appellant denied the incriminating circumstances put to him during his examination under Section 313 of the Cr.P.C, but did not choose to adduce any defence evidence, either oral or documentary. The trial court, on appreciation of evidence and after considering the rival contentions, found that the prosecution had succeeded in proving the accused guilty and thereupon convicted him for the offence under Section 17 of the NDPS Act. Crl.A.244/06 4
3. Heard Sri.K.Srihari Rao, the learned Counsel for the appellant
and Sri. B. Jayasurya the learned Public Prosecutor. The learned Counsel for the appellant assails the trial court judgement primarily on the ground of violation of Section 50(1) of the NDPS Act. It is contended that the mandatory requirement of making the accused aware about his right to be examined before a Gazetted Officer or a Magistrate having not been complied with, the investigation, and consequently the trial, stood vitiated.
4. In support of the contention regarding non-compliance of the
mandatory requirement under Section 50, the learned counsel drew attention to the oral evidence tendered by PW1. In his chief examination, PW1 had stated that after detaining the accused, he was asked whether he wanted to be searched in the presence of a Gazetted Officer and the accused had answered in the negative. Even though in Ext.P3 seizure mahazar PW1 stated that the accused had written down a statement that he did not require the presence of a Gazetted Officer while searching his body, PW1 made no mention about that written statement during his oral testimony, nor was the written statement produced in evidence. It is pertinent to note that, PWs 2 and 3, the alleged independent witnesses to the search and seizure having turned hostile, the court was left with only PW1s evidence regarding those aspects.
5. In the above background, the short question to be considered
Crl.A.244/06 5 is whether the oral testimony of PW1 is sufficient to prove that the search was conducted after complying with the mandate of Section 50 and if not, whether there was any other reliable evidence before the trial court to prove siezure of the contraband from the possession of the accused.
6. The impact of non-compliance of the mandate of Section 50 of
the NDPS Act had engaged the attention of the Hon'ble Supreme Court on myraid occassions and divergent views had been expressed by diifferent Benches. In State of Punjab V. Balbir Singh [(1994)3 SCC 299], compliance of the requirement of Section 50 was held to be mandatory and its breach fatal. Later, in State of Himachal Pradesh V. Pirthi Chand [ (1996) 2 SCC 37], it was held that the breach would not effect the trial under all circumstances. The question was therefore referred to a Full Bench. The Bench answered the reference in State of Punjab v. Baldev Singh [(1999) 6 SCC 172) and concluded as under; “57. On the basis of the reasoning and discussion above, the following conclusions arise:
(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 Crl.A.244/06 6 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) 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 the 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 undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.
(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 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 Crl.A.244/06 7
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.
(8) A presumption under Section 54 of the Act can
only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.
(9) That the judgment in Pooran Mal case cannot be
understood to have laid down that an illicit article seized during a search of a person, on prior information, 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 case correctly
interprets and distinguishes the judgment in Pooran Mal 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.”
7. Though the theory of substantial compliance was mooted in
some of the later judgments of the Apex Court, the substantial compliance theory was found to be unacceptable, considering the Crl.A.244/06 8 gravity of the punishment for offences under the NDPS Act and the requiriment of strict compliance was propounded (See Mohanan V. State of Kerala [(2000) 10 SCC 222], State of Delhi v. Ram Avtar@Rama [(2011) 12 SCC 207) and Vijay Singh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609]. In State of Rajasthan V. Paramanand [2014 5 SCC 345], after considering the precedents the Apex Court exposited as follows;
“17.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 the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh [Paramjit Singh v. State of Punjab, (1997) 1 Crimes 242 (P&H)] and the Bombay High Court in Dharmaveer Lekhram Sharma [Dharmaveer Lekhram Sharma v. State of Crl.A.244/06 9
Maharashtra, (2001) 1 Crimes 586 (Bom)] meets with our approval.”
8. What emerges from a conspectus of the above decisions is
that the mandate of Section 50 has to be complied with in letter and spirit. The accused must be made aware of his right to be examined before a Gazzetted Offficer or Magistrate and their presence during search ensured, if so demanded. Mere lip service, by asking the accused as to whether he wanted to be searched in the presence of a Gazetted Officer, as was done in the instant case, is to say the least, making a mockery of the mandate. Surprisingly, during Section 313 quetioning, the learned Sessions Judge also did not pose any question to the appellant regarding the claim of PW1 of having complied with the mandate of Section 50. The witnesses to the search and siezure having turned hostile there was no independent evidence regarding siezure of opium from the possession of the accused. Therefore, the conviction of the appellant cannot be sustained. In the result, the impugned judgment is set aside, the appellant is
held not guilty of the offence under Section 17 of the NDPS Act and is
acquitted. The bail bonds executed by the appellant will stand cancelled and the fine amount, if any, remitted by the appellant shall be refunded. Sd/- V.G.ARUN, JUDGE vgs