Nagulal Vs. Central Narcotics Bureau - Court Judgment

A.K. Tiwari, J.

1. Appellant herein stands convicted under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') by 6th Additional Sessions Judge, Ujjain (M.P.) by judgment and order passed on 20-8-1998 in Sessions Trial No. 361/1994.

2(a). Briefly stated the prosecution's case is that on 4-4-91, Ishwar Prasad Verma (P.W. 4) was posted as Sub Inspector at the Office of Opium Officer, Ujjain. Ramesh Kumar Sharma (P.W. 6) was posted as Sub Inspector, on that date at the Narcotics Office, Ujjain. On that day at about 11.00 a.m. Ishwar Prasad Verma (P.W. 4) and Ramesh Kumar Sharma (P.W. 6) and Sub Inspector Ramjilal had gone for checking the passenger buses. At about 12.00 a.m. bus belonging to M.P. State Road Transport Corporation plying from Mahidpur to Vidisha and which was going towards Ujjain arrived at Dewas Naka. The bus was checked by Ishwar Prasad Verma (P.W. 4), Ramesh Kumar Sharma (P.W. 6) and other members of the checking party. Two persons, who were seated on Seat Nos. 22 and 23 of the bus, seemed dubious. Those persons were interrogated. On being interrogated, one person gave his identity as Nagulal s/o Manguji Balai r/o Chhota Khajrana Tal District Ratlam while the other was Abdul Hamid s/o Alam Khan Musalman r/o Nai Abadi Dewas.

2(b). On being interrogated further, Nagulal admitted that he was carrying opium with him kept inside the waist coat (Bandi) worn by him. He also admitted that opium was being carried in the partnership of Abdul Hamid. Both the persons were asked to get down from the bus. They were brought to check post (Dewas Naka) which was situated about 10 paces ahead. There, the waist coat (Bandi) tied around the body of appellant Nagulal was taken away from the body before the witnesses and the driver and conductor of the bus. A black coloured substance was recovered from the secret pockets of the 'bandi' (waist coat) of the appellant Nagulal. The substance was examined by testing it and it was found to be opium. The weight of the substance was found to be 1.200 kilograms. Out of this recovered substance, two samples of 25 grams each were taken out from the substance. Samples and the remaining contraband substance were separately sealed and seized. The samples were sealed in empty pockets of cigarettes and thereafter they were got sealed. The seizure memo Ex. P-l was prepared.

2(c). Appellant Nagulal and co-accused Abdul Hamid were arrested vide seizure memo Ex. P-l. Travelling tickets of the bus and currency notes were seized from their pockets. Seized opium, samples and the accused persons were brought to the office and they were kept in the custody. C.L. Sunhare (P. W. 5) was deputed to conduct further investigation. Both the accused persons were interrogated by him and appellant Nagulal admitted having the opium in his Bandi. The statements of the accused persons Ex. P-6 and P-7 were recorded by C.L. Sunhare (P. W. 5). Samples were sent to Government Opium & Alkaloid Works, Neemuch for analysis. After completing the investigation, a complaint was filed against the appellant and dead co-accused Abdul Hamid before the Court of CJM, Ujjain who committed the case to sessions.

3. Learned Trial Court framed charges under Section 8/18 of the Act against the appellant and co-accused. They abjured the guilt and they were put to trial. During the pendency of trial, co-accused Abdul Hamid died. Hence, trial proceeded against the appellant alone and after trial; he was convicted under Section 8/18 of the Act. Hence, appellant has filed this appeal.

4. Contention of the learned Counsel for the appellant is that prior to the search; appellant was not informed of his right of being searched in the presence of gazetted officer or any Magistrate. Therefore, his conviction under Section 8/18 of the Act is not sustainable in law and deserves to be quashed.

5. Per contra, learned Counsel for the respondent has vehemently argued that search was not conducted on the basis of any prior information. Therefore, the provisions of Sections 50 of the Act are not attracted at all. It has also been submitted by the learned Counsel for the respondent that Gazetted Officer H.S. Punsi was himself present there. Hence, no requirement to ask for the option existed any further.

6. The search in question certainly falls under the category of personal search. The question for consideration is- Whether search was conducted without any prior information and whether recovery could be termed chance recovery and the provisions of Section 50 of the Act shall be applicable or not ?

7. The contention of the learned Counsel for the appellant is that search was not conducted on prior information; therefore, the recovery amounts to chance recovery and provisions of Section 50(1) of the Act are not applicable. No other bus excepting the bus in which the appellant and the other accused were travelling was checked by the party. The party was interested in checking one particular bus only which clearly points out that they might be having some prior information regarding the transportation of contraband substance by that particular bus. Therefore, the contention of the learned Counsel that search was not made on prior information can not be accepted. Ramesh Kumar Sharma (P. W. 6) has admitted in Paragraph 8 of his statement there was information from the intelligence and such information is not recorded. Therefore, it is not proved that the search was made without having any prior information and the recovery can not be termed as chance recovery. Hence, provisions of Section 50(1) of the Act will be applicable.

8. Admittedly, appellant had not been informed of his right of being searched before gazetted officer or magistrate. No witness examined on behalf of the prosecution has stated to the effect that appellant was informed regarding his right of being searched before gazetted officer or magistrate. What is submitted on behalf of the respondent is that Opium Officer H.C. Punsi was present at the time of the search and appellant was searched before him. Therefore, no question of informing the right of the appellant of being searched before gazetted officer or magistrate arises because search was conducted in the presence of gazetted officer himself, which amounts to proper compliance of Section 50 of the Act. This contention of the learned Counsel for the respondent can not be accepted.

9. Ramesh Kumar Sharma (P.W. 6), who conducted the search, has stated in Paragraph 3 of his statement regarding the seizure from the appellant. In this paragraph, he has not stated that Bandi which was tied up on the body of the appellant was taken off from his body before the Opium Officer H.C. Punsi. In Paragraph 4 of his statement, this witness has stated that after effecting the seizure of opium, the search of appellant was conducted before Opium Officer H.C. Punsi in which Rs. 5/- were recovered from the pocket of his shirt and panchnama Ex. P-2 was prepared in this regard. It is thus, clear that the opium was not seized before the Opium Officer H.C. Punsi. H.C. Punsi has not been examined by the prosecution. None of the witnesses has proved his signatures on Ex. P-l or Ex. P-2. The presence of Opium Officer and his signatures can not be taken for granted. Therefore, the fact that the search of the appellant conducted before H.C. Punsi, Opium Officer is not proved beyond reasonable doubt.

10. Obviously, the statements of the prosecution witnesses as far as they relate to the fact that search of the appellant was conducted before H.C. Punsi Opium Officer and seizure was made before him are not reliable and the fact that seizure of the contraband opium was made before H.C. Punsi Opium Officer becomes doubtful. Therefore, the fact that the seizure of the opium was made before H.C. Punsi can not be held to be proved beyond reasonable doubt. According to the established principle of law, the benefit of every doubt goes to the accused.

11. In the case of Mahendra v. State of M.P., reported at 1996 (2) EFR 298, relied by the learned Counsel for the respondent, it has been held that when the seizure has taken place in the presence of gazetted officer, it is not necessary that accused be given further option for search before Magistrate. In the present case, it has not been proved that search and seizure was effected in the presence of H.C. Punsi, the. Opium Officer. Secondly, in the case of Mahendra, (supra) search was made after obtaining the consent of the accused. In the present case, no consent from the appellant has been obtained. In the facts and circumstances of the case, respondent does not get any help from the Mahendra's case (supra).

12. In the above state of the matter, it is held that non- compliance of Section 50(1) of the Act has been occasioned in the present case which tends to vitiate the conviction of the appellant.

13. Consequently, this appeal is allowed. The appellant is acquitted of the charge under Section 8/18 of the Act. The seized property shall be disposed of in accordance with the Trial Court's order.