Salim S/O Abdul Razzak and anr. Vs. Narcotics Control Bureau - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr......orderj.g. chitre, j.1. heard shri h. s. oberai, counsel for the appellants. shri s. s. das, counsel for the ncb delhi. both of them have been heard at length in reference to evidence on record.this appeal and other appeals have been filed in the month of december, 1995 and the first order has been passed by this court on 12-1-1996. since 12-1-1996, all attempts are being made for the purpose of effecting service on the respondent. with lot of efforts respondent could be served on 23-9-1996. thereafter, mr. s. s. das, had sent a telegram requesting for the adjournment. the adjournment was so sought by the respondent for enabling mr. das to argue this matter and that was granted in the interest of justice.i.a. 389/96 has been heard.mr. oberai submitted that though three prosecution.....

Judgment:
ORDER

J.G. Chitre, J.

1. Heard Shri H. S. Oberai, counsel for the appellants. Shri S. S. Das, counsel for the NCB Delhi. Both of them have been heard at length in reference to evidence on record.

This appeal and other appeals have been filed in the month of December, 1995 and the first order has been passed by this Court on 12-1-1996. Since 12-1-1996, all attempts are being made for the purpose of effecting service on the respondent. With lot of efforts respondent could be served on 23-9-1996. Thereafter, Mr. S. S. Das, had sent a telegram requesting for the adjournment. The adjournment was so sought by the respondent for enabling Mr. Das to argue this matter and that was granted in the interest of justice.

I.A. 389/96 has been heard.

Mr. Oberai submitted that though three prosecution witnesses namely Ratandas, Bhattacharya and Misra have stated on oath in their examination in chief that they had informed the appellants and other co-accused that those accused were having the right to be searched before the gazetted officer or magistrate, nothing to that effect has been mentioned in panchnama Ex.P.4. He argued that this is the development which those officers have made in their evidence for the purpose of showing that they had complied with mandatory provisions of section 50 of NDPS Act.

Shri Oberai argued that this development has been made by panch witnesses because they found that their case would fail in the absence of such development and such evidence. Shri Oberai placed reliance on the judgments of Supreme Court in the matters of following :

(1) Balbirsingh v. State of Punjab reported in 1994(3) SCC 299 and

(2) T. P. Razak alias Razak v. State of Kerala reported in 1996 SCC (Cri.) 57.

He pointed out that in those two cases the Supreme Court held that :

'Every accused who is to be searched for an offence, punishable under provisions of NDPS Act, is having a right to be searched before a gazetted officer or magistrate. Failure would vitiate the trial.'

He pointed out further that facts of T. P. Razak's case are similar to the present case. Shri Oberai pointed out that in Razak's case (supra) it has been pointed out by the Supreme Court that -

'When P.W. 4 in that case deposed in the court by stating that at the time of search P.W. 4 had asked the said accused whether said accused wanted to be taken before gazetted officer or magistrate for conducting search and said accused had replied that it was not necessary.'

It has been pointed out in the said judgment that -

'that the fact, however was not mentioned in FIR - Ex.P.7 as well as in the seizure memo-Mazarat Ex.P.1.'

The Supreme Court observed in the said judgment that -

'Other witnesses of the search also did not support the said version of P.W. 4'.

In view of that judgment the Supreme Court held that -

'There was no compliance of section 50 of NDPS Act.'

Shri Oberai pointed out that learned trial Judge has not considered this aspect and non support of other prosecution witnesses on the point, properly and has erroneously concluded that the prosecution proved that there was compliance of provisions of section 50 of NDPS Act. He submitted that in view of this, the conviction of the appellant happens to be bad in law and the appellant would definitely succeed in appeal.

Repelling this, Shri Das submitted that those three witnesses had no enmity with the appellants and there was no reason for them to make such development. He pointed that provisions of section 50 no where indicate that there has to be a memorandum of the act of informing the accused that he has the right of being searched before a gazetted officer or magistrate.

He submitted that learned trial court has rightly held that the prosecution established that there was compliance of provisions of section 50 of the NDPS Act.

In addition to that, Shri Das submitted that all the appellants stated before the officers of NCB Delhi in view of provisions of section 67 of NDPS Act and those statements are forming the part of evidence. He had submitted that in view of this also, the conviction is correct, proper and legal. Shri Das further submitted that smack weighing 4 kg. and 700 gms. was found in possession of present appellant Salim and, therefore, the sentence passed against him, does not deserve to be suspended.

Shri Das again submitted that in view of provisions of section 37 of NDPS Act, the High Court does not have the power to suspend the sentence of an offence under provisions of NDPS Act. He submitted that thus, prayer made by the appellant for suspension of sentence be rejected.

Section 389 of the Code of Criminal Procedure (hereinafter referred to as Code for short) starts with the sentence -

'Pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.'

Section 37 of the NDPS Act reads :

'Notwithstanding anything contained in the Code of Criminal Procedure, 1973 - (a) every offence punishable under this Act shall be congnizable, (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.'

Sub-section (2) provides -

'The limitation on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail.'

Provisions of section 389 of the Code are in respect of suspension of sentence and provisions of section 37 are in respect of fetters applied on the power of court to grant bail in view of section 4.37 and section 439 of the Code. Provisions of section 389 are independent of provisions of section 37 and are not eclipsed by fetters indicated by provisions of section 37 of N.D.P.S. Act. Furthermore, it needs to be mentioned here that section 37 has also provided that the court should see that it is satisfied that there are reasonable grounds for believing that the 'accused is not guilty'. Words reasonable grounds do not indicate 'innocent', 'not guilty at all'. The court need not to be satisfied that such accused is 'innocent' or not 'not guilty at all'. The court should form an idea in its mind that there are reasonable grounds for believing that accused is not guilty. Therefore, the court has to see as to what is the strength of prosecution evidence which has been adduced by the prosecution for such accused. It has to consider as to what is the quality of prosecution evidence.

Generally the appellate court should not express its opinion about the merit of the appeal, at the stage where the appeal is not heard finally, but in view of provisions of section 37 of N.D.P.S. Act, and the arguments which are generally advanced on behalf of prosecution, it becomes necessary to indicate somewhere as to what is the quality of evidence which the prosecution has adduced and what is the strength of prosecution evidence which has been adduced against the accused or against the appellant who is appealing to the High Court by way of appeal assailing an order of conviction and sentence passed by the trial Court against him.

The domain of criminal prosecution is acquainted with all developments made by prosecution and prosecution witnesses for whitewashing infirmities. Earliest documents are definitely important so far as assessment of the 'reasonable grounds.' When the seizure panchnama is drawn in detail, such statements which have been stated by those three witnesses, would have been definitely mentioned in said panchnama, had there been force in the contention of the prosecution. The learned trial Judge has not considered this important aspect keeping in view those two judgments of Supreme Court mentioned above.

Suffice it to say at this stage that this court finds that the prayer made by appellant Salim for suspension of sentence deserves to be considered in view of the quality and strength of prosecution evidence which has been adduced tinted with criticism of 'development'.

Each and every prosecution agency should appoint its advocate in every court to assist the court and for putting the case of the prosecution at all stages of the trials or appeals. It is in the interest of prosecution agency, public at large and interest of justice. The agency which has been entrusted with the duty of serving the notice should give priority to this work and effect the service on the respondents or opponents at early time or at least in reasonable time. The investigating agency, prosecution should appoint standing counsel, if necessary, in all concerned courts. The courts should not be required to wait for very long time for the simple work of service of notice or summons. There is a limit for such waiting. Attendance in courts at the time of hearing of lis is equally important duty of all concerned persons. Time has come that all government departments, corporations and institutions functioning in the interest of public, should take a serious note of it.

Thus, the prayer for suspension of sentence is hereby allowed. The substantive sentence passed against the appellant Salim as well as sentence of fine stand suspended on appellant furnishing security to the extent of Rs. TWO LAKHS by each with ONE TWO THREE OR FOUR SURETIES as the need requires with PR bond to that extent of Rs. TWO LAKHS, before trial Court. He shall not leave India without prior permission of this court. He should surrender his passport, if any, before trial court. He shall attend P.S. Ratlam on every Sunday at any time between 8.30 a.m. to 4.00 p.m. He shall attend this court on 19-11-1996 at 10.30 a.m. C. C. on payment.