Ayub Khan Vs. State of Rajasthan - Court Judgment

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narcotic drugs and psychotropic substances act, 1985 - section 41, 42 and 50--recovery of smack--search and seizure -non-compliance of section 50 of the act--search conducted by constable who was not at all an officer authorised under section 42. ;narcotic drugs and psychotropic substances act, 1985 - section 27(2)--possession of 3.470 gms of smack--burden lies on the accused to prove that such small quantity of narcotic drug or psychotropic substance recovered from his possession was intended for his personal consumption and not for sale or distribution--accused-appellant could not discharge the burden to prove that the recovered small quantity of smack was meant for his personal consumption and not for sale--appeal succeeds. - - balbir singh (1994 (1) 516 (sc), as well as the judgment of the supreme court in the case reported in 1995 (2) efr 342 (sc), the supreme court has specifically dealt with later part of section 50 of the act. ' 16. from the prosecution evidence discussed in the earlier part of the judgment, it is well established that search of the accused appellant was conducted by pw4 pokharmal, constable.sharma, j.1. in brief the prosecution case is that on 16.6.1999 at 11 am, pw3 rajesh chaudhary, sub inspector informed pw6 shri rajendra singh. sho, kotwali that one person named ayub aged about 30 years having a country made 'katta' with him was waling near namak mandi, kishanpole bazar, jaipur having received information, the sho recorded the information in rojnamamcha, ex.p. 14a) and then he along with police personnel's proceeded to kishanpole bazar in a government vehicle. the sho then secured the presence of motbirs. thereafter, the police party encircled the accused and apprehended him. the sho gave the accused a notice (ex.pl) under section 50 of the act and informed him of his legal right to have his search conducted either in the presence of a gazetted officer of the police departmentor of any other department or in the presence of a judicial magistrate. the accused gave his consent in writing that his search be conducted by the sho himself. thereafter, the sho got conducted the search of accused by pw4 pokhar mal, constable. during search two packets containing smack was recovered from the right pocket of the trouser of the accused. accordingly, checking and seizure memo ex. p3 was prepared in the presence of pw1 moti ram and pw 2 arjundas. the accused was arrested vide arrest memo ex.p7.2. on completion of aforesaid formalities, pw6 rajendra singh prepared a detailed report and on the basis of which a case was registered vide fir, ex.p16. during investigation, the police recorded the statements of witnesses under section 161 cr.p.c. and sent the smack to the fsl for chemical examination. after due investigation, the police submitted a charge sheet against the accused in the court of learned special judge, ndps cases, jaipur.3. the learned trial court, after hearing arguments of counsel for the parties, framed charge against the accused under section 8/21 of the act. the accused denied the charge and claimed trial. during trial, the prosecution in support of its case examined as many as 6 witnesses and exhibited some documents. thereafter, the accused was examined under section 313 cr.p.c. he did not examine any witness in his defence.4. the learned special judge, ndps cases, jaipur, on conclusion of trial, arrived at a conclusion that the prosecution has been able to prove beyond reasonable doubt that the accused was found in possession of smack, which was recovered from the right pocket of his trouser. the learned special judge found the accused appellant guilty of having committed offence under section 8/21 of the act and accordingly, vide its judgment and order 22.12.2000 convicted the accused appellant of the said offence and sentenced him to undergo rigorous imprisonment for 10 years with a fine of rs. one lac, in default of payment of fine, to further undergo simple imprisonment for two years.(5). feeling aggrieved by the aforesaid judgment of conviction and sentence, the appellant has preferred this criminal appeal under section 374 cr.p.c.6. 1 have heard learned counsel for the parties and perused the impugned judgment and the evidence on record.7. mr. biri singh sinsinwar, learned counsel for the accused appellant has assailed the conviction of the appellant on two grounds, namely, (i) that there was complete non-compliance of the mandatory provisions of section 50 of the act. referring to the prosecution evidence, mr. biri singh has submitted that the appellant was searched by a constable of police under the directions of station house officer. he submitted that search having been taken by a person other than the person authorised by section 42 of the act is illegal and thus the unauthorised illegal search has resulted in vitiating trial against the appellant. in support of his argument, learned counsel has placed reliance on slate of punjab v. balbir singh (1), and dilkush g. sinoi v. state of goa (2), and, (ii) that very small quantity of smack was recovered from the possession of the appellant, which was for his personal consumption and not for sale. he submitted that prosecution has not been able to establish that the appellant had kept the smack with him for sale or distribution in support of his argument, mr. biri singh has relied upon gaunter edwin kircher v. state of goa, secretariat panaji (3), raju @ salam v. state of kerala (4), and p.p. beeran v. state of kerala (5).8. on the other hand, learned public prosecutor has supported the findings arrived at by the learned trial court and has submitted that the judgment under appeal is based on proper appreciation of evidence and it does not call for any interference.9. from the facts narrated above, it is clear that search of the appellant was got conducted by pokharmal, constable no. 4458. the search and seizure memo ex.p3 prepared by pw6 rajendra singh, sho makes it very clear that he got the search of accused conducted by pokharmal, constable no. 4458. pokharmal was examined as pw 4. he has stated in his examination in chief that at the instructions of incharge, he gave his search to the motbirs and thereafter he searched the accused and recoveredsmack from his possession. pw 3 rajesh chaudhary, assistant sub inspector has categorically deposed that pursuant to the direction of sho, pokharmal first got himself searched by the witnesses and thereafter he conducted the search of the accused. pw6 rajendra singh sho himself has stated that after the accused consented for his search to be conducted by the sho, he got constable searched by two witnesses namely pw1 moti ram and pw2 arjun das. the witness then stated that pokharmal. constable conducted conducted search of the accused under his instructions.10. thus from the evidence discussed above, it becomes clear that search of the accused appellant was conducted by pw4 pokharmal, constable. the question that falls to my consideration is, whether in the present case the search conducted by constable pokharmal under the instructions of pw6 rajendra singh sho can be held to be in consonance with the requirements of the provisions of section 50 of the act11. to proceed further, it would be appropriate to refer to the provisions of section 50 of the act. section 50 reads as under:'conditions under which search of persons shall be conducted:- (i) when any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so required, lake such person without unnecessary delay to the nearest gazetted officer of any of the department mentioned in section 42 or to the nearest magistrate. (ii) if such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the magistrate referred to in sub-section (i). (iii) the gazetted officer or the magistrate before whom any person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (iv) no female shall be searched by anyone excepting a female. 12. undisputedly, the provisions of section 50 of the act are mandatory in character and violation thereof is fatal to the prosecution. when any officer duly authorised under section 42 of the act is about to search a person, he is bound to inform the suspect that he had a right to be searched before the gazetted officer or a magistrate. if the suspect makes a choice then it is for the authorised officer to take him either before the gazetted officer or the magistrate.13. thus, it is a condition precedent that a person (officer) taking search of a suspect must be duly authorised officer under section 42 of the act. in the case in hand, it is an admitted fact that constable pokharmal searched the accused appellant and that he was not at all an officer authorised under section 42 of the act to lake search of the appellant. the officer authorised under section 42 of the act was pw6 rajendra singh, sho, who could have searched the appellant. in this fact situation, the question now comes up for consideration is whether in the present case, the search conducted by pokharmal under the directions of pw6 rajendra singh, an officer authorised under section 42 of the act can be held to be in consonance with the mandatory provisions of section 50 of the act?14. in state of punjab v. balbir singh (supra), their lordships of the supreme court have held that the search conducted by a person other than an officer empowered under sections 41 or 42 of the act would be illegal. the relevant observations in para 25 of the judgment are reproduced below:'....likewise, only empowered officer or duly authorised officers as enumerated in sections 41(2) and 42(1) can act under the provisions of the ndps act. if such arrest or search is made under the provisions of the ndps act by anyone other than such officers, the same would be illegal.'15. similar controversy as in the present case arose before the division bench of bombay-panaji-goa bench in dilkush g. sinai v. state of goa (6), wherein the search of accused was conducted by panch witness. the division bench formed a question as to what is the legal effect of the search having been conducted by the panch witness and not by the authorised officer. having considered the provisions of sections. v and 42 and the effect of non-compliance of section 50 of the act and after relying upon the various decisions of the apex court, the division bench observed as under:we are conscious of the fact that the above referred judgment of the supreme court in the case of state of punjab v. balbir singh (1994 (1) 516 (sc), as well as the judgment of the supreme court in the case reported in 1995 (2) efr 342 (sc), the supreme court has specifically dealt with later part of section 50 of the act. after considering the ratio of the above referred two judgments of the supreme court, we hold that the entire section 50 of the act is mandatory and non-compliance or contravention of the said section vitiate the trial and the conviction. in other words, if a search is conducted by a person, however, high or low other than an authorised officer under the act, such search would be illegal so as to affect the prosecution case and so as to vitiate the trial itself.'in para 15 of the judgment the division bench held as under:'we have, therefore, no hesitation in upholding the submission of the learned counsel for the appellant on this aspect of the case. we hold that the said search was effected by a person unauthorised to effect the search under the law. we hold that the trial of the accused was vitiated as a result of the said unauthorised illegal search.'16. from the prosecution evidence discussed in the earlier part of the judgment, it is well established that search of the accused appellant was conducted by pw4 pokharmal, constable. in view of the mandatory character of section 50 of the act which provides for search of a suspect to be conducted by any officer duly authorised by section 42 of the act, and in the light of the law laid down by the apex court in state of punjab v. balbir singh (supra) and by the division bench of bombay-panaji-goa bench in dilkush g. sinai v. state of goa (supra), it because abundantly clear that the search under the ndps act if conducted by a person other than the person duly authorised under sections 41 or 42 of the act the same would be unauthorised illegal search. therefore, the search in the present case having been conducted by a constable cannot be said to be in consonance with the provisions of section 50 of the act and i have no hesitation in holding that the search was effected by a person, namely pw4 pokharmal, constable unauthorised to effect the search under the law, which has resulted in vitiating the trial against the accused appellant.17. now 1 shall deal with second limb of argument. the quantity of the recovered smack was 3.470 gms. the central government vide its notification dated i6th july 1996 has made it clear that quantify of smack to the extent of 5 grams or less shall be termed as 'small quantity'. explanation (1) appended to section 27 of the act provides that for the purposes of this section 'small quantify' means such quantity as may be specified by the central government by notification in official gazettee. since the central government vide its notification has specified the quantity of 5 grams or less of smack as 'small quantity, therefore, the 3.470 grams of smack recovered from the possession of accused appellant is covered by explanation (1) to section 27 of the act, as 'small quantify.'18. explanation (2) to section 27 of the act provides that where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of providing that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person.19. from a reading of the provisions of section 27 of the act it is clear that burden lies on the accused to prove that such small quantity of narcotic drug or psychotropicsubstance recovered from his possession was intended for his personal consumption and not for sale or distribution. it has now to be seen, whether in the present case the appellant has been able to discharge this burden successfully that 3.740 grams of smack found in his possession was intended for his personal consumption and not for sale or distribution.20. pw.3 rajesh chaudhary, asstt. sub inspector has, in his cross examination, stated that accused while running had told 'mere pas smack hei, me1n smack peeta hoon.' pw.4 pokharmal has also stated that accused informed' him that he was having smack and he used to consume the same. similarly, pw.6 rajendra singh, sho has also stated that accused told him that he used to consume smack. the accused in his statement under section 313 cr.p.c. has deposed that be used to consume smack.21. thus the only evidence available on record is that the accused appellant before his search disclosed to pws 3, 4 and 6 that the smack in his possession was intended for his personal consumption, and the statement of the appellant to the same effect that it was for his personal consumption.22. in gaunter edwin kircher v. state of goa (supra), relied upon by the counsel for the appellant, the accused was a foreign national and he was found in possession with narcotic substance in a pouch along with smoking pipe including the smoking material and the accused discharged the burden that it was intended for his personal consumption, as provided by exp.(2) to section 27 of the act. whereas, in the present case the only evidence is the disclosure of the accused to the witnesses that smack in his possession was for his personal consumption. mere disclosure does not mean proof of a fact disclosed. thus, the case cited above is of no help to the accused appellant.23. in raju alias salam v. state of kerala (supra) the quantity of contraband which the accused was carrying was valued at rs. 25/- only, keeping in view the value of brown sugar the apex court observed that there is no evidence on the basis of which an inference can be drawn that such small quantity was purchased by the accused for sale for making any profit out of it. thus, this case is also of no help to the accused appellant.24. in p.p. beeran v. state of kerala (supra), the apex court while dealing with similar situation, viz., the accused in that case disclosed to pw2 at the very out-set itself that the opium in his possession was intended for his personal consumption and legally the same cannot be used as evidence, set aside the conviction and sentence awarded to the accused and remitted the case to the trial court for the limited purpose of affording the appellant an opportunity to adopt a defence under section 27 of the ndps act. however, in the present case, there was sufficient opportunity with the appellant to prove that such small quantity of smack recovered from the possession was intended for his personal consumption and not for sale.25. the argument of the learned counsel for the appellant on the second ground this stands repelled and it is held that accused appellant could not discharge the burden to prove that the recovered small quantify of smack was meant for his personal consumption and not for sale.26. for the reasons aforesaid, i am of the considered opinion that this appeal must succeed on first point that there was non-compliance of the mandatory requirements of the provisions of section 50 of the act, inasmuch as the search of the accused appellant was taken by a persons not authorised under section 42 of the act and that such unauthorised illegal search has resulted in vitiating trial against the appellant.27. in the result, this appeal succeeds and is hereby allowed. the judgment under appeal convicting and sentencing the appellant under section 8/21 of the act is set aside and the appellant is acquitted of the offence charged with. he is in jail and he be released forwith, if not wanted in any other case.