Judgment:
Aftab H. Saikia, C.J.
1. Heard Mr. J.B. Pradhan, learned Public Prosecutor appearing for the Applicant/State of Sikkim as well as Mr. Ajay Rathi and Ms. Sushma Pradhan, learned Counsel who have entered appearance on behalf of the Respondent.
2. This is an application under Section 378(3) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') seeking leave to appeal against the impugned judgment and order dated 31.08.2009 passed by the learned Special Judge, NDPS Act, East and North Sikkim, Gangtok in Sessions Trial (NDPS) Case No. 05 of 2006 whereby the Respondent was acquitted from the charge under Section 22(a)/27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act).
3. The factual matrix of the case in brief is that the respondent was arrested on 06.09.2005 under Section 22(a)/27 of the Act on suspicion of being in possession of some contraband drugs in the black coloured bag which he was allegedly carrying at the relevant time. Such arrest was made by the Sadar Police Station on the basis of a F.I.R. lodged by one ASI Ash Bahadur Rai (PW 1) after registering the police case being Sadar P.S. Case No. 121(9)/05 dated 06.09.2005.
4. On the eventful date i.e. 06.09.2005 at around 11.40 a.m., one Ash Bahadur Rai (PW 1) the Incharge, Deorali Outpost produced the respondent along with vehicle being a Maruti Van bearing Registration No. SK-02A/0833 from Deorali Bazar with the written report stating that the above vehicle had reportedly hit a Savari Taxi jeep bearing Registration No. SK-04/6532 at Deorali SNOD Petrol Pump.
5. It was also alleged that at the accident spot the respondent was found quarrelling with the Savari Taxi driver by one traffic police constable (admittedly not examined by the prosecution for the reasons best known to it) who was on duty at the relevant time at the accident site. The said police personnel immediately intervened therein and took away the ignition key of the vehicle of the respondent and handed over to the Deorali Police to take further action. The Police, on being informed, proceeded to the place of occurrence where it was noticed that the driver of the Maruti van, the respondent had started the vehicle on neutral gear and driving towards the Forest Secretariat. Then he was stopped by PW 1 from proceeding further and was taken to the police station. At that moment the respondent rushed to the vehicle and by taking a black coloured bag from inside of the vehicle, the respondent ran away. He was chased by the police and apprehended immediately. The police registered the abovementioned case under the above Sections of the Act under suspicion of carrying the contraband articles in the black coloured bag.
6. The prosecution examined as many as 13 witnesses to prove its case against the Respondent during the trial when the defence produced none.
7. Learned Special Judge having meticulously considered and appreciated the entire evidence on record including the testimony of those witnesses including the seizure list and other relevant documents so produced in support of the prosecution case, found that firstly, the arrest and registration of the police case against the respondent was made prior to the recovery of the alleged contraband articles from the possession of the respondent and secondly, Section 50 of the Act was not complied with as because, on the basis of records, the respondent's choice of being searched by a Gazetted Officer was not considered rather he was searched in presence of a Magistrate. On the basis of those findings, the learned Special Judge was of the considered view that the prosecution failed to prove it's case against the respondent beyond reasonable doubt and accordingly the respondent was acquitted.
8. Being aggrieved by such acquittal of the respondent, the State Applicant has preferred this Miscellaneous Case seeking leave to appeal, according to the learned Public Prosecutor, basically on the following grounds;
(i) the learned Trial Court erred in law in holding that there was non-compliance of Section 50 of the NDPS Act, 1985 as the search was conducted in the presence of a Magistrate when the accused/respondent had opted to be searched in the presence of the Gazetted Officer;
(ii) the learned Special Judge failed to appreciate the fact of recovery of contraband substances from the accused/respondent in the presence of the Magistrate; and
(iii) the learned Court below erred in holding that the accused/respondent was entitled to acquittal as the arrest and registration of the case was done prior to, the recovery of the contraband substances.
9. To support the above grounds, the learned Public Prosecutor has submitted that no illegality or irregularity has been committed by the prosecution in arresting the respondent prior to the recovery of the suspected contraband articles. According to him, it is correct that although the arrest was made prior to recovery of contraband articles from the bag at the time of his arrest, the bag containing the contraband articles was very much in possession of the respondent at the time of arrest and eventually those contraband articles were also found from inside the said bag. Those contraband drugs were 8 bottles of Phensydyle, 90 tablets of Nitrazepam and 172 capsules of Spasmo Proxyvon.
10. We have scrupulously gone through the entire evidence on record and relevant testimony of the witnesses namely, Ash Bahadur Rai (PW 1), Palden Bhutto (PW7), Man Bahadur Limboo (PW 8), KagayLepcha (PW 9) and Vishal Gurung (PW 12).
11. We have also heard extensive arguments advanced on behalf of both the parties.
12. For the sake of convenience, it would be appropriate and apt to reproduce the relevant provision of Section 22(a) under which the respondent was charged:
22. Punishment for contravention in, relation, to psychotropic substances.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both;..
13. A plain reading of the provision of law above quoted would candidly go to speak that this Section would be applicable to a person who at the relevant time manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance and accordingly he shall be punishable, where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.
14. In the present case at hand, it is an admitted fact that at the time of arrest the respondent was not in possession of contraband articles. It is also accepted in terms of the FIR lodged by PW 1 that the respondent was arrested and the relevant police case was registered under Section 22(a)/27 of the Act only under suspicion. Hence, it can be said that at the time of arrest the respondent has not committed any offence for which he can be roped in under Section 22(a) of the Act.
15. In a case Pall v. State of Punjab reported in 1996 (1) RCri R 802, the Punjab and Haryana High Court in paragraph 10 held that there was no reasonable basis in the law to arrest the accused prior to conduct a search in his house because at the relevant time the accused had not committed any offence. The offence would be committed when he was found in illegal, unauthorised possession of the alleged contraband articles.
16. In another case, the Delhi High Court (Kaluram v. State reported in 4 (1999) CCR 240 ruled that recording an FIR prior to alleged recovery of the contraband articles would result in shaking the foundation of the prosecution case to an irreparable extent.
17. Now coming to the question of noncompliance of the provision of the law laid down under Section 50 of the Act in the instant case, it is found that when the police informed the respondent about his right to be searched either of his person or his baggage in presence of a Gazetted Office or a Magistrate, the respondent opted for being searched by a Gazetted Officer. However, ignoring his such option, the police had chosen to make the search of his body as well as the particular bag in presence of a Magistrate.
18. According to Mr. Rathi, such search of the person and bag of the respondent was being made by a Magistrate instead of a Gazetted Officer, despite being specifically opted for, in complete disregard to the provision of Section 50 of the Act and as such, the same has vitiated the entire criminal proceeding.
19. We may notice Section 50 of the Act, which reads as under:
50. Conditions under which search of persons shall be conducted.--(1) 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 requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) 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 (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the persoq as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under Sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
20. The expression 'if such person so requires' occurred in Section 50, as quoted above, has made it obligatory on the part of the empowered officer to inform about his search to be conducted before a Gazetted Officer or a Magistrate. It appears that the failure to take the person for search before the Gazetted Officer or the Magistrate as per requirement of the person to be searched would amount to non-compliance with the provision of Section 50 and the same would result in affecting the prosecution case. The person to be searched has a right 'that if he requires' to be searched only in that manner, as he requires to be searched either in presence of a Gazetted Officer or a Magistrate.
21. In State of Punjab v. Baldev Singh reported in : 1999 Cri LJ 3672, the Supreme Court observed as under:
15. What is the import of the expression 'if such person so requires' he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the person concerned to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right? Learned Counsel appearing for the State of Punjab as also the learned Counsel appearing for the State of Gujarat argued that it would not be proper to read into the provisions of Section 50, any legislative intent of prescribing a duty on the part of the empowered officer to inform the suspect that if he so requires, the search would be conducted before a Gazetted Officer or a Magistrate, as the case may be. According to the learned Counsel, the view expressed in State of Punjab v. Balbir Singh : 1994 AIR SCW 1802 : AIR 1994 SC 1872 : 1994 Cri LJ 3702 (supra), laying down that it is obligatory on the part of such an officer to so inform the person to be searched or if such person requires, failure to take him for search before the Gazetted Officer or the Magistrate, would amount to non-compliance with the provisions of Section 50 and would affect the prosecution case and vitiate the trial requires reconsideration. As a matter of fact, the order of the referring Bench itself centres around whether there is any requirement of Section 50, making it Obligatory for the empowered officer, who is about to search a person, to inform him of his right of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search if he so requires. Learned Counsel for the parties, however, agree that in case the obligation to inform the suspect of his right to be searched before a Gazetted Officer or a Magistrate is read as a duty cast on the empowered officer, then failure to give information regarding that right to the suspect would be a serious infirmity amounting to denial of a valuable right to an accused and would render his conviction for an offence under the NDPS Act bad and unsustainable.
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28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right 'that if he requires' to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose--to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed 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 judicial process, may come under 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 law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.
22. At this stage, the learned Public Prosecutor has, relied on the decision of the Apex Court reported in : 1999 SCC (Cri) 1422 : 2000 Cri LJ 507 (Kalema Tumba v. State of Maharashtra and Anr.) submitted that requirement of informing the person to be searched of his right under Section 50 to be searched in person of a Gazetted Officer or a Magistrate is applicable only to the search of the person and not to search of his baggage. In the instant case, person of the respondent was not searched but his bag was only searched on suspicion and accordingly, the contraband articles, as already noted above, were also recovered.
23. However, on close perusal of the records made available before us, it is found that the empowered officer while informing the respondent about his search, specifically and pointedly mentioned as regards his choice of search of his person as well as bag either in presence of a Gazetted Officer or a Magistrate. Brushing aside his such choice, person and the baggage of the respondent were searched in presence of the Magistrate.
24. In the case of Dilip and Anr. v. State of M.P. reported in : (2007) 1 SCC (Cri) 377 : 2007 Cri LJ 880 the Apex Court in paragraph 16 held as follows:
16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.
25. Since the respondent was also searched in person apart from his bag, we are disinclined to accept the submission of the learned Public Prosecutor.
26. Given facts and circumstances and I having regard to the cited cases, we are of the considered view that in the instant case, the compliance of the provision of Section 50 has not been adhered to and as such it can be well said that there is no compliance of Section 50 of the Act.
27. In view of what have been stated, discussed and observed above, we do not find any cogent or plausible ground to entertain this petition to grant leave to appeal as sought for.
28. Accordingly, this Criminal Miscellaneous Application stands dismissed.