Allowed

Smt. Asha Devi Pandey v. State of Chhattisgarh

Chhattisgarh HC9 Dec 2022CRA/512/2001

Case brief

AI extract

What is this about?

High Court allowed appeals against NDPS conviction. The court held that the mandatory requirement of Section 50 of the NDPS Act, mandating presence of a Magistrate or Gazetted Officer during search of a person, was violated. Consequently, the recovery was suspect, and appellants were acquitted.

What did the court decide?

Impugned judgment set aside, appellants acquitted, convicted persons released forthwith, fine refunded.

Smt. Asha Devi Pandey Vs State of Chhattisgarh — Narcotics (NDPS) | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 495 of 2001

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Reserved on : 11.11.2022

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Delivered on : 09.12.2022

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Raju Pandey, S/o K.P. Pandey, aged about 28 years, Profession: Transporter, R/o Bramhapara, Ambikapur, District- Surguja (C.G.)

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---- Appellant

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Versus

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State of Chhattisgarh through Police Station- Ambikapur, DistrictSurguja (C.G.)

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---- Respondent

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CRA No. 512 of 2001

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Smt. Asha Devi, W/o Raju Pandey, aged about 30 years, R/o Muhalla Bramh para, at P.S. Ambikapur, District- Surguja (C.G.)

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---- Appellant

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Versus

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State of Chhattisgarh through Police Station- Ambikapur, DistrictSurguja (C.G.)

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---- Respondent

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For Appellants : Mr. Rajeev Kumar Dubey & Mr. Basant Dewangan, Advocate.

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For State/ Respondent

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: Mr. Praveen Shrivastava, P.L.

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Hon'ble Shri Justice Narendra Kumar Vyas

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C.A.V. JUDGMENT

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As common question of law and facts are involved in both the appeals, they are heard analogously and are being disposed of by this common order.

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These appeals are preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against judgment dated 14.05.2001 passed by Special Judge (NDPS Act), Surguja (C.G.) in Special

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Criminal Case No. 20/2000, wherein the said court convicted both the appellants for commission of offence under Section 22 of Narcotic Drugs & Psychotropic Substances Act, 1985 (for short “the NDPS Act”) and sentenced them to undergo R.I. for 10 years each and fine of Rs. 1,00,000/- each with further default stipulations for having possession of contraband article brown sugar to the tune of 1 gm. 950 mg. & 1 gm. 340 mg., respectively on 16.07.2000 at 15:40 O'clock at Bramhapara, Ambikapur (C.G.)

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The prosecution story, in brief, is that on 16.07.2000, Assistant Sub-Inspector- Bholanath Singh (PW-5) received secret information at about 3:40 p.m. that the appellants namely Raju Pandey & Asha Devi were selling brown sugar at Bramhapara in front of their residence. This information has been recorded in proforma-42 after preparing panchnama and briefly recorded in Rojnamcha Sanha. He prepared the information regarding no receipt of search warrant before raid and intimated the report to the Superintendent of Police, Ambikapur. He found that the appellants stood in front of their residence and notice under Section 160 of the Cr.P.C. was issued to them. The witnesses namely Raju Singh & Shyam Sunder were called as per rules and notice under Section 50 of the NDPS Act was issued to the appellants. The appellants were informed about their rights about their searching through Gazetted officer or through B.N. Singh. The appellants have given consent to be examined by B.N. Singh as reflected from consent panchnama. Later on, the appellants were allowed to examine B.N. Singh and the witnesses. Thereafter, the appellants were searched and from their possession brown sugar and sale receipts of Rs. 698/- and 800/- have been seized. The property was measured through witness Rajendra Prasad Soni who prepared the toul panchnama. Thereafter, the appellants were arrested for commission of offence under Section 22 of the NDPS Act and the FIR was registered on 16.07.2000. The statements of the witnesses were recorded and the seized material was kept in

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sealed cover and the same was sent to FSL for examination, wherein it is found that the seized material is heroine a contraband psychotropic drug. After completion of investigation, the charge-sheet was submitted before the learned trial Court.

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The prosecution has examined as many as nine witnesses. The Special Court after examining the evidence of Investigating Officer- Assistant Sub-Inspector – Bholanath Singh (PW-5) has held that the prosecution has followed the procedure prescribed under Sections 41, 42, 50, 52 & 57 of the NDPS Act and accordingly convicted both the appellants for 10 years vide its judgment dated 14.05.2001. The conviction has been assailed by the appellants by filing the present appeals. Record of the case would show that appellants remained in jail from 16.07.2000 & suspension of sentence was granted to appellantRaju Pandey on 12.01.2004 and appellant- Asha Devi was granted suspension of sentence on 15.11.2002, but they have violated the conditions of bail granted to them, therefore, they remained in jail from 05.02.2018 till the judgment is passed. Thus, appellant- Raju Pandey remained in jail for 8 years & 3 months and appellant- Asha Devi remained in jail for 7 years & 2 months.

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Learned counsel for the appellants would submit that the alleged contraband article brown sugar was seized by the prosecution from pant of appellant- Raju Pandey and from vest of appellantAsha Devi, which is “person” as defined in Section 50 of the NDPS Act and compliance of Section 50 of the NDPS Act is mandatory in nature and in the present case, no such, compliance was done, therefore, the judgment of conviction is bad in law and the same deserves to be set aside. He would further submit that there is non-compliance of Section 50 of the NDPS Act, as such, the judgment of conviction passed against the appellants is bad-in-law and the same is liable to be set aside. In support of his contention, he would draw attention of this Court towards judgment passed by Hon'ble the Supreme

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Court in Arif Khan alias Agha Khan Vs. State of Chhattisgarh¹ , State of Himachal Pradesh Vs. Pawan Kumar² , Karnail Singh Vs. State of Haryana³ and would submit that there is in non-compliance of Section 50 of the NDPS Act, therefore, the judgment of conviction passed against the appellants is illegal and is liable to be set aside by this Court.

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On the other hand, learned State counsel opposing the submission made by learned counsel for the appellants would submit that there is clinching evidence against the appellants regarding commission of offence and the judgment of conviction passed by the Special Judge against the appellants is legal and justified and does warrant any interference by this Court. He would further submit that the learned trial Court after appreciating the evidence and material on record has recorded its finding that there is no violation of Section 41, 42, 50, 52 & 57 of the NDPS Act, therefore, the judgment of conviction passed by the learned trial Court is legal, justified and does not warrant any interference by this Court and would pray for dismissal of the appeals and would pray for dismissal of the appeals.

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I have heard learned counsel for the parties and perused the documents placed on record.

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The controversy involved in these cases is whether in the given facts and circumstances of the case, there is violation of Section 50 of the NDPS Act or not?. For examining this point, it is expedient for this Court to extract Section 50 of the NDPS Act, which reads as under:-

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“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.

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(2) If such requisition is made, the officer may

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1 (2018) 18 SCC 380

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2 (2005) 4 SCC 350

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3 CRA No. 36 of 2003 (Decided on 29.07.2009)

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detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

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(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.

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(4) No female shall be searched by anyone excepting a female.

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(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 person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

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(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.]”

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From perusal of Section 50 of the NDPS Act, it is quite vivid that if investigating officer has to search the person, then he has to comply with the provisions of Section 50 of the NDPS Act. It is pertinent to mention here that the word "person" has not been defined in the Act. Section 2(xxix) of the NDPS Act provides that that the words and expressions used herein and not defined but defined in the Code of Criminal Procedure have the meanings respectively assigned to them in that Code. It is worthwhile to mention here that the Code of Criminal Procedure, does not define the word "person" whereas Section 2(y) of the Code provides that the words and expressions used therein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. Section 11 of the Indian Penal Code provides that the word "person" includes any Company or Association or body of persons whether incorporated or not. Similar definition of the word "person" has

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been given in Section 3(42) of the General Clauses Act. The word “person” has been defined in the Chambers's Dictionary as under :-

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“An individual; a living soul; a human being; b: the outward appearance, & c : bodily form; a distinction in form; according as the subject of the verb is the person speaking, spoken to or spoken of.”

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Webster's Third New International Dictionary defines “person” as under:-

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“An individual human being; a human being is distinguished from an animal or thing; an individual having a specified kind of bodily appearance; the body of a human being as presented to public view usually with its appropriate coverings and clothings; a living individual unit; a being possessing or forming the subject of personality.”

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Similarly Black's Law Dictionary defines word “person” as under:-

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“In general usage, a human being (i.e. natural person), though by statute term may include labour organizations, partnerships, associations, corporations.”

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Law Lexicon by P. Ramanatha Aiyar defines word “person” as under:-

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“The expression 'person' is a noun by P. Ramanatha Aiyar according to grammar and it means a character represented as on the stage, a human being; a self-conscious personality.”

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From perusal of the above stated definition of person given in various dictionaries, the most appropriate meaning of the word “person” appears to be “the body of a human being as presented to public view usually with its appropriate covering and clothing”. In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn,

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they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear. As such, for searching of a person Section 50 of the NDPS Act would come into play and if failure to perform the person concerned of his right emanating from sub-Section 1 of Section 50 of the NDPS Act may render the recovery of contraband suspect and the conviction and sentence of an accused is unsustainable in law.

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The issue whether compliance of Section 50 of the NDPS has been complied with or not, has come up for consideration before the Supreme Court in State of Punjab Vs. Baljinder Singh & another⁴ , wherein it has been held that Section 50 of the NDPS is mandatory requirement, as such, vitiate the trial. Hon'ble the Supreme Court at paragraph 12 & 13 held as under:-

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“12. Subsequently, another Constitution Bench of this Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat 5 had an occasion to consider the case from the stand-point whether the person who is about to be searched ought to be informed of his right that he could be searched in 5 [(2011) 1 SCC 609] the presence of a Gazetted Officer or a Magistrate. While considering said question, this Court also dealt with the judgment rendered in Baldev Singh’s case and the discussion in paragraphs 24 and 29 was as under:

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“24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect

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4 (2019) 10 SCC 473

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about the existence of his said right would cause prejudice to him, 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 the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.

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In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.”

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(emphasis supplied)

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The law is thus well settled that an illicit article seized from the person during personal search conducted in violation of the safe-guards provided in

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Section 50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contra-band. But the question is, if there be any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance?”

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Hon'ble the Supreme Court in Pawan Kumar (Supra) , has held at paragraph 14 as under:-

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“14. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.”

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Coming to the facts and circumstances of the case, it is quite vivid that the prosecution has failed to comply with the provisions of Section 50 of the NDPS Act which provides that when duly authorized officer is about to search any person under the provisions of Sections 41, 42 & 43 of the NDPS Act, he shall if such person so require take such person without unnecessary delay to the nearest Gazetted officer of any of the department mentioned in Section 42 or to the nearest Magistrate. The Investigating Officer (PW-5) in his deposition before the trial Court has stated in paragraph 6 that he has given notice under Section 50 of the NDPS to the appellants whether they intent to search either by Gazetted officer or Magistrate or through the Investigating Officer and in reply to it in Ex. P/10, appellant- Raju Pandey has put his signature and in Ex. P/11, appellant- Asha Devi has put her signature, the witness has further stated that both the appellants have intented to search from Investigating Officer-B.N. Singh. This is not the compliance of Section 50 of the NDPS Act, as from the record of the case, it is quite proved that the appellants were not produced before any Magistrate of Gazetted officer and the search and recovery of the contraband heroine was not made from the appellants in the presence of any Magistrate or Gazetted officer and also considering the fact that none of the police officials of the raiding party who recovered the contraband heroine from the appellants, was the

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Gazetted officer nor they could be and were empowered to make search and recovery from the appellants as per Section 50 of the NDPS Act. Thus, the conviction of the appellants is against the provisions of Section 50 of the NDPS Act.

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Hon'ble the Supreme Court in Arif Khan (Supra) has held at paragraph 18, 19, 20, 21, 22, 23 & 24 as under:-

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“18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra).

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Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.

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Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392).

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Keeping in view the aforementioned principle of law laid down by this Court, we have to examine the

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question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of the NDPS Act while making search and recovery of the contraband “Charas” from the appellant and, if so, whether it was done in the presence of a Magistrate or a Gazetted Officer so as to make the search and recovery of contraband “Charas” from the appellant in conformity with the requirements of Section 50.

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In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer.

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It is the case of the prosecution and which found acceptance by the two Courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him under Section 50 in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two Courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act.

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We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband “Charas” does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.

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24.1 First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer;

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24.2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “Charas” was not made from the appellant in the presence of any Magistrate or Gazetted Officer;

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24.3 Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband “Charas” from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “Charas” as provided under Section 50 of the NDPS

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Act except in the presence of either a Magistrate or a Gazetted Officer; 24.4. Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.”

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Considering the abovestated factual and legal provisions of law, I am of the considered view that the prosecution was not able to prove that the search and recovery of the contraband article brown sugar from the appellants was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, I have found that the prosecution has failed to prove the compliance as required in law, the appellants are entitled to claim their benefit to seek their acquittal.

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In the light of the foregoing discussion, the appeals succeed and are allowed. Impugned judgment is set aside. As a consequence thereof, the appellants' conviction is set aside and they are acquitted of the charges levelled against them. The appellants are reported to be in jail. They be released forthwith, if not required in any other offence. The fine amount, if any, paid be refunded to them.

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Sd/(Narendra Kumar Vyas) Judge

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Arun

Smt. Asha Devi Pandey v. State of Chhattisgarh

Case brief

What is this about?

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Smt. Asha Devi Pandey v. State of Chhattisgarh

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