Allowed

Parmanand and Ors. v. State

Rajasthan HC3 Jan 2017CRLA/74/2009

Case brief

AI extract

What is this about?

The High Court held that the conviction and sentence under the NDPS Act were liable to be set aside as the mandatory provisions of Section 50 regarding personal search were not complied with, and no reasonable efforts were made to associate independent witnesses.

What did the court decide?

The impugned judgment is set aside, appellants are acquitted, and they are directed to be released immediately.

Parmanand and Ors. Vs State — Narcotics (NDPS) | Rajasthan HC (2017)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR

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BENCH JAIPUR

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JUDGEMENT

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S.B. Criminal Appeal No.74/2009

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1. Parmanand son of Prabhu Lal 2. Radhey Shyam son of Dhuli Lal Both by caste Chamar, resident of Durjanpura, Police Station Aklera, District Jhalawar (Raj.)

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Versus

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State of Rajasthan through Public Prosecutor

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Date of Judgement ::::::: 03.01.2017

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PRESENT HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL

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Mr. Sameer Sharma for the appellants. Mr.Alladin Khan, Public Prosecutor for the State.

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BY THE COURT:

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The accused-appellants have filed this Criminal Appeal under Section 374 Cr.P.C. against the judgement and order dated 12.12.2008 passed by the Special Judge, NDPS Cases, Jhalawar in Sessions Case No.25/2006 whereby the accused-appellants have been convicted for offence under Section 8/21 of the Narcotic Drug & Psychotropic Substances Act (hereinafter to be referred as “NDPS Act”) and each of them has been sentenced for rigorous imprisonment for ten years and a fine of Rs. one lac and in default thereof to further undergo rigorous imprisonment for one year.

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Brief relevant facts for the disposal of this appeal are that the appellants were arrested, charge-sheeted, charged and after trial convicted and sentenced for the aforesaid offence on the premise that narcotic drug (smack) was recovered from each of them on 15.12.2005 when search was made by SHO Shri Anil Pandey Police Station Manoharthana, District Jhalawar. It is the prosecution case that during the

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course of ‘Nakabandi’ appellants were found coming on a motorcycle and after seeing the police party they tried to ran away and suspicion having around, police party chased them by jeep and they were stopped and on search being made aforesaid narcotic drug (smack) was found in their possession without any valid licence or permit. In support of the charge prosecution produced oral as well as documentary evidence whereas appellants in their statements recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the prosecution but in defence no evidence was produced. Learned trial Court after hearing both the parties and appreciating and evaluating the evidence made available on record convicted and sentenced the appellants as already stated.

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I have considered the submissions made on behalf of the respective parties and the evidence available on record as well as the relevant legal provisions and the case law relied on behalf of the appellants.

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Although, the impugned judgment and order has been assailed by the appellants on several grounds but in the opinion of this Court they are entitled to be acquitted firstly on the ground that provisions of Section 50 of the Act were not complied with before search and recovery was effected and secondly on the ground that no reasonable efforts were made by the recovery officer to associate independent witnesses before search was made. Although, as per prosecution case appellants were searched and narcotic drug was recovered from their possession without any prior information but in the facts and circumstances of the case and the evidence made available on record it cannot be said that it is a case of chance recovery and, therefore, provisions of Section 50 of the Act were not required to be complied with. It cannot be disputed that before personal search is made of a person for

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recovery of a narcotic drug or psychotropic substance as provided under the provisions of the Act, mandatory provisions of Section 50 are required to be complied with and in absence thereof the entire search and recovery becomes suspect and vitiated and the accused is entitled to be acquitted on that ground alone. Sub-section (1) of Section 50 of the Act provides that when any officer duly authorized under Section 42 of the Act 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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PW6-Shri Anil Pandey-the recovery officer in his examination-inchief has said that during the routine “gasht” when he reached near Semli Hat two persons were seen coming on a red coloured motorcycle who tried to ran away from there seeing the police jeep who were followed and stopped. On being asked for their running away on seeing the police jeep no satisfactory reply could be given by them which resulted to suspect that they may be having some contraband goods with them and, therefore, it was decided to search them. In my opinion when it was suspected by the recovery officer that some contraband goods may be in the possession of the appellant it was his duty to follow the procedure provided under Section 50 of the Act and he cannot escape from his that duty by saying that as no prior information about possession of narcotic drug by the appellants was received by him, there was no necessity to follow the procedure as provided under Section 50 of the Act.

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PW1-Shri Dalip Kumar constable who was in the police party with the Recovery Officer-Shri Anil Pandey also in his examination-in-chief has stated that when reason was asked from the appellants for their running away from the place of incident after seeing the police jeep, no

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satisfactory reply could be given by them as a result of which it was suspected that they may be having some contraband goods.

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PW2-Shri Rakesh Kumar in his cross-examination in this regard has stated that in the jeep it was told by SHO that two persons are running away on motorcycle and, therefore, they may be having some contraband goods.

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As already stated from the evidence available on record it can be said that before search was effected of the appellants it was suspected that they may be having some contraband goods in their possession and they tried to run away from the place of incident seeing the police party and, therefore, provisions of Section 50 of the Act were required to be followed. As it is an admitted fact that the said provisions were not followed and benefit of non-compliance thereof is required to be given to the appellants.

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So far as non-association of independent witnesses is concerned, although it is well settled legal position that evidence of a police officer/police personnel cannot be suspected and discarded merely by the reason that he happens to be a police officer/police personnel but at the same time it is also well legal position that before search of a person is made for the recovery of a suspected narcotic/psychotropic substance in his possession, it is essential that at least two independent witnesses are associated in the search and recovery and reasonable efforts are made by the recovery officer before that and in absence thereof the search and seizure becomes suspected. In the present case, from the evidence available on record it is more than clear that no such efforts were made by the Recovery Officer PW6-Shri Anil Pandey in this regard in his examination-in-chief he has stated that independent witnesses were searched nearby but no such witnesses could be found and, therefore,

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Constable-Shri Dalip Kumar and Balram members of the police party were associated as independent witnesses in the search and seizure from the appellants. The witness in his examination-in-chief did not say that any member of the police party was sent for search of independent witnesses so that they may be associated in search and seizure from the appellants. In his cross-examination the witness admits that he did not send any person for the search of independent witnesses, did not issue written order in this regard and no efforts about independent witnesses were made by any of them. In this regard PW1-Shri Dalip Kumar in his examination-inchief has stated that witnesses were searched nearby but no such witness could be found and, therefore, he and Shri Balram were associated as independent witness. In his cross-examination the witness has stated that SHO searched for independent witnesses for fifteen minutes at nearby places. He admits that neither any notice was given to him or any other member of the police party for the search of independent witness nor driver of the jeep was sent to bring independent witness. PW2-Shri Rakesh Kumar in this regard in his examination-in-chief has said that independent witnesses were looked nearby to associate them in the search but no such witness could be found by the reason that there was no population area nearby. He admits that no one from the police party was sent for the search of independent witness. From the evidence available on record it is clear that suspicion arose in the mind of recovery officer and other members of the police party that appellants may be having some contraband and they are required to be searched in the presence of independent witnesses but even then no reasonable efforts were made to find such witnesses so that they may be associated in the search and recovery to be effected from the appellant and after following some formality two constables from the police party were made

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independent witnesses and all proceedings were conducted in their presence which can not be said to be due compliance of the aforesaid legal requirement and, therefore, appellants are entitled to get benefit of doubt on that account also. From the perusal of impugned judgement and order it is manifest that these aspects of the case were not properly considered by the learned trial Court.

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Consequently, the appeal is allowed and the judgment and order dated 12.12.2008 passed by Special Judge, NDPS Cases, Jhalawar in Sessions Case No.25/2006 is set aside and both the appellants are acquitted from the charge for which they were tried. Presently the appellants are undergoing the sentence and, therefore, they were directed to be released immediately, if not required in any other case. The third application for suspension of sentence also stands disposed of.

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(PRASHANT KUMAR AGARWAL) J

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teekam Reserved order

Parmanand and Ors. v. State

Case brief

What is this about?

What did the court decide?

Parmanand and Ors. v. State

Case brief

What is this about?

What did the court decide?

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