Criminal Appeal No.387 of 2003

14th July, 2004

Petitioner Counsel: Mr. R. M. PATWARDHAN
Respondent Counsel: Mr. LANJEWAR

Cases Cited:
Bindersingh Nirmalsingh Kaili Vs. State of Maharashtra, 1999(2) Mh.L.J. 643 [Para 8]
State of Punjab Vs. Balbirsingh, AIR 1994 SC 1872 [Para 8]
State of Punjab Vs. Baldeo Singh, 1999 Cri.L.J. 3673 [Para 9]
Kumar Chinniah @ Captain Kumar Vs. State of Maharashtra, 2003(3) Mh.L.J. 519 [Para 10]

JUDGMENT

JUDGMENT :- Heard Mr. Patwardhan, learned Advocate for the appellant and Mr. Lanjewar, learned A.P.P. for state - respondent.

This is an appeal filed by the appellant Sanjay Pote challenging the Judgment and Order dated 01.06.2001 passed by the Special Judge, N.D.P.S. Court, Nagpur in Special Case No.57/1999 convicting and sentencing him for offence punishable under section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short - N.D.P.S. Act) to suffer R. I. for 10 years, and to pay fine of Rs.1,00,000/-, in default to suffer further R. I. for one month.

2. In short the prosecution case is that Police Head Constable - Hemant Pali (P.W.1) attached to Crime Branch, Nagpur on 15.09.1999 received a secret information on phone that at New Shukrawari, Nagpur at Pote Masala Office, one person by name Sanjay was having in his possession Brown Sugar and he was selling the same. Police Head Constable Pali immediately reduced the information into writing and communicated the same to his Superior Officials i.e. P. I. of Narcotic Cell, Crime Branch, Nagpur and as directed by him arranged for the raid. He reduced into writing, the secret information vide Exhibit 16 at 6.25 p.m. and before proceeding for the raid made entry in the Station Diary vide Exhibit 17 at 18.35 Hours. The raiding party headed by P.H.C. Pali reached to the house of Pote Masala at Navi Shukrawari area and on reaching there with P. I. Madavi and Panchas gave a call to the accused by name Sanjay and in response to his call the appellant came near the door and on inquiry then disclosed his name as Sanjay Moreshwar Pote, aged 30 years, resident of Old Subhedar Layout, ward No.105, Nagpur. Police Head Constable Pali informed him about the information received and also his intention to take search of his person and the office premises, he was also apprised of the provisions contained in section 50(1) of the N.D.P.S. Act as to personal search to be conducted in presence of the Gazetted Officer or Magistrate and he was further told, if desired, he would arrange for his personal search in the presence of the Gazetted Officer or Magistrate. He accordingly issued a written notice under section 50 of the N.D.P.S. Act vide Exhibit 18 and the accused after being made aware of the contents of the notice declined the search before the Gazetted Officer or a Magistrate. The Head Constable and Panchas offered their personal search to the appellant, but he declined. It is in the presence of Panchas personal search of the appellant was taken and in that in the right hand side pocket of his pant a plastic bag containing brown sugar powder was found. That powder was collected on a plain paper and it weighed 10 grams and out of that 5 grams of powder was taken as sample for analysis and it was sealed with the signatures of panchas, Police Officer and the appellant. That sample sealed parcel was marked as S-1. The remaining powder was also separately sealed and it was marked as P-1. The empty plastic was separately seized and was marked as P-2. The search of the office was taken but nothing was found. Police Head Constable - Pali took the property in his custody and the appellant was arrested as he was informed that he was found in possession of narcotic substance and seizure panchanama was prepared in respect of the search and seizure that was carried out by them, but while the seizure memo was incomplete the appellant on interrogation disclosed that he was residing at Old Subhedar Layout and so Police Head Constable - Pali in order to take search of the house, proceeded to his house along with other members of the raiding party including the panchas and after having entered in his house with him, the appellant himself produced a metalic foil and smoking pipe used for smoking brown sugar. The house was searched but nothing was found. The smoking foil and smoking pipe were seized and sealed and the sealed parcel was marked as S-2 and then seizure memo was completed, a copy of the same was given to the appellant.

3. Police Head Constable - Pali taking the appellant and the property seized including the documents prepared on the spot reached Ganeshpeth Police Station and lodged complaint i.e. First Information Report - Exhibit 16 at 18.25 Hours and on the basis of that offence was registered vide crime no.609/1999 against the appellant at 21.45 Hours. He also submitted a report to the Police Officer handing over the property and gave requisition to him for sending the sealed samples - S-1 and S-2 to Chemical Analyser after again sealing the same. He handed over the seizure memo and Chemical Analyser Form to the Police Officer who again sealed the sealed parcel and deposited the same in Malkhana with Malkhana In-charge. On the next day P.S.O. Ganeshpeth Police Station sent sealed sample S-1 and S-2 to the Chemical Analyser with Police Constable Sarang who deposited the property with the office for which the acknowledgment receipt was obtained. Chemical Analyser after analysing sealed sample found that brown coloured powder was Heroin and it was also detected in the metalic foil and metal pipe. The Chemical Analyser Report is Exhibit 27. After completing the investigation and as per the complainant's report to his superior officials, the Police Head Constable submitted the charge-sheet against the appellant in the court of the Special Judge.

4. Before the Trial Court the appellant to the charge framed vide Exhibit 10 pleaded not guilty and claimed to be tried. The prosecution examined at the trial two witnesses namely Police Head Constable Hemant Pali (P.W.1) and Panch Witness - Dinesh Dhamse (P.W.2). The Trial Court accepted the evidence of both the witnesses. Defence admitted the documents comprising Chemical Analyser Requisition form Exhibit 22, Invoice Challan issued by Chemical Analyser Office acknowledging receipt of Muddemal Exhibit 24, duty pass of the carrier of the property to the Chemical Analyser Exhibit 25, extract of Muddemal register of Ganeshpeth Police Station Exhibit 26, C. A. Report Exhibit 27 and the report submitted by the P.H.C. Pali to P.S.O. Ganeshpeth while handing over the property under Exhibit 30. After the evidence was recorded the accused was examined under section 313 of Criminal Procedure Code. The accused denied, the factum of seizure of brown sugar from his custody and possession in his personal search. His defence was that of total denial in as much as to all the questions put to him in his examined under section 313 Cr.P.C. his answer was "It is false". The Trial Court accepting the evidence found that the prosecution has proved beyond reasonable doubt that narcotic substance, brown sugar was seized from the possession of the appellant, there has been necessary compliance of the provisions contained in sections 42 and 50 of the N.D.P.S. Act and consequently, the appellant came to be convicted and sentenced as stated above. Hence this appeal.

5. I have heard Mr. Patwardhan the learned counsel for the appellant and Mr. Lanjewar, learned A.P.P. for the respondent-state. With their assistance I have gone through the evidence as also the documents on which the prosecution has placed reliance and which has been accepted by the Trial Court. Before adverting to the submissions made by the counsel for the parties few facts which un-disputedly emerged on evidence on record must be stated and thus be borne in mind. Police Head Constable - Pali on 15.09.1999 received a secret telephonic message about 6.10 p.m., which was reduced into writing by him vide Exhibit 15. This telephonic message was further reduced into writing as contemplated under section 42(1) of the N.D.P.S. Act., at 6.25 p.m. vide exhibit 16. The information which is not disputed goes to show that the information related to a person by name Sanjay who was having his office at New Shukrawari at Pote Masala Office and that the said person was having in his possession brown sugar and that he was dealing with it. It is further matter on record and that is also borne out on the evidence of Police Head Constable - Pali and that of witness - Dinesh (P.W.2) that the raiding party went to the office premises of appellant and the appellant was identified as a person who was found sitting in the room of the office premises and that as claimed by the prosecution when he was apprised of the information received and also of the object of their visit to take search, he was made aware of the provisions contained in section 50(1) orally as well as by issuing notice Exhibit 18. It is claimed by the prosecution that the appellant declined to exercise option. He also declined to take search of persons of the raiding party and when his personal search was taken, brown sugar was found contained in a plastic bag that was in his right side pocket of the pant and after completing further formalities, the same came to be seized under seizure memo - Exhibit 17. The property was handed over then to the Police Station Officer, Ganesh Peth, Police Station. It is also borne out on the record that after taking search the ccused and in the search taken, recovered smoking foil and smoking pipe which came to be seized and then panchanama Exhibit 17 was completed. It is matter of record and also borne out on evidence, and it is not disputed that after coming to the police station, the P.H.S. - Pali lodged first information report, on the basis of which the offence was registered at Serial No.2145/1999. It is also matter of record that at 18.35 Hours entry was made in the station diary on 15.02.1999 vide copy - Exhibit 17 taking note of the secret information received by P.H.C. Pali, then having made preparation for raid and actually proceeding to the place, then after report in writing under section 42(1) and also intimation in writing to the superior office under section 42(1) of N.D.P.S. Act to the superior officer - P. S. Madavi attached to the Narcotic Cell at 18.35 Hours and then the raiding party accompanied by P. I. Madavi proceeded for the raid. This entry exhibit 17 therefore, makes it clear that the raiding party proceeded for raid after 18.35 hours.

6. Mr. Patwardhan, the learned Advocate appearing for the appellant made two submissions. The first contention was that there was no compliance of provisions contained in section 42 in as much as P.H.C. Pali while reducing into writing information vide exhibit 15 and 16 has not recorded the reasons on having believed the information about the commission of the offence under the N.D.P.S. Act. The learned counsel submitted that as required under the proviso to section 42(1) of the N.D.P.S. Act if such officer has reason to believe that a search warrant or authorisation can not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. He pointed out that when actual raid was carried and search was taken though it was after sunset, the Police Officer neither sought search warrant from the Magistrate nor he recorded reasons as required under the proviso, regarding grounds of his belief making it necessary for him to take search after sunset and before sunrise. The second submission made by the learned counsel was that there was no compliance of section 50(1) of the N.D.P.S. Act in as much as the notice to exercise option for taking personal search in the presence of Gazetted Officer or nearest Magistrate was not given to the appellant, therefore, admittedly it was a case of personal search on receiving information. The learned counsel giving much emphasis on these two contentions submitted that the requirement under the N.D.P.S. Act as to compliance of section 42(1) and section 50(1) is mandatory and therefore, any infraction of the same would vitiate the conviction for the offence of possession of narcotic substance.

7. The factual position as to the timings, when the information was received, when it was reduced into writing, when it was actually communicated to the superior officer, when in respect thereof entry was taken in the station diary and also when actual search was taken, there is no dispute about the timings recorded and as such Police Head Constable Pali and the prosecution therefor can not dispute the timings recorded for particular offence that occurred. Mr. Patwardhan, learned advocate for the appellant brought to my notice from the almanik that on the date of incident the time of sunrise was 6.10 a.m. while of sunset was at 6.24 p.m. It is crystal clear from the station diary vide Exhibit 17 that the entry was made at 18.35 hours. It is also very clear from the entry - Exhibit 17 that the raiding party after the entry was made at 18.35 Hours proceeded for the raid to the place as per the information. After the raid was completed, seizure memo was drawn vide Exhibit 19. It is mentioned in the seizure memo - Exhibit 19 that on 15.09.1999 at about 19 Hours Police Head Constable Pali after receiving information collected two panchas and apprised them of the information received and reached to the place for conducting raid. It is also self eloquent from the seizure memo - Exhibit 19 that the proceedings of the Panchanama started at the place at 19.20 Hours and the same were concluded at 20.45 Hours. It is also prosecution case that after seizure of contraband in the personal search of the appellant, the raiding party proceeded to his house and after having found smoking foil and smoking pipe, the panchanama was completed as recorded in the memorandum - Exhibit 19. The proceeding of the panchanama was concluded at 21 Hours, therefore, clinchingly goes to show that even after having received secret information which was reduced into writing vide Exhibit 16 at 18.25 hours, which was very much after sunset the raiding party proceeded to conduct raid and to have personal search of a person i.e. the appellant by entering into the premises where he was as per the information sitting. It is therefore, crystal clear that the entire process of raid including search and seizure was carried out after sunset. Admittedly, the P.H.C. Pali has not obtained warrant to take personal search of the appellant though asper information that was received the raiding party was required to enter the premises of office where the appellant was sitting and dealing with the narcotic substance - contraband article. Even assuming that the timing recorded in the complaint - Exhibit 16 that was reduced into writing as 18.25 Hours was not that of exactitude, nonetheless fact remains that the raiding party reached the place where the personal search of the appellant was to be taken, as per the timings the same was very much after the sunset. Therefore, even after giving long route having regard to an approximation of the timings, recorded in Exhibit 16 it is certain that the actual process of taking search in the premises by entering therein was done after the sunset. It is very significant to note that in the information which was reduced into writing P.H.C. Pali has not recorded the reasons as to his belief. It is rightly pointed out by Mr. Patwardhan the learned counsel for the appellant that as per the section 42(1) of the N.D.P.S. Act it is imperative on the part of the prosecution, the Police Officer who has received the information about the commission of the offence to reduce into writing the said information recording therein the reasons of his belief, we do not find any such recording of reasons in the information that was reduced into writing. That apart, as pointed out in earlier part of the judgment, under section 42 of the N.D.P.S. Act the Searching Officer is in certain circumstances as enumerated in sub-section (1) and proviso therein enter and search such building, conveyance or enclosed place any time between sunset and sunrise after recording the grounds of his belief. In fact as per the sub-section (1) of section 42 of the N.D.P.S. Act when personal search is to be taken by the Police Officer who has received information and if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed is empowered to between sunrise and sunset to enter into and search any such building, conveyance or enclosed place. But under the proviso if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time, between sunset and sunrise after recording the grounds of his belief. It is in this context that recording of reasons even for taking personal search by making personal search was necessary.

8. In this context, Mr. Patwardhan the learned advocate rightly placed reliance Mh.L.J. page 643 (Bindersingh Nirmalsingh Kali and another - Appellants Vs. State of Maharashtra - Respondent. In this case the accused therein were found in possession of contraband liquor and opium. Search was carried out in the midnight between sunset and sunrise. No search warrant was obtained. But at the same time the Police Officer and for that superior officer did not record the reasons for the belief contemplated by Proviso to section 42(1) of N.D.P.S. Act. The Court held this would amount non-compliance of mandatory provisions of section 42(2) of the Act. In that case reliance was placed on the decision of the Apex court in 1994 AIR SC 1872 in which it is held that under section 42(2) the empowered officer if he has prior information given by any person that should be necessarily taken down in writing. But if he has reason to believe from personal knowledge that offences under chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building, etc., he may carry out the arrest or search without a warrant between sunset and sunrise and this provision does not mandate that he should record his reasons of belief. In that case it was pointed that in the State of Punjab Vs. Balbirsingh, AIR 1994 SC 1872 that under section 42(1) the empowered officer if he has prior information given by any person that should be necessarily taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building, etc., he may carry out the arrest or search without a warrant between sunset and sunrise and this provision does not mandate that he should record his reasons of belief. It was further pointed that under the proviso to section 42(1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent, these provisions are mandatory, and contravention of the same would affect the prosecution case and vitiate the trial. In this case before our High Court though the P.S.I. Sasthe recorded the information, he did not forward a copy thereof to CPI Wankhede. However, he informed him on phone. Although the search was proposed to be carried out in the midnight itself viz. between sunset and sunrise no ground of belief in terms of the proviso to section 42(1) was recorded. The court therefore, observed that both these requirements were not complied with. There was absolutely no explanation given by the prosecution as to why the requirement contemplated by the said proviso was not complied with. The said proviso in substance stated that if the officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. In such factual situation, therefore, the court found that there was no compliance of the mandatory provisions of sub-section (1) of section 42 of the N.D.P.S. Act. which has been held to be mandatory as has been held by the Apex Court in Balbirsingh's case. In my considered opinion in the case before hand having regard to the ratio laid down by the Apex Court as well as this Court in the decision referred above, there has been infraction of the mandatory provisions contained under proviso to sub-section (1) of section 42 of the N.D.P.S. Act which clearly vitiates the seizure of the contraband article from the possession of the appellant.

9. This takes me to consider the second submission regarding non-compliance of section 50 of the Act. The legal position as has been laid down by the Apex Court in the Full Bench Decision in State of Punjab Vs. Baldeo Singh - 1999 Cri.L.J. 3673 is crystal clear that the provisions of section 50 of the N.D.P.S. Act are mandatory. The Apex Court observed thus :

"(i) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of section 50 being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(ii) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to accused;

(iii) That a search made, by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search 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 his person, during a search conducted in violation of the provisions of section 50 of the Act."

10. Mr. Patwardhan, learned counsel placed reliance on the decision of this Court in 2003(3) Mh.L.J. 519 Kumar Chinniah @ Captain Kumar and another Vs. State of Maharashtra - Respondent wherein on facts it was found that Searching Officer informed accused that they wanted to take their personal searches and P. I. Pawar asked them whether their searches be taken by class I Officers, but they declined. It was also found that neither Panchanama nor the Panch witnesses stated that the accused were informed of their right under section 50 of the N.D.P.S. Act by the Officer of Raiding Party and/or they were asked whether they desire to be searched by Gazetted Officer or a Magistrate. It is held that informing accused whether they wanted to search to be taken by Class I Officer is not sufficient compliance of section 50 considering the facts and circumstances of the case. In the case before hand the prosecution has placed reliance on notice exhibit 18 that was said to be served on the appellant. The learned A.P.P. tried to justify the compliance of section 50 placing reliance on the notice - Exhibit 8 and recitals therein and more particularly endorsement on it by the appellant after having acknowledged of receipt of the notice and declining option. Reliance is also placed on the version of the Police Head Constable. Police Inspector and Panch witnesses wherein, it is stated that the accused - appellant was apprised of the right to take personal search as contended in section 50(1) of the N.D.P.S. Act.

11. Mr. Patwardhan, learned counsel for the appellant rightly pointed out by taking us through Exhibit 18 that by no stretch of imagination it could be said that the appellant therein was made aware of raid to have personal search in the presence of the gazetted Officer or Magistrate. I have personally verified from the recitals of Exhibit 18, in my considered opinion, the recitals did not by semblance reflect that the appellant was made aware of the right to have his personal search in the presence of the Gazetted Officer or the Magistrate. All that recitals in Exhibit 18 reflect is provision i.e. incorporated in section 51. By no stretch of imagination it can be said that the recitals of Exhibit 18 indicate that the appellant was made aware of the right which personal search was to be taken. It is needless to say that the provision contained in section 50(1) giving valuable right to the accused who is involved in the offence under section N.D.P.S. Act is in a way provided an opportunity and as a safeguard. Even the evidence of Police Head Constable - Pali and Panch witness does not show in clear words that the appellant was explained and was made aware of the right under section 50(1) of the N.D.P.S. Act. It is surprising to note that the Police Head Constable Pali had stated that he told the appellant that P. I. Madavi was Government Officer (Gazetted Officer) and also told him that there is provision under the N.D.P.S. Act for search in presence of Gazetted Officer or a Magistrate and also told him that if desired by him he would arrange for presence of Gazetted Officer or Magistrate at the time of search. Even accepting what has been stated by witness Pali is true, by no stretch of imagination it can be said by making aware the appellant of his right as contained in section 50(1) of the N.D.P.S. Act what has been claimed and stated by witness Pali certainly goes to show that the appellant was made aware of the provisions contained in section 50, much less about the existence of the right which was available to him and provided as safeguard. So far as witness Dinesh - P.W.2 is concerned, all that he stated in his evidence that the Police told accused that he can ask for search before the Gazetted Officer or Magistrate and asked him if he requires presence of the Gazetted Officer or the Magistrate at the time of search, and the accused refused. So oral evidence of these two witnesses is of no avail for the prosecution to justify that there was compliance to section 50(1) of the N.D.P.S. Act.

12. In the result, the trial court has committed an error in holding the appellant guilty for the offence under section 21(b) of the N.D.P.S. Act for having kept in his possession the contraband article. The prosecution has failed to prove that the offence under N.D.P.S. Act has been committed by the appellant. Since the search and seizure is vitiated because of non-compliance of the mandatory provisions under section 50(1) and 42(1) proviso of the N.D.P.S. Act consequently the conviction and sentence awarded by the trial court can not sustain and has to be quashed and set aside. Hence the order :

O R D E R

13. The appeal is allowed. The order of conviction and sentence passed by the Special Judge, N.D.P.S. Court, Nagpur in Special Case No.57/1999 dated 01.06.2001 is quashed and set aside. Appellant is acquitted of the offence. He be set at liberty if not required in any other case. Order in respect of disposal of the property is maintained. Mr. Patwardhan, Advocate who conducted the matter for the appellant as counsel appointed from Legal Aid Panel be paid the legal fees which we quantified at Rs.2,000/-.

Appeal allowed.