Criminal Appeal No. 909 of 2012,Criminal Application No. 1409 of 2013

29th October, 2013

Petitioner Counsel: Mr. AYAZ KHAN
Respondent Counsel: Mr. N. NATRAJAN
Other Counsel: Mrs. V.R. BHONSALE

Cases Cited:
Madan Lal and another Vs. State of Himachal Pradesh, 2003 ALL MR (Cri) 2412 (S.C.)=2003 Cri. L.J. 3868 [Para 9]
Guffran Mohammad Hasad Kasai Vs. State of Maharashtra, 1994 Cri.L.J. 2013 [Para 10]
Ali Mustafa Abdul Rahman Moosa Vs. State of Kerala, AIR 1995 SC 244 [Para 10,16]
T. Hamza Vs. State of Kerala, 1999 ALL MR (Cri) 1759 (S.C.)=AIR 1999 S.C. 2966 [Para 16]
T. Hamza Vs. State of Kerala, 1999 ALL MR (Cri) 1888 (S.C.)=AIR 1999 S.C. 2966 [Para 16]
State of Punjab Vs. Balbir Singh, 2012 ALL SCR (O.C.C.) 15=(1994) 3 SCC 299 [Para 16]
Suresh and others Vs. State of Madhya Pradesh, 2013 ALL SCR 212=(2013) 1 SCC (Cri.) 541 [Para 16]

JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- This appeal is directed by the appellant-original accused against the judgment and order dated 30.7.2012 passed by the learned Special Judge for Greater Mumbai in N.D.P.S. Special Case No. 74 of 2009. By the said judgment and order, the learned Special Judge convicted the appellant under Sections 21(c) r.w. 8(c) and 28 r/w 23 r/w 21(c) and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "N.D.P.S. Act"). For the offence under Section 21(c) read with 8(c), the appellant has been sentenced to rigorous imprisonment for fifteen years and fine of Rs.1,00,000/- i/d S.I. for six months. For the offence under Section 28 read with Section 23 read with Section 21(c) and 8(c), the appellant has been sentenced to rigorous imprisonment for fifteen years and to pay a fine of Rs. 1,00,000/- i/d S.I. for six months.

2. The prosecution case, briefly stated, is as under:

On 21.12.2008 PW-1 Customs Officer Laxmi Shekhar, PW- 2 Mr. Manjrekar, Intelligence Officer in A.I.U., and PW-7 Mr. Kamlesh Caur, Superintendent of Customs, A.I.U. were on duty at Sahar Airport. On 22.12.2008 at about 12.45 a.m. PW-1 Laxmi Shekhar saw one lady passenger i.e. the appellant. She found her in a frightened condition, hence, suspicion arose in her mind. She told this fact to PW-7 Superintendent Mr. Kamlesh Caur. PW-7 Superintendent Mr. Kamlesh Caur then intercepted the appellant near the Customs counter. At that time, the appellant had completed her checking in at airlines counter and immigration clearance. As they suspected her, the appellant was taken to the A.I.U. office at Sahar Airport. Two panch witnesses were called at the office of A.I.U. They were told that they intercepted the appellant. In presence of panch witnesses, the appellant was asked whether she was carrying any contraband on her person or in the baggage, however, she replied in the negative. Her checked-in baggage which consisted of two bags, was searched. She was having one strolly bag and one hand bag which was also searched. Nothing was found in these bags. Thereafter, again enquiry was made with the appellant whether she was carrying any contraband on her person. At that time, the appellant answered in the affirmative and told that she would produce the same. Hence, PW-1 Laxmi Shekhar took the appellant to a separate room in A.I.U. office. The appellant then took out four bundles from inside her jacket. The bundles consisted of socks. On opening all the four bundles, they were found containing cylindrical capsules of white colour. There were 77 capsules. One capsule was opened by breaking open the same with the help of blade. It was found containing white colour powder. PW-1 Laxmi Shekhar tested small quantity of the powder with the help of testing kit. The test answered positive for heroin. Then she cut the remaining capsules. All the capsules were found containing similar type of powder. She collected powder from each of the 77 capsules in one polythene bag. The bag was weighing 5 gms. Powder and white polythene bag weighed 765 gms. Thus, the powder i.e. heroin weighed 760 gms. The appellant was arrested. The statement of the appellant came to be recorded. The report of the Deputy Chief Chemist showed that the sample was containing heroin and the percentage was 46.2%. The complaint was filed on 16.6.2009 by PW-2 Intelligence Officer Mr. Manjrekar.

3. Charge came to be framed against the appellant under Sections 29 read with 8(c) and 21(c), 21(c) read with 8(c) and 28 read with 23, 21(c) and 8(c) of the N.D.P.S. Act. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant was that of total denial and false implication. It is her further defence that the drugs were planted on her. After going through the evidence adduced in the present case, the learned Special Judge convicted the appellant under sections 21(c) read with 8(c) and 28 read with 23 read with 21(c) and 8(c) of the Narcotic Drugs and Psychotropic Substances Act and sentenced the appellant thereunder as stated in paragraph no.1 above, hence, this appeal.

4. We have heard the learned counsel for the appellant and the learned counsel for the Union of India. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Special Judge and the evidence on record, we are of the opinion that the appellant deserves to be acquitted. This appeal can be disposed of only on one point i.e. non-compliance of Section 50 of the N.D.P.S. Act and we are not touching any other point in the present case.

5. The learned counsel for the appellant submitted that in the present case, there is non-compliance of Section 50 of N.D.P.S. Act. He submitted that before the contraband was seized from the appellant, she was not informed of her right to be searched before a Gazetted Officer or a Magistrate under Section 50 of the N.D.P.S. Act. He submitted that on account of this total non-compliance of Section 50 of the N.D.P.S. Act, the conviction would be vitiated.

6. Mr. Khan submitted that before the drugs were recovered from the appellant, the officer who was present at the relevant time was PW-1 Laxmi Shekhar and she had reason to believe that the appellant was carrying drugs. He pointed out that the seizure panchnama Exh. 11 shows that prior to the seizure of drugs, the appellant was interrogated whether she was carrying any contraband, narcotic or any prohibited goods, to which, the appellant replied in the affirmative. The appellant was taken to a closed room by PW-1 Laxmi Shekhar and the drugs were recovered from her person. Our attention is drawn to the evidence of PW-1 Laxmi Shekhar who has stated that on asking the appellant if she was carrying any contraband on her person, she answered in the affirmative. This witness has admitted in paragraph 19 of the crossexamination that she was knowing that contraband was on the person of the accused yet at that time she had not told the accused about her right under Section 50 of the N.D.P.S. Act. Mr. Khan also drew our attention to the evidence of PW-16 Karadkar who is the panch witness to the panchnama relating to the seizure of drugs from the appellant. This witness has stated that A.I.U. officers asked the accused whether she was carrying any diamonds, foreign currency or narcotic drugs on her person, whereupon, she replied in the affirmative. Mr. Khan submitted that once A.I.U. officers had reason to believe that the appellant was carrying contraband drugs on her person, they were duty bound to comply with the mandatory provisions of the N.D.P.S. Act.

7. Mr. Khan further submitted that panchnama (Exh. 11) is silent about informing the appellant of the right under Section 50 of the N.D.P.S. Act. PW-1 Laxmi Shekhar has also admitted that the appellant was not apprised of her right under Section 50 of the N.D.P.S. Act. Panch witness PW-16 Karadkar has also admitted that the appellant was not apprised of her right under Section 50 of the N.D.P.S. Act before the seizure. We have gone through the entire evidence and we find that no witness has deposed about informing the appellant of her right under Section 50 of the N.D.P.S. Act prior to the seizure of the drugs from her person.

8. Mr. Natrajan, the learned counsel for Union of India submitted that section 50 of the N.D.P.S. Act, is not attracted to the facts in the present case as it is a chance recovery. Assuming that initially it is a chance recovery as there was no prior information, however, the moment that the appellant answered in the affirmative to the question posed by the A.I.U. officer that whether she was carrying any contraband, the case ceased to be a case of chance recovery. Once the appellant answered in the affirmative thereafter the A.I.U. officers had to comply with Section 50 of the N.D.P.S. Act.

9. Thereafter Mr. Natrajan submitted that Section 50 was not attracted as the personal search of the appellant had not taken but she took out the drugs of her own accord and she handed them over to the A.I.U. officers. He has placed reliance on a decision of the Supreme Court in the case of Madan Lal and another Vs. State of Himachal Pradesh, reported in 2003 Cri. L.J. 3868 : [2003 ALL MR (Cri) 2412 (S.C.)] to support the contention that when there is no personal search, Section 50 of the N.D.P.S. Act does not apply. We have carefully gone through the said decision. In the said decision, the contraband was seized from a vehicle. It was in these circumstances that the Supreme Court observed that Section 50 of the N.D.P.S. Act does not apply in cases of search of vehicle or container or bag or premises. The facts in the said case and the facts in the present case are entirely different and hence, the said decision would not be applicable to the facts of the present case.

10. Thereafter, Mr. Natrajan placed reliance on a decision of this Court in the case of Guffran Mohammad Hasad Kasai Vs. State of Maharashtra, reported in 1994 Cri.L.J. 2013. In the said case, the accused was apprehended and he was asked whether he is in possession of any contraband, whereupon, the accused person took out 'pudis' from the pocket of his clothes and produced the same before the police. Mr. Natrajan pointed out that in this decision, it was held that as the contraband had been recovered without search, Section 50 would not be attracted. In the case of Guffran Mohammad (supra), the officer did not have any reason to believe that the accused therein had drugs on his person because in reply to the question whether the accused had any contraband with him, the accused immediately took out 'pudis' of drugs from his clothes and produced the same before the police. In the present case, however, before the contraband was seized by the A.I.U. officers, they had reason to believe that the appellant was carrying drugs because on questioning her whether she had any contraband on her person including drugs, she replied in the affirmative. Thus, on these facts, the said decision in the case of Guffran Mohammad (supra) can be distinguished. Moreover, we would like to advert to a decision of the Supreme Court in the case of Ali Mustafa Abdul Rahman Moosa Vs. State of Kerala, reported in AIR 1995 S.C. 244. In the said case, the police officers had received reliable information that a foreigner having 'charas' in his possession, was sitting at the Quilon railway station. They went to the platform and found the accused sitting there with a bag. On suspicion, he was questioned by the police officers. The accused then took out packet of 'charas' from his bag and handed it over to the P.S.I. The seizure of 'charas' was effected in the presence of the witnesses on the spot itself and the contraband was taken into possession after making the panchnama. The Supreme Court acquitted the accused therein observing thus:

"From the testimony of PW 6, it is apparent that before reaching the first class waiting room at the railway station, he had received information that a foreigner was sitting with 'charas' at the railway station. The appellant was thereafter spotted and subjected to search and from his possession allegedly 780 gms. of 'charas' was seized. Undoubtedly, before the search of the appellant was made, he was not given any option as to whether he desired to be searched in the presence of a gazetted officer or a Magistrate as envisaged by Section 50. In State of Punjab Vs. Balbir Singh, (1994 AIR SCW 1802) (supra), it has been held that before the authorized or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a gazetted officer or a Magistrate. It was also held that Section 50 confers a valuable right on the person to be searched in the presence of a gazetted officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction. The Court expressly held that provisions of Section 50 to be mandatory, the non-compliance whereof would vitiate the conviction."

In the case of Ali Mustafa (supra), the police officers on account of prior information, had reason to believe that the accused person was carrying drugs. Hence, the Supreme Court observed that thereafter they should have complied with the mandatory provisions of the N.D.P.S. Act mainly Section 50. In the present case also, PW-1 Laxmi Shekhar has stated that she was aware that they had to check the accused person. The appellant gave a clear and categorical reply that she was carrying contraband before the drugs were seized. Thus, in the present case, the officer had reason to believe that the appellant was carrying drugs with her which is clear from the evidence of PW-1 Laxmi Shekhar, the panchnama Exh. 11, as well as the evidence of panch witness PW-16 Karadkar. PW-1 Laxmi Shekhar has clearly stated that when the appellant was interrogated whether she was carrying any contraband on her person, she replied in the affirmative. Thus, when the officers of the A.I.U. came to know that the appellant was carrying contraband on her person, the mandatory provisions of Section 50 of the N.D.P.S. Act ought to have been complied with. PW-1 Laxmi Shekhar has admitted that the appellant was not apprised of her right under Section 50 of the N.D.P.S. Act before the seizure of the drugs. The panchnama Exh. 11 is also silent regarding the appraisal of her right under Section 50 of the N.D.P.S. Act, so also the complaint Exh. 1 is silent regarding informing the appellant of her right under Section 50 of the N.D.P.S. Act. The panch witness PW-16 Karadkar has also admitted that the appellant was not apprised of her right before the seizure of drugs.

11. As stated earlier the contention of Mr. Natrajan is that no personal search of the person of the appellant took place and the appellant herself took out the drugs from her jacket and handed it over to PW-1 Laxmi Shekhar, in this connection, he pointed out the evidence of PW-1 Laxmi Shekhar who has stated that after the appellant answered in the affirmative that she was carrying contraband on her person, she was taken to a separate room. Laxmi Shekhar has stated that at that time appellant was wearing skirt and jacket. The appellant had taken out four bundles of socks from inside her jacket and handed over the same. In the said socks, capsules containing heroin were found. As far as the evidence of this witness is concerned, it is pertinent to note that no lady panchas were present when the appellant was taken into the said room. This is a violation of Section 50(4) of the N.D.P.S. Act. Except PW-1 Laxmi Shekhar i.e. A.I.U. officer no other person was present in the room. PW-1 Laxmi Shekhar has categorically admitted that in that room, only she and the appellant were present when according to the prosecution, the appellant took out the drugs from her jacket. Thus, it is clear that no panch witness was present when the seizure was effected. This is also a serious lacuna in the present case. As stated earlier, the case of the prosecution is that the appellant took out bundles of socks containing heroin from the pocket of her jacket. In this connection, it would be material to note the evidence of PW-1 Laxmi Shekhar. She has stated that the accused has not given socks containing contraband in her hands either in the room or in the presence of panch witnesses. She does not remember whom the accused had given socks containing contraband. She stated that she cannot tell before opening the socks, from whose custody she had taken the socks. It is to be noted that earlier PW-1 Laxmi Shekhar has stated that the appellant came out of the room and handed over the contraband whereas panch witness PW-16 Karadkar states that PW-1 Laxmi Shekhar came out of the room carrying contraband in her hands. What is most material to note is that there was no mention in the search and seizure panchnama that the accused produced drugs of her own accord before PW-1 Laxmi Shekhar. This has been categorically admitted by PW-1 Laxmi Shekhar. In such case, a serious doubt arises whether the appellant actually took out contraband from her clothes and handed it over to PW-1 Laxmi Shekhar.

12. It is further the case of the prosecution that the appellant took out drugs from the pocket of her jacket. As far as this aspect is concerned, it is an admitted fact that the jacket has not been seized. Moreover, in the panchnama Exh. 11, it is not stated that the accused was wearing a jacket. It is also not written in the panchnama that the appellant had produced socks containing contraband from her 'jacket'. Thus, the case of PW-1 Laxmi Shekhar appears to be that the appellant was wearing jacket from which she produced drugs, which jacket PW-1 Laxmi Shekhar in her evidence has stated, has not been seized. Though the socks were found in four bundles in which the drugs were found, PW-1 Laxmi Shekhar has stated that she does not remember if all the socks were kept in one pocket or different pockets of the jacket of the appellant. She has admitted that she cannot give any reason why she had not written in the panchnama and search and seizure report that the appellant produced socks containing contraband from her jacket. PW-1 Laxmi Shekhar has stated that the appellant was wearing skirt and jacket and the drugs were produced from the jacket, however, another officer of A.I.U. i.e. PW-2 Manjrekar who was present at the time of seizure, has stated that the appellant was wearing top and frock. He has stated that he could not tell whether the top was the part of the frock and frock or top were never seized. Thus, this officer makes no reference at all to any jacket. Thus, according to this witness, the appellant was not wearing a jacket. Looking to the discrepancy in relation to the appellant wearing jacket and the fact that there is no mention of jacket in the complaint Exh. 1 or in the panchnama Exh. 11 and the fact that no jacket was seized in this case, it raises serious doubt about whether any drugs were actually taken out by the appellant from the pocket of her jacket.

13. Mr. Natrajan has pointed out that the panch witness PW- 16 Karadkar has stated in his cross-examination that the appellant was wearing a jacket, however, it is seen that PW-16 Karadkar has admitted that it is not so mentioned in the panchnama. He further admitted that it is not mentioned in the panchnama that the appellant took out socks from the jacket. He has further admitted that jacket was not seized by the officers. Before the appellant went into the room, he did not have any suspicion that the appellant was having something in the jacket. This witness has also not apparently seen any jacket because he was unable to state how many pockets were there to the jacket. What is most important to note is that he has admitted that when the accused stated that she was having something on her person and she would produce the same, at that time, none of them told her to produce it. It is important to note that PW-16 panch witness Karadkar has stated in para 4 that the appellant and PW-1 went inside one cabin. They returned after some time. They came with four socks. The appellant was asked whether those socks were belonging to her and whether she had produced the same. It is to be noted that this witness has not stated about the reply of the appellant to the said question.

14. PW-16 panch witness Karadkar has further admitted that before the appellant was taken into the cabin, nobody went inside and searched the cabin including the panch witnesses. He did not know what articles were kept in the cabin. From the evidence of panch witness, it is clear that no panch witness was present in the room when the appellant allegedly handed over the drugs. This is also a serious lacuna.

15. According to Mr. Natrajan the person of the appellant was not searched and she herself handed over the drugs. As far as this contention is concerned, the complaint Exh. 1 shows that PW-1 Laxmi Shekhar came out with four bundles and she admitted in the presence of panchas that the said four bundles were concealed by the appellant on her person and were recovered from the person of the appellant. So also the panchnama Exh. 11 shows that the appellant was escorted to a closed room by PW-1 Laxmi Shekhar and within few minutes they came out with four bundles and the appellant admitted in their presence that the said four bundles were concealed by her on her person and were recovered from her person. It is material to note that the wording is that the bundles were recovered from the person of the appellant. Had the appellant taken out the drugs and handed them over, she would have stated that they were concealed on her person and she has taken out the same and handed over to the officer. However, both complaint (Exh. 1) and the panchnama (Exh.11) do not state so. Moreover, PW-2 Manjrekar has also categorically stated that PW-1 Laxmi Shekhar had taken personal search of the accused and had recovered the drugs.

16. PW-7 Caur who is another officer of the A.I.U. has also stated that during the course of search and seizure, 77 capsules containing heroin 'were recovered from the person of the appellant'. He has further stated that Investigating Officer PW-1 Laxmi Shekhar had taken her personal search. From the evidence of these witnesses, it becomes clear that the person of the appellant was searched. We have already stated earlier that there appears to be doubt whether the contraband was found in the jacket which was worn by the appellant. Once the officers have stated that the person of the appellant was searched and they had prior information from the appellant herself that she was carrying contraband on her person then in such case, provisions of Section 50 of the N.D.P.S. Act ought to have been complied with. There is no compliance of Section 50 of the N.D.P.S. Act. The Supreme Court in various cases including Ali Mustafa (supra), T. Hamza Vs. State of Kerala [A.I.R. 1999 S.C. 2966] : [1999 ALL MR (Cri) 1759 (S.C.) : 1999 ALL MR (Cri) 1888 (S.C.)], State of Punjab Vs. Balbir Singh [(1994) 3 SCC 299] : [2012 ALL SCR (O.C.C.) 15] and Suresh and others Vs. State of Madhya Pradesh [(2013) 1 S.C.C. (Cri.) 541] : [2013 ALL SCR 212] has held that in case of violation of the provisions of Section 50 of the N.D.P.S. Act, the conviction cannot be sustained. In the present case also, there is no compliance of Section 50 of the N.D.P.S. Act, hence, we are inclined to allow the appeal and pass the following order:

ORDER

(1) The appeal is allowed.

(2) The conviction and sentence imposed on the appellant under Sections 21(c) r.w. 8(c) and 28 read with 23 read with 21(c) and 8(c) of the N.D.P.S. Act vide Judgment and order dated 30.7.2012 passed by the learned Special Judge for Greater Bombay in Special Case No. 74 of 2009, is set aside. The appellant is acquitted thereunder. She be set at liberty forthwith, if not required in any other case.

(3) Criminal Application No. 1409 of 2013 for bail, does not survive and is disposed of accordingly.

Appeal allowed.