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CASE NO.: Appeal (crl.)  53 of 2003

PETITIONER: Smt. Krishna Kanwar @ Thakuraeen                         

RESPONDENT: State of Rajasthan                                               

DATE OF JUDGMENT: 27/01/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

[With Crl. A. No. 52/2003]

ARIJIT PASAYAT,J.

       Originally three appeals were filed against the common  judgment of the Rajasthan High Court, Jodhpur, whereby three  appeals were disposed of. During the pendency of Criminal  Appeal no. 51/2003, the appellant Shamshuddin died and by  order dated 20.1.2004 the appeal has been dismissed having  abated. The consideration, therefore, is restricted to other  two appeals i.e. Criminal Appeal nos. 52/2003 and 53/2003.

       Of the two appeals one has been filed by convict- accused Smt. Krishna Kanwar i.e. Crl. Appeal No.53 of 2003  and the other appeal has been filed by the State of  Rajasthan (Crl. Appeal No. 52 of 2003) questioning the  acquittal of accused Mangi Lal and Nathu Singh, as directed  by the Trial Court and upheld by the High Court.  Initially,  seven persons were treated to be accused persons. Four of  them, namely, Shamshuddin, Smt. Krishan Kanwar, Mangi Lal  and Nathu Singh were tried by District and Sessions Judge,  Pratapgarh, who found accused Shamshuddin and Smt. Krishna  Kanwar guilty of offences punishable under Sections 8 and 21  of the Narcotic Drugs and Psychotropic Substances Act, 1985  (in short ’the Act’) and sentenced each to undergo rigorous  imprisonment for 14 years and to pay a fine of Rs.2 lakh  with default stipulation.       Nathu Singh and Mangi Lal (A-6 and  A-7) respectively, were acquitted.

       Prosecution case as unfolded during trial is as  follows:

       Prassan Kumar Khamesara (PW-16), Dy. S.P. Chhoti Sadri  received information at about 8.30 p.m. on 5.7.1994 to the  effect that on 6.7.1994 between 5.00 a.m. to 9.00 a.m., one  Shamshuddin S/o Shakoor Khan, resident of Dharakhedi, shall  be coming on a Rajdoot motorcycle, from Chittorgarh side and  will be proceeding towards Udaipur, alongwith contraband  heroin.

       The above information was not only recorded but also  forwarded to S.P., Chittorgarh and Addl. S.P., Pratapgarh  through Indermal (PW-9). Upon above information, Shiv Prasad  (PW-14), Addl. S.P., Pratapgarh alongwith lady constable  Smt. Vimla Chaudhary (PW-5) and other members of staff

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reached Police Station, Chhoti Sadri on 6.7.1994 in the  morning at about 4.00 a.m. Rajeev Dasot, S.P. Chittorgarh  reached at Ghomana Choraya in the morning of 6.7.1994, where  Datar Singh SHO (PW-11) alongwith other staff of his Police  Station were present. After discussing the matter with S.P.  and Addl. S.P., Dy. S.P. Prassan Kumar Khamesara (PW-16)  staged a nakabandi at Ghomana Choraya, in which Yudhishtar  Singh (PW-8) and Wardichand (PW-13), independent attesting  witnesses were also associated.

       At about half past six in the morning, one motorcycle  came from Pratapgarh side, which was apprehended by the  police party. The person who was driving the motorcycle,  disclosed his name as Shamshuddin and pillon rider disclosed  her name to be Smt. Krishna Kanwar.  Both the persons were  apprised of the secret information that they were carrying  contraband heroin and, therefore, their search is to be  conduced and, if they desire, same can be undertaken in the  presence of a Magistrate or a Gazetted Officer. Written  notices (Exb.P-9 and P-10 respectively) were given to them  whereupon both of them wanted to be searched by Dy. S.P.  Prassan Kumar Khamesara (PW-16) himself.

       Thereafter their personal search was conducted in the  presence of not only police personnel but also in the  presence of attesting witnesses Yudhisthar (PW-8) and  Wardichand (PW-13).  A plastic bag was found tied on the  stomach and waist of Shamshuddin in which 2 Kgs. heroin was  kept.  Similarly, from the personal search of Smt. Krishna  Kanwar, 600 gms. heroin was recovered. They were not having  any license to carry the above contraband; therefore, same  was seized and two samples of 30 gms. from each lot were  drawn and sealed separately. The remaining mal-mudda was  also sealed separately. Seizure memo, (Exb.P-3) was prepared  simultaneously, on which thumb impression of not only both  the accused persons but signatures & thumb impression of  both the attesting witnesses and police party were taken,  and seal impression was placed on the memo. The sealed  articles were deposited in Malkhana.

       Upon interrogation, Shamshuddin gave a disclosure  statement (Exb.P-33) and regarding Rs.33,000/- which he  earned by selling heroin and other household articles  purchased from such earning. Thereafter, Shamshuddin took  the police party to his house in village Batalganj (U.P.)  and in the presence of Kanhaiya Lal and Magni Ram, attesting  witnesses, Rs.33,000/-, an FDR of Rs.20,000/- dated 30th  May, 1994 issued by SBBJ Branch, Chetak Circle, Udaipur were  recovered. Other household articles and jewellery were also  recovered vide Exb.P-5.

       Shamshuddin also disclosed that the contraband heroin  so seized from both the accused was purchased from Mangi Lal  and Nathu Singh. This led to arrest of both of these  persons, and upon their disclosure statement, their houses  were also searched on 6.7.1994 from 4.00 p.m. to 6.00 p.m.  27 gms. heroin was recovered from the house of Mangi Lal  whereas 225 gms. heroin was recovered from house of Nathu  Singh.  Seizure memos Exb.P-1 and P-2 respectively were  prepared.  Rupees 41,980/- were recovered from the house of  Nathu Singh. Other necessary memos were prepared.

       After completion of investigation, charge sheet was  placed.  Accused persons pleaded innocence and in order to  substantiate their plea examined seven witnesses.  The Trial

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Court found two of the accused persons guilty, but acquitted  Mangi Lal and Nathu Singh as noted above. Convicted accused  persons preferred appeals before the High Court. State also  filed an appeal questioning the acquittal. Before the High  Court it was submitted that no independent witness was  examined and in addition there was non-compliance of  mandatory provision contained in Sections 42, 50 and 57 of  the Act.  The High Court did not find any substance and  upheld the conviction and the sentence.  The appeal filed by  the State of Rajasthan questioning acquittal of Nathu Singh  and Mangi Lal was also dismissed holding that there was no  infirmity in the conclusions of the Trial Court.                        In support of the appeal filed by Smt. Krishan Kanwar,  learned counsel for the appellant submitted that this is a  case where the prosecution has not tendered evidence of any  independent witness. Only official witnesses have been  examined.  The independent witnesses who were examined did  not support the prosecution version and, in fact, stated  that they only put signatures on blank papers; the arrest of  the accused persons was done on 4.7.1994 and not on 6.7.1994  as claimed.  There are certain suspicious circumstances  which corrode prosecution version, about safe dispatch of  the alleged collected samples.  Though the case of the  prosecution was that alleged contraband articles were  procured by the accused Shamshuddin and Smt. Krishan Kanwar  from Mangi Lal and Nathu Singh, they have been acquitted,  and therefore, the source of procurement as allegedly done  by the accused has not been established.  The quantity  recovered from Smt. Krishan Kanwar cannot be said to be huge  quantity, as observed by the Trial Court and the High Court.   It was a fairly small quantity. The evidence regarding  alleged search of accused-appellant Smt. Krishan Kanwar by  lady constable (PW-5) is also full of contradictions. No  reliance should be placed on her evidence. It was a fairly  small quantity.  Residually it was submitted that the  sentence of 14 years and fine of Rs.2 lakhs is extremely  high.   

       Per contra, learned counsel for the State supported the  judgment and conviction and submitted that three high   placed officials were involved in the process of search and  seizure.  There is no reason as to why they would falsely  implicate the accused persons.  PW-16 monitored the entire  operation in the presence of Addl. S.P. Pratapgarh (PW-14).   The S.P. was also present though he has not been examined as  witness.  The moment the information was received, there was  communication to the higher authorities, and therefore,  there is no violation of Section 42 as alleged.  The  requirements of Section 50 were complied with by intimating  the accused of his option and choice and the existence of  his right of being search by the police officer (PW-16) or  by a gazetted officer. The accused opted to be searched by  the police officer.  So, there is no violation as alleged.   So far as samples are concerned, the forensic laboratory  report clearly indicates that the samples were received  sealed and tags, seals were in tact and on analysis found to  be heroin.

       It is seen that Exb.P-32 contains the secret  information that was received by the Dy. S.P. (PW-16).   Constable Indermal (PW-9) had categorically stated that he  had taken the intimation to the S.P. and the Addl. S.P.  The  envelope was handed over to the S.P. at 9.00 p.m. and at  11.00 p.m. to the S.P. Pratapgarh and Chhoti Sadri.  On the

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same day, at about 4.00 a.m. he returned to the police  station.  The Addl. S.P. has been examined as PW-14 and also  presence of S.P. has been deposed by the witnesses.  This  clearly goes to show that there was receipt of information  dispatched by Dy. S.P. PW-16.  That being so, merely because  particulars of the dispatch number were not stated that  would not corrode credibility of the evidence of the  witnesses examined to establish that the information was  conveyed to the higher officials.                         The requirements vis-‘-vis Sections 42 and 50 have been  dealt with in many cases, more particularly by a  Constitution Bench in State of Punjab v. Baldev Singh      (1999 (6) SCC 172). In para 17 the conclusions in an earlier  judgment State of Punjab v. Balbir Singh (1994 (3) SCC 299  at para 25) were quoted and approved. We are concerned with  conclusions  (2-C) and (3) which read as follows: "(2-C) Under Section 42(1) the empowered  officer if has a prior information given by  any persons, that should necessarily be  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 sunrise and sunset and this  provision does not mandate that he should  record his reasons of belief. But 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.   (3) Under Section 42(2) such empowered  officer who takes down any information in  writing or records the grounds under proviso  to Section 42(1) should forthwith send a  copy thereof to his immediate official  superior. If there is total non-compliance  of this provision the same affects the  prosecutions case. To that extent it is  mandatory. But if there is delay whether it  was undue or whether the same has been  explained or not, will be a question of fact  in each case."           Section 42 deals with power of entry, search, seizure  and arrest without of authorization. The provision reads as  follows:  "42.    Power of entry, search, seizure  and arrest without warrant or authorisation.  - (1) Any such officer (being an officer  superior in rank to a peon, sepoy or  constable) of the Departments of Central  Excise, Narcotics, Customs, Revenue  Intelligence or any other department of the  Central Government or of the Border Security  Force as is empowered in this behalf by  general or special order by the Central  Government, or any such officer (being an  officer superior in rank to a peon, sepoy or  constable) of the Revenue, Drugs Control,  Excise, Police or any other department of a  State Government as is empowered in this

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behalf by general or special order of the  State Government, if he has reason to  believe from personal knowledge or  information given by any person and taken  down in writing, that any narcotic drug, or  psychotropic substance, in respect of which  an offence punishable under Chapter IV has  been committed or any document or other  article which may furnish evidence of the  commission of such offence is kept or  concealed in any building, conveyance or  enclosed place, may, between sunrise and  sunset, -  (a) enter into and search any such building,  conveyance or place;  (b) in case of resistance, break open any  door and remove any obstacle to such entry;  (c) such drug or substance and all materials  used in the manufacture thereof and any  other article and any animal or conveyance  which he has reason to believe to be liable  to confiscation under this Act and any  document or other article which he has  reason to believe may furnish evidence of  the commission of any offence punishable  under Chapter IV relating to such drug or  substance; and  (d) detain and search, and, if he thinks  proper, arrest any person whom he has reason  to believe to have committed any offence  punishable under Chapter IV relating to such  drug or substance :  Provided that 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.  (2) Where an officer takes down any  information in writing under sub-section (1)  or records grounds for his belief under the  proviso thereto, he shall forthwith send a  copy thereof to his immediate official  superior."

       Section 42 enables certain officers duly empowered in  this behalf by the Central or State Government, as the case  may be, to enter into and search any building, conveyance  or enclosed place for the purpose mentioned therein without  any warrant or authorization. Section 42 deal with  "building, conveyance or enclosed place" whereas Section  43 deals with power of seizure and arrest in public place.   Under sub-section (1) of Section 42 the method to be  adopted and the procedure to be followed have been laid  down. If the concerned officer has reason to believe from  personal knowledge, or information given by any person and  has taken down in writing, that any narcotic drugs or  substance in respect of which an offence punishable under  Chapter IV of the Act has been committed or any other  articles which may furnish evidence of the commission of  such offence is kept or concealed in any "building or  conveyance or enclosed place" he may between sunrise and

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sunset, do the acts enumerated in clauses (a), (b), (c) and  (d) of sub-section (1).                   The proviso came into operation if such officer has  reason to believe that search warrant or authorization  cannot be obtained without affording opportunity for the  concealment of evidence or facility for the escaped  offender, he may enter and search such building, conveyance  or enclosed place any time between sunrise and sunset after  recording grounds of his belief.  Section 42 comprises of  two components. One relates to the basis of information  i.e. (i) from personal knowledge (ii) information given by  person and taken down in writing. The second is that the  information must relate to commission of offence punishable  under Chapter IV and/or keeping or concealment of document  or article in any building, conveyance or enclosed place  which may furnish evidence of commission of such offence.   Unless both the components exist Section 42 has no  application. Sub-section (2) mandates as was noted in  Baldev Singh’s case (supra) that where an officer takes  down any information in writing under sub-section (1) or  records grounds for his belief under the proviso thereto,  he shall forthwith send a copy thereof to his immediate  official superior. Therefore, sub-section (2) only comes  into operation where the officer concerned does the  enumerated acts, in case any offence under Chapter IV has  been committed or documents etc. are concealed in any  building, conveyance or enclosed place. Therefore, the  commission of the act or concealment of document etc. must  be in any building, conveyance or enclosed place.

       The Trial Court and the High Court after analyzing the  evidence have come to hold that there was compliance of  Section 42(2) in the sense that requisite documents were  sent to the superior officer. Though learned counsel for  the appellant tried to submit that there was no definite  evidence about sending copies of the requisite documents to  the superior officers, yet in view of the analysis of  evidence done by the trial Court and also by the High  Court, with which no infirmity of any kind could be  substantiated effectively, we do not find any substance in  the plea that there was violation of Section 42(2).

So far as the alleged non-compliance of Section 50 is  concerned, the said provision reads as follows: "50. Conditions under which search of  persons shall be conducted. -  (1) When any officer duly authorised under  Section 42 is about to search any person  under the provisions of Section 41, Section  42 or Section 43, he shall, if such person  so requires, take such person without  unnecessary delay to the nearest gazetted  officer of any of the departments mentioned  in Section 42 or to the nearest Magistrate.  (2) If such requisition is made, the officer  may detain the person until he can bring him  before the gazetted officer or the  Magistrate referred to in sub-section (1).  (3) The gazetted officer or the Magistrate  before whom any such person is brought  shall, if he sees no reasonable ground for  search, forthwith discharge the person but  otherwise shall direct that search be made.  (4) No female shall be searched by anyone  excepting a female."

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A bare reading of Section 50 shows that it only applies  in case of personal search of a person. It does not extend  to search of a vehicle or a container or a bag, or premises.  (See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999  (8) SC 293), Baldev Singh’s case (supra), Gurbax Singh v.  State of Haryana (2001(3) SCC 28). The language of Section  50 is implicitly clear that the search has to be in relation  to a person as contrasted to search of premises, vehicles or  articles.  This position was settled beyond doubt by the  Constitution Bench in Baldev Singh’s case (supra).

       In order to appreciate rival submissions, some of the  observations made by the Constitution Bench in Baldev  Singh’s case (supra) are required to be noted. It is also to  be noted that the Court did not in the abstract decide  whether Section 50 was directory or mandatory in nature. It  was held that the provisions to the Act implicitly make it  imperative and obligatory and cast a duty on the  investigating officer (empowered officer) to ensure that  search of the person (suspect) concerned is conducted in the  manner prescribed by Section 50 by intimating to the person  concerned about the existence of his right that if he so  requires, he shall be searched before a Gazetted Officer or  a Magistrate and in case he so opts, failure to conduct his  search before a Gazetted Officer or a Magistrate would cause  prejudice to the accused and render the recovery of the  illicit articles suspect and vitiate the conviction and  sentence of the accused. Where the conviction has been  recorded only on the basis of the possession of the illicit  article, recovered during a search conducted in violation of  the provisions of Section 50 of the Act, it was illegal. It  was further held that the omission may not vitiate the trial  as such, but because of the inherent prejudice which would  be caused to an accused by the omission to be informed of  the existence of his right, it would render his conviction  and sentence unsustainable.     In paragraph 32 of the  judgment (at page 200) this position was highlighted. In  para 57, inter alia, the following conclusions were arrived  at:

       "(1)    That when an empowered officer or  a duly authorized officer acting on prior  information is about to search a person, it  is imperative for him to inform the person  concerned of his right under sub-section (1)  of Section 50 of the Act of being taken to  the nearest gazetted officer or nearest  Magistrate for making the search. However,  such information may not necessarily be in  writing.           (2)     That failure to inform the person  concerned about the existence of his right  to be searched before a gazetted officer or  a Magistrate would cause prejudice to an  accused.           (3)     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

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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.  

       (5)     That whether or not the safeguards  provided in Section 50 have been duly  observed would have to be determined by the  court on the basis of the evidence led at  the trial. Finding on that issue, one way or  the other would be relevant for recording an  order of conviction or acquittal. Without  giving an opportunity to the prosecution to  establish, at the trial, that the provisions  of Section 50 and, particularly, the  safeguards provided therein were duly  complied with, it would not be permissible  to cut short a criminal trial.          (6)     That in the context in which the  protection has been incorporated in Section  50 for the benefit of the person intended to  be searched, we do not express any opinion  whether the provisions of Section 50 are  mandatory or directory, but hold that  failure to inform the person concerned of  his right as emanating from sub-section (1)  of Section 50 and render the recovery of the  contraband suspect and the conviction and  sentence of an accused bad and unsustainable  in law.           (7) That an illicit article seized from  the person of an accused during search  conducted in violation of the safeguards  provided in Section 50 of the Act cannot be  used as evidence of proof of unlawful  possession of the contraband on the accused  though any other material recovered during  that search may be relied upon by the  prosecution, in other proceedings, against  an accused, notwithstanding the recovery of  that material during an illegal search."  

       It is not disputed that there is no specific form  prescribed or intended for conveying the information  required to be given under Section 50. What is necessary is  that the accused (suspect) should be made aware of the  existence of his right to be searched in presence of one of  the officers named in the Section itself. Since no specific  mode or manner is prescribed or intended, the Court has to  see the substance and not the form of intimation. Whether  the requirements of Section 50 have been met is a question  which is to be decided on the facts of each case and there  cannot be any sweeping generalization and/or strait-jacket  formula.  

       Section 50 does not involve any self-incrimination. It  is only a procedure required to protect the rights of an  accused (suspect) being made aware of the existence of his  right to be searched if so required by him before any of the

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specified officers. The object seems to be to ensure that at  a later stage the accused (suspect) does not take a plea  that the articles were planted on him or that those were not  recovered from him. To put it differently, fair play and  transparency in the process of search has been given the  primacy. In Raghbir Singh v. State of Haryana (1996 (2) SCC  201), the true essence of Section 50 was highlighted in the  following manner:

       "8. The very question that is referred to  us came to be considered by a Bench of two  learned Judges on 22.1.1996 in Manohar Lal v.  State of Rajasthan (Crl.M.P.No.138/96 in  SLP(Crl.)No.184/1996). One of us (Verma, J),  speaking for the Bench, held:

       "It is clear from Section 50  of the NDPS Act that the option  given thereby to the accused is  only to choose whether he would  like to be searched by the  officer making the search or in  the presence of the nearest  available Gazetted Officer or the  nearest available Magistrate. The  choice of the nearest Gazetted  Officer or the nearest Magistrate  has to be exercised by the  officer making the search and not  by the accused".

9.      We concur with the view taken in  Manohar Lal’s case supra.  

10.     Finding a person to be in possession of  articles which are illicit under the  provisions of the Act has the consequence of  requiring him to prove that he was not in  contravention of its provisions and it  renders him liable to severe punishment. It  is, therefore, that the Act affords the  person to be searched a safeguard. He may  require the search to be conducted in the  presence of a senior officer. The senior  officer may be a Gazetted Officer or a  Magistrate, depending upon who is  conveniently available.  

11.     The option under Section 50 of the Act,  as it plainly reads, is only of being  searched in the presence of such senior  officer. There is no further option of being  searched in the presence of either a  Gazetted Officer or of being searched in the  presence of a Magistrate. The use of the  word ’nearest’ in Section 50 is relevant.  The search has to be conducted at the  earliest and, once the person to be searched  opts to be searched in the presence of such  senior officer, it is for the police officer  who is to conduct the search to conduct it  in the presence of whoever is the most  conveniently available, Gazetted Officer or  Magistrate".

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As has been highlighted in Baldev Singh’s case (supra)  it has to be seen and gauzed whether the requirements of  Section 50 have been met. Section 50 in reality provides for  additional safeguards which are not specifically provided by  the statute. The stress is on the adoption of a reasonable,  fair and just procedure. No specific words are necessary to  be used to convey existence of the right.

       The above position was elaborately dealt with in Prabha  Shankar Dubey v. State of Madhya Pradesh (2003 AIR SCW  6592).  

A similar question was also examined in Madan Lal and  Anr. v. State of Himahal Pradesh (2003 (6) Supreme 382).   

The quantity recovered by no stretch of imagination is  small. Further, nothing could be shown as to how there was  violation of Section 57 of the Act. The safe custody of  seized articles and samples has been established by cogent  evidence. Forensic Laboratory report shows that the samples  were received in sealed conditions with seals and tags in  tact. That being so, there is no infraction as alleged.   

When the factual position is tested on the legal  principles indicated above, the inevitable conclusion is  that the prosecution has established its case beyond a  shadow of doubt and the conviction and sentence imposed are  well merited. The appeal filed by the accused Smt. Krishna  Kanwar stands dismissed.   

Coming to the appeal filed by the State of Rajasthan,  questioning acquittal of Nathu Singh and Mangi Lal, we find  that the Trial Court and the High Court found lack of  material to connect them with the crime. The Trial Court  categorically observed that the requirements of Section  42(1) and 42(2) were not complied with. The houses of these  accused were straightaway searched. Even there was no  compliance with the requirements of Sections 50 though  there was personal search involved. It was submitted by  learned counsel for the State that on the basis of  information given by the co-accused, recovery was made and,  therefore, Section 27 of the Indian Evidence Act, 1872 was  applicable. The so-called disclosure is allegedly made by  accused Shamshuddin and Smt. Krishan Kanwar. Here again the  Courts below have found evidence to be inadequate.   

In view of the infirmities noticed by the Trial Court  and the High Court, they were justified in directing  acquittal of Nathu Singh and Mangi Lal.  The said appeal is  sans merit and stands dismissed.  

Both Criminal Appeal Nos. 52 and 53 of 2003 are  accordingly dismissed.