Khursheed Ahmad : Hafiz Ullah vs State of J & K

On 1.7.95, appellants Khursheed Ahmed and Hafiz Ullah were convicted by the learned Sessions Judge, Jammu for the commission of offences

under Sections 20/27 of the Narcotic Drugs and Psychotropic Substances Act (here in after to be referred as NDPS Act and sentenced to

undergo rigorous imprisonment for ten years and to pay a fine of one lakh each. In default of payment of fine, appellants had to further undergo

simple imprisonment for three years.

The prosecution case, briefly stated is that on Nov. 18,1994, a police party headed by Sub Inspector Farooq Ahmed Zargar (from Police Station

Gandhi Nagar Jammu) was on general surveillance duty (Naka duty) near the Cremation Ground, Shastrinagar, Jammu. At about 12 noon they

were checking the vehicles passing through the road and found the appellants coming from Shastrinagar area. They were riding on an un registered

scooter which was being driven by appellant Khursheed Ahmed and appellant Hafiz Ullah was pillion rider. The naka party gave them a signal to

halt, but instead of ungearing the scootor and alighting from it, they made an attempt of escape by changing their direction and escalating the speed.

The members of the naka party gave them a hot chase and after covering short distance succeeded in apprehending them. Search was conducted

whereupon appellanmt Hafiz Ullah was found carrying charas wrapped in a ploythene packet which he had concealed in worn jacket. Similarly,

from the wearing coat of appellant Khursheed Ahmed, a polyphone packet containing charas was found. SI Farooq Ahmed Zargar attached both

the packets, after weighing it was found that the packet of appellant Hafiz Ullabn contained 1 Kg charas whereas, the packet of Khursheed

Ahmed weighed 700 gms. Samples weighing 20 gms each were taken therefrom and sealed . After the arrest of the appellants and seizure of

contraband charas, SI Garooq Ahmed Zargar informed the SHO Police Station Gandhi Nagar, Jammu who came on the spot and took over the

possession of the seized articles.

After the completion of the investigation final report was submitted before the learned Sessions Judge, Jammu who proceeded with the trial and

found the appellants guilty of the above state did offences and accordingly convicted and sentenced them.

Appellants have filed separate appeals (Cr. lst. Appeal N. 18/95 and Cr. 1st. Appeal No,22/95). Mr. M.S. Sadiq, Advocate represents the

appellant Hafiz Ullah in Appeal No.22/95 and has argued the case. No body appears for the appellant Khursheed Ahmed despite opportunities ,

but Mr. P.C. Sharma, GA has advanced the arguments on behalf of respondentState in both these appeals.

The impugned judgment of the learned Session Judge, Jammu has been assailed in both the appeals on the grounds that the learned trial Judge has

fallen into error in appreciating the evidence. Farooq Ahmed Zargar fabricated this false case against the appellants as after their search he through

his subordinated foisted the recovery of two polyphone bags containing contraband charas from ""the Dikki"" of the scooter. There were material

contradictions in the statement of the Sub Inspector Farooq Ahmed Zargar and the testimonial account given by the other members of the Raiding

Party but the trial Judge failed to draw right conclusions there from but wrongly fastened the liability of the recovery of the charas on the appellants.

Mr. M.S. Sadiq, the learned counsel for the appellant Hafiz Ullah though made a number of submissions which he had taken before the trial court,

but I need not detain myself to deal with all those factual submissions as in my opinion there is force in the main arguments of the learned counsel

viz; that on account of noncompliance of the provisions of Sec. 50 of NDPS Act, the convictions and sentence of the appellants do not sustain.

The record reveals that similar argument was also advanced before the learned Sessions Judge who brushed aside the same on the reasoning that

SubInspector Farooq Ahmed Zargar without prior information had made out a search and stumbled on a chance recovery of the charas in question

so the provisions of Section 50 were not attracted. He has also held that there was no occasion for showing any observance to the mandates of

Sec. 50 of NDPC Act because the charas was found in the packets possessed by the accuspd and no question had arisen for conducting their

search. Vide SRP 525 dated 14.8.85 (issued by the Govt.) the said SubInspector had been empowered to carry searches under Sec.42 of the

NDPS Act. There can be no dencial that the search and the seizure were not made in a public place. From this it follows that Sub Inspector

Farooq Ahmed Zarqar and his companion of the raiding party had discharged their functions under Sections 42 and 43 of the NDPS Act. In order

to understand the real import of Sec.50 of the NDPS Act, the same is reproduced hereunder:

Conditions under which search any person shall be conducted :

Where any officer duly authorised under Section 42, is about to search any person under the provision of section 41 .section42 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 sec.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

subsection (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.

From the persual of the Section, it transpires that if any authorised person is about to search any person under the provision of sec.41 sec. 42, sec.

43 he is under an obligation to take such person on his requirement without any delay to the nearest Gazetted Officer of any of the departments

mentioned in Sec.42 or to the nearest Magistrate. The Gazetted Officer or the Magistrate as the case may be has the discretion to get the search

carried out or discharging the person and this depends on the existence of reasonable grounds of the case. Unlawful possession of the contraband

is a sine quonon for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. The apex

court in the case of Ali Mustaffa Abdul Rehman Moosa vs. State of Kerala(AIR 1995 SC 244) Considered the scope of section 50 and held that:

Where a Police Officer on receiving information that a person is in possession of contraband (charas), wants to subject him to search, it is the duty

of the Police Officer to give option to the person as to whether he desired to be searched in the presence of a Gazetted Officer or a magistrate as

envisaged by Section 50. The failure to provide that option to the accused vitiates his conviction. The provision of Sec.50 are mandatory, the

noncompliance where of vitiates the conviction. It is not necessary that the person who is about to be searched should by himself make a request.

It has further been held in the said case that a contraband seized as a result of illegal search or seizure, cannot be used to fasten the liability of

unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner.

Indeed the seized contraband is evidence but in the absence of Proof of possession of the same, an accused cannot be held guilty under the NDPS

Act. While interpreting the mandate of Section 50 of the NDPS Act, it was emphasised that Sec. 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 the

conviction. It is the duty of the prosecution to provide such opportunity to the prosecution to provide such opportunity to the accused and the later

has not to ask for it.

In the present case, Sub inspector Farooq Ahmed Zargar in his testimony has admitted that the appellants were not asked of their option to be

searched in presence of the Magistrate or Gazetted Officer. Mr. P.C Sharma, GA has contended that the appellants had not required the presence

of a Magistrate or authorised govt. officer for being searchd so the benefit of accruing any right cannot be deemed in their favour. A similar

argument had been advanced in Balbir Singh's case (1994 AIR SCW 1802) and the Bench repelled the same after a detailed discussion and

observed (at pp 1819 20):

'The words"" if the person to be searched so desires"" are important. One of the submissions is whether the person who is about to be searched

should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he

so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in

which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched

before a gazetted officer or a Magistrate.

To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a magistrate if he so

required, since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important

safequard to the accused. To afford such an opportunity to the person to be searched. he must be aware of his right and that can be done only by

the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the

person to be searched of his right.

The apex court in the case of Mohinder Kumar Vs. The State, Panaji, Goa (AIR 1995 SC 1157) acquitted the accused where it was found that

when the police officer accidently searched the house of accused while on patrolling duty and effected search and seizure of charas from accused

without recording the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession

of charas and did not forward a copy of the grounds to his superior officer, as required by S.42 (2) of the Act and also did not adhere to the

provisions of S.50 of the Act in that he did not inform the person to be searched that he would like to be taken to a Gazetted Officer or a

Magistrate, the mandatory provisions of Ss 42 and 50 of the Act were not complied with...

In the presence of the pronouncements made by the apex court in the cases cited before the learned Sessions Judge (1994 AIR SCW1802) and

(AIR 1995 SC 1157) (supra) He could hardly feel any difficulty in arriving at the right conclusions, The view taken by him that since it was a

chance recovery of the charas which was found in the packets possessed by the accused, so there was no question of personal search being

carried out runs contrary to the raison centre of section 50 NDPS Act which does not distinguish between a chance recovery and a recovery make

on prior information.

In view of the discussion make above it is found that in this case there was noncompliance of the provisions of sec.50 of NDPS Act which has

vitiated the convictions of the appellants.

Accordingly, both the appeals are accepted and the convictions and sentenced of the appellants are set aside. Seized charas be destroyed after a

period of sixty days. Connected Cr. M.P.s shall stand disposed of.

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