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Judgment
The present appeal is filed by the appellant – State under Section 378(1)(3) of the Criminal Procedure Code, 1973 (hereinafter referred to as ‘the Code’ for short) against the judgment and order dated 28.02.2014 passed by the learned 4th Additional Sessions Judge, Vadodara (hereinafter be referred to as the “Trial Court”) in NDPS Case No. 15 of 2010 whereby the Trial Court has acquitted the respondent accused from the charges under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter be referred to as the “NDPS Act”).
The facts giving rise to present appeal are that on 14.04.2010, secret information was received by ASI Shri Subhash Raghunath, who was working on deputation with the Special Operation Group, Baroda (SOG). It was informed that one Haribhai @ Bose Mohanbhai Kahar, the respondent-accused, residing at Vadodara, was in possession of narcotic substance, namely Ganja. The description of the accused was also given in the said information. The said information was reduced into writing and entered in the register at Entry No. 5 at about 9:15 hours at the SOG Office. A copy of the said information was placed in a sealed cover and forwarded to the Police Commissioner through Police Constable Kamleshbhai.
Thereafter, the Police Inspector sent one Police Constable to call two panch witnesses, while other officials of the SOG gathered the necessary kits and articles required for conducting the raid. Upon arrival of the panch witnesses, a raiding party was constituted, consisting of the Police Inspector, Assistant Police Inspector, Police Constables and other police personnel. The details of the raid were explained to the members of the raiding party and the names and addresses of the panch witnesses were recorded. A preliminary panchnama to that effect was drawn. Thereafter, the raiding party proceeded towards the place of the incident.
According to the prosecution case, the respondent-accused was found standing at the entrance of his house. Before conducting the personal search of the respondent-accused, the Police Inspector explained to him his right to be searched in the presence of a Gazetted Officer. However, the respondent-accused declined the said option and consented to be searched by the Police Officer, who himself was a Gazetted Officer.
Thereafter, in the presence of the panch witnesses and other members of the raiding party, the respondent-accused was searched. During the course of the search, an amount of Rs.410/- was found from his pocket, which, according to the prosecution, was the amount acquired from the sale of Ganja.
Thereafter, the raiding party searched the house of the respondent-accused, where a plastic bag with its mouth tied was found from his custody. The Police Inspector, in the presence of the panch witnesses, upon smelling the substance, suspected it to be Ganja. For the purpose of ascertaining the weight of the substance and conducting a preliminary test, FSL officials were called and a Yadi to that effect was sent through a Police Constable. After conducting the preliminary test, the substance was found to be Ganja (Cannabis sativa) weighing 1 kg. 136 grams.
Out of the total quantity of the contraband seized, two samples of 100 grams each were taken from the seized muddamal. The samples were placed in transparent plastic bags and kept in a cloth bag, which was thereafter stitched and sealed by applying the seal of the SOG. The remaining muddamal was kept in another plastic bag and the same was stitched and sealed by applying the seal of the SOG.
According to the prosecution case, pursuant to the recovery of the contraband Ganja from the respondent-accused, he was arrested and an FIR came to be registered with Makarpura Police Station vide C.R. No. II-152 of 2010. The investigation thereafter commenced and the muddamal article was sent to the FSL for examination.
After completion of the investigation, the respondent-accused was chargesheeted and the charge-sheet was submitted before the learned Chief Judicial Magistrate, First Class, Vadodara. Thereafter, as the matter was exclusively triable by the Court of Sessions, the case was committed to the learned Sessions Court, Vadodara.
Before the Trial Court, charge at Exhibit 7 was framed against the respondent-accused for the offence punishable under Section 20(B) of the NDPS Act. The respondent-accused pleaded not guilty to the charge levelled against him and claimed to be tried. Accordingly, the trial proceeded and the prosecution led oral as well as documentary evidence. During the course of the trial, the prosecution examined, in all, 10 witnesses and produced and relied upon 20 documentary evidences in support of its case.
At the conclusion of the trial, the Trial Court Vadodara, vide judgment and order dated 28.02.2014, held that the prosecution had failed to establish the guilt of the respondent-accused beyond reasonable doubt and had failed to satisfactorily link the alleged recovery of Ganja with the respondent-accused. Accordingly, the Trial Court acquitted the respondent-accused of the aforesaid charge.
Being aggrieved and dissatisfied with the aforesaid judgment and order of acquittal dated 28.02.2014, passed by the Trial Court the appellant-State of Gujarat has preferred present appeal.
Heard Ms. Jyoti Bhatt, learned APP for the appellant State and Mr. Imtiyaz S. Dayma, learned counsel for the respondent accused.
Learned APP submitted that the Trial Court has materially erred in law and on facts in acquitting the respondent-accused. The findings recorded by the Trial Court are based on inferences which are not warranted by the facts and circumstances of the case and on presumptions which are not permissible in law.
Learned learned APP submitted that the Trial Court has erred in appreciating the evidence led by the prosecution in its proper perspective and has failed to consider the material evidence on record in its entirety. She has submitted that the Trial Court has erred in holding that, in view of the inconsistencies, contradictions and alleged improbabilities in the depositions of the prosecution witnesses, the prosecution had failed to prove the charges levelled against the respondent-accused beyond reasonable doubt. The Trial Court has given undue importance to minor discrepancies and omissions which do not go to the root of the prosecution case.
Learned APP submitted that the Trial Court has erred in holding that the raid was carried out at the house of the respondent-accused and that the place of raid was not proved merely because the revenue record of the premises was not produced on record and the house number of the premises was not mentioned in the panchnama. Such omissions, by themselves, could not have been treated as sufficient to discard the otherwise cogent and reliable evidence of the prosecution witnesses regarding the place of raid and recovery.
Learned APP submitted that the Trial Court has failed to properly appreciate the evidence of the prosecution witnesses, including PW-1 Dilipbhai Rameshbhai Rajput at Exh. 9, PW-2 Hemantbhai Chandrakant Makwana at Exh. 18, PW-4 Police Inspector, SOG, Vadodara, Mr. Raghuvar Mahadevsinh Bhadoriya at Exh. 21, who had deposited the muddamal with the FSL, PW-5 Mahendrabhai Chhaganbhai Baria at Exh. 13, ASI who received the secret information, PW-6 Subhashbhai Raghunath Puar at Exh. 32, Police Constable, Makarpura Police Station, who received the muddamal from the SOG, PW-7 Ramesh Tribhovanbhai Vasava at Exh. 34, Scientific Officer, PW-8 Ramniklal Laljibhai Gondalia at Exh. 35, ASI, Makarpura Police Station, who registered the FIR and took custody of the accused, PW-9 Nirsingbhai Dalabhai Damor at Exh. 36, and PW-10 Balvantsing Rupsingbhai Bamaniya at Exh. 37, Investigating Officer.
Learned APP submitted that the Trial Court has erred in holding that the SOG did not maintain a movement register and, therefore, there were discrepancies regarding the movement of the police officials. The Trial Court ought to have appreciated the evidence on record as a whole and ought not to have discarded the prosecution case merely on account of the non-production or non-maintenance of such register, particularly when the other evidence regarding the raid, seizure and subsequent transmission of the muddamal remained on record. She has submitted that the Trial Court has failed to appreciate that the alleged omissions, contradictions and inconsistencies in the evidence of the prosecution witnesses were minor in nature and did not go to the root of the matter. Such minor discrepancies could not have been made the basis for rejecting the otherwise reliable prosecution evidence.
Learned APP submitted that the Trial Court has failed to appreciate the evidence of the prosecution witnesses in its proper perspective and has considered the evidence in a fragmented manner instead of appreciating the same cumulatively and in the light of the documentary evidence and panchnama produced on record. She has submitted that the Trial Court has failed to appreciate that the members of the raiding party had duly complied with the mandatory requirements of the NDPS Act while conducting the raid, search and seizure. The evidence regarding the receipt and recording of secret information, constitution of the raiding party, search, seizure, preparation of panchnama, drawing of samples, sealing of the muddamal and forwarding of the samples to the FSL has not been properly appreciated by the Trial Court.
Learned APP submitted that the Trial Court has erred in holding that the contraband was not found at the instance of the accused, but was found by the raiding party when the accused was standing at one place, and consequently that the prosecution had failed to prove possession of the contraband Ganja beyond reasonable doubt. The Trial Court has failed to appreciate the circumstances in which the respondent-accused was found, the recovery effected from the premises in his custody and the other corroborative evidence produced by the prosecution. The issue of possession under the NDPS Act ought to have been considered in the light of the entire evidence on record.
Learned APP submitted that the Trial Court has failed to appreciate that the evidence of the complainant and the members of the raiding party was duly corroborated by the panchnama and the evidence of the panch witnesses. The evidence of the panch witnesses, read with the documentary evidence and the evidence regarding seizure and sealing of the muddamal, provided sufficient corroboration to the prosecution case.
Learned APP submitted that the Trial Court has failed to properly appreciate the evidence relating to the sealing, custody and transmission of the seized contraband and the FSL examination thereof. The evidence regarding the seizure of the contraband, preparation of samples, sealing thereof and forwarding of the samples to the FSL deserved due consideration while determining the identity of the seized substance and the link between the seized muddamal and the FSL report. She has submitted that the reasons recorded by the Trial Court while appreciating the evidence and acquitting the respondent-accused are contrary to the evidence on record and are illegal, erroneous and unsustainable in law.
It is further contended that the prosecution had duly proved the possession and ownership of the premises where the raid was carried out. However, the Trial Court disbelieved the said facts, and therefore, the impugned judgment and order is contrary to the facts and evidence on record. The Trial Court has disbelieved the prosecution case mainly on the ground that the address mentioned in the Electricity Bill at Exhibit 17 does not tally with the facts relating to the raid carried out at the premises and the information recorded in Exhibits 11 and 22, and that the same is contrary to Exhibit 7. Under such circumstances, the findings recorded by the Trial Court are erroneous, contrary to the evidence on record, and legally unsustainable.
So far as compliance with the provisions of Sections 42 and 50 of the NDPS Act is concerned, the learned APP further contended that the respondent was duly informed that, if he so desired, he was entitled to have his search conducted in the presence of a Gazetted Officer. Since the respondent declined to have his search conducted in the presence of a Gazetted Officer, it cannot be said that the Investigating Officer had violated or failed to comply with the provisions of Section 50 of the NDPS Act.
Learned APP submitted that the judgment and order of acquittal dated 28.02.2014 passed by the Trial Court in Sessions Case No. 15 of 2010 deserves to be quashed and set aside and the present appeal deserves to be allowed in the interest of justice.
On the other hand Mr. Imtiyaz S. Dayma, learned counsel appearing for the respondent-accused has supported the judgment and order of acquittal passed by the Trial Court. The learned advocate appearing for the respondent-accused submitted that the impugned judgment and order of acquittal passed by the Trial Court is just, legal, and proper and does not call for any interference by this Court. He has submitted that the Trial Court has rightly appreciated the oral as well as documentary evidence available on record and has recorded findings based on proper appreciation of facts and settled principles of law. He has submitted that the prosecution has failed to establish its case beyond reasonable doubt.
Learned counsel for the respondent has contended that the prosecution had miserably failed to prove the charges against the respondent, more particularly, the possession of the premises, which was not proved by the prosecution beyond reasonable doubt.
Learned counsel for the respondent further contended that the original secret information received by PW-6, namely, ASI Subhash Raghunath Pawar, serving with the SOG, Vadodara, was to the effect that the present respondent was keeping narcotic substances at his residence for the purpose of sale. However, the said secret information received by PW-6 was not reduced into writing, as required under Sections 41 and 42 of the NDPS Act. He has submitted that as per the deposition of PW-6, he had informed his superior officer, PW-4, Mr. Raghuvar Mahavirsing Bhadoria, who was the Police Inspector heading the SOG, Vadodara. However, the said information was also not reduced into writing by PI Bhadoria. Thus, the prosecution failed to establish compliance with the mandatory provisions of Sections 41 and 42 of the NDPS Act beyond reasonable doubt and therefore, under these circumstances, the Trial Court has rightly recorded its findings while passing the impugned judgment and order.
Learned counsel for the respondent contended that there is ample evidence on record to show that the seal affixed on the intimation sent to the higher authority through the concerned person, namely, Constable Mr. Kamleshbhai, who had allegedly delivered the same by hand to the office of the ACP, Crime, Vadodara, was not duly proved by the prosecution, as the said Constable was not examined as a witness. It is further submitted that, from the evidence on record, it is revealed that the seal affixed on the sample as well as on the information was found to have been tampered with. Under these circumstances, the Trial Court has rightly appreciated the evidence on record and passed the impugned judgment and order.
Learned counsel for the respondent contended that the prosecution had failed to prove that the mandatory procedure prescribed under Sections 50 and 57 of the NDPS Act was duly followed. Therefore, under these circumstances, the Trial Court has rightly appreciated the evidence and recorded its findings while passing the impugned judgment and order. Hence, no interference is called for in the present appeal.
Upon perusal of the impugned judgment and order, as well as the submissions advanced by the learned advocates for both sides, the issues that arises for consideration before this Court are as under:-
Whether the Trial Court committed any error in passing the impugned judgment and order of acquittal?
Whether the Trial Court, while appreciating the evidence of the prosecution witnesses, has committed any error of law or fact?
Whether the impugned judgment and order of acquittal suffers from any illegality or perversity?
Now, in light of the aforesaid facts and the issues framed by this Court for determination, let us first examine the facts of the present case. PW-6, namely, Subhasbhai Ragunath Puwar, ASI, serving with the SOG, Vadodara, received secret information that contraband articles had been kept at the premises of the present respondent for the purpose of sale. Though PW-6 received the said secret information, he did not reduce it into writing. He conveyed the information to PW-4, Raghuvar Mahavirsing Bhadoriya, PI, who was heading the SOG, Vadodara. PW-4, in turn, made a note of the information on a plain piece of paper. However, there is no evidence on record to show that the said information was entered in any register.
On the basis of the said secret information, PW-4, along with PW-6, other police personnel, and the panch witnesses, proceeded to the place mentioned in the information. They found the respondent-accused present at the said premises. During the course of the search, a plastic bag containing the alleged contraband articles was found beneath the kitchen platform, in the presence of the panch witnesses and the FSL officer, who had been called to the spot. It is further the case of the prosecution that the respondent-accused was intimated about his right to be searched in the presence of a Gazetted Officer, as provided under Section 50 of the NDPS Act. The respondent-accused declined the said option and stated that he had no objection to being searched by the police officer present at the spot. During the search, the said articles were found from the premises referred to by the prosecution, and accordingly, an FIR came to be lodged against the present respondent for the offence punishable under Section 20(b) of the NDPS Act, and he was charged for the said offence.
Now, on perusal of the evidence on record and the impugned judgment, the basic and fundamental facts which emerge are that, on 14.04.2010, PW-6, while on duty, received secret information. Though he received the said information, he did not reduce it into writing. Instead, he went to his superior officer, namely, PW-4, and orally conveyed the said secret information to him. On the basis of the said information, PW-4 arranged a raid. The raiding party, consisting of PW-1 and PW-2, who were the panch witnesses, along with other police personnel, proceeded to the place of the present respondent mentioned in the complaint. During the course of the search, they allegedly found the contraband articles kept beneath the kitchen platform in the said room.
So far as the ownership of the said room and the address thereof are concerned, there is a discrepancy between the information received by the prosecution and the documents collected during the course of investigation. In particular, the electricity bill produced at Exhibit 17 shows the name of the consumer as Kahar Harilal Mohanbhai, with the address mentioned as Ganesh Nagar, Parsi Pista, Vishwamitri, Vadodara. Whereas, the address mentioned in the secret information is different, namely, near Ganapati Temple, near Parsi Pista Crematorium, in the Vishwamitri area of Vadodara. Thus, there is a clear discrepancy between the address mentioned in the secret information and the address reflected in Exhibit 17.
Therefore, the question as to the occupation and possession of the premises by the present respondent becomes doubtful. The prosecution has failed to produce sufficient and cogent evidence to establish that the premises from which the alleged contraband was recovered were in the possession or occupation of the present respondent. Consequently, the prosecution has failed to establish this material circumstance beyond reasonable doubt.
Now, if we examine the matter further, so far as compliance with the mandatory provisions under Sections 41, 42(1) and 42(2), read with Section 43 of the NDPS Act, is concerned, the evidence on record does not establish that the said provisions were duly complied with by the investigating agency.
So far as compliance with Section 50 of the NDPS Act is concerned, PW-4, in his cross-examination, particularly in paragraph 17, admitted that Exhibit 11 did not mention that the substance recovered was a contraband article, namely, Ganja, as contemplated under the relevant provisions of the NDPS Act. It was further admitted that Exhibit 11 did not contain any mention that the respondent-accused was informed of his right to have his search conducted in the presence of a Gazetted Officer, as provided under Section 50 of the NDPS Act.
If we examine the evidence of PW-4, PW-6 and PW-10, there are material contradictions in their depositions, as noticed by the Trial Court. These contradictions go to the root of the matter. Accordingly, the Trial Court, from paragraph No. 39 onwards, has recorded detailed findings in this regard. So far as compliance with the mandatory provisions of the NDPS Act is concerned, the Trial Court has also recorded its reasons from paragraph No. 30 onwards.
Further, with regard to Section 55 of the NDPS Act, which relates to the procedure to be followed by the police officer in taking charge of and keeping in safe custody the articles seized and delivered to him, completely contradictory evidence has emerged on record. The Trial Court has therefore considered the relevant evidence and has also referred to the depositions of the witnesses. The Trial Court has also referred the Standing Instructions/Orders, which read as under:-
(i)If the drugs seized are found in packages/containers, the same should be serially numbered for purpose of identification etc.
(ii)Samples must be drawn on the spot of recovery in duplicate, in the presence of search (panch) witnesses and the person from whose possession the drug is recovered.
(iii)The quantity to be drawn in each sample should be 5 gms in respect of all narcotic drugs and psychotropic substances except in the cases of opium, ganja and charas, hashish where a quantity of 24 gms in each case is required. The same quantity should be taken for the duplicate samples also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn.
(iv)In the case of seizure of a single package/container one sample in duplicate is to be drawn. In case of seizure of more than one packages/container one sample in duplicate from each package/container should be drawn.
(v)All samples must be drawn and sealed in the presence of the accused, panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official Seal of the seizing officer should also be affixed. If the person from whose possession the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and duplicate of each sample.
(vi)The sample in duplicate should be kept in heat sealed plastic bags. The plastic bags should be kept in a paper envelope and properly sealed. Such sealed envelope should be marked as original and duplicate.
(vii)The samples should be dispatched to the respective laboratories under the cover of a Test Memo which shall be prepared in triplicate in proforma NCB-1”
After considering the evidence of PW-3 and PW-4, along with the documents at Exhibits 39 and 40, vis-à-vis the deposition of PW-5 and PW-7, completely contradictory facts have emerged on record. In such circumstances, the Trial Court has rightly recorded its findings with regard to the breach of the provisions of Section 55 of the NDPS Act.
Now, so far as Section 57 of the NDPS Act is concerned, the deposition of PW-10, being the Investigating Officer, clearly establishes that, with regard to compliance with Section 57 of the NDPS Act, no such record was received during the course of the investigation, nor was any such compliance recorded by PW-10, the Investigating Officer. In paragraphs 8, 9, 10 and 11 of his cross-examination, these facts have been clearly brought on record. Therefore, after evaluating the evidence led by the prosecution, the Trial Court has rightly recorded its findings while passing the impugned judgment and order. The Trial Court has also dealt with the evidence of each witness under the respective heads and has considered the material aspects of the prosecution case in detail.
At this stage, it is appropriate to refer Sections 42, 50, 55 and Section 57 of the NDPS Act which read as under:-
“42.Power of entry, search, seizure and arrest without warrant or authorisation.—(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces 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 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, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act 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)seize 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; 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 this Act:
[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further 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 within seventy-two hours send a copy thereof to his immediate official superior.
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 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.
[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6)After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
[50A. Power to undertake controlled delivery.—The Director General of Narcotics Control Bureau constituted under sub-section (3) of section 4 or any other officer authorised by him in this behalf, may, notwithstanding anything contained in this Act, undertake controlled delivery of any consignment to—
(a)any destination in India;
(b)a foreign country, in consultation with the competent authority of such foreign country to which such consignment is destined, in such manner as may be prescribed.
55.Police to take charge of articles seized and delivered.—An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
57.Report of arrest and seizure.—Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
[57A. Report of seizure of property of the person arrested by the notified officer.—Whenever any officer notified under section 53 makes an arrest or seizure under this Act, and the provisions of Chapter VA apply to any person involved in the case of such arrest or seizure, the officer shall make a report of the illegally acquired properties of such person to the jurisdictional competent authority within ninety days of the arrest or seizure].”
Now, considering the above referred provision of the NDPS Act, the prosecution miserably failed to establish the compliance of the above referred provision of the Act.
At this stage, it is appropriate to refer the decision of the Honourable Apex Court in the case of State of Punjab vs. Balbir Singh reported in AIR 1994 SC 1872, whereby Hon’ble Apex Court has held as under:-
“Head Note (D) Narcotic Drugs and Psychotropic Substance Act (61 of 1985), Ss. 50, 41, 42 - Search and Seizure - On prior information empowered officer acting under S.41(2) of S.42-Should comply with provisions of S.50-Provisions of S.50 are mandatory.
17.One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised officer while conducting the search, affects the prosecution case. The said provision (Section 50) lays down that any officer duly authorised under Section 42, who is about to search any person under the provisions of Sections 41, 42 and 43, shall, if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made by the person to be searched, the authorised officer concerned can detain him until he can produce him before such Gazetted Officer or the Magistrate. After such production, the Gazetted Officer or the Magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that the search be made. To avoid humiliation to females, it is also provided that no female shall be searched by anyone except a female. 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 would 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 of his right that if he so requires 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 requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard 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.
21.In Miranda v. Arizona17 the Court, considering the question whether the accused be apprised of his right not to answer and keep silent while being interrogated by the police, observed thus :
"At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere."
It was further observed thus :
"The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system that he is not in the presence of persons acting solely in his interest."
When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be, taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of Section 50 are mandatory.
25.The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
(1)If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.
Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, 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.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(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 prosecution 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.
(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. PC fails to strictly comply with the provisions 'of Sections 100 and 165 Cr. PC including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. PC namely Sections 100 and 165 Cr. PC and if there is no strict compliance with the provisions of Cr. PC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5)On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6)The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case
At this stage, it is appropriate to refer the the decision in case of H.I. Majmudar Intelligence Officer vs. Santosh Pandurang Setty reported in 2026 (0) AIJEL HC 253136, whereby the Hon’ble Apex Court has held as under:-
‘Heard Note (c) Narcotic Drugs and Psychotropic Substances Act, 1985, Ss. 42, 50 and 57- Search and seizure Mandatory provisions -Non-compliance - At the time of search and seizure, there was clear violation of S. 42 of the NDPS Act - Held, provision of search and seizure under S. 42 is mandatory and non-compliance thereof is impermissible under law - Reliance placed on Boota Singh v. State of Haryana, (2021) 19 SCC 606; Karnail Singh v. State of Haryana, (2009) 8 SCC 539; Sukhdev Singh v. State of Haryana, (2013) 2 SCC 212; State of Rajasthan v. Jagraj Singh @ Hansa, (2016) 11 SCC 687.
8.Further, re-appreciating the evidence, it appears that, as per the case of the prosecution, the statements of the witnesses were recorded and as per the case of the prosecution, the accused Nos. 1 to 3 were engaged in transportation of contraband, and the said fact is revealed on basis of statements of the co-accused i.e., accused Nos. 2 and 3, but nowhere has any evidence supported the said contention, and in absence of any legal evidence qua involvement of the accused, more particularly how and from where the contraband was loaded and shifted to the godown, no evidence on record, and even no independent witness has supported the case of the prosecution qua the alleged conspiracy or meeting of minds on the part of the accused persons. Even as per the complaint, the prosecution has relied upon the statements of the accused persons as incriminating evidence, and such inculpatory statements are also not true which support any evidence and no corroborative piece of evidence is on record to show that the accused has hatched conspiracy and engaged in transportation of huge contraband. The only evidence led before the learned Sessions Court is that the accused No.2 was present at the time of raid, and it is stated that contraband was seized from his possession but no evidence qua accused Nos. 1 and 3 has been collected. Not only that, the ownership of the godown is also not proved and the owner of the godown is not cited as a witness. The independent witness, Deepak Parikh, turned hostile and has not supported the case of the prosecution. Even based on whatever allegations are levelled against the accused and evidence led, it clearly reveals that the prosecution has not followed the mandatory provisions for search and seizure under the NDPS Act. At the time of search, there was a clear violation of Section 42 of the NDPS Act and the learned Sessions Judge has also assigned reason for that qua violation of Sections 42, 50 and 57 of the NDPS Act. The provision of search and seizure under Section 42 is mandatory and in this regard, reference is required to be made to the judgments of the Hon'ble Apex Court in the case of Boota Singh Vs. The State of Haryana reported in (2021) 19 SCC 606; Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539; Sukhdev Singh Vs. State of Haryana, reported in (2013) 2 SCC 212, and State of Rajasthan Vs. Jagraj Singh @ Hansa, reported in (2016) 11 SCC 687. Non-compliance of the mandatory provision of Section 42 is absolutely clear from the record and such non-compliance is impermissible under the law. Hence, the learned Sessions Judge has not committed any error in recording findings qua non-compliance of mandatory provisions under the NDPS Act.”
In the decision in case of Karnail Singh vs. State of Haryana dated 29.7.2009 in Criminal Appeal No.36 of 2003, the Hon’ble Apex Court has held as under:-
“(6)In the light of the above decisions and the principles enunciated therein, it would be appropriate to refer to Section 42 of the NDPS Act which is relevant for the present purpose as it stood before its amendment by Act 9 of 2001. It reads as under:-
"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 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)seize 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."
Sub-section (2) as replaced by Act 9 of 2001 is extracted below:
"(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 within seventy two hours send a copy thereof to his immediate official superior."
15)Under Section 42(2) as it stood prior to amendment 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 would adversely affect the prosecution case and 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, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section. Abdul Rashid (supra) has been decided on 01.02.2000 but thereafter Section 42 has been amended with effect from 02.10.2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused.
17.In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a)The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b)But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .
(c)In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d)While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001”.
In the decision in case of Vijaysinh Chandubha Jadeja vs. State of Gujarat reported in 2011(1) SCC 609, the Hon’ble Apex Court has held as under:-
“18.Although the Constitution Bench did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, 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 the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.
19.As noted above, sub-sections (5) and (6) were inserted in Section 50 by Act 9 of 2001. It is pertinent to note that although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub- sections, viz. when the authorised officer has reason to believe that any delay in search of the person is fraught with the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance etc., or article or document, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases a safeguard against any arbitrary use of power has been provided under sub-section (6). Under the said sub-section, the empowered officer is obliged to send a copy of the reasons, so recorded, to his immediate official superior within seventy two hours of the search. In our opinion, the insertion of these two sub-sections does not obliterates the mandate of sub-section (1) of Section 50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate. The object and the effect of insertion of sub-sections (5) and (6) were considered by a Constitution Bench of this Court, of which one of us (D.K. Jain, J.) was a member, in Karnail Singh Vs. State of Haryana13. Although in the said decision the Court did observe that by virtue of insertion of sub-sections (5) and (6), the mandate given in Baldev Singh's case (supra) is diluted but the Court also opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have been taken away completely. The Court observed :-"Through this amendment the strict procedural requirement as mandated by Baldev Singh case was avoided as relaxation and fixing of the reasonable time to send the record to the superior official as well as exercise of Section 100 CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance with Section 50 by Baldev Singh case was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only (2009) 8 SCC 539 to balance an urgent situation. As a consequence the mandate given in Baldev Singh case is diluted."
22.In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll14, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.”
In the decision in case of State of Himachal Pradesh vs. Surat Singh reported in 2026 (0) AIJEL SC 76708 the Hon’ble Apex Court has held as under:-
“18.Their lordships of the Hon'ble Supreme Court in the case of Suresh and others versus State of Madhya Pradesh, reported in (2013) 1 SCC 550, have held that in a case where the accused were merely asked whether they would offer their personal search to police officer concerned or to gazetted officer and the appellants gave their consent for their personal search by police officer concerned, it will amount to non-compliance of Section 50(1) of the ND & PS Act. Their lordships have held as follows:
"16)The above Panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of their legal right provided under Section 50 of the NDPS Act to refuse/to allow the police party to take their search and opt for being searched before the Gazetted officer or by the Magistrate. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him, i.e. the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev singh's case.
17.Further a reading of the judgments of the trial Court and the High Court also show that in the presence of Panchas, the SHO merely asked all the three appellants for their search by him and they simply agreed. This is reflected in the Panchnama. Though in Baldev Singh's case, this Court has not expressed any opinion as to whether the provisions of Section 50 are mandatory or directory but "failure to inform" the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. In Vijaysinh Chan Jadeja's case (supra), recently the Constitution Bench has explained the mandate provided under sub-section (1) of Section 50 and concluded that it is mandatory and requires strict compliance. The Bench also held that failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. The concept of substantial compliance as noted in Joseph Fernadez (supra) and Prabha Shankar Dubey (supra) were not acceptable by the Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly, in view of the language as evident from the panchnama which we have quoted earlier, we hold that, in the case on hand, the search and seizure of the suspect from the person of the appellants is bad and conviction is unsustainable in law."
18.Their lordships of the Hon'ble Supreme Court in case of State of Rajasthan versus Parmanand and another, reported in (2014) 5 SCC 345, have held that if merely a bag is carried by person is searched without there being any search of his person, S. 50 will have no application but if bag carried by him is searched and his person is also searched, S. 50 would be attracted. Their lordships have also held that it was improper for PW-10 S.I. "Q" to tell respondents that a third alternative was available. It has been held as follows:
15.“Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.”
It is also worthwhile to refer the decision of the Hon’ble Apex Court in case of State of Rajasthan vs. Jag Raj Singh reported in 2016 (11) SCC 687 and in the case of Boota Singh vs. State of Haryana reported in 2021 (19) SCC 606 whereby in similar set of facts the Hon’ble Apex Court has deal with Sections 42, 43 and 50 of the NDPS Act.
Further, on perusal of the record of the appeal, it transpires that the respondent-accused has established his innocence before the Trial Court and that, after due appreciation of the oral as well as documentary evidence and other material placed on record, the Trial Court has rightly passed the impugned judgment and order of acquittal. The findings recorded by the Trial Court are just, proper and in accordance with the settled principles of law and, therefore, no interference is warranted by this Court.
It is well settled by catena of decisions that the Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial Court.
Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused are connected with the commission of the crime with which he is charged.
The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, more particularly paragraph Nos. 42 and 43, which was subsequently re-affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon’ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph No. 26 the general principles are set out by the Hon’ble Apex Court based upon various decisions of the Hon’ble Apex Court. Then in case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149, the Hon'ble Apex Court has dealt with the similar issue, more particularly, in paragraph Nos. 37 to 40. Hence, I am in complete agreement with the findings recorded by the trial Court.
It is also worthwhile to refer to the recent decision of the Hon’ble Supreme Court in the case of Ramesh vs. State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon’ble Supreme Court has held and observed in paras-20 and 21 as under:-
“20.At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus:
“42.…. (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3)Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4)An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5)If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
21.In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained.”
Considering the entire evidence on record, it clearly appears that there is no credible evidence to connect the present accused with the alleged crime and the evidence on record is not so convincing to prove beyond reasonable doubt that the accused has committed the alleged crime. Therefore, the accused cannot be convicted on the evidence on record.
On perusal of the impugned judgment and order, it clearly transpires that the trial Court has not committed any error of fact and law in appreciating the evidence on record and in acquitting the accused from the charges levelled against them. Even on re-appreciation of the evidence, it clearly transpires that the prosecution has miserably failed to prove the charge levelled against the accused beyond reasonable doubt. Therefore, the impugned judgment and order of the trial Court is sustainable and the present appeal is liable to be dismissed.
In view of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order of acquittal passed by the Trial Court is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.