Shihab v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 CRL.A NO. 1589 OF 2006** **AGAINST THE JUDGMENT DATED 11.08.2006 IN S.C.NO.23/2005 OF SPECIAL JUDGE (NDPS ACT CASES), VADAKARA APPELLANT/3RD ACCUSED:** SHIHAB, S/O.ALAVI, THOTTIYIL HOUSE, PUTHOOR AMSOM, PALLIPRAM, MALAPPURAM DISTRICT. BY ADV SRI.T.G.RAJENDRAN ## **RESPONDENTS/COMPLAINANT & STATE:** 1 THE S.I. OF POLICE, KOTTAKKAL KOTTAKKAL POLICE STATION. 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI SANGEETH RAJ, GOVERNMENT PLEADER THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 1589 OF 2006 2 **C.R** ## **JUDGMENT** This appeal has been filed by the third accused in S.C.No.23 of 2005 on the file of the Special Judge (NDPS Act Cases), Vadakara, challenging the conviction and sentence imposed on him by that court for an offence under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. The gist of the prosecution case is that at about 05.00 pm on 30.08.2004, the appellant/3[rd] accused together with accused 1 and 2 were found in possession (jointly) of a total quantity of 200gms of brown sugar meant for sale. Out of the total quantity, 80 grams were seized from the possession of the appellant/3[rd] accused, 50 grams were seized from the possession of the 1[st] accused (now deceased) and 70 grams were from the possession of the 2[nd] accused. All the three accused were arrested on the spot by the Circle Inspector. Following the investigation, a final report was filed before the Court. A charge was framed alleging the commission of offence under Section 21(b) of the NDPS Act against the third accused as the first accused was no longer alive by that time and the second accused was absconding. The charge CRL.A NO. 1589 OF 2006 3 under Section 21(b) was for the possession of 200 grams of brown sugar jointly by all or alternatively for the possession of 80 grams of brown sugar by the appellant/3[rd] accused separately. On the appellant/3[rd] accused pleading not guilty, the case was posted for trial. 3. The prosecution examined 9 witnesses including the Circle Inspector of Police, who detected the offence and also marked Exts.P1 to P14 and material objects MO1 to MO4. Following the closure of the prosecution evidence, the appellant/accused was questioned under Section 313 of Cr.P.C and he denied all the incriminating evidence against him and alleged that the case was falsely foisted by the police at the instance of another person, who is not in good terms with the appellant/3[rd] accused. Despite the opportunity, no defence evidence was adduced. Taking into account the evidence tendered by the prosecution witnesses, the Court convicted the appellant/3[rd] accused for committing an offence under Section 21(b) of the NDPS Act and sentenced the appellant/3[rd] accused to undergo rigorous imprisonment for five years and to pay a fine of Rs.20,000/- and in default thereof to undergo rigorous imprisonment for a further period of one year for the offence under Section 21(b) of the NDPS Act. Set off as permissible in law was also permitted. 4. Heard Sri.T.G.Rajendran, the learned counsel appearing for CRL.A NO. 1589 OF 2006 4 the appellant/3[rd] accused and the learned Public Prosecutor for the State. 5. It is the primary contention of the learned counsel for the appellant that a reference to Ext.P6 seizure mahazar and to the evidence tendered by PW1 (the detecting officer) would show that the entire prosecution case must fail since there was a failure to comply with the mandatory procedure under the NDPS Act for conducting a search of persons for the recovery of contraband articles. He submits that the law on this point is settled by various decisions of the Supreme Court. He refers to the judgments of the Supreme Court in **Man Bahadur v. State of Himachal Pradesh** 2008 (4) KLT 319, **State of Rajasthan v. Parmanand** 2014 (1) KLT 1030 and to **Arif Khan Alias Agha Khan v. State of Uttarakhand** AIR 2018 SCC 2123 and contends that once the mandatory procedure under Section 50 of the NDPS Act is found to be violated, the appellant/3[rd] accused is entitled to be acquitted. 6. The learned Public Prosecutor on the other hand submits that there is no question of violation of the procedure prescribed by Section 50 of the NDPS Act, in this case. He refers to the provisions of Section 50 and has also referred to the judgment of a Constitution Bench of the Supreme Court in **State of Punjab v. Baldev Singh,** CRL.A NO. 1589 OF 2006 5 (1999) 6 SCC 172 and **Vijaysinh Chandubha Jadeja v. State of Gujarat,** (2011) 1 SCC 609. 7. Before considering the primary contention raised, it will be convenient to decide one other issue raised by the learned counsel for the appellant. The learned counsel for the appellant has placed on record the judgment in S.C.No.3 of 2010 on the file of the Special Judge (NDPS Act Cases), Vatakara to contend that the second accused, who was earlier absconding was acquitted by that court on the finding that the chemical analysis of the alleged contraband proved that it was not brown sugar as was alleged by the prosecution. The learned Prosecutor is quick to point out that any finding in the judgment in S.C.No.3 of 2010 cannot work in favour of the appellant and that the contraband article seized from the 2[nd] accused was sent for a second chemical examination on the basis of the directions issued by this Court in Crl.M.C.No.436 of 2010. In short, his contention is that if the chemical analysis report in the case of the appellant/3[rd] accused shows that the seized material was brown sugar, as alleged, the mere fact that an analysis of the materials seized from the second accused did not reveal that the contraband article was brown sugar, is no ground to hold that the appellant/3[rd] accused is also entitled to be acquitted. He submits that this Court while exercising the appellate jurisdiction has to go by CRL.A NO. 1589 OF 2006 6 the evidence and the chemical analysis report etc. produced in the subject case rather than to rely on a chemical analysis report in respect of material seized from another accused. I believe that there is merit in the contention of the learned Public Prosecutor on this point. The mere fact that the 2[nd] accused was acquitted on the finding that the contraband seized from him was not brown sugar, the appellant/3[rd] accused cannot claim that he must also be acquitted. 8. Coming back to the primary contention of the learned counsel for the appellant, it must be noted that in **State of Punjab v. Baldev Singh** _(supra),_ a Constitution Bench of the Supreme Court after an exhaustive analysis of the law on the point held as follows:- _“On the basis of the reasoning and discussion above, the following conclusions arise:_ _“(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the 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 Magistrate, may not vitiate the trial but would render the_ CRL.A NO. 1589 OF 2006 7 _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._ _(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair._ _(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, may render the recovery of the contraband suspect and the conviction and sentence of an accused_ CRL.A NO. 1589 OF 2006 8 _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.”_ 9. The question was again considered by a Constitution Bench of the Supreme Court in **Vijaysinh Chandubha Jadeja** _(supra)._ After examining the question as to whether substantial compliance of the right of the accused to have the search conducted in the presence of a Gazetted Officer or a Magistrate would be sufficient, it was held:- _**“** 24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] 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_ CRL.A NO. 1589 OF 2006 9 _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.”_ 10. In **Man Bahadur** ( _supra_ ) _,_ the specific question that arose for consideration was whether the accused had a right in terms of Section 50 of the NDPS Act to be told that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate or whether it would be sufficient if the officer concerned had given an option to the accused to be searched in the presence of a Gazetted Officer or a Magistrate. After noticing the judgments in **Baldev Singh** ( _supra_ ) and **Jadeja** ( _supra_ ) it was held: - _“3. A three-Judge Bench of this Court in_ _**Vijaysinh Chandubha Jadeja v. State of Gujarat** ((2007) 1 SCC 433) noticed the aforementioned dicta laid by the Constitution Bench in_ _**Baldev Singh** (Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted officer or a Magistrate._ _4. The Bench, however, was of the opinion that some more clarification is necessary as to whether such communication of the right of the accused could be taken in evidence by way of oral evidence of the officer concerned._ _5. In this case it is accepted at the Bar that the search memo or any other document do not show that the appellant was made aware of his right to be searched_ CRL.A NO. 1589 OF 2006 10 _before a gazetted officer or a Magistrate._ _6. From the deposition of P.W.10-I.O.P.P. Pandoh, it appears that he had merely given an option to the appellant to be searched either by himself or in presence of a Magistrate or a gazetted Officer._ _7. No evidence has been adduced to show that the appellant was communicated of his right either to be searched in presence of a Magistrate or a gazetted officer on the one hand and by an empowered officer on the other._ _8. Recently, this Court in_ _**Noor Aga v. State of Punjab & Anr.** (2008 (9) SCALE 681), categorically, held that as the provisions contained in the N.D.P.S.Act are penal in nature, all requirements laid down therein must be complied with strictly, stating:_ _“ 149. S.50 of the Act provides for an option to be given. This Court in_ _**Baldev Singh** (supra) quoted with approval the decision of the Supreme Court of United States in_ _**Miranda v. Arizona** ((1966) 384 US 436) in the following terms:_ _“The Latin maxim_ _**salus populi suprema lex** (the safety of the people is the supreme law) and_ _**salus republicae suprema lex** (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be right, just and fair.”_ _150. Justness and fairness of a trial is also implicit in Art.21 of the Constitution._ _151. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial._ _152. The courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed._ CRL.A NO. 1589 OF 2006 11 _153. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question._ _154. Art.12 of the Universal Declaration of Human Rights provides for the Right to a fair trial. Such rights are enshrined in our Constitutional Scheme being Art.21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land._ _155. It is one thing to say that even applying the well known principles of law, they are found to be guilty of commission of offences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience of otherwise.”_ _9. In the instant case, there has been even no substantial compliance of S.50 of the N.D.P.S. Act.”_ 11. The issue was recently considered by the Supreme Court in **Arif Khan Alias Agha Khan** ( _supra)_ . In that case, the Supreme Court noticed the fact that the accused person had been informed that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate. However, the court found that there was noncompliance with the procedure contemplated by Section 50 of the NDPS Act. 12. Coming to the facts of the present case, a reading of Ext.P6 mahazar would reveal that the detecting officer (PW1) has clearly recorded that the accused were asked as to whether they wanted to be searched in the presence of a Gazetted officer or a Magistrate. It further reveals that on being so asked, the appellant/3[rd] accused replied CRL.A NO. 1589 OF 2006 12 that he has full faith in the detecting officer and he does not wish to be examined in the presence of a Gazetted officer or a Magistrate. Ext.P1, which is the consent obtained from the appellant/3[rd] accused also reveals that he had given his consent for being searched by the detecting officer without the presence of a Gazetted Officer or a Magistrate. The detecting officer (PW1) has also stated in the box as follows: “.. ഓടടാന്‍ ശശ്രമമിച്ചവരമില്‍ ഒരടാള്‍ കകൂടമില്‍ നമില്‍കക്കുന്ന പശ്രതമി . Abdul Gafoor ഷമിഹടാബശ് ആയമിരക്കുന്നക്കു രണടാമതത്തെ ആള്‍ (A2) . ആയമിരക്കുന്നക്കു പശ്രതമികളക്കുതട വമിലടാസസം പശ്രതമികള്‍ . 3 പറഞക്കു തന്നക്കു ആയതമില്‍ പപപരടാടക്കു അവരക്കുതട കകവശസം brown sugar ഉള്ളതടായമി സസംശയമികക്കുന്നതമിനടാല്‍ പദേഹസം പരമിപശടാധമികണസം എന്നക്കുസം ആയതമിനക്കു ഗസറ്റഡശ് ഓഫഫീസറക്കുതടപയടാ മജമിസശ്പരറ്റമിതന്റെപയടാ സടാന്നമിധശ്യസം . 3 ആവശശ്യമക്കുപണടാ എന്നക്കു പചടാദേമിച്ചക്കു പശ്രതമികളക്കുസം അതശ് . ആവശശ്യമമിലശ്ല എന്നക്കു പറഞക്കു എതന്ന പരമിപശടാധമികടാന്‍ . . സമ്മതമിച്ചക്കു ആ പറഞ സമ്മതസം ഞടാന്‍ എഴക്കുതമി ഒപമിടക്കു പമടമിച്ചക്കു A3 Ext.P1…..” ഷമിഹടാബക്കു ഒപമിടക്കു തന്ന സമ്മതപതശ്രസം ആണശ് It is clear from Ext.P6 mahazar, Ext.P1 consent letter and the deposition of PW1 that while the appellant/3[rd] accused was asked as to whether he wanted to be searched in the presence of a Gazetted officer or a Magistrate, the detecting officer failed to inform the appellant/3[rd] accused that he had such a right under the provisions of Section 50 of the NDPS Act. Going by the law laid down in **Man Bahadur** ( _supra)_ it can only be held that the failure to inform the appellant/3[rd] accused that he had a right under Section 50 of the NDPS Act to be searched in the presence of a Gazetted Officer or a Magistrate vitiates the search. CRL.A NO. 1589 OF 2006 13 The question of applying the statutory presumption under Section 54 of the NDPS Act arises only if the search and recovery was in strict compliance with the provisions of Section 50 of the NDPS Act. In the light of the above, this appeal is allowed and the conviction and sentence imposed on the appellant/3[rd] accused in S.C.No.23 of 2005 on the file of the Special Judge (NDPS Act Cases), Vadakara is set aside. The appellant/3[rd] accused is acquitted. Sd/- **GOPINATH P JUDGE** DK