2006 Supreme(SC) 1177

2006(8) Supreme 914
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S.B. Sinha and Markandey Katju, JJ.
Dilip & Anr. - Appellants
versus
State of M.P. - Respondent
Criminal Appeal No. 1480 of 2004
Decided on 24-11-2006
Counsel for the Parties :
For the Appellants : N.R. Chaudhary, L.S. Chauhan and Dr. Kailash Chand, Advocates.
For the Respondent : Vibha Datta Makhija, Advocate.

IMPORTANT POINT
In NDPS Act case effect of a search carried out in violation of the provisions of law would have a bearing on credibility of evidence of official witnesses.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8/18, 42 and 50 - Both appellants-accused were stopped when they were coming on scooter - On search of their person nothing was found but on search of scooter opium in six small plastic bags was recovered and quantity weighed 5 kgs 890 grams - Trial Court recorded judgment of acquittal holding that search and seizure was vitiated in law for non-compliance of mandatory provisions of Sections 42 and 50, seizure witnesses did not support prosecution case - High Court in State appeal reversed the judgment and convicted both accused - Appeal - Offence being a grave one, procedural safeguards in terms of Sections 41, 42 and 50 of the Act were to be complied with - Witnesses of seizure PW1, a sweeper engaged in police station and PW2 a cycle mechanic carrying business in front of police station did not support prosecution case and were declared hostile - Trial Court found that PW10, SHO, who apprehended accused, had prior information could not be ruled out - FIR did not contain any statement that provisions of Section 50 of the Act were complied with - Before seizure of contraband from scooter, personal search of appellants was carried out and provision of Section 50 of the Act were not complied with - Prosecution story as to how SHO found appellants on road near police station was not free from doubt - High Court did not meet the reasoning of trial Court - In an appeal against acquittal if two views were possible, benefit of doubt was to be given to accused - Conviction was liable to be set aside.

       Held : It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefor in terms of Sections 41, 42 and 50 of the NDPS Act should be complied with.(Para 6)

       The witnesses of the seizure were : P.W.1 - a sweeper engaged in the police station and P.W.2 - a cycle mechanic who was carrying on his business in front of the police station. They were examined before the learned Trial Judge. They have not supported the case of the prosecution at all. They were declared hostile.(Para 8)

       Having regard to the testimonies of the said witnesses, as also various other circumstances as noticed in his judgment, the learned Sessions Judge opined that the likelihood of S.S. Tomar having prior information about the matter cannot be ruled out. The learned Judge found that P.W.10 in his cross-examination accepted that he entertained doubts that the accused had been in possession of contraband and, therefore, he intended to comply with the provisions of Section 50 of the NDPS Act. The High Court, however, without meeting the reasonings of the learned Sessions Judge proceeded to take the prosecution case as gospel truth and opined that neither the provisions of Section 50 of the NDPS Act nor Section 42 thereof were required to be complied with.(Para 9)

       Before seizure of the contraband from the scooter, personal search of Appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with.(Para 12)

       Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case.(Para 16)

       In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the persons of the appellants were also searched, it was obligatory on the part of P.W.10 to comply with the said provisions. It was not done.(Para 17)

       Requirements of law in this case had been giving a complete go bye. The prosecution story as to how the SHO found the appellants on the road near the police station is also not free from doubt. (Para 19)

       Unfortunately, the High Court did not meet the reasonings of the learned Sessions Judge. The findings of the learned Trial Judge that P.W.10 had prior information, had also not been met by the High Court. The High Court was dealing with a judgment of acquittal. It was, therefore, bound to show that the findings of the learned Sessions Judge were not legally tenable. (Para 20)

       It is well known that if two views are possible, benefit of doubt should be given to the accused.(Para 21)

       The High Court, in our opinion, could not have brushed aside the findings of the learned Sessions Judge without meeting the reasonings assigned by it as it was dealing with a judgment of acquittal. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. (Para 23)