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PATNA HIGH COURT
B.P.Sharma and M.L.Visa JJ.
Suresh Bhagat
Versus
State Of Bihar
Criminal Appeal No. 556 of 1996 ;
Decided On : OCTOBER 5, 1999
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT, 1985 - SECTION 50 - SEARCH AND SEIZURE - PROCEDURE - FAILURE TO INFORM ACCUSED OF RIGHT TO BE SEARCHED BEFORE GAZETTED OFFICER OR MAGISTRATE - RECOVERY OF ILLICIT ARTICLE - ILLEGAL - CANNOT BE USED AS EVIDENCE OF UNLAWFUL POSSESSION.
Fact of the Case:
The appellant was convicted of an offence under Section 23 of the Narcotic Drugs and Psychotropic Substance Act, 1985, for possession of 2 kgs of Charas. The prosecution alleged that the Charas was recovered from the appellant's Jhola during a search conducted by the police at the bus stand. The appellant denied the allegation and claimed that he was caught on suspicion under some confusion.
Finding of the Court:
The court found that the search and seizure was illegal as the police officer failed to inform the appellant of his right to be searched before a Gazetted Officer or a Magistrate, as required by Section 50 of the Act. The court also found that the manner of taking the sample and sending it to the expert was doubtful due to the abnormal delay in taking the sample and the absence of any witness and the accused at the time of taking the sample.
Issues: 1. Whether the search and seizure was illegal due to non-compliance with Section 50 of the Act? 2. Whether the recovery of the Charas can be used as evidence of unlawful possession?
Ratio Decidendi: 1. The court held that the search and seizure was illegal as the police officer failed to inform the appellant of his right to be searched before a Gazetted Officer or a Magistrate, as required by Section 50 of the Act. The court relied on the Supreme Court decision in State of Punjab vs. Baldeo Singh, which held that failure to inform the accused of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect. 2. The court held that the recovery of the Charas cannot be used as evidence of unlawful possession as the search and seizure was illegal. The court relied on the Supreme Court decision in Pooran Mal vs. Director of Inspection, which held that an illicit article seized during a search conducted in violation of the provisions of Section 50 of the Act cannot be used as evidence of unlawful possession of the contraband on the accused.
Final Decision: The appeal was allowed, the judgment and order of the trial court were set aside, and the appellant was ordered to be released from custody forthwith.
B.P.Sharma, J.
1. This appeal has been filed on half of sole appellant Suresh Bhagat who has been convicted of an offence under Section 23 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter to be referred to as the Act), by an order dated 28th September 1996 passed by the 5th Additional Sessions Judge, East Champaran, Motihari in Excise Case No. 102 of 1995, Trial No.6 of 1996. The appellant has also been sentenced to undergo R.I. for 12 years and also to pay a fine of Rs.1,00,000/- (Rupees one lac) and, in default, to undergo R.I. for three years by an order dated 1st October, 1996.
2. The prosecution story, in short, is like this:
On 18th October 1995, the Officer Incharge of Chhatauni Police Station, within the district of East Champaran, received a confidential information at 12.30 P.M. that one person was found moving in the local bus stand in order to board some bus and he was holding a Jhola with him. On the basis of this information, the Officer In-charge recorded a Station Diary No.289 of the date and he proceeded for the Govt. bus stand along with Sub-Inspector J.N.Pandey and constable No.711 Ravindra Kumar Singh and Constable No.766 Srikant Rajak for verification of the information. When the Police party arrived at the bus stand, it located a person holding a Jhola in his hand trying to escape, as he saw the police party. He was caught with the help of the associates by the Officer In-charge and his person was searched in presence of two Independent witnesses, namely, Ramadhar Thakur and Lakshmi Prasad. When the Jhola, found in possession of the said person, was searched, two plastic packets were recovered from inside the Jhola in which two kgs. of Charas was recovered. The cost of material was about Rs. 80,000/-. The Police Officer prepared a seizure list in presence of witnesses and on enquiry, the said person disclosed his name to be Suresh Bhagat. He could not explain the possession of the article recovered from his Jhola.
Accordingly, he was arrested and brought to the Police Station where the case was registered u/s 20(b)(ii) of the Act and the investigation was entrusted to S.I. J.N. Pandey (P.W.2) who conducted the investigation in the case and, on completing the formalities, he submitted charge sheet on the basis of which, cognizance was taken and the case was tried by the 5th Addl. Sessions Judge, East Champaran at Motihari and the judgment and order under appeal were passed. The defence of the accused in the case was a complete denial of allegation. It was denied that the Jhola in question was recovered from his possession and it was alleged that he was caught on suspicion under some confusion.
3. For proving the charge against the appellant, the prosecution examined seven witnesses in all. Out of them, P.W.1 Kamal Kishore is the informant of the case who happened to be the Officer In-charge of the Police Station concerned at the relevant time and on the basis of confidential information, after recording Station Diary entry, he had gone to the P.O. bus stand along with some persons and he claimed to have caught the appellant under suspicious circumstance moving with a Jhola. He has also stated that the recovery of Jhola was made in presence of two independent witnesses, namely, P.W.5 Lakshman Prasad and P.W.6 Ramadhar Thakur and on search being made of the Jhola, 2 kgs. of Charas were recovered kept in polythene packets which were seized and a seizure list was prepared in presence of these witnesses. So far as the statement of the informant (P.W.1) is concerned, it has been supported by the constable Ravindra Kumar (P.W.3) and Srikant Rajak (P.W.4) and they have also stated that the search was made in their presence and the recovery was made. They were the two constables accompanying the Officer In-charge (P.W.1). So far as other two witnesses who are said to be the independent witnesses are concerned, P.W.5 Lakshman Prasad simply proved his signature (Ext-3) on the seizure list (Ex
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