CASE NO.: Appeal (crl.) 1752 of 1995 PETITIONER: STATE OF HIMACHAL PRADESH RESPONDENT: SHRI PIRTHI CHAND AND ANR. DATE OF JUDGMENT: 30/11/1995 BENCH: K. RAMASWAMY & S.B. MAJMUDAR JUDGMENT:
JUDGMENT
1995 Supp(6) SCR 29
The Judgment was delivered by :
Leave granted.
2. We have heard the counsel on both sides. On 24-3-1986, on receipt of a
secret information that a contraband, viz., Charas was being dealt with at
the bus stand, Head Constable Rattan Singh along with other police
officials was present at the bus stand, Amb. They secured the presence of
one Pradhan Subhas Chand and one Gurdas Ram and raided the house of the
first respondent. On search, they found 1 kilo 15 grams of Charas. They
took sample and divided the same into three parts. One was given to the
accused, another was sent to the Court and third one was sent to the
Chemical Examiner for analysis. On analysis, it was found that it was
Charas. Accordingly, charge-sheet was filed to prosecute him under Section
20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short
“the Act”). After considering the charge-sheet, the learned Sessions Judge
by his order dated 6-7-1987 discharged the respondent from the offence
under Section 20. On revision, the High Court by the impugned order dated
4-6-1992 made in Criminal Revision No. 118/87 confirmed the same. Thus this
appeal by special leave.
3. The question is whether the learned Sessions Judge was justified, at the
stage of taking cognizance of the offence, in discharging the accused, even
before the trial was conducted on merits, on the ground that the provisions
of Section 50 of the Act had not been complied with. This Court in State of
Punjab v. Balbir Singh 1994 (3) SCC 299 ) : 1994 AIR(SCW) 1802) has
considered the provisions of the Act. Section 50 has been held to be
mandatory. In paragraph 16, this Court has held that it is obligatory on
the part of the empowered or the authorised officer to inform the suspect
that, if so required, he would be produced before Gazetted Officer or a
Magistrate and search would be conducted in his presence. It was imperative
on the part of the Officer to inform the person of the above right and if
he failed to do the same, it amounted to violation of the requirement of
Section 50 of the Act. It was held that when the person was searched he
must have been aware of his right and that it could be done only if the
authorised or empowered officer informed him of the same. Accordingly, this
Court by implication read the obligation on the part of authorised Officer
to inform the person to be searched, of his right to information that he
could be searched in the presence of the Gazetted Officer or the
Magistrate. In Saiyad Mohd. Saiyaad Umar Saiyed v. State of Gujarat 1995
(3) JT 489 ) a three-Judge Bench of this Court had reiterated the above
view and held that having regard to the grave consequences that might
entail the possession of illicit articles under the Act, viz., the shifting
of the onus to the accused and the severe punishment to which he became
liable, the Legislature had enacted safeguards contained in Section 50.
Compliance of the safeguards in Section 50 is mandatory obliging the
officer concerned to inform the person to be searched of his right to
demand that search could be conducted in the presence of a Gazetted Officer
or a Magistrate. The possession of illicit articles has to be
satisfactorily established before the Court. The Officer who conducts
search must state in his evidence that he had informed the accused of his
right to demand, while he is searched, in the presence of a Gazetted
Officer or a Magistrate and that the accused had not chosen to so demand.
If no evidence to that effect is given, the Court must presume that the
person searched was not informed of the protection the law gives him and
must find that possession of illicit articles was not established. The
presumption under Article 114, Illustration (e) of the Evidence Act, that
the official duty was properly performed, therefore, does not apply. It is
the duty of the Court to carefully scrutinise the evidence and satisfy that
the accused had been informed, by the concerned Officer, that he had a
right to be searched before a Gazetted Officer or a Magistrate and that the
person had not chosen to so demand.
4. It is to be seen whether the accused has been afforded such a right and
whether the authorised Officer has violated the mandatory requirement, as a
question of fact, has to be proved at the trial. In Pooran Mal v. Director
of Inspection 1974 (1) SCC 345 ) : 1974 AIR(SC) 348) a Constitution Bench
of this Court had held that power of search and seizure, is, in any system
of jurisprudence, an overriding power of the State for the protection of
social security and that power is necessarily regulated by law. A search by
itself is not a restriction on the right to hold and enjoy property, though
seizure is a temporary restriction to the right of possession and enjoyment
of the property seized. However, the seizure will be only temporary and
limited for the purpose of the investigation. The power of search and
seizure is an accepted norm in our criminal law envisaged in Sections 96 to
103 and 165 of the Criminal Procedure Code, 1973 (for short “the Code”).
The Evidence Act permits relevancy as the only test of admissibility of
evidence. The evidence obtained under an illegal search and seizure does
not exclude relevant evidence on that ground. It is wrong to invoke that
spirit of Constitution to exclude such evidence. The decisions of the
American Supreme Court spelling out certain Constitutional protections in
regard to search and seizure are not applicable to exclude the evidence
obtained on an illegal search. Courts in India refuse to exclude relevant
evidence merely on the ground that it is obtained by illegal search and
seizure. When the test of admissibility of evidence lies in relevancy,
unless there is an express or necessarily implied prohibition in the
Constitution or other law, evidence obtained as a result of illegal search
and seizure, is not liable to be shut out. Search and seizure are not a new
weapon in the armoury of those whose duty it is to maintain social security
in its broadest sense. If the safeguards are generally on the lines adopted
by the Code, they would be regarded as adequate and render the restrictions
imposed as reasonable measures.
5. It would be seen that the organised traffic in contraband generates
deleterious effect on the national economy affecting the vitals of the
economic life of the community. It is settled law that illegality committed
in investigation does not render the evidence obtained during that
investigation inadmissible. In spite of illegal search property seized, on
the basis of said search, still would form basis for further investigation
and prosecution against the accused. The manner in which the contraband is
discovered may affect the factum of discovery but if the factum of
discovery is otherwise proved then the manner becomes immaterial.
6. In Radha Kishan v. State of U. P. 1963 AIR(SC) 8221 ), this Court held
that the evidence obtained by illegal search and seizure would not be
rejected but requires to be examined carefully. In State of Maharashtra v.
Natwarlal 1980 AIR(SC) 593 ), even if the search was illegal, it will not
affect the validity of the seizure and further investigation of the
authorities or the validity of the trial which followed on the complaint by
the customs officials. In Shyam Lal Sharma v. State of M. P. 1972 AIR(SC)
886 ), it was held that even if the search and seizure is illegal being in
contravention of Section 165 that provision does not have any effect in its
application to the subsequent steps taken in the investigation. In State of
Kerala v. Alasserry Mohd. 1978 AIR(SC) 933 ), this Court had held that
failure to comply strictly with the statutory provisions, by the Food
Inspector, would not vitiate the trial and conviction of the accused.
7. It would thus be settled law that every deviation from the details of
the procedure prescribed for search, does not necessarily lead to the
conclusion that search by the police renders the recovery of the articles
pursuant to the illegal search, irrelevant evidence nor the discovery of
the fact inadmissible at the trial. Weight to be attached to such evidence
depends on facts and circumstances in each case. The Court is required to
scan the evidence with care and to act upon it when it is proved and the
Court would hold that the evidence would be relied upon.
8. In Sunder Singh v. State of U. P. 1956 AIR(SC) 411 ) a three-Judge Bench
of this Court held that under Section 103 of the Code of Criminal
Procedure, 1898 though respectable inhabitants of the locality were not
associated with the search, that circumstance would not invalidate the
search. It would only affect the weight of the evidence in support of the
search and the recovery. At the highest, the irregularity in the search and
the recovery would not affect legality of the proceedings. In State of
Maharashtra v. P. K. Pathak 1980 AIR(SC) 1224 ) it was held that absence of
any independent witness from the locality to witness the search does not
affect the trial and the conviction of the accused under the Customs Act.
In Matajog Dobey v. H. C. Bhari 1956 AIR(SC) 44 ) it was held that when the
salutary provisions have not been complied with, it may, however, affect
the weight of the evidence in support of the search or may furnish a reason
for disbelieving the evidence produced by the prosecution unless the
prosecution properly explains such circumstances which made it impossible
for it to comply with these provisions. In Balbir Singh’s case 1994
AIR(SCW) 1802 ) this Court held that if the provisions of the Act have not
been complied with, the Court has to consider whether any prejudice has
been caused to the accused and also examine the evidence in respect of the
search in the light of the fact that the provisions have not been complied
with and further consider whether weight of evidence is in any manner
affected because of the non-compliance. The testimony of witness is not to
be doubted or discarded merely because he happens to be an official. As a
rule of caution and depending upon the circumstances of the case the Court
may look for corroboration from independent evidence. This again depends
upon the question whether the official has deliberately failed to comply
with the provisions or failure was due to lack of time and opportunity to
associate some independent witness with the search and strictly comply with
the provisions.
9. In Rakesh Kumar alias Sachdeva alias Deva v. State (Delhi
Administration) 1994 (S3) SCC 729 ) a two-Judge Bench of this Court held
that in spite of non-examination of the Investigating Officer no inference
could be drawn against the prosecution. Non-examination did not in any way
affect the prosecution case nor prejudiced the accused in this defence. The
Court has to consider the evidence of the witnesses examined. Failure to
join independent witness of locality is also not fatal. Conviction based on
evidence of Police Officers alone is not improper. In that case since
witnesses were not willing to come and associate with the search under the
TADA Act, this Court upheld the evidence given by the Police Officers and
accepted the finding of the High Court which relied on the evidence of
Police Officers and the conviction was upheld.
10. The question then is whether the High Court would be justified in
exercising its inherent power under Section 482 of the Code or under
Article 226 of the Constitution to quash the FIR/charge-sheet/complaint.
11. In State of Haryana v. Bhajan Lal 1992 (S1) SCC 335 : 1992 AIR(SC) 604)
a two-Judge Bench of this Court laid down certain broad tests to exercise
the inherent power or extraordinary power of the High Court. It is not
necessary to reiterate the guidelines. Suffice it to state that they are
only illustrative. The High Court should sparingly and only in exceptional
cases, in other words, in rarest of rare cases, and not merely because it
would be appealable to the learned Judge, be inclined to exercise the power
to quash the FIR/charge-sheet/complaint. In that case the Court held that
the FIR should not be quashed since it disclosed prima facie cognizable
offences to proceed further in the investigation. In Rupan Deol Bajaj v.
Kanwar Pal Singh Gill 1995 (7) JT 299 ) this Court reiterated the above
view and held that when the complaint or charge-sheet filed disclosed prima
facie evidence the Court would not weigh at that stage and find out whether
offence could be made out. The order of the High Court exercising the power
under Article 226, was accordingly set aside.
12. It is thus settled law that the exercise of inherent power of the High
Court is an exceptional one. Great care should be taken by the High Court
before the embarking to scrutinise the FIR/charge-sheet/ complaint. In
deciding whether the case is rarest of rare cases to scuttle the
prosecution in its inception, it first has to get into the grip of the
matter whether the allegations constitute the offence. It must be
remembered that FIR is only an initiation to move the machinery and to
investigate into cognisable offence. After the investigation is conducted
and the charge-sheet is laid the prosecution produces the statements of the
witnesses recorded under Section 161 of the Code in support of the charge-
sheet. At that stage it is not the function of the Court to weigh the pros
and cons of the prosecution case or to consider necessity of strict
compliance of the provisions which are considered mandatory and its effect
of non-compliance. It would be done after the trial is concluded. The Court
has to prima facie consider from the averments in the charge-sheet and the
statements of witness on the record in support thereof whether Court could
take cognizance of the offence, on that evidence and proceed further with
the trial. If it reaches a conclusion that no cognisable offence is made
out no further act could be done except to quash the charge-sheet. But only
in exceptional cases, i.e., in rarest of rare cases of mala fide initiation
of the proceedings to wreak private vengeance process of criminal is
availed of in laying a complaint or FIR itself does not disclose at all any
cognizable offence – the Court may embark upon the consideration thereof
and exercise the power.
13. When the remedy under Section 482 is available, the High Court would be
loath and circumspect to exercise its extraordinary power under Article 226
since efficacious remedy under Section 482 of the Code is available. When
the Court exercises its inherent power under Section 482 the prime
consideration should only be whether the exercise of the power would
advance the cause of justice or it would be an abuse of the process of the
Court. When Investigating Officer spends considerable time to collect the
evidence and places the charge-sheet before the Court, further action
should not be short-circuited by resorting to exercise inherent power to
quash the charge-sheet. The social stability and order requires to be
regulated by proceeding against the offender as it is an offence against
the society as a whole. This cardinal principle should always be kept in
mind before the embarking upon exercising inherent power. The accused
involved in an economic offence destabilises the economy and causes grave
incursion on the economic planning of the State. When the legislature
entrusts the power to the Police Officer to prevent organised commission of
the offence or offences involving moral turpitude or crimes of grave nature
and are entrusted with power to investigate into the crime in intractable
terrains and secretive manner in concert, greater circumspection and care
and caution should be borne in mind by the High Court when it exercises its
inherent power. Otherwise, the social order and security would be put in
jeopardy and grave risk. The accused will have field day in destabilising
the economy of the State regulated under the relevant provisions.
14. The evidence collected in a search in violation of law does not become
inadmissible in evidence under the Evidence Act. The consequence would be
that evidence discovered would be to prove unlawful possession of the
contraband under the Act. It is founded in Panchnama to seize the
contraband from the possession of the suspect/accused. Though the search
may be illegal but the evidence collected, i.e., Panchnama etc.,
nonetheless would be admissible at the trial. At the stage of filing
charge-sheet it cannot be said that there is no evidence and the Magistrate
or the Sessions Judge would be committing illegality to discharge the
accused on the ground that Section 50 or other provisions have not been
complied with. At the trial an opportunity would be available to the
prosecution to prove that the search was conducted in accordance with law.
Even if search is found to be in violation of law, what weight should be
given to the evidence collected is yet another question to be gone into.
Under these circumstances, the learned Sessions Judge was not justified in
discharging the accused, after filing of the charge-sheet holding that
mandatory requirements of Section 50 had not been complied with.
15. The next question is whether at this belated stage, would it be
necessary to remit the matter for trial. In view of the fact that more than
ten years have passed and the contraband seized is not of a considerable
magnitude, we think that it is not a fit case to remit at this stage for
trial but non-remittance on facts of this case should not be used as
precedent in future cases.
16. The appeal is accordingly disposed of.