{"id":136671,"date":"1995-11-30T00:00:00","date_gmt":"1995-11-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-vs-shri-pirthi-chand-and-anr-on-30-november-1995"},"modified":"2017-12-08T00:40:10","modified_gmt":"2017-12-07T19:10:10","slug":"state-of-himachal-pradesh-vs-shri-pirthi-chand-and-anr-on-30-november-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-vs-shri-pirthi-chand-and-anr-on-30-november-1995","title":{"rendered":"State Of Himachal Pradesh vs Shri Pirthi Chand And Anr on 30 November, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Himachal Pradesh vs Shri Pirthi Chand And Anr on 30 November, 1995<\/div>\n
Bench: K. Ramaswamy, S.B. Majmudar<\/div>\n
           CASE NO.:\nAppeal (crl.)  1752 of 1995\n\nPETITIONER:\nSTATE OF HIMACHAL PRADESH\n\nRESPONDENT:\nSHRI PIRTHI CHAND AND ANR.\n\nDATE OF JUDGMENT: 30\/11\/1995\n\nBENCH:\nK. RAMASWAMY & S.B. MAJMUDAR\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1995 Supp(6) SCR 29<\/p>\n
The Judgment was delivered by :\n<\/p>\n
Leave granted.\n<\/p>\n
2. We have heard the counsel on both sides. On 24-3-1986, on receipt of a
\nsecret information that a contraband, viz., Charas was being dealt with at
\nthe bus stand, Head Constable Rattan Singh along with other police
\nofficials was present at the bus stand, Amb. They secured the presence of
\none Pradhan Subhas Chand and one Gurdas Ram and raided the house of the
\nfirst respondent. On search, they found 1 kilo 15 grams of Charas. They
\ntook sample and divided the same into three parts. One was given to the
\naccused, another was sent to the Court and third one was sent to the
\nChemical Examiner for analysis. On analysis, it was found that it was
\nCharas. Accordingly, charge-sheet was filed to prosecute him under Section
\n20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short
\n“the Act”). After considering the charge-sheet, the learned Sessions Judge
\nby his order dated 6-7-1987 discharged the respondent from the offence
\nunder Section 20. On revision, the High Court by the impugned order dated
\n4-6-1992 made in Criminal Revision No. 118\/87 confirmed the same. Thus this
\nappeal by special leave.\n<\/p>\n
3. The question is whether the learned Sessions Judge was justified, at the
\nstage of taking cognizance of the offence, in discharging the accused, even
\nbefore the trial was conducted on merits, on the ground that the provisions
\nof Section 50 of the Act had not been complied with. This Court in State of
\nPunjab v. Balbir Singh<\/a> 1994 (3) SCC 299 ) : 1994 AIR(SCW) 1802) has
\nconsidered the provisions of the Act. Section 50 has been held to be
\nmandatory. In paragraph 16, this Court has held that it is obligatory on
\nthe part of the empowered or the authorised officer to inform the suspect
\nthat, if so required, he would be produced before Gazetted Officer or a
\nMagistrate and search would be conducted in his presence. It was imperative
\non the part of the Officer to inform the person of the above right and if
\nhe failed to do the same, it amounted to violation of the requirement of
\nSection 50 of the Act. It was held that when the person was searched he
\nmust have been aware of his right and that it could be done only if the
\nauthorised or empowered officer informed him of the same. Accordingly, this
\nCourt by implication read the obligation on the part of authorised Officer
\nto inform the person to be searched, of his right to information that he
\ncould be searched in the presence of the Gazetted Officer or the
\nMagistrate. In Saiyad Mohd. Saiyaad Umar Saiyed v. State of Gujarat<\/a> 1995
\n(3) JT 489 ) a three-Judge Bench of this Court had reiterated the above
\nview and held that having regard to the grave consequences that might
\nentail the possession of illicit articles under the Act, viz., the shifting
\nof the onus to the accused and the severe punishment to which he became
\nliable, the Legislature had enacted safeguards contained in Section 50.
\nCompliance of the safeguards in Section 50 is mandatory obliging the
\nofficer concerned to inform the person to be searched of his right to
\ndemand that search could be conducted in the presence of a Gazetted Officer
\nor a Magistrate. The possession of illicit articles has to be
\nsatisfactorily established before the Court. The Officer who conducts
\nsearch must state in his evidence that he had informed the accused of his
\nright to demand, while he is searched, in the presence of a Gazetted
\nOfficer or a Magistrate and that the accused had not chosen to so demand.
\nIf no evidence to that effect is given, the Court must presume that the
\nperson searched was not informed of the protection the law gives him and
\nmust find that possession of illicit articles was not established. The
\npresumption under Article 114, Illustration (e) of the Evidence Act, that
\nthe official duty was properly performed, therefore, does not apply. It is
\nthe duty of the Court to carefully scrutinise the evidence and satisfy that
\nthe accused had been informed, by the concerned Officer, that he had a
\nright to be searched before a Gazetted Officer or a Magistrate and that the
\nperson had not chosen to so demand.\n<\/p>\n
4. It is to be seen whether the accused has been afforded such a right and
\nwhether the authorised Officer has violated the mandatory requirement, as a
\nquestion of fact, has to be proved at the trial. In Pooran Mal v. Director
\nof Inspection<\/a> 1974 (1) SCC 345 ) : 1974 AIR(SC) 348) a Constitution Bench
\nof this Court had held that power of search and seizure, is, in any system
\nof jurisprudence, an overriding power of the State for the protection of
\nsocial security and that power is necessarily regulated by law. A search by
\nitself is not a restriction on the right to hold and enjoy property, though
\nseizure is a temporary restriction to the right of possession and enjoyment
\nof the property seized. However, the seizure will be only temporary and
\nlimited for the purpose of the investigation. The power of search and
\nseizure is an accepted norm in our criminal law envisaged in Sections 96 to
\n103 and 165 of the Criminal Procedure Code, 1973 (for short “the Code”).
\nThe Evidence Act permits relevancy as the only test of admissibility of
\nevidence. The evidence obtained under an illegal search and seizure does
\nnot exclude relevant evidence on that ground. It is wrong to invoke that
\nspirit of Constitution to exclude such evidence. The decisions of the
\nAmerican Supreme Court spelling out certain Constitutional protections in
\nregard to search and seizure are not applicable to exclude the evidence
\nobtained on an illegal search. Courts in India refuse to exclude relevant
\nevidence merely on the ground that it is obtained by illegal search and
\nseizure. When the test of admissibility of evidence lies in relevancy,
\nunless there is an express or necessarily implied prohibition in the
\nConstitution or other law, evidence obtained as a result of illegal search
\nand seizure, is not liable to be shut out. Search and seizure are not a new
\nweapon in the armoury of those whose duty it is to maintain social security
\nin its broadest sense. If the safeguards are generally on the lines adopted
\nby the Code, they would be regarded as adequate and render the restrictions
\nimposed as reasonable measures.\n<\/p>\n
5. It would be seen that the organised traffic in contraband generates
\ndeleterious effect on the national economy affecting the vitals of the
\neconomic life of the community. It is settled law that illegality committed
\nin investigation does not render the evidence obtained during that
\ninvestigation inadmissible. In spite of illegal search property seized, on
\nthe basis of said search, still would form basis for further investigation
\nand prosecution against the accused. The manner in which the contraband is
\ndiscovered may affect the factum of discovery but if the factum of
\ndiscovery is otherwise proved then the manner becomes immaterial.\n<\/p>\n
6. In Radha Kishan v. State of U. P.<\/a> 1963 AIR(SC) 8221 ), this Court held
\nthat the evidence obtained by illegal search and seizure would not be
\nrejected but requires to be examined carefully. In State of Maharashtra v.
\nNatwarlal<\/a> 1980 AIR(SC) 593 ), even if the search was illegal, it will not
\naffect the validity of the seizure and further investigation of the
\nauthorities or the validity of the trial which followed on the complaint by
\nthe customs officials. In Shyam Lal Sharma v. State of M. P.<\/a> 1972 AIR(SC)
\n886 ), it was held that even if the search and seizure is illegal being in
\ncontravention of Section 165 that provision does not have any effect in its
\napplication to the subsequent steps taken in the investigation. In State of
\nKerala v. Alasserry Mohd. 1978 AIR(SC) 933 ), this Court had held that
\nfailure to comply strictly with the statutory provisions, by the Food
\nInspector, would not vitiate the trial and conviction of the accused.\n<\/p>\n
7. It would thus be settled law that every deviation from the details of
\nthe procedure prescribed for search, does not necessarily lead to the
\nconclusion that search by the police renders the recovery of the articles
\npursuant to the illegal search, irrelevant evidence nor the discovery of
\nthe fact inadmissible at the trial. Weight to be attached to such evidence
\ndepends on facts and circumstances in each case. The Court is required to
\nscan the evidence with care and to act upon it when it is proved and the
\nCourt would hold that the evidence would be relied upon.\n<\/p>\n
8. In Sunder Singh v. State of U. P.<\/a> 1956 AIR(SC) 411 ) a three-Judge Bench
\nof this Court held that under Section 103 of the Code of Criminal
\nProcedure, 1898 though respectable inhabitants of the locality were not
\nassociated with the search, that circumstance would not invalidate the
\nsearch. It would only affect the weight of the evidence in support of the
\nsearch and the recovery. At the highest, the irregularity in the search and
\nthe recovery would not affect legality of the proceedings. In State of
\nMaharashtra v. P. K. Pathak<\/a> 1980 AIR(SC) 1224 ) it was held that absence of
\nany independent witness from the locality to witness the search does not
\naffect the trial and the conviction of the accused under the Customs Act.
\nIn Matajog Dobey v. H. C. Bhari<\/a> 1956 AIR(SC) 44 ) it was held that when the
\nsalutary provisions have not been complied with, it may, however, affect
\nthe weight of the evidence in support of the search or may furnish a reason
\nfor disbelieving the evidence produced by the prosecution unless the
\nprosecution properly explains such circumstances which made it impossible
\nfor it to comply with these provisions. In Balbir Singh’s case 1994
\nAIR(SCW) 1802 ) this Court held that if the provisions of the Act have not
\nbeen complied with, the Court has to consider whether any prejudice has
\nbeen caused to the accused and also examine the evidence in respect of the
\nsearch in the light of the fact that the provisions have not been complied
\nwith and further consider whether weight of evidence is in any manner
\naffected because of the non-compliance. The testimony of witness is not to
\nbe doubted or discarded merely because he happens to be an official. As a
\nrule of caution and depending upon the circumstances of the case the Court
\nmay look for corroboration from independent evidence. This again depends
\nupon the question whether the official has deliberately failed to comply
\nwith the provisions or failure was due to lack of time and opportunity to
\nassociate some independent witness with the search and strictly comply with
\nthe provisions.\n<\/p>\n
9. In Rakesh Kumar alias Sachdeva alias Deva v. State (Delhi
\nAdministration) 1994 (S3) SCC 729 ) a two-Judge Bench of this Court held
\nthat in spite of non-examination of the Investigating Officer no inference
\ncould be drawn against the prosecution. Non-examination did not in any way
\naffect the prosecution case nor prejudiced the accused in this defence. The
\nCourt has to consider the evidence of the witnesses examined. Failure to
\njoin independent witness of locality is also not fatal. Conviction based on
\nevidence of Police Officers alone is not improper. In that case since
\nwitnesses were not willing to come and associate with the search under the
\nTADA Act, this Court upheld the evidence given by the Police Officers and
\naccepted the finding of the High Court which relied on the evidence of
\nPolice Officers and the conviction was upheld.\n<\/p>\n
10. The question then is whether the High Court would be justified in
\nexercising its inherent power under Section 482 of the Code or under
\nArticle 226 of the Constitution to quash the FIR\/charge-sheet\/complaint.\n<\/p>\n
11. In State of Haryana v. Bhajan Lal<\/a> 1992 (S1) SCC 335 : 1992 AIR(SC) 604)
\na two-Judge Bench of this Court laid down certain broad tests to exercise
\nthe inherent power or extraordinary power of the High Court. It is not
\nnecessary to reiterate the guidelines. Suffice it to state that they are
\nonly illustrative. The High Court should sparingly and only in exceptional
\ncases, in other words, in rarest of rare cases, and not merely because it
\nwould be appealable to the learned Judge, be inclined to exercise the power
\nto quash the FIR\/charge-sheet\/complaint. In that case the Court held that
\nthe FIR should not be quashed since it disclosed prima facie cognizable
\noffences to proceed further in the investigation. In Rupan Deol Bajaj v.
\nKanwar Pal Singh Gill<\/a> 1995 (7) JT 299 ) this Court reiterated the above
\nview and held that when the complaint or charge-sheet filed disclosed prima
\nfacie evidence the Court would not weigh at that stage and find out whether
\noffence could be made out. The order of the High Court exercising the power
\nunder Article 226, was accordingly set aside.\n<\/p>\n
12. It is thus settled law that the exercise of inherent power of the High
\nCourt is an exceptional one. Great care should be taken by the High Court
\nbefore the embarking to scrutinise the FIR\/charge-sheet\/ complaint. In
\ndeciding whether the case is rarest of rare cases to scuttle the
\nprosecution in its inception, it first has to get into the grip of the
\nmatter whether the allegations constitute the offence. It must be
\nremembered that FIR is only an initiation to move the machinery and to
\ninvestigate into cognisable offence. After the investigation is conducted
\nand the charge-sheet is laid the prosecution produces the statements of the
\nwitnesses recorded under Section 161 of the Code in support of the charge-
\nsheet. At that stage it is not the function of the Court to weigh the pros
\nand cons of the prosecution case or to consider necessity of strict
\ncompliance of the provisions which are considered mandatory and its effect
\nof non-compliance. It would be done after the trial is concluded. The Court
\nhas to prima facie consider from the averments in the charge-sheet and the
\nstatements of witness on the record in support thereof whether Court could
\ntake cognizance of the offence, on that evidence and proceed further with
\nthe trial. If it reaches a conclusion that no cognisable offence is made
\nout no further act could be done except to quash the charge-sheet. But only
\nin exceptional cases, i.e., in rarest of rare cases of mala fide initiation
\nof the proceedings to wreak private vengeance process of criminal is
\navailed of in laying a complaint or FIR itself does not disclose at all any
\ncognizable offence – the Court may embark upon the consideration thereof
\nand exercise the power.\n<\/p>\n
13. When the remedy under Section 482 is available, the High Court would be
\nloath and circumspect to exercise its extraordinary power under Article 226
\nsince efficacious remedy under Section 482 of the Code is available. When
\nthe Court exercises its inherent power under Section 482 the prime
\nconsideration should only be whether the exercise of the power would
\nadvance the cause of justice or it would be an abuse of the process of the
\nCourt. When Investigating Officer spends considerable time to collect the
\nevidence and places the charge-sheet before the Court, further action
\nshould not be short-circuited by resorting to exercise inherent power to
\nquash the charge-sheet. The social stability and order requires to be
\nregulated by proceeding against the offender as it is an offence against
\nthe society as a whole. This cardinal principle should always be kept in
\nmind before the embarking upon exercising inherent power. The accused
\ninvolved in an economic offence destabilises the economy and causes grave
\nincursion on the economic planning of the State. When the legislature
\nentrusts the power to the Police Officer to prevent organised commission of
\nthe offence or offences involving moral turpitude or crimes of grave nature
\nand are entrusted with power to investigate into the crime in intractable
\nterrains and secretive manner in concert, greater circumspection and care
\nand caution should be borne in mind by the High Court when it exercises its
\ninherent power. Otherwise, the social order and security would be put in
\njeopardy and grave risk. The accused will have field day in destabilising
\nthe economy of the State regulated under the relevant provisions.\n<\/p>\n
14. The evidence collected in a search in violation of law does not become
\ninadmissible in evidence under the Evidence Act. The consequence would be
\nthat evidence discovered would be to prove unlawful possession of the
\ncontraband under the Act. It is founded in Panchnama to seize the
\ncontraband from the possession of the suspect\/accused. Though the search
\nmay be illegal but the evidence collected, i.e., Panchnama etc.,
\nnonetheless would be admissible at the trial. At the stage of filing
\ncharge-sheet it cannot be said that there is no evidence and the Magistrate
\nor the Sessions Judge would be committing illegality to discharge the
\naccused on the ground that Section 50 or other provisions have not been
\ncomplied with. At the trial an opportunity would be available to the
\nprosecution to prove that the search was conducted in accordance with law.
\nEven if search is found to be in violation of law, what weight should be
\ngiven to the evidence collected is yet another question to be gone into.
\nUnder these circumstances, the learned Sessions Judge was not justified in
\ndischarging the accused, after filing of the charge-sheet holding that
\nmandatory requirements of Section 50 had not been complied with.\n<\/p>\n
15. The next question is whether at this belated stage, would it be
\nnecessary to remit the matter for trial. In view of the fact that more than
\nten years have passed and the contraband seized is not of a considerable
\nmagnitude, we think that it is not a fit case to remit at this stage for
\ntrial but non-remittance on facts of this case should not be used as
\nprecedent in future cases.\n<\/p>\n
16. The appeal is accordingly disposed of.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Himachal Pradesh vs Shri Pirthi Chand And Anr on 30 November, 1995 Bench: K. Ramaswamy, S.B. Majmudar 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-136671","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Himachal Pradesh vs Shri Pirthi Chand And Anr on 30 November, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-vs-shri-pirthi-chand-and-anr-on-30-november-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Himachal Pradesh vs Shri Pirthi Chand And Anr on 30 November, 1995 - 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