advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, August 27, 2015

No Compensation when there is no malafides - There is nothing on record to suggest that there was any lapse on the part of the seizing officer. Nothing has been brought by way of evidence to show that the prosecution had falsely implicated them. There is nothing to remotely suggest that there was any malice. The High Court, as is noticed, has not applied its mind to the concept of grant of compensation to the accused persons in a case of present nature. There is no material whatsoever to show that the prosecution has deliberately roped in the accused persons. There is no malafide or malice like the fact situation which are projected in the case of Hardeep Singh (supra). Thus, the view expressed by the learned trial Judge is absolutely indefensible and the affirmance thereof by the High Court is wholly unsustainable. 14. In view of the foregoing analysis, the appeal is allowed and the order of the trial Judge granting compensation and that of the High Court giving stamp of approval to the same are set aside.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1085 OF 2015
                        (@ SLP(Crl) No. 2623 of 2015)


State of Rajasthan                           ...   Appellant

                                   Versus

Jainudeen Shekh and Anr.                ... Respondents



                               J U D G M E N T


Dipak Misra, J.


      The pivotal issue that emanates for consideration in this  appeal,  by
special leave, is  whether  the  learned  Special  Judge  was  justified  in
granting  compensation  of  an  amount  of  Rs.1,50,000/-  to  each  of  the
respondents who had been arraigned as accused for  the  offences  punishable
under Sections 8/21(B) and 8/29  of  the  Narcotic  Drugs  and  Psychotropic
Substances Act, 1985 (for brevity, “the NDPS Act”) on  the  foundation  that
there  was  delay  in  obtaining  the  report  from  the  Forensic   Science
Laboratory and further the  test  showed  that  the  seized  items  did  not
contain any contraband article and, therefore,  they  had  suffered  illegal
custody, and whether the High  Court  has  correctly  appreciated  the  fact
situation to affirm the  view  expressed  by  the  learned  trial  Judge  by
opining that the grant of compensation is not erroneous.
2.    The facts which are necessary to be stated  for  adjudication  of  the
limited issue are that on  02.11.2011,  PW-5  Nemichand,  SHO,  PS  Bhimganj
along with PW4, Umrao, Constable and PW6, Om Prakash, Head  Constable  while
carrying on patrolling duty, noticed the two accused  persons  together  and
seeing the police vehicle, accused  Jainuddin  speedily  moved  towards  the
kachcha passage near Mangal Pandey circle and on  a  query  being  made,  he
could not  give  any  satisfactory  reply.   The  accused  was  searched  in
presence of other persons and during the search a  polythene  bag  allegedly
containing intoxicant material was found in the  back  pocket  pant  of  the
accused-respondent no.1 but he had no licence for  it.   The  polythene  bag
weighed 31 gram 170 milligrams.  The police prepared two samples of  alleged
smack weighing 5 grams each and the remaining was kept in the polythene  bag
and sealed.  Thereafter the accused-respondent no. 1  was  arrested  at  the
spot and seizure memo was prepared.  At that time accused Shabbir  was  also
taken  into  custody.   Thereafter,  an  FIR  was   registered   and   after
investigation, charge sheet was filed under Section 8/21(B) of the NDPS  Act
against the accused-respondent no.1 and under Section 8/29 of the  NDPS  Act
against the accused Shabbir.
3.    The accused persons denied the charges and stated in  their  statement
under Section 313 CrPC that they had been falsely implicated.
4.    The prosecution in  order  to  establish  the  charges,  examined  six
witnesses.  Be it noted, the sample that was sent  for  examination  to  the
Forensic Science Laboratory on  8.11.2011,  chemical  analysis  thereof  was
done on 9.9.2013 and the report was submitted to the court on 28.9.2013  and
it was exhibited as Exhibit P-11.   The  said  document  revealed  that  the
sample contained  “caffeine”  and  “paracetamol”  and  it  did  not  contain
Diacetylmorphine (heroine) or alkaloid of “Afeem” (Opium).   As  the  report
indicated that the said  items  were  not  covered  under  the  category  of
intoxicant under NDPS Act, the trial court came to the conclusion  that  the
charges were not established in any manner.
5.    Learned trial Judge, while  recording  the  said  conclusion  observed
thus:
“In the present case certainly it is the matter of concern that the  officer
executing  the  seizure  has  no  experience  with  respect  to   intoxicant
material.  Although PW5, Nemi Chand, had found the  material  as  intoxicant
in his testimony merely by checking.  Certainly it shows  ignorance  of  the
officer  about  identification  of  intoxicant  who  executed  seizure.   No
attempt was made by the officer making seizure that he  should  have  either
tasted the material, which was seized, or same should have been provided  to
other persons, who were present at the time of seizure,  to  ensure  whether
such material is intoxicant or not.  The officer making  seizure  identified
same as smack merely after smelling the material.

In this perspective it shall be in the interest of justice to  mention  that
in case there being suspicion over the material  being  intoxicant  or  not,
then it is the responsibility of the State Government that immediately  such
material should be subjected to chemical analysis, but in the  present  case
the aforesaid report of Forensic Science Laboratory was submitted  into  the
court on 28.09.2013 and the chemical analysis was done by the laboratory  on
09.09.2013.  So it  is  clear  that  aforesaid  material  was  subjected  to
chemical analysis about 2 years after the occurrence on 02.11.2011  that  is
after the period of two years, so certainly it cannot be held  as  just  and
proper procedure.”

6.    After so holding, the learned trial  Judge  opined  that  despite  the
Supreme Court giving the guidelines in Criminal Appeal No. 1640 of  2010  to
the State Governments and Central Government that every  State  should  have
forensic science laboratory at the  level  of  the  State  as  well  as  the
Division, no appropriate action had been  taken  by  the  State  Government.
The learned trial Judge also opined that the State Government had  not  been
able  to  discharge  the  responsibility  and  there  should  have  been  an
arrangement to obtain  the  report  from  the  Forensic  Science  Laboratory
within a reasonable time.  Being of this view, he  recorded  a  judgment  of
acquittal in favour of the accused.   Thereafter  the  learned  trial  Judge
referred to Section 250 of the Code of Criminal Procedure, 1973 (for  short,
‘the Code’) and opined that a Court of Session  can  award  compensation  to
the accused in a case of  malicious  prosecution  and  accordingly  directed
payment of Rs.1,50,000/- each to both the accused persons.
7.    We have heard Mr.  S.S.  Shamshery,  learned  AAG  for  the  State  of
Rajasthan. Despite notice, there has been no appearance  on  behalf  of  the
respondents.
8.    Section 250 of the Code confers powers  on  the  Magistrate  to  grant
compensation on certain conditions being satisfied.  A  procedure  has  been
engrafted in the said provision.  There  are  certain  cases  in  which  the
learned Sessions Judge can grant  compensation.   In  this  context  we  may
refer with profit to the decision in Daulat  Ram  v.  State  of  Haryana[1].
The appellant therein was  convicted  by  the  learned  Additional  Sessions
Judge under Section 25 of the Arms Act, 1959 read with Section 6(1)  of  the
Terrorist  &  Disruptive  Activities  (Prevention)  Act,  1985  (for  short,
‘TADA’).  The defence taken by the accused was  that  he  had  been  falsely
implicated at the instance of one Hans Raj Lambardar  of  the  village.   He
had examined four witnesses in his defence.  He was acquitted under  Section
6 of the TADA but convicted under Section 25 of the Arms  Act.    The  Court
analyzing the evidence on  record  and  taking  note  of  the  plea  of  the
defence, dislodged the judgment of  conviction  and  while  doing  so,  this
Court opined that:-
“....It is unfortunate that the police  officers,  namely,  Head  Constable,
Randhir PW 2 and the then Head Constable Jai Dayal, PW  3  foisted  a  false
case on the appellant for reasons best  known  to  them,  which  is  a  very
serious matter. We are informed that the appellant was in custody for a  few
days in connection with this case. We,  therefore,  direct  the  respondent-
State to pay a sum of Rs. 5000 as compensation to the appellant  within  two
months. The respondent-State may however recover the said  amount  from  the
police officials, Randhir PW 2 and Jai Dayal, PW 3 (Rs. 2500 each), who  are
responsible for false implication of the appellant.”

9.    In Mohd. Zahid  v.  Govt.  of  NCT  of  Delhi[2],  the  appellant  had
preferred an appeal under Section 19 of the TADA.  The designated court  had
found him guilty and convicted him for the offence under Section 5  of  TADA
and sentenced him to suffer rigorous imprisonment for five years and to  pay
a fine of Rs.1,000/-  and,  in  default  of  payment  of  fine,  to  undergo
rigorous imprisonment for two months more.  The  Court  allowed  the  appeal
and recorded an order of acquittal.  In course of analysis,  the  Court  has
opined that  certain  documents  had  been  interpolated,  the  evidence  of
certain witnesses was absolutely false and that the appellant  therein  made
a victim of prolonged illegal incarceration due to machination of PWs 5  and
6 and other police personnel and accordingly directed payment of Rs.50,000/-
 as compensation.
10.   In  this  context  reference  to  certain  other  decisions  would  be
appropriate.  In State, represented by Inspector of  Police  and  others  v.
N.M.T. Joy Immaculate[3], a three-Judge Bench was dealing with the  judgment
and order passed by the learned Single Judge of the High Court of Madras  in
a Criminal Revision which was allowed and  revision  was  disposed  of  with
certain directions.  The High Court had granted Rs.1  lakh  compensation  on
the basis of an affidavit.  G.P. Mathur, J., speaking for the learned  Chief
 Justice and himself, after quashing the order of the High Court has  opined
that:-
“The High Court has also awarded Rs. 1 lakh as compensation to  the  accused
on the ground that she was illegally detained in the police station and  the
police personnel committed acts of molestation, obscene violation,  etc.  It
is noteworthy that after investigation, the  police  has  submitted  charge-
sheet against accused Joy Immaculate. Her application for bail was  rejected
by the learned Sessions Judge and thereafter by the High Court on  18-1-2002
prior to the decision of the revision. There is absolutely no  justification
for awarding compensation to a  person  who  is  facing  prosecution  for  a
serious offence like murder  even  before  the  trial  has  commenced.  This
direction, therefore, deserves to be set aside.”

      Dr. A.R. Lakshmann, J. in his concurring opinion has laid down:-
“Above all, the learned Judge has committed a  grave  error  in  awarding  a
compensation of Rs 1 lakh on the ground that the police personnel  committed
acts of obscene violation, teasing the respondent herein. The learned  Judge
has relied upon only on the basis of the affidavit filed  in  the  case  for
coming to the conclusion and also on the basis of the  assumption  that  the
respondent was not  involved  in  the  incident  which  will  foreclose  the
further enquiry ordered by the learned Judge in  the  matter.  There  is  no
justification  for  awarding  compensation  to  a  person  who   is   facing
prosecution for a serious offence like murder  even  before  the  trial  has
started.”

11.   In this context, we may usefully refer to a two-Judge  Bench  decision
in Hardeep Singh v. State of Madhya  Pradesh[4].   In  the  said  case,  the
appellant was engaged in running  a  coaching  centre  where  students  were
given tuition to prepare them for entrance tests for different  professional
courses.  The appellant was arrested and a case under Section 420 read  with
Section 34 IPC and other sections was instituted.  He  was  brought  to  the
police station in handcuffs and his photographs  in  handcuffs  appeared  in
the local newspapers.  The trial went on for several years  and  eventually,
he was acquitted after 12 years.  Thereafter he  filed  a  complaint  before
the Magistrate which was dismissed for lack of  sanction.   The  High  Court
being moved had held that complaint was not maintainable and  dismissed  the
same in limini.  Thereafter, the victim moved the Government  for  grant  of
sanction under Section 197 CrPC for  prosecuting  the  Collector  and  other
government servants which was refused.  The said order of  refusal  came  to
be assailed in W.P. No.4777 of 2007.  The writ  petition  was  dismissed  by
the High  Court.   On  an  intra-court  appeal  preferred,  the  High  Court
dismissed the same.
12.   Be it stated, after  the  acquittal,  the  appellant  had  filed  writ
petition no. 4368 of 2004 contending, inter alia, that he was taken  to  the
police station and was kept there in custody in the night handcuffed by  the
police  without  there  being  any  valid  reason  and  his  photographs  in
handcuffs in daily newspapers were published as a consequence of  which  his
elder sister who loved him like a son, died  due  to  shock.   It  was  also
contended that the prosecution  knew  from  the  beginning  that  the  cases
registered against him were  false  and  it  purposefully  caused  delay  in
conclusion of the trial causing great harm to  his  dignity  and  reputation
and violating  his  fundamental  right  to  speedy  trial  guaranteed  under
Article 21 of the Constitution.  A learned Single Judge of  the  High  Court
had admitted  the  writ  petition  on  the  limited  question  of  grant  of
compensation to the appellant for the delay in conclusion  of  the  criminal
case against him.  Another Single Judge who finally heard the matter  opined
that there  was  no  case  for  compensation.  In  intra-court  appeal,  the
Division Bench reversed the same and  granted  compensation  of  Rs.70,000/-
which was enhanced by this Court to Rs.2 lakhs.  The analysis  made  by  the
Division Bench which has been approved by this Court  is  to  the  following
effect:-
‘The Division Bench further held that there was no warrant for  putting  the
appellant under handcuffs. His handcuffing was without justification and  it
had not only adversely affected his dignity as a human being  but  had  also
led to unfortunate and tragic consequences.”

      And while enhancing the compensation, the Court held that:-
“..... we find that in the light of the findings arrived at by the  Division
Bench, the compensation of Rs 70,000 was too small and did  not  do  justice
to the sufferings and humiliation undergone by the appellant.”

13.   Regard being had to the aforesaid  enunciation  of  law,  the  factual
matrix of the case at hand is  required  to  be  appreciated.   On  a  close
scrutiny of the judgment of the learned trial Judge, it is evident  that  he
has  been  guided  basically  by  three  factors,  namely,  that  the  State
Government has not established Forensic  Science  Laboratories  despite  the
orders passed by this Court; that  there  has  been  delay  in  getting  the
seized articles tested;  and  that  the  seizing  officer  had  not  himself
verified by using his experience and expertise that the  contraband  article
was opium.  As far as the first aspect  is  concerned,  it  is  a  different
matter altogether.   As far as the delay is concerned that  is  the  fulcrum
of the reasoning for acquittal.  It is apt to note  that  the  police  while
patrolling had noticed the accused persons and their behaviour at that  time
was suspicious.  There is nothing on record to suggest that  there  was  any
lapse on the part of the seizing officer.  Nothing has been brought  by  way
of evidence to show  that  the  prosecution  had  falsely  implicated  them.
There is nothing to remotely suggest that there was any malice.    The  High
Court, as is noticed, has not applied its mind to the concept  of  grant  of
compensation to the accused persons in a case of present nature.   There  is
no material whatsoever to show that the prosecution has  deliberately  roped
in the accused persons.  There is  no  malafide  or  malice  like  the  fact
situation which are projected in the case of Hardeep Singh  (supra).   Thus,
the view expressed by the learned trial  Judge  is  absolutely  indefensible
and the affirmance thereof by the High Court is wholly unsustainable.
14.   In view of the foregoing analysis,  the  appeal  is  allowed  and  the
order of the trial Judge granting compensation and that of  the  High  Court
giving stamp of approval to the same are set aside.


                                           ...............................J.
[Dipak Misra]



                                           ...............................J.
                                             [Prafulla C. Pant]
New Delhi
August 25, 2015.

-----------------------
[1]

        (1996) 11 SCC 711
[2]     (1998)  5 SCC 419
[3]     (2004) 5 SCC 729
[4]     (2012) 1 SCC 748

-----------------------
13


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.