' SYED MEHMOOD ALAM RIZVI, J.---This appeal is directed against the judgment passed on 4-9- 2006 by the Special Judge (C.N.S.) Hyderabad in Special Case No, 77 of 2001 arising out of F.I.R.
No,20 of 2001 under section 9(c) of Control of Narcotic Substances, Act 1997 (hereinafter referred to as the "Act of 1997") registered at Police Station Umersand on the complaint of the CIA Hyderabad, whereby the appellant was convicted and sentenced to suffer imprisonment for life and a fine of Rs,5,00,000 and in case of non-payment of fine the appellant was to suffer further imprisonment of 6 months. However, benefit of section 382-B, Cr.P.C. Was also extended to the appellant, and the co-accused Hajan and Azam Gopang were acquitted as nothing was secured from their possession and they were implicated on the alleged statement of the appellant during interrogation.
2. Brief facts of the prosecution case are that the complainant Ghulam Hussain Mashori A.S-I, posted at CIA, Hyderabad, lodged an F.I.R. An stated therein that during patrolling with other police officials, he apprehended the appellant at 1830 hours on 24-4-2001 and recovered 27 Kg charas from polythene bag hanging from his shoulder near Shah Shaheed Graveyard near Behar Khan Mirjat Link Road some 25 km from the CIA Center Hyderabad. Two bags weighing 1 kg each were sealed separately as samples and the entire property was sealed at the spot under a mashirnama, and the appellant was arrested and brought to the CIA Center around 2100 hours. That after lodging the entry in the daily diary, a statement under section 154, Cr.P.C. Was prepared and sent to the Police Station Umersand which was some 5/6 k.m from the place of incidence, and 31/32 kms from the CIA Center. The F.I.R. Was lodged at 2300 hours without producing the appellant and the case property at the said police station. Thereafter, the P.W.3 Qamar Zaman S-I.P. Conducted the investigation. The co-accused Hajan and Muhammad Azam Gopang were also booked on the alleged statement of the appellant that the said contraband had been purchased from them.
Thereafter, the challan was submitted before the Special Court.
3. The Trial Court framed the charge upon the appellant and co-accused who pleaded not guilty and claiming to be tried. The prosecution examined P.W.1 Ali Dino, the mashir who produced memo.
Of arrest of recovery, P.W.2 Ghulam Hussain, the second mashir and P.W.3 I/O Qamar Zaman S.I.P.
The appellant and co-accused recorded their statements under section 342, Cr.P.C. The appellant claimed that he had been implicated by the complainant due to departmental enmity as he was also a police constable, posted at police station Umersand and was arrested from his house one week prior to the lodgment of the present case. Further claimed that the present case had been registered with mala fides by foisting upon him the alleged contraband.
4. The learned counsel for the appellant has contended that this was a false case and the contraband had been foisted upon the appellant with mala fides and ulterior motives. The appellant was a police constable, but the said fact had been concealed by the complainant and the Investigating Officer. However, in cross examination this fact had been established. He has argued that the registration and investigation of the case was illegal and hence subsequent proceedings were illegal. Therefore, conviction cannot be sustained. It was admitted that the place of recovery was 5/6 km away from the Police Station Umersand, and instead of producing the appellant before the said police station, the CIA officials, with mala fides, brought the appellant to the CIA Center which was at the distance of 31/32 Km from the Police Station Umersand and 25 km from the alleged place of recovery. In support of his arguments he referred to the mashirnama of recovery which was said to have been prepared at 1830 hours and, per prosecution witnesses, they took half an hour at the place of recovery in completing the formalities. The official reached the CIA Center at 2100 hours and the P. W.1 reached the Police Station Umersand at 2300 hours. He lodged the F.I.R. And again came back to the CIA Center and obviously he must have reached at the CIA Center after 2 hours i.e, 1-00 a.m. On 25-4-2001. He further argued that the CIA had no authority to conduct the investigation on its own. The Investigating Officer tried to cover this lacuna, and registered the F.I.R. At the police station, however, without producing the appellant and the contraband. It is also an admitted fact that no investigation had been initiated by the area police.
5. Ile further argued that to cover up another lacuna, a fabricated back dated order of SP CIA dated 24-4-2001 had been sought by the P.W.3, in which SP allegedly ordered that the investigation of this F.I.R. No, 20 of 2001 registered at Police Station Umersand be transferred to D.S.P., CIA. The learned counsel pointed out that no F.I.R. Or its number was available at CIA Center on 24-4-2001, therefore, how could the police papers with F.I.R. Be sent to SP CIA on 24-4-2001.
6. He has further argued that the same CIA also registered an F.I.R. No, 19 of 2001 at the same police station in the same style on 24-4-2001, some 3 hours prior to arrest of the appellant. In the said one accused Arz Muhammad alias Arzan was shown apprehended with polythene bag hanging from his right shoulder containing 28 k.g. Charas within the jurisdiction of same police station. His case was also tried by Special Judge and on 11-10-2004 the said accused was convicted and sentenced to suffer life imprisonment and to pay a fine of Rs,5,00,000. The said judgment was impugned before this court by filing Cr. Appeal No,396 of 2001 and on 4-10-2005 this Court allowed his appeal.
7. He has further pointed out that in the said case the co-accused Hajan and Muhammad Azam Gopang were also implicated but were acquitted by the Trial Court and were also acquitted in the instant case. He has further contended that as per rule of consistency the Appellant was also entitled to the same relief. He has further argued that CIA officials rotate the same contraband in different cases and show recovery of huge quantity just to give an impression that huge quantity of charas could not be foisted upon the accused person, and as a result, used to obtain convictions of the accused persons from the Trial Courts. In return they would get prizes and promotions to higher grades. He produced certified copy of the said judgment.
8. It is next urged that there were major contradictions in the depositions of the witnesses. That P.W.1, mashir of the recovery had deposed that the endorsement on the case property was made at the CIA Center while the P.W.2 second mashir claimed at the spot. He .Has further contended that one mashir had stated that the officials reached the spot in a private Datsun pickup while the other witness deposed that it was a van. Hence it proves the appellant was not arrested from the alleged place and nothing was recovered from his possession. That the proceedings were completed at the CIA Center while the appellant was already in custody and in such circumstances, the conviction cannot be sustained.
9. The learned Asstt: A.-G. Vehemently opposed the arguments of the learned counsel for the appellant and argued that the huge quantity had been recovered from the possession of the appellant and there was no major contradiction in the deposition of the witnesses. The chemical report is positive. The Trial Court had already taken the lenient view by not awarding him the death sentence.
10. Heard the learned counsel for the appellant, learned Asstt: A.-G. And perused the record very minutely.
11. The case of the prosecution was that the CIA officials apprehended the appellant with the alleged contraband at 1830 hours and completed the formalities in 30 minutes and thereafter, straight away proceeded to the CIA Center, Hyderabad which took 2 hours and reached at 2100 hours. They lodged the entry in daily diary and prepared a statement under section 154, Cr.P.C. For lodging an F.I.R. Which was handed over to P.W.1 who proceeded to Police Station Umersand and at 2300 hours an F.I.R. Was registered. He obtained the copies of F.I.Rs and then again came back to CIA Center, and must have reached the CIA Center after 1-00 a.m. On 25-4-2001. Thereafter, as per Investigating Officer, the S.P CIA transferred the investigation of Crime No, 20 of 2001 from police station to the CIA The same was marked to D.S.P. And D.S.P. Further transferred it to P.W.3. It proved that the order of the transfer of investigation could not be prepared on 24-4-2001.
12. It seems that as per directions of Honourable Supreme Court passed in case of State v. Bashir PLD 1997 SC 408 that the CIA officials were not to conduct investigation by detaining the people themselves, unless the F.I.R. Is registered at the concerned police station having jurisdiction and investigation being conducted by the official of the concerned police station. However, after order of the competent authority the investigation pending before a particular police station can be transferred to CIA officials. In the instant case admittedly the appellant was not produced before the area police which was 5/6 k.m. Away from the alleged place of recovery. Instead the officials brought the appellant at the CIA Hyderabad after a travel of 25 k.Ms which shows that on no occasion was the appellant ever produced before the Police Station Umersand with the contraband, in as much as no investigation was ever assigned to any police official of the concerned police station which was a clear violation of the order of the Honourable Supreme Court.
13. It is, also a fact that on the same day 3 hours prior to the instant case, the CIA official also arrested one Arz Muhammad having 28 kg charas within the jurisdiction of the same police station.
In the said case the CIA officials also detained the accused and the contraband with them and lodged F.I.R. At the same Police Station Umersand bearing F.I.R. No,19 of 2001 and conducted the investigation. The said accused was convicted by the Trial Court but had been acquitted by this Court as mentioned above. It is interesting to note that co-accused of the instant case were also the same as in the above mentioned case.
14. We have gone through the judgment referred to by the learned counsel for the appellant. The facts and circumstances are almost identical and the learned Divisional Bench of this Court had disbelieved the prosecution story.
15. On the point of illegal search and seizure in the year 1961 the Supreme Court of U.S.A. In the case of Dollree Mapp reported in 367 US 643, 6L ed 2nd 1081, 81 SCT 1684 Dollree Mapp v. Ohio held as under:-- "The appellant was convicted in the Ohio Common Pleas Court for possession of obscene literature; the judgment of the latter Court was in turn affirmed by the Supreme Court of Ohio. The Ohio Supreme Court found that the record left it in doubt whether. There ever was any warrant for the search of her home, which could validate the exercise conducted by the Police Department and lend credibility and allow the evidence collected to be used in Court, but held that under Ohio law, evidence obtained by an unlawful search and seizure is admissible in a criminal prosecution, and that under the decision of the Supreme Court of United States in Wolf v. Colorado, 338 US 25, 93 L ed 1782, 69 S ct 1359 a State was not prevented by the Federal Constitution from adopting then rule as it prevailed in Ohio. A majority of less than six members of the Court were of the opinion that the statute under which appellant was convicted, making a criminal offence the knowing possession of lewd books and pictures, was unconstitutional, but under Ohio law this majority was not sufficient to permit the reversal of the judgment of the Court of Appeals.
'On appeal, the Supreme Court of United States reversed the judgment of the Supreme Court of Ohio and remanded the case to that Court, Clark, J., expressing the views of the five members of the Court, the earlier decision in Wolf v. Colorado, supra, was overruled and it was held that, as a matter of due process, evidence obtained by a search and seizure in violation of the Fourth Amendment is inadmissible in a State Court as it is in a Federal Court."
16. In a case of Sales Tax reported in (1971) 27 STC 434 Harikisandas Gulab Das and Sons and another v. The State of Mesure and another (Banglore, India), The Mysore Sales Tax Authorities, in purported exercise of powers under section 28 (2) of the Mysore Sales Tax Act, 1957, conducted a raid and illegal search upon the premises of the petitioner and confiscated and took into possession some books of accounts and other documents, which, by taking a signed statement from one of the partners of the petitioner Firm, made it appear that the books of accounts had been voluntarily handed over to the authorities. This was followed by a show-cause notice which threatened further action.
17. The learned Division Bench while declaring the said raid to be illegal and without jurisdiction for not having complied with section 28(1) of the Mysore Sales Tax Act, 1957, while conducting a surprise raid on the petitioners business premises, also directed that all proceedings subsequent to the raid, including issuance of the show-cause notice, be quashed and that all documents taken into possession from the petitioner's premises be returned to him forthwith as any other approach would allow the officers concerned to resort to illegal searches, make copies of seized documents and retain them with impunity. The learned Division Bench was of the considered view that the retention of the documents would defeat the very purpose for which the provisions relating to search and seizure are made and the safe guards provided against the illegal searches are put into place.
18. All officials had to act according to law and not otherwise. It would, however, appear that every word used by the legislature must be given its true meaning and all provisions be construed together in B a harmonious manner. To our mind, it would not be legal and proper to apply one provision of law in isolation to the other as no redundancy can be attributed to the legislature organ of the State.
19. The learned counsel for the appellant rightly referred to the case of State v. Bashir (Supra), in which the Honourable Supreme Court specifically directed the CIA officials not to conduct investigation by detaining the people themselves unless the F.I.R. Is registered at the police station having jurisdiction and investigation being conducted by the police officials, per order of the competent authority, is transferred to CIA official.
20. In the present case the arrest and investigation conducted by the complainant was a clear flouting of the order of the Honourable Supreme Court, hence cannot be declared legal. The CIA officials have also violated the provisions of section 166 (1) & (4) of Cr.P.C. And Chapter XXI Rules 25.3 and 25.4 of Police Rules, 1934 as prior to arrest of the applicant he should have informed the area police station and if arrested should have been produced the appellant before the concerned S.H.O.
21. In our view the CIA had no authority to detain the appellant for 5 hours without registration of the F.I.R. They should have produced him and the C contraband before the area police and this was the duty of the concerned S.H.O. To deliver the investigation to any of his subordinates and thereafter, the CIA official could have taken the investigation after the order of the competent authority, which was lacking in this case. The investigation conducted by the CIA official was illegal, void and without lawful authority, therefore, the impugned judgment is not sustainable in law. We therefore, set aside the impugned judgment and acquit the appellant.
22. Above are the reasons of our short order passed on 8-4-2009, whereby the appeal was allowed.