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REPORTABLE   

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

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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

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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

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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.”

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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.    

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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 Haryana1.  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

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 (1996) 11 SCC 711

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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  Delhi2,  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

2  (1998)  5 SCC 419

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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  Immaculate3,  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

3  (2004) 5 SCC 729

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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

Pradesh4.  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

4  (2012) 1 SCC 748

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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

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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:-

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“.....  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

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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.

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