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.
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
Versus
Jainudeen Shekh and Anr
Citation;2015 (4) crimes 342 SC,(2016) 1 SCC (Cri) 380; (2016) 1 SCC 514
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 anycontraband 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
2sealed. 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
3to 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.”
46. 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.
58. 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
1
(1996) 11 SCC 711
6false 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
7police 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
8commenced. 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
9appeared 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
10beginning 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:-
11“..... 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
12had 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.
13
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