STATE OF RAJASTHANversusJAINUDEEN SHEKHANDANR.

                        [2015] 10 S.C.R. 542


A                     STATE OF RAJASTHAN
                                   v.
                  JAINUDEEN SHEKHANDANR.
                 (Criminal Appeal No. 1085 of 2015)
B                        AUGUST 25, 2015.
          [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

         Code of Criminal Procedure, 1973 - s.250 -
C Compensation for accusation without reasonable cause -
  Respondents arraigned as accused for the offences
  punishable u/ss. 8121(8) and 8129 of the 1985Act- Grant of
  compensation to the respondents by the Special Judge since
  they suffered illegal custody on account of delay in getting
  the seized articles tested from Forensic Science Laboratory
0
  and the test showed that the seized items did not contain any
  contraband artic!e - Said order upheld by the High Court -
  On appeal, held: Delay is the fulcrum of the reasoning for
  acquittal - It is apt to note that police while patrolling noticed
E that the behaviour the accused persons at that time was
  suspicious - There was no lapse on the part of the seizing
  officer, no evidence to show that the prosecution had falsely
  implicated them and there was no ma/a fide or malice - High
  Court did not apply its mind to the concept of grant of
F compensation to the accused persons - Thus, order of the
  trial judge granting compensation and High Court upholding
  the same, set aside - Narcotic Drugs and Psychotropic
  Substances Act, 1985.

G       Allowing the appeal, the Court

          HELD: On a close scrutiny of the judgment of the
    trial judge, it is evident that he has been guided basically
    by three factors, namely, that the State Government has
H                                542
     STATE OF RAJASTHAN v. JAINUDEEN SHEKH                  543


not established Forensic Science Laboratories despite           A
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         B
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         C
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
                                                                0
that there was any malice. The High Court did not apply
its mind to the concept of grant of compensation to the
accused persons. Thus, the view expressed by the trial
judge is absolutely indefensible and the affirmance
thereof by the High Court is wholly unsustainable. [Paras       E
12-13] [551-G-H, 552-A-E]

     Dau/at Ram v. State of Haryana (1996) 11 SCC
     711; Mohd. Zahid v. Govt. of NCT of Delhi (1998)
     5 SCC 419: 1998 (3) SCR 311; State, represented
                                                                F
     by Inspector of Police and others v. N.M. T. Joy
     Immaculate (2004) 5 SCC 729: 2004 (2 ) Suppl.
     SCR 71; Hardeep Singh v. State of Madhya
     Pradesh (2012) 1SCC748- referred to.

                   Case Law Reference                           G

   (1996) 11 sec 111            referred to.     Para 8
   1998 ( 3) SCR 311            referred to.     Para 9
   2004 (2 ) Suppl. SCR 71      referred to.     Para 1O        H
544         SUPREME COURT REPORTS                [2015] 10 S.C.R.


A        (2012) 1 sec 748             referred to.     Para 11

          CRIMINALAPPELLATE JURISDICTION: CriminalAppeal
      No. 1085 of 2015

          From the Judgment and Order dated 30.09.2014 of the
8
      High Court of Judicature for Raja~than at Jodhpur in Criminal
      Revision Petition No. 449 of 2014.

          S. S. Shamshery, AAG, Amit Sharma, Sandeep Singh,
      Pranaya Kumar Mahapatra, Milind Kumar for the Appellant.
c
          The Judgment of the Court was delivered by

          DIPAK MISRA, J. 1. The pivotal issue that emanates for
  consideration in this appeal, by special leave, is whether the
D 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 (8) and 8/29 of the Narcotic Drugs and
  Psychotropic Substances Act, 1985 (for brevity, "the NDPS
E 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
F 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
G 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
H speedily moved towards the kachcha passage near Mangal
     STATE OF RAJASTHAN v. JAINUDEEN SHEKH                        545
                 [DIPAK MISRA, J.]

Pandey circle and on a query being made, he could not give A
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 B
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 C
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.
                                                                   D
     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, E
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 F
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 G
not established in any manner.

    5. Learned trial Judge, while recording the said conclusion
observed thus:
                                                                   H
546       SUPREMECOURTREPORTS                     · [2015]10S.C.R.


A        "In tha 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                  •
B        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
c        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
D        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
E        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
 F
         years, so certainly it cannot be held as just and proper
         procedure."

      6. After so holding, the learned trial Judge opined that
G despite the Supreme Court giving the guid~lines 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


H
      STATE OF RAJASTHAN v. JAINUDEEN SHEKH                     547
                  [DIPAK MISRA, J.]

appropriate action had been taken by the State Government. A
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 favoljf B
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/ C
- 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.                  D

      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 E
Sessions Judge can grant compensation. In this context we
may refer with profit to the decision in Dau/at 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 F
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 G
Section 25 of theArmsAct. 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
, (1996) 11 sec 111                                               H
548            SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A     opined that:-

              ".... ft 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
s             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
C             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."

o           9. In Mohd. Zahid v. Govt. of NCT of De/hl2, 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
E     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
 F    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.

G         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 lmmaculate 3 , a three-

      2
          (1998) s sec 419
H ' (2004) s sec 729
     STATE OF RAJASTHAN v. JAINUDEEN SHEKH                     549
                 [DIPAK MISRA, J.]

Judge Bench was dealing with the judgment and order passed A
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 B
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 C
     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 D
     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 E
     commenced. This direction, therefore, deserves to be
     set aside."

   Dr. AR. Lakshmann, J. in his concurring opinion has laid
down:-                                                           F

     "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 G
     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 H
550       SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A        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."

s      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
C 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 locai newspapers.
  The trial went on for several years and eventually, he was
D 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
E 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-
F court appeal preferred, the High Court dismissed the same.

       12. Be it stated, afterthe 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
G 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
H • (2012) 1 sec 748
     STATE OF RAJASTHAN v. JAINUDEEN SHEKH                        551
                 [DIPAK MISRA, J.]

beginning that the cases registered against him were false A
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 B ·
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/- C
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        D
     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."
                                                                      E
     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            F
     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 G
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 H
    552          SUPREME COURT REPORTS               [2015] 10 S.C.R.


    A 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
.   B 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 brougnt by way of evidence to show that the
    C 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
    0
      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
    E 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
    F that of the High Court giving stamp of approval to the same
       are set aside.

          Nidhi Jain                                      Appeal allowed.