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2003 DIGILAW 2229 (ALL)

SHIV RAM SINGH v. STATE OF U P

2003-09-23

UMESHWAR PANDEY

body2003
UMESHWAR PANDEY, J. The appellants Shiv Ram Singh and Shiv Bilas, father and son, have challenged the judgment and order of conviction and sentence dated 18-5-1995 passed by Vth Addl. District and Sessions Judge, Kanpur Dehat. 2. It is alleged that the aforesaid appellants-accused, while selling contraband Charas on 16-4-1991 near the Railway bridge of Rind River in the Circle of Police Station Gajner of District Kanpur Dehat, were apprehended by the police party headed by P. W. 2 Chandra Pal Singh, the Station Officer of the said Police Station. On the search taken 300 grams of contraband Charas was found from the possession of appellant Shiv Ram Singh, while his son Shive Bilas was found in the possession of 200 grams of such contraband Charas. It is said that on that particular date the police party consisting of PW 2, Chandra Pal Singh, P. W. 3, S. I. Madan Lal, Constable Anoop Kumar and some other constables, had started from the Police Station in the morning at about 4. 05 hours and when they reached near the railway crossing of village Pairajor they were given information through Mukhbir, that the appellants-accused were selling contraband Charas, at the Rind Railway Bridge. Chandra Pal Singh (P. W. 2) decided to apprehend the accused persons and proceeded for the place of recovery. He, on the way, approached several villagers to stand as witnesses for the prospective recovery of contraband Charas, but none consented. He, however, arrived at the Rind Bridge at about 10. 00 a. m. with the police party and noticed that the accused persons were surrounded by certain purchasers of the contraband. Thus, getting confident of the alleged sale of contraband by the accused persons, police party pounced upon them and the accused were arrested. Thereafter Chandra Pal Singh (P. W. 2) gave option to the accused if they wanted the recovery and seizure to be done in presence of some Magistrate or Gazetted Officer to which the accused did not give positive response and declined The aforesaid recovery of contraband Charas, was done on the spot. The recovery memo (Ext. Ka-4) was prepared and the accused were brought to the Police Station along with the recovered contraband. On the basis of recovery memo prepared in the case, the First Information Report was lodged at the Police Station at 14. The recovery memo (Ext. Ka-4) was prepared and the accused were brought to the Police Station along with the recovered contraband. On the basis of recovery memo prepared in the case, the First Information Report was lodged at the Police Station at 14. 00 hours on the same day and the investigation was entrusted to P. W. 4, S. I. Ram Swaroop Sharma. After completion of the investigation, charge- sheet was submitted. 3. The trial of the case was conducted in the Court of Additional Sessions Judge, where the accused were charged for the offence punishable under Section 18/20 N. D. P. S. Act, to which they did not plead guilty and claimed trial. The prosecution examined as many as four witnesses and from the side of defence two witnesses, namely, Suraj Pal Singh and Shiv Pal Singh were examined. The prosecution proved documents (Exts. Ka-1 to Ka- 9), which included the Chick FIR recovery memo the reports of Public Analyst, site-plan of the place of recovery and extracts of General Diary etc. 4. The learned trial Court after having considered the entire material on record and after having heard parties at length found that the offence under Section 20 (b) (ii) had been proved against the appellants- accused and he accordingly passed the impugned judgment of conviction and sentenced each of them to undergo rigorous imprisonment for a term of ten years and pay a fine of Rs. One Lac. It was also provided that in case of default of payment of fine, the appellants would further undergo rigorous imprisonment for a term of one year. 5. Aggrieved with the aforesaid judgment and order of conviction and sentence against them, the appellants have come up in this appeal. 6. I have heard the learned Counsel for the appellants and the learned A. G. A. 7. It has been contended on behalf of the appellants that the case of recovery and seizure against them has not been proved, as the seizure itself is not in accordance with the provisions of Section 50 of the N. D. P. S. Act (in short the Act ). It has been contended on behalf of the appellants that the case of recovery and seizure against them has not been proved, as the seizure itself is not in accordance with the provisions of Section 50 of the N. D. P. S. Act (in short the Act ). It is submitted that the In-charge of the Police Station Gajner, P. W. 2 Chandraj Pal Singh, was on son other duty, when he was informed near railway crossing at village Pairajor that the accused persons were selling contraband Charas at the Railway Bridge of Rind River. He decided to apprehend the accused and to make the recovery of contraband. He proceeded for the place of recovery, but after he made the arrest of the appellants Shiv Ram Singh and Shiv Bilas, he did not comply with the mandatory requirements and the formalities of Section 50 of the Act. The learned Counsel has, thus, emphasised that the recovery itself is illegal and that it could not be made basis of a justified conviction and sentence passed against the accused for committing offence under Chapter IV of the Act. The learned Counsel has placed reliance upon the judgment of a Constitution Bench of Supreme Court in the case of State of Punjab v. Baldev Singh, 1999 (2) JIC 421 (SC) : AIR 1999 SC 340 , and another case of Beckodan Abdul Rahiman v. State of Kerala, 2002 (2) JIC 157 (SC) : J. T. 2002 (4) SC 68. 8. Learned Counsel has further contended that the Station Officer Chandra Pal Singh, after getting information of the appellants- accused about their being engaged in sale of contraband Charas at the Railway Bridge, he did not take care to comply with the provisions of Section 42 (2) of the Act, which envisages that such information received shall be taken down and would forthwith be sent by the officer to his immediate official superior. He submitted that in the present case there is complete failure on the part of P. W. 2 in compliance to the mandatory provisions of the Act, which renders the recovery and seizure to be illegal and unbelievable. Sections 42, 43 and 50 of the Act provide as below: "42. He submitted that in the present case there is complete failure on the part of P. W. 2 in compliance to the mandatory provisions of the Act, which renders the recovery and seizure to be illegal and unbelievable. Sections 42, 43 and 50 of the Act provide as below: "42. Power of entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in his behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset: (a) enter into and search any building, conveyance or place; (b) In case of resistance, break open any door and remove any obstacle to such entry; (c) Such drug or substance and all materials used in the manufacture thereof and an other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter I relating to such drug or substance; and (d) Detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity, for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, the shall forthwith send a copy thereof to his immediate official superior. " "43. Power of seizure and arrest in public places.-Any officer of any of the departments maintained in Section 42 may - (a) seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence, punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act and any document or other article which he has reason to believe any furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any Narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.-For the purpose of this Section, the expression "public place" includes any public conveyance, hotel, shop or other place intended for use by, or accessible to the public. " "50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1 ). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search forthwith discharge the person but otherwise shall direct that search he made. (4) No female shall be search by anyone excepting a female. " 9. Sub-section (2) of Section 42 contemplates two kinds of information, which are to be sent through the immediate official superior to the person conducting the search. (4) No female shall be search by anyone excepting a female. " 9. Sub-section (2) of Section 42 contemplates two kinds of information, which are to be sent through the immediate official superior to the person conducting the search. First is the information taken down in writing under sub-section (1) of Section 42 of the Act and the second is the ground for his behalf under the proviso to sub-section (1) of the Act. Here we are not concerned with the information regarding ground taken by the Officer making seizure and recovery. The former information can be sent to the immediate official superior only if the information has been taken down in writing. If the information was not taken down in writing, there will be no occasion for sending a copy of the same to immediate official superior under sub-section (2) of Section 42 of the Act. The fact situation of the present case are that the Station Officer of Gajner Police Station, Chandra Pal Singh (P. W. 2) had left the Police Station hours before at about 4. 00 a. m. and while he was on an other duty making search of the accused in different cases, he was given information about the ongoing sale of the contraband Charas, by the accused-appellants a little before 10. 00 a. m. He was away from the Police Station and he had to make up his mind for affecting the arrest, search and seizure of the appellants then and there. He had absolutely no occasion to make a written record of the information in the relevant diary maintained at the Police Station. He approached the accused persons and when found that they were selling the contraband Charas, he with the help of police party, at once arrested them. It was an open place, where the arrest of the appellants was affected by the police party. The place where the arrest had been made is definitely accessible to the public and it is covered within the definition of "public place" given in the Explanation attached to Section 43 of the Act. This arrest of the appellant, for all practical purposes, as has also been observed by the trial Judge, is an arrest purely under the provisions of Section 43 of the Act. This arrest of the appellant, for all practical purposes, as has also been observed by the trial Judge, is an arrest purely under the provisions of Section 43 of the Act. The arrest under Sections 42 and 43 of the Act are independent of each other and as for as the arrest at a public place is concerned, the provisions of Section 43 would alone apply and Section 42 of the Act has no relevance at all, [ (1991) Cr. L. P. (Gujarat)165 (Division Bench)]. If the place where the arrest is made is in a public place or is a private building or private place, then only Section 42 of the Act would apply, but if the offence has been committed at a public place which is not a building, a private place or not encircled area, then according to Section 43 of the Act power is given to those officers to act under the provisions of Section 43 of the Act only. 10. The argument of the learned Counsel for the appellants that no memo was sent by the Station Officer, Chandra Pal Singh (P. W. 2) to immediate official superior regarding the information received by him has absolutely no relevance in the facts of the present case. The requirement of sending such memo under Section 42 of the Act cannot be imported in the matters of arrest and seizure, which have been made under the provisions of Section 43 of the Act [1992 Cr. L. J. 1639 (Allahabad)]. 11. While dealing with the aforesaid provisions of Section 50 of the Act, the Constitution Bench of the Supreme Court has very specifically enunciated that an officer while acting on prior information and making search and seizure, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50, of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. If there is failure on the part of the authorised officer in this regard, such search or seizure made by him would cause prejudice to the accused. This renders the recovery of contraband article suspect and vitiates the conviction and sentence of the accused where such conviction has been recorded on the basis of possession of the article recovered from his possession. This renders the recovery of contraband article suspect and vitiates the conviction and sentence of the accused where such conviction has been recorded on the basis of possession of the article recovered from his possession. In fact Section 50 provides safeguard in the cases of such recoveries because the Act is very stringent and provides for very severe punishment like rigorous imprisonment for ten years to thirty years and fine of Rs. One Lac to Rs. Three Lacs. It has been conceived in the Act by way of safeguard to likely misuse of its provisions by unscrupulous officers acting within the provisions of the Act. 12. It is essential that the legislative safeguards contained in Section 50 of the Act should be scrupulously followed by the Arresting Officer in presence of a Gazetted Officer or Magistrate and the same being an important right of the accused, it must be strictly be adhered to. It is obligatory upon the officer to inform the accused to be searched, if he so requires before a Gazetted Officer/magistrate. In the Constitution Bench decision of State of Punjab v. Baldev Singh (supra), the conclusion No. (1) drawn by the Supreme Court is as below: " (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing". 13. In the aforesaid conclusion it has been made specific that when an empowered officer acting on prior information is about to search a person, he has to necessarily inform of his right to be taken before the nearest Gazetted Officer/magistrate for the purposes of this search. This information given by the Arresting Officer to the accused may, however, be oral only and it is not necessarily be in writing. This information given by the Arresting Officer to the accused may, however, be oral only and it is not necessarily be in writing. In the present case, the evidence as advanced before the trial Court in the statements of the Arresting Officer, Chandra Pal Singh (P. W. 2) and constable Arun Kumar Pandey (P. W. 3), on behalf of the prosecution are very consistent on the point that the accused-appellants after they were arrested by the police had been orally informed about their options of being searched for the contraband that they allegedly possessed, before a Gazetted Officer/magistrate. Both the accused did not opt for their search and seizure of the article of contraband before such Officer or Magistrate and declined for being taken to the Gazetted Officer Magistrate for the purposes of their search. It was under the circumstances only that the police party conducted the search and seizure of the alleged contraband Charas, in the possession of the accused persons near the Railway Bridge itself. The submission of the learned Counsel for the appellants in this regard that the provisions of Section 50 (1) have not been strictly followed, does not appear to have any substance. It was on the accused declining to go to a Gazetted Officer/magistrate that their search was taken by the police party and the alleged contraband was recovered from their possession. The recovery memo was prepared then and there as is fully proved from the direct evidence led from the side of the prosecution on the record. The accused and the recovered articles were brought to the Police Station and the FIR was lodged on the basis of recovery memo itself. The sample taken from the alleged contraband were sent for the analysis and the same was found to be Charas. The reports of Serologist are Exts. Ka-8 and Ka. 9 on the record. 14. In Beckodan Abdul Rahimans case, the Sub-Inspector of Police received a telephonic message at 8. 30 a. m. that narcotic drugs were being sold at C. T. Junction. He recorded information in the General Diary and proceeded to the scene of occurrence in a Jeep. In that fact situation, the Supreme Court had found that the violation of mandatory provision of Section 42 (2) of the Act was writ large. 30 a. m. that narcotic drugs were being sold at C. T. Junction. He recorded information in the General Diary and proceeded to the scene of occurrence in a Jeep. In that fact situation, the Supreme Court had found that the violation of mandatory provision of Section 42 (2) of the Act was writ large. Since the information under sub-section (1) of Section 42 of the Act had been recorded by the Sub-Inspector in writing at the Police Station, it was incumbent upon him to have forthwith sent a copy of such information to this immediate official superior. As already held above, this case with a different fact, cannot be viewed in the light of the principle laid down in Beckodan Abdul Rahimans case (supra ). P. W. 2 was given the information of the sale of contraband by the appellants-accused while he was away from the Police Station. There was no occasion, then for him to record this information and send the same to his immediate official superior. Acting upon the information received, in such a situation by the Arresting Officer Chandra Pal Singh (P. W. 2), he made the arrest of the appellants under Section 43 of the Act. Thus, the case of Beckodan Abdul Rahiman (supra) does not stand to help out the appellants- accused in the present case. 15. From the circumstances and facts as discussed above, it is quite obvious that the trial Court has very rightly found the accused-appellants guilty for the offence punishable under Section 20 (b) (ii) of N. D. P. S. Act. The conviction so recorded against the appellants, thus, cannot be interfered with in the present appeal. As regards the quantum of punishment awarded in the present case, this being the minimum as provided under sub-clause (ii) of Section 20 of the Act that also cannot be disturbed by this Court. 16. In the result, the appeal having no force is hereby dismissed. The judgment and order of conviction and sentence dated 18-5-1995 passed by the Vth Additional Sessions Judge, Kanpur Dehat are hereby confirmed. The appellants-accused are on bail. They shall forthwith surrender before the concerned trial Court/sessions Judge, Kanpur Dehat for being sent to jail to serve out the sentence awarded against them. Their bail bonds are cancelled. The judgment and order of conviction and sentence dated 18-5-1995 passed by the Vth Additional Sessions Judge, Kanpur Dehat are hereby confirmed. The appellants-accused are on bail. They shall forthwith surrender before the concerned trial Court/sessions Judge, Kanpur Dehat for being sent to jail to serve out the sentence awarded against them. Their bail bonds are cancelled. The trial Court/sessions Judge, Kanpur Dehat shall also take necessary steps in this regard and ensure the arrest of the appellant-accused for being sent up to the lockup to serve out the sentence. He shall also report compliance of this direction of the Court within a period of fifteen days from the date of receipt of a copy of this judgment. 17. Office is directed to immediately transmit a copy of this judgment to the Sessions Judge concerned for necessary action at his end. Application dismissed. .