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2005 DIGILAW 581 (ALL)

Mohd. Zakir, Haee Mohd v. State of U. P.

2005-03-24

UMESHWAR PANDEY

body2005
UMESHWAR PANDEY, J. ( 1 ) THIS appeal arises out of the judgment and order dated 30. 09. 1991 passed by the 3rd additional Sessions Judge, Kanpur Nagar, whereby the appellant accused Mohd. Zakir was convicted under Sections 20 b (ii) and 17 of N. D. P. S. Act (herein after referred to as the act)and sentenced to rigorous imprisonment for ten years for each offence and to pay a fine of Rs. 1,00,000/ -. It was further directed that both the sentences shall run concurrently. ( 2 ) THE alleged story of the prosecution is that while Sub-Inspector Mahendra Nath Rai (PW 1)was on duty to search certain accused of other case on 8. 7. 1990, he noticed that two persons were trying to run away after having seen the police party approaching there. The police after a little chase arrested them at about 1. 15 p. m. The appellant Mohd. Zakir has been found in possession of five small packets of charas and one packet of smack. The other person disclosing his name as Brij Mohan Shukla was also found in possession of five small packets of charas and one small packet of heroin. They were arrested and recovery memo was prepared on the spot. The recovered articles were also sealed on the spot. Thereafter, the accused and the recovered contraband were brought to the Police Station where the F. I. R. was lodged on the basis of the recovery memo. The accused and the recovered contraband were deposited at the Police Station. The contraband so recovered was sent to the Serologist for analysis and these articles were found to be heroin and charas. The matter was investigated and after its completion charge sheet (Ext. Ka-4) was sent against the appellant Mohd. Zakir. ( 3 ) THE prosecution in support of its case has examined PW 1 - the recovery officer S. I. Mahendra nath Rai and Head Constable Satyadeo Misra. The genuineness of the other formal documents were since admitted by the defence but the Investigating Officer in the present case has not been examined to prove them. ( 4 ) THE accused appellant pleaded not guilty to the charges framed against him and stated that the police wanted him to become its informer to which he did not agree and as such he has been falsely implicated in the present case. ( 4 ) THE accused appellant pleaded not guilty to the charges framed against him and stated that the police wanted him to become its informer to which he did not agree and as such he has been falsely implicated in the present case. ( 5 ) LEARNED counsel for the appellant while making his submissions has indicated towards the major default on the part of arresting officer, which he committed while recovering the alleged contraband from the possession of the appellant. Learned counsel points out that the recovery memo as well as the statement of PW 1, the recovery officer or the PW 2 Head Constable satyadeo Misra, who was accompanying the PW 1 at the time of incident, are silent about fulfillment of the mandatory requirements of Section 50 of the Act. The recovery memo does not mention that the accused appellant was informed of his right for the search being taken in presence of a Magistrate or a Gazetted Officer of the department and the evidence of the police personnel, who are said to be the eye witnesses of search and seizure also does not state that the appellant was apprised of his option/right, as envisaged under Section 50 of the Act. The prosecution cannot take the excuse that this was a case of sudden recovery of contraband from the possession of the appellant by the police party and such right could not have been reasonably exercised by the accused. The police party when noticed the accused and arrested him and thereafter was taking the search for suspected possession of contraband with the accused, it was its duty to inform him of his right for the search to be taken before a Magistrate or a Gazetted officer, if he so desired. This essential requirement, if has not been observed by the recovery officer, the whole search itself becomes vitiated. In this context, decision of the constitution bench of the Honble Apex Court in State of Punjab v. Baldev Singh, 1999 (39) A. C. C. 349 (S. C.) is very relevant. The following extracts of paras 17, 31 and 42 of the judgment of Honble court in the case of State of Punjab (supra) are given for proper appreciation of the legal position: 17. . . . . . The following extracts of paras 17, 31 and 42 of the judgment of Honble court in the case of State of Punjab (supra) are given for proper appreciation of the legal position: 17. . . . . . When the officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty bound to conclude that the accused had not had the benefit of the protection that Section 50 affords. . . . . 31. . . . . We hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50, by intimating to the concerned person about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, would cause prejudice to an accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused. . . . . . . . . The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. . . 42. . . . . . Courts cannot allow admission of evidence against an accused where the court is satisfied that the evidence had been obtained by a conduct of which prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on the record it is found by the court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded. In R. V. Collins, the Supreme Court of Canada speaking through lamer, J. (as His Lordship, Chief Justice of the Supreme Court of Canada then was) opined that the use of evidence collected in violation of the Charter rights of an accused would render a trial unfair and the evidence inadmissible. . . . In R. V. Collins, the Supreme Court of Canada speaking through lamer, J. (as His Lordship, Chief Justice of the Supreme Court of Canada then was) opined that the use of evidence collected in violation of the Charter rights of an accused would render a trial unfair and the evidence inadmissible. . . . ( 6 ) FROM the above extracts of the judgment of the Constitution Bench, it is more than evident that the observance of the formalities, as contemplated under Section 50 of the Act, are imperative on the part of the officer making the recovery and seizure of contraband and if there is no evidence to that effect that the formalities were allegedly observed, the court is duty bound to arrive at a finding that the benefit, as provided under the aforesaid Section 50 of the Act, has been refused to such accused from whom the contraband is said to have been seized. Such omission of the recovery officer may not vitiate the trial as such but it causes inherent prejudice to the accused as he is not given due protection in such matter of recovery rendering his conviction and sentence as unsustainable. Any amount of evidence as led from the side of the prosecution for the purposes to prove the recovery of alleged contraband would not be meaningful in such cases where the formalities of Section 50 of the Act have not been observed. Such collection of evidence in violation of Section 50 of the Act renders the trial itself as unfair. The Honble Constitution Bench has concluded that such amount of evidence of recovery is actually rather inadmissible and should not be accepted by the courts as valid evidence of recovery of contraband from the accused. ( 7 ) FROM the evidence of PW 1, as has been recorded before the trial court, it is further not found that the search officer (PW 1) has observed the formalities, as envisaged under Section 57 of the act. It is nowhere in the evidence that PW 1 did take any step to inform his immediate superior officer of such arrest and recovery by any means whether oral or in writing, Section 57 of the act requires that after the recovery has been done, the recovery officer shall undertake this formality and inform his immediate superior officer about the recovery and seizure of contraband. Observance of such formality, as required under the said provision of the Act may be directory only, yet a default of the type if committed by recovery officer would render the prosecution case still weaker and the prosecution cannot succeed in proving the guilt for the offences constituted by such seizure. ( 8 ) THUS, in the aforesaid view of the matter, the prosecution has not only failed to prove its case beyond reasonable shadow of doubt but has miserably failed to establish the fact of the alleged recovery of contraband and thus, the guilt for the offence with which the appellant accused was charged, could not be said to have been successfully brought home to him. ( 9 ) IN the aforesaid facts and circumstances, I do not find the appellant as guilty for the offences punishable under Sections 20 b (ii) and 17 of N. D. P. S. Act and he should be acquitted for the same. ( 10 ) IN result, the appeal is allowed and the judgment and order 30. 09. 1991 passed by the 3rd additional Sessions Judge, Kanpur Nagar is hereby set aside. ( 11 ) THE appellant accused Mohd. Zakir is hereby acquitted for the offences punishable under sections 20 b (ii) and 17 of N. D. P. S. Act. He is in jail. He shall be released forthwith if not wanted in any other case. ( 12 ) LET a certified copy of this order along with original record of the trial court be immediately transmitted to the Sessions Judge, Kanpur Nagar for due compliance. . .