Research › Search › Judgment

Allahabad High Court · body

2005 DIGILAW 585 (ALL)

RAM DAS GUPTA v. STATE OF U P

2005-03-24

UMESHWAR PANDEY

body2005
UMESHWAR PANDEY, J. The appellant has come up before this Court challenging the judgment and order dated 2-4-1991 convicting him for the offence punishable under Section 18 of the N. D. P. S. Act and sentencing him to rigorous imprisonment for a term of ten years and also directing him to pay a fine of Rs. 1,00,000/ -. 2. The alleged facts in support of the charges framed against the appellant are that P. W. 1-S. K. Mishra, the then Excise Inspector, Ghatampur, District Kanpur Dehat, while on 4-3-1989, had gone to Bhognipur for some official work, he was reported by an informer that one person is trafficking in opium contraband in Pukhraya Bazar. The Excise Inspector acting upon this information went to the police station Bhognipur and sought police help. Thereafter he proceeded alongwith his staff, two police constables namely Chandra Kishore and Sahansarpal Singh and the informer for ward No. 2, Patel Nagar, Pukhraya Bazar. The informer identified the residence of the appellant accused Ram Das. P. W. 1 prepared the search memo (Ext. Ka-1) and called three persons from public to become witnesses. The Excise Inspector, members of the staff and the public witnesses all gave their personal search to each other and thereafter P. W. 1 told Ram Das that his search was to be taken and he was informed that his search may be taken before a Gazetted Officer but he agreed to give his search to the Excise Inspector. On the search made, the appellant was found keeping opium, which was taken out from the left pocket of his Sadari. One weighing machine was also recovered from the appellants pocket and the recovery memo was prepared after preliminary test of the recovered contraband. The Excise Inspector-S. K. Mishra also prepared a site-plan (Ext. Ka-4) of the place of recovery and he brought the recovered article alongwith accused to the police station where he lodged the First Information Report (Ext. Ka-6 ). The recovered article was deposited with the Excise malkhana and after about more than five months vide letter dated 14-8-1987 (Ext. Kha-1) of the Judicial Magistrate, this recovered opium is said to have been sent for chemical examination to Lucknow Laboratory. 3. The report of the Chemical Examiner (Ext. Ka-4) stated that the recovered article about 2. 5 gms. in weight was found to be opium. Kha-1) of the Judicial Magistrate, this recovered opium is said to have been sent for chemical examination to Lucknow Laboratory. 3. The report of the Chemical Examiner (Ext. Ka-4) stated that the recovered article about 2. 5 gms. in weight was found to be opium. The percentage of opium could not be ascertained by the chemical examiner. 4. The Excise Inspector sent challani report (Ext. Ka-7) against the appellant to the Magistrate concerned, who thereafter committed the case to the Sessions Court vide order dated 11-10-1990. 5. The appellant accused denied the allegations and pleaded not guilty to the charge. He further stated that he has been falsely implicated in the present case. 6. The complainant Excise Inspector-S. K. Mishra has examined himself as P. W. 1 and Habib Khan has been examined as P. W. 2 in the present case. P. W. 1 and P. W. 2 are said to be witnesses of recovery. 7. The defence in support of its case has examined D. W. 1-Ashok. 8. The trial Court after having considered the entire evidence available on record, was of the view that the prosecution has succeeded in proving the guilt for recovery of contraband opium and thus relying upon the evidence of P. Ws. 1 and 2 recorded the conviction in the present case against the appellant and passed the sentence, as detailed above. 9. Aggrieved with the aforesaid judgment and order of conviction and sentence this criminal appeal has been filed before this Court. 10. I have heard Sri P. N. Mishra, Sr. Advocate, assisted by Sri V. D. Ojha, Advocate, appearing for the appellant-accused and the learned A. G. A. 11. The prosecution alleges that on 4-3-1989, P. W. 1 had received information while he was in Bhognipur that the appellant accused was trafficking in opium and thereafter with the police help in the presence of public witnesses, he had gone to Pukhraya Bazar and took the personal search of the appellant from which about 1- 1/2 tola of opium was recovered. P. W. 1 claims to have prepared the recovery memo (Ext. Ka-2 ). 12. P. W. 1 claims to have prepared the recovery memo (Ext. Ka-2 ). 12. It has been submitted by the learned Senior Advocate that in the present case, P. W. 1 does not say in the evidence before the Court that he had made necessary compliance of the provisions of Section 42 (1) of the N. D. P. S. Act (hereinafter referred to as the act) because inspite of prior information about the appellant involved in opium trafficking, neither he had taken trouble to prepare a note of the said information nor did he take trouble of sending such information to his immediate official superior. Later on also after he had completed the search and had prepared the search and seizure memo, PW 1 did not send a detailed report making compliance of the provisions of Section 57 of the Act in the present case. The due information, as required under Sections 42 (1) and 57 of the Act, should have been sent to the immediate official superior by the recovery officer and if such non-compliance is there, recovery is bad in law and it should not be relied upon. The reference to the case law of State of Punjab v. Balbir Singh, 1995 (1) JIC 382 (SC) : (1994) 3 SCC 299 ; Mohinder Kumar v. State, Panji, Goa, (1998) 8 SCC 655 ; Thandi Ram v. State of Haryana, 1999 (2) JIC 216 (SC) : 2000 SCC (Crl.) 189 and State of Orissa v. S. Mohanty & Ors. , 2000 (2) JIC 130 (SC) : 2001 (1) A. Cr. R. 361 (SC), have been given by the learned Counsel in this context. 13. The recovery memo (Ext. Ka-2) is silent about compliance required to be made by the recovery officer under Section 42 (1) of the Act. In such cases where the recovery officer had received information about the fact that the person so found in possession of the contraband had been trafficking in the sale of such contraband from before and upon that tip the recovery has been made, he is required to make a note of that tip received and send its copy to his immediate official superior. In this case, the evidence of PW 1 is totally silent about it and no such reference is made in the recovery memo (Ext. Ka-2 ). In this case, the evidence of PW 1 is totally silent about it and no such reference is made in the recovery memo (Ext. Ka-2 ). As regards the compliance of the provisions of Section 57 of the Act, there is nothing in the evidence of PW 1 that he after making the recovery had given due information of such recovery to the officer immediate superior to him and in the aforesaid view of the matter, the present recovery in the light of case law referred to above, has to be held to be bad in law. 14. The statement of PW 1 recorded before the trial Court makes a reference that before recovery was actually affected by S. K. Mishra (PW 1), the Excise Inspector, he asked the accused appellant if he would be ready for search being taken in presence of a Gazetted Officer or he will give his search to the search party on the spot itself. The appellant agreed to give his search to the search party only and thereupon the search was taken. The learned Counsel in this context has emphasised that such exercise made by PW 1 pursuant to the compliance of the provisions of Section 50 of the Act is wholly erroneous and it cannot be said to be a compliance made in letter and spirit. The learned Counsel in this context has relied upon the case law of State of Punjab v. Balbir Singh, (supra), Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1995 SCC (Cri.) 32 and T. P. Razak alias Nagappan Razak v. State of Kerala, 1996 SCC (Cri.) 57. Learned Counsel with the support of the aforesaid case laws has stressed that the evidence of PW 1, as has been given in the Court, is not at all indicative to the proper compliance of the mandatory requirement of the aforesaid provisions of Section 50 of the Act. The recovery memo (Ext. Ka-2) does not refer to giving information to the appellant accused of his right of search to be taken before a Gazetted Officer or a Magistrate. It is only the statement of PW 1 before the trial Court, which gives out that the accused was asked if he would give his search to a Gazetted Officer or to the search party present there. It is only the statement of PW 1 before the trial Court, which gives out that the accused was asked if he would give his search to a Gazetted Officer or to the search party present there. Upon this query made by PW 1, the appellant had replied that his search may be taken by him only. It is definitely not a full compliance of provisions of Section 50 of the Act. The statement of PW 1 in the first place is not to be accepted since it does not get any corroboration of this fact from the recovery memo (Ext. Ka-2) and in the second place, it is not a full compliance of Section 50 of the Act if the accused has not been given to exercise his option/right of search being taken before a Magistrate. PW 1 does not say that he informed the accused Ram Das that his search may be taken before a Magistrate also. In his statement he has referred that he asked the accused if his search is to be taken before a Gazetted Officer. This is definitely not full compliance to the provisions of Section 50 of the Act in letter and spirit. Even if PW 1 had informed the accused of his right for search being taken before a Gazetted Officer, he should have made a reference of the same in the search memo also and that would have corroborated his statement, which he had given in the form of substantive evidence before the Court. In the case of State of Haryana v. Sewa Ram, 2000 SCC (Cri.) 1387, Honble Apex Court has held that if there is non-compliance of Section 50 of the Act in the manner, as stated above, it is to be treated as vitiative of conviction recorded against the appellant. It is thus, obvious that in the present case there being non-compliance of provisions of Section 50 of the Act by PW 1, the conviction so recorded by the trial Court against the appellant is vitiated and it cannot sustain in the eye of law. 15. From the evidence of PW 1 as recorded by the trial Court, it is not clear as to where he kept the article after he brought it from the police station. Ext. 15. From the evidence of PW 1 as recorded by the trial Court, it is not clear as to where he kept the article after he brought it from the police station. Ext. Ka-4 is a document by which he claims to have sent the recovered contraband to the Chemical Examiner but this document (Ext. Ka-4) on the record is the report of Chemical Examiner, which shows that the article was received in the laboratory with a covering letter dated 14-8-1989 of Judicial Magistrate. The defence has proved the copy of letter of Judicial Magistrate dated 14-8-1989 (Ext. Kha-1) and receiving of the laboratory with its seal is there on that letter. This PW 1 has been confronted with this letter (Ext. Kha-1) of the Judicial Magistrate and he says that certain averments in this letter are incorrect. PW 1 says that the sample was got prepared by him from out of total stock of the recovered contraband and that sample was sent for chemical examination. But this letter of Judicial Magistrate (Ext. Kha-1) shows that the entire stock of the contraband so recovered was sent to the chemical examiner for analysis. This contradictory fact has no doubt created a mess of the things, which render the whole recovery, its subsequent preservation and its dispatch after more than five months for analysis as wholly doubtful. PW 1 does not state before the trial Court as to how and on which point of time he prepared the sample. In the cross-examination only he says that he had taken 5 gms. of contraband as sample which he had sent for chemical analysis but there is nothing to corroborate this statement even in the report of the chemical analyst, whose report shows that at only 2. 5 gms. of contraband as sample was received by him which was not found sufficient to make out the percentage of morphine in the said sample. The letter of Judicial Magistrate (Ext. Kha-1) shows that the entire recovered stock was sent for chemical analysis. The Excise inspector PW 1 says that 5 gms. was sent for chemical analysis and report of Chemical Examiner (Ext. Ka-4) shows that only 2. 5 gms. sample was received, which was not found sufficient for analyzing the percentage of morphine in it. Kha-1) shows that the entire recovered stock was sent for chemical analysis. The Excise inspector PW 1 says that 5 gms. was sent for chemical analysis and report of Chemical Examiner (Ext. Ka-4) shows that only 2. 5 gms. sample was received, which was not found sufficient for analyzing the percentage of morphine in it. The nature of evidence in the present case is such which makes it more than obvious that the prosecution has conducted the whole case very poorly and has thus miserably failed to establish the guilt for the recovery of alleged contraband from the possession of the appellant. The trial Court appears to have over looked the entire relevant aspects of the matter of this case and for no reasonable cause has recorded the conviction of the accused for such recovery of contraband. The judgment of the trial Court, thus, cannot sustain in the eye of law and it has to be set at naught. 16. The appeal is allowed and the impugned judgment and order of conviction and sentence dated 2-4- 1991 passed by the 1st Addl. Sessions Judge, Kanpur Dehat, is hereby set aside. 17. The appellant accused Ram Das is hereby acquitted for the offence punishable under Section 18 of N. D. P. S. Act. During the pendency of this appeal, the appellant has been sent to the lock up in pursuance to the non-bailable warrant of arrest. He shall be released forthwith if not wanted in any other case. Appeal allowed. .