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2007 DIGILAW 2022 (ALL)

Ari Vijay Singh v. State of U. P.

2007-08-02

AJAI KUMAR SINGH

body2007
ORDER :- This appeal has been preferred against the Judgment and order dated 24-3-2006 passed by Sri Mangal Prasad, Additional Sessions Judge, Fast Track Court No. 4, Kanpur Dehat in Special Trial No. 112 of 2000 State v. Ari Vijay arising out of case crime No. 264 of 2000 under Section 20 (b) (ii) Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "N.D.P.S. Act.") Police Station Shivli District Kanpur Dehat convicting him under Section 20 (b) (ii) of the N.D.P.S. Act and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. One lac and in default of payment of fine to undergo rigorous imprisonment for further period of one year. 2. Briefly stated the prosecution case is that on 20-9-2000 complainant Jai Prakash Yadav (Station Officer) along with other police personnel was going on official jeep towards Aniha Police outpost on canal bridge Bhiwan on patrol duty and also in search of wanted accused and when he reached canal bridge Ramgarh, he saw that a person coming on foot from the side of canal bridge Ramgarh towards Bhiwan bridge. As soon as the Jeep reached Ramgarh bridge, the said person suddenly started crossing Ramgarh bridge hurriedly. On suspicion the police party challenged him and apprehended him at about 14-30 hours by using necessary force. After apprehending the accused interrogation was made about his name and address and a search was taken in the presence of accompanying witnesses of the police party because none of the passersby agreed to be a witness of the occurrence. The accused disclosed his name as Ari Vijay Singh and on search 2 Kilogram Charas was recovered from a jute bag which he was carrying in his right hand of which no licence was shown by him. The said charas was contained in four packets covered by polythene. Each packet was 1/2 kilogram in weight. When the accused was asked as to whether he would like to be searched before a Gazetted Officer or a Magistrate, then he told that since he has already been apprehended by the police, hence they (members of the police party) may themselves take the search. The occurrence was a sudden occurrence. The accused was taken into custody after disclosing him the reason for arrest. The occurrence was a sudden occurrence. The accused was taken into custody after disclosing him the reason for arrest. 50 Grams of charas was taken out from one of the packets as a sample and the recovered charas was kept in the same bag and after stitching it was sealed at the spot. The recovery memo was read over to the witnesses and their signatures were obtained on it and a copy of the recovery memo was given to the accused. 3. The sample was sent for chemical analysis to the Vidhi Vigyan Prayogshala, Lucknow and the report submitted by the Joint Director of the said Laboratory after physical and chemical analysis that proved the seized contraband to the Charas. 4. After the close of the investigation charge-sheet under Section 18/20 N.D.P.S. Act was submitted in the Court against the accused/appellant. 5. Charge under Section 20 N.D.P.S. Act was framed against the accused-appellant which he denied and demanded trial. 6. In all the prosecution examined four witnesses in support of prosecution case. P. W. 1 the complainant Jai Prakash yadav (S. O.) supported the prosecution case as narrated in the First Information Report and proved the recovery memo Ex.Ka. 1 and the recovered Charas from the possession of the accused/appellant as Ex.1.S.1.Satya Prakash P. W. 2 is the eye witness of the occurrence, who has supported the statement of P. W. 1 Constable Veer Pal Singh is a formal witness who has proved the chick F.I.R. Ex.Ka. 2 and copy of the G. D. as Ex.Ka. 3 S.S.I. K. K. Misra, P. W. 4 is the Investigating Officer who has proved the site plan Ex.Ka. 4 and charge-sheet Ex.Ka. 5. 7. In his statement under Section 313 Cr. P. C. the accused/appellant denied the entire prosecution story of recovery and has stated that the witnesses are deposing against him due to enmity. 8. After considering the entire oral and documentary evidence on record the learned Sessions Judge found the accused/appellant guilty of the offence under Section 20 (b) (ii) N.D.P.S. Act and convicted and sentenced him as aforesaid. 9. Feeling aggrieved the present appeal has been filed by the accused/appellant Ari Vijay Singh. 10. I have heard the learned counsel for the appellant and the learned A.G.A. and have also gone through the entire record carefully. 11. 9. Feeling aggrieved the present appeal has been filed by the accused/appellant Ari Vijay Singh. 10. I have heard the learned counsel for the appellant and the learned A.G.A. and have also gone through the entire record carefully. 11. The main argument put forward by the learned counsel for the appellant is that in this case there has been violation of the andatory provisions of Section 50 of the N.D.P.S. Act and hence the whole trial is vitiated and conviction and sentence of the accused/appellant is liable to be set aside on this ground alone. The learned counsel pointed out that firstly the contraband article i.e. The Charas was recovered on the personal search of the accused/appellant and thereafter he was asked to exercise his option to give search before a Gazetted Officer of Magistrate which cannot be said to be the compliance of Section 50 of the N.D.P.S. Act. It has also been argued that the accused was not informed of his right to get his search taken before a Magistrate. It has also been argued that the accused/appellant has himself disclosed to the police party that he was having Charas hence an opportunity should have been given to him for exercising his right of search before the Magistrate or Gazetted Officer, which has not been done in the present case. In support of his contention the learned counsel for the appellant has relied upon the following cases: 1. Namdi Francis Nwazor v. Union of India and another (1998 S.C.C. (Crl.) 1516; 2. Vijai Singh Chandubhu Jadeja v. State of Gujarat (2006) 1 S.C.C. (Crl.) 634; and 3. Roshan Lal v. State of U. P. (2007) 5 A.D.J. 424 : (2007 (4) ALJ 787) 12. To the contrary learned A.G.A. contended that provisions of Section 50 N.D.P.S. Act are not attracted to the present case and that the said decisions are applicable in the case of personal search while in the present case the search cannot be termed as personal search as the contraband has been recovered from a jute bag which the appellant/accused was carrying in his right hand. Learned A.G.A. drew the attention towards the fact that the term personal search has been made clear in the latest decision of the Honble Supreme Court reported in State of Haryana v. Ranbir @ Rana (2006 (55) A.C.C. 522) : ( AIR 2006 SC 1796 ). Learned A.G.A. drew the attention towards the fact that the term personal search has been made clear in the latest decision of the Honble Supreme Court reported in State of Haryana v. Ranbir @ Rana (2006 (55) A.C.C. 522) : ( AIR 2006 SC 1796 ). Learned A.G.A. has also placed reliance in support of his case on the case law Babubhai Odhavji Patel v. State of Gujarat 2006 (54) A.C.C.253) : ( AIR 2006 SC 102 ). 13. Section 50 of N.D.P.S. Act provides as follows : "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 persons 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 be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reason for such belief which necessitated such search and within seventy two hours send a copy to his immediate official superior." 14. There are a large number of judgments of the Apex Court and the Allahabad High Court regarding applicability of Section 50 of N.D.P.S. Act and on the meaning of the words "personal search" mentioned in Section 50. There are a large number of judgments of the Apex Court and the Allahabad High Court regarding applicability of Section 50 of N.D.P.S. Act and on the meaning of the words "personal search" mentioned in Section 50. Due to diversion of opinions in different cases, there was some confusion regarding the applicability of the provisions of Section 50 of N.D.P.S. Act in case of personal search, which has now been set at rest by the judgment of the Apex Court in State of Haryana v. Ranbir @ Rana 2006 (55) ACC 522 : ( AIR 2006 SC 1796 ) wherein the Apex Court held as under: "7. The question as regards applicability of Section 50 of the Act need not detain us for long. We may notice that in view of conflict in the opinions of different Benches as also difference of opinion between two Judges of this Court in State of Himachal Pradesh v. Pawan Kumar 2004 (50) ACC 900 : ( AIR 2004 SC 4743 ) the question was referred to a larger Bench. A three-Judge Bench of this Court in State of Himachal Pradesh etc. v. Pawan Kumar 2005 (52) ACC 710 : ( AIR 2005 SC 2265 ) relying on or on the basis of a large number of decisions and in particular the decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh 1999 (30) ACC 349 : ( AIR 1999 SC 2378 ) clearly held that Section 50 of the Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying. 8. Before us, however, the learned counsel appearing on behalf of the respondent placed strong reliance on another three Judge Bench of this Court in Namdi Francis Nwazor v. Union of India and another 2004 (50) ACC 900 : ( AIR 2004 SC 4743 ) wherein the following observations were made: "3. On a plain reading of sub-section (1) of Section 50, it is obvious that it applies to cases of search of any person and not search of any person in the sense that the article is at a distant place from where the offender is actually searched. On a plain reading of sub-section (1) of Section 50, it is obvious that it applies to cases of search of any person and not search of any person in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to sub-section (4) of Section 50 which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched, the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying a handbag or the like and the incriminating is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when a article is lying elsewhere and is not on the person of the accused and is brought to a place where accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of section 50 of the Act for the simple reason that it was not found on the accused person. So, on the fact of this case, it is difficult to hold that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case." 9. It was urged that this Court in Pawan Kumar (supra) wrongly distinguished Namdi Francis Nwazor (supra) stating that the observations made therein (underlined by us) were obiter and did not lay down a law. 10. We may at once notice the observations made in Pawan Kumar (supra) as regards Namdi Francis Nwazor (supra) which is in the following terms. "The Bench then finally concluded that on the facts of the case Section 50 was not attracted. 10. We may at once notice the observations made in Pawan Kumar (supra) as regards Namdi Francis Nwazor (supra) which is in the following terms. "The Bench then finally concluded that on the facts of the case Section 50 was not attracted. The facts of the case clearly show that the bag from which incriminating article was recovered had already been checked in and was loaded in the aircraft. Therefore, it was not at all a search of a person to which Section 50 may be attracted. The observations, which were made in the later part of the judgment (reproduced above), are more in the nature of obiter as such a situation was not required to be considered for the decision of the case. No reasons have been given for arriving at the conclusion that search of a handbag being carried by a person would amount to search of a person. It may be noted that this case was decided prior to the Constitution Bench decision in State of Punjab v. Baldev Singh. After the decision in Baldev Singh this Court has consistently held that section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him." 11. We do not agree with the contention of the learned Counsel for the respondent that in Namdi Francis Nwazor (supra), the observation of this Court constituted a dicta and not an obiter. The appellant therein was apprehended at the International Airport, New Delhi. He had already checked in his baggage. The said baggage was cleared but later on, the same was called to the customs counter at the airport and upon examination thereof, it was found to be containing 153 cartons of tetanus vaccine, which having been opened, found to be containing 152 cartons of ampoules whereas the remaining one carton carried a polythene packet containing brown-coloured power packet with black adhesive tape, which was suspected to be heroin and which was then seized. 12. It is in that context the Court clearly came to the opinion that the provisions of sub-section (1) of Section 50 was not required to be complied with. The said conclusion was arrived at, inter alia, upon noticing the provisions of sub-section (4) of Section 50 of the Act. It was, therefore, not necessary for the Bench with utmost respect to make any further observation. The said conclusion was arrived at, inter alia, upon noticing the provisions of sub-section (4) of Section 50 of the Act. It was, therefore, not necessary for the Bench with utmost respect to make any further observation. It was not warranted in the facts of the said case. A decision, it well-settled, is an authority for what it decides and not what can logically deducted therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a view point or sentiments which has not binding effect. See Additional District Magistrate, Jabalpur etc. v. Shivakant Shukla etc. 1976 (2) SCC 521 : ( AIR 1976 SC 1207 ). It is also well-settled that the statements which are not part of the radio decidendi constitute obiter dicta and are not authoritative. (See Division Controller, KSRTC v. Mahadeva Shetty and another, 2003 (7) SCC 197 : ( AIR 2003 SC 4172 ). 15. In view of the above discussions, the Apex Court in the above case held that the observation made in Namdi Francis Nwazor (supra) is merely an obiter and does not constitute a ratio decidendi. It was further held that the three-Judge Bench of the Apex Court in Pawan Kumar (supra), therefore, correctly distinguished the same. The Apex Court held that it was thus, not necessary for the Bench to follow the judgment of a coordinate Bench in Pawan Kumar (supra) as was argued by the learned counsel. 16. The above principle of law laid down in State of Haryana v. Ranbir @ Rana ( AIR 2006 SC 1796 ) has now settled down the position regarding the applicability of section 50 of the N.D.P.S. Act in cases of personal search. In the present case, it has been mentioned in the recovery memo that the contraband article, i.e., charas which was recovered from the jute bag which the appellant accused was carrying in his right hand at the time of his arrest. This case of prosecution is corroborated by the testimony of the witnesses of the recovery. In the present case, it has been mentioned in the recovery memo that the contraband article, i.e., charas which was recovered from the jute bag which the appellant accused was carrying in his right hand at the time of his arrest. This case of prosecution is corroborated by the testimony of the witnesses of the recovery. Under these circumstances, since the contraband article, i.e., charas has been recovered from a separate jute bag, which the appellant accused was carrying in his hand at the time of recovery, hence, I find that in view of the principle of law laid down in State of Haryana v. Ranbir @ Rana (supra) the recovered contraband article cannot be said to be a recovery from the personal search of the accused and, as such, provisions of Section 50 of N.D.P.S. Act are not attracted to such a case. Thus, I come to the conclusion that there has been no violation of the provisions of Section 50 of the N.D.P.S. Act and the findings of the learned Lower Court to this effect need no interference. 17. The next argument advanced on behalf of the accused/appellant is that no proper seal was found on the sample sent to the Scientific Laboratory for chemical examination and that the Malkhana Register was also not produced before the Court and was not proved and hence the recovery becomes doubtful and the entire proceedings vitiated. In support of this contention learned counsel for the appellant relied upon the decision in Gurbax Singh v. State of Haryana (2001 Cr.L.J. 1166 : ( AIR 2001 SC 1002 ) and State of Rajasthan v. Gurmail Singh (2005) 3 SCC 59 : ( AIR 2005 SC 1578 ). To the contrary, the learned A.G.A. submitted that the factum of recovery of contraband from the possession of the accused/appellant as per the provisions of the Act has been fully established from the evidence on the record and it is proved from the report of the Scientific Laboratory that the seized contraband is charas, hence the contention of the learned counsel for the appellant is not liable to be accepted. As discussed earlier, it has been found that the recovery of the seized contraband from the possession of the accused/appellant is perfectly valid and legal and the provisions of section 50 of the N.D.P.S. Act are not applicable to the present case. As discussed earlier, it has been found that the recovery of the seized contraband from the possession of the accused/appellant is perfectly valid and legal and the provisions of section 50 of the N.D.P.S. Act are not applicable to the present case. The Investigation Officer has admitted in his statement before the trial Court that he had seen the seal over the sample before sending it to Scientific Laboratory for chemical examination and the seal was found intact. No suggestion to the contrary has been given on behalf of the accused-appellant to the prosecution witnesses that the sample was not sent for chemical examination in properly sealed condition. Hence in the circumstances of the case no adverse inference can be drawn against the prosecution for not producing the Malkhana Register before the Court. No such suggestion had been given on behalf of the accused/appellant to the witnesses that the seized article was not properly deposited in the Malkhana or that there was any chance of mis-handling of the seized article. The Honble Apex Court has held in Gurbax Singh v. State of Haryana ( AIR 2001 SC 1002 ) that proceedings under Section 52 and 57 of the N.D.P.S. Act are directory and violation of these provisions would not ipso facto vitiate the trial or conviction. In the circumstances of the case I find that there is no effect of the violation, if any, of the said provisions on trial of the present case. 18. The next argument put forward on behalf of the accused/appellant is that the occurrence is of a busy public place but no public witness of the occurrence has been taken by the police party hence adverse inference should be drawn against the prosecution. In support of his contention the learned counsel for the appellant placed reliance upon the case of Roshan Lal v. State of U. P. (2007 (5) A.D.J, 424) : (2007 (4) ALJ 78). To the contrary learned A.G.A. pointed out that the place of occurrence is not a busy public place and the persons who were present did not agree to become a witness of the occurrence as has been stated by the witnesses of the prosecution. It has also been submitted by the learned A.G.A. that the witness P. W. 1 has also stated that after seizure complete information was given to the senior authorities. It has also been submitted by the learned A.G.A. that the witness P. W. 1 has also stated that after seizure complete information was given to the senior authorities. Perusal of the statements of the witnesses shows that no suggestion has been given to the witnesses to this effect that at the time of occurrence there were several persons present at the place of occurrence but deliberately the police party failed to make any attempt to procure them and ask them to be a witness of recovery. In my opinion in the circumstances of the case it can not be said that there were so many public witnesses present at the time of occurrence and the police party failed to procure them as witness of recovery. In my opinion no adverse inference can be drawn against the prosecution on this ground. 19. Learned counsel for the appellant has also put forward the argument that there are material contradictions in the statements of the witnesses for which adverse inference is to be drawn against the prosecution. This argument put forward on behalf of the accused/appellant is also not acceptable. No such material contradictions have been pointed out to me nor the witnesses have been cross examined in this respect. Contradictions, if any, in the statements of the witnesses are natural and of no effect. 20. It has also been contended on behalf of the appellant that out of four pieces of Charas recovered from the appellant/accused the sample has been taken only from one of them, hence it can not be said that rest of three pieces were Charas and adverse inference is to be drawn against the prosecution case. I do not find any force in this contention of the learned counsel for the appellant. The witnesses have clearly stated that at the time of recovery all the four pieces of the contraband articles were seen by the witnesses and they also found from the smell that it was charas. No suggestion to the contrary was given to the witnesses or to the Investigating Officer from the side of the accused/appellant during trial. Nothing has been stated in this regard by the appellant/accused in his statement under Section 313 Cr. No suggestion to the contrary was given to the witnesses or to the Investigating Officer from the side of the accused/appellant during trial. Nothing has been stated in this regard by the appellant/accused in his statement under Section 313 Cr. P. C. I find that no prejudice has been caused to the accused/appellant on this ground as it has been proved from the report of the Scientific Laboratory that the recovered article is Charas. 21. In view of the above, in my opinion the conviction and sentence awarded by the trial Court is perfectly just and proper and the appeal has no merit and is liable to be dismissed. 22. In the result appeal is dismissed. The conviction and sentence awarded by the trial Court are upheld. The appellant is in jail. He shall serve out the sentence awarded. 23. The record be sent back along with a copy of this Judgment to the District Judge, Kanpur Dehat without delay for compliance and for making entry in the relevant record. Compliance report to be submitted within two months. Appeal dismissed.