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Allahabad High Court · body

2008 DIGILAW 384 (ALL)

T. B. ANTHONI. v. UNION OF INDIA

2008-02-20

BARKAT ALI ZAIDI

body2008
JUDGMENT Hon’ble Barkat Ali Zaidi, J.—The abovenamed appellant-accused was tried in Special Case No. 29 of 1998 and the Special Addl. Session Judge, Siddharth Nagar by judgment and order dated 14.8.2001 held him guilty under Section 20-B(11) of the Narcotic Drugs and Psychotropic Substances Act and punished him with 10 year rigorous imprisonment plus fine Rs. 1,00,000/-. In default further six months rigorous imprisonment. 2. The prosecution case is that on telephonic information received by P.W. 2 R.N. Rai Superintendent Customs, Barhani on 31.5.1998 at 6.00 A.M. that a Maruti Car bearing No. UP 53A-5353 carrying Charas will pass from Khanua border around 8 o’clock or so in the morning, he reduced the information into writing, and handed it over to Inspector P.W. 1-T.H. Ansari for sending it to the higher authorities, with a direction to form a party to accompany him to the border. It is said that a party comprising P.W. 1, P.W. 2 and a few sepoys reached the check post at Khanua on India-Nepal border around 8 O’clock in the morning where two more customs inspectors Irfan Ullah and S.P. Verma also joined the party. Inspector Irfan Ullah brought two public witnesses P.W. 3 Mohd. Mushte Hasan and Kulu Prasad also at Khanua border, where the party lay in wait for the car in question. 3. It is said that around 8.30 O’clock in the morning a Maruti Car bearing aforenoted registration number being driven by the accused arrived at the border and the party led by P.W. 2 approached the car where on the instructions of P.W. 2, T.H. Ansari P.W. 1 told the accused that they wanted to search his person and the car and if he so wants the search will be taken before a Gazetted Officer or a Magistrate but the accused agreed to the search being conducted by P.W. 1-T.H. Ansari. It is said P.W. 1-T.H. Ansari then conducted the search on the person of the accused and only Indian currency worth Rs. 1200/- was recovered. On the search of the car a packet rapped in a polythene bag being hidden under the plates of the bonnet containing some sticks of Charas and a polythene bag being hidden under another plate inside the engine containing Charas sticks were recovered. The recovered Charas weighed 12 Kg. 1200/- was recovered. On the search of the car a packet rapped in a polythene bag being hidden under the plates of the bonnet containing some sticks of Charas and a polythene bag being hidden under another plate inside the engine containing Charas sticks were recovered. The recovered Charas weighed 12 Kg. P.W. 1-T.H. Ansari thereafter collected sample of Charas from each of the packets recovered and divided the samples in four parts and sealed these samples and the recovered Charas by preparing a Fard (Ext. Ka-1) in presence of witnesses. The samples collected out of the recovered articles were sent to Chemical Examiner and the Chemical Examiner confirmed that the samples contained Charas by his report dated 7.7.1998 which is on record. 4. P.W. 1-T.H. Ansari thereafter filed a complaint under the provisions of Sections 20B(II) and 23 N.D.P.S. Act against the accused-appellant and two other persons Chandrika Prasad Patwa and Hardeep Singh alias Lukki Singh out of whom, according to the accused-appellant one was the sender of the Charas and the other was the person to whom the Charas was to be delivered. These two other named Chandrika Prasad Patwa and Hardeep Singh did not face trial because they could not be apprehended, in the court of Special Judge, Siddharth Nagar. 5. The prosecution examined P.W. 1-T.H. Ansari, Inspector Customs, Circle Barhani, P.W. 2-R.N. Rai Superintendent Sonauli, P.W. 3-Mohd. Mustahasan of recovery of the contraband articles from the car. The prosecution examined three witnesses. P.W. T.H. Ansari is the Inspector Customs who was informed about the expected arrival of the accused in a Car and who thereafter formed a party and came over the spot and took the search of the accused and the car after he was apprehended and recovered the contraband material as noted above. P.W. 2 R.N. Rai is the Custom Superintendent who received information about the arrival of the contraband Charas from the informer and who witnessed the search of the accused and Car by P.W. 1. P.W. 3 Mohd. Mustahasan is a public witness who was called to witness the search and recovery from the accused and that of his car and who has testified to the same. The case of the appellant was of plain denial. The Session Judge found the evidence of the prosecution dependable and convicted the accused as noted above. 6. The accused has therefore come in appeal. 7. The case of the appellant was of plain denial. The Session Judge found the evidence of the prosecution dependable and convicted the accused as noted above. 6. The accused has therefore come in appeal. 7. Heard Sri D.S. Mishra, Advocate as Amicus Curiae for the appellant and Sri A.N. Singh, Advocate for the Union of India. 8. It will appear from the above that there are three witnesses of recovery and we have to examine the recovery in the light of the pronouncement of the Supreme Court. 9. It would be appropriate to first state what the Supreme Court has said, about the recovery under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) that is what the Supreme Court has said : “If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What P.W. 1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with. We, therefore, hold that there was non-compliance with Section 50 of the Act and consequently the evidence of search spoken to by P.W. 1 cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article”. 10. It will thus appear that Hon’ble Supreme Court has laid insistence, on factum of the accused being specifically told, that he has a right under law to ask for search being conducted before a Magistrate or a Gazetted Officer, and that merely asking him whether he wants to give search before a Magistrate or a Gazetted Officer is not sufficient, and would vitiate the search and recovery. In this case what has come in evidence is that P.W. 1-T.H. Ansari only asked the accused whether he wanted to give search before a Gazetted Officer or a Magistrate, and the accused agreed to give search before them. 11. There was as such clear non compliance of the interpretation given by the Supreme Court in relation to Section 50 N.D.P.S. Act, since the accused was not told that he had a right under law to give search before a Magistrate or a Gazetted Officer. The search and recovery of contraband Charas being 12 kg., therefore, becomes illegal and has to be ignored. In view of the fact that the recovery is illegal the credibility of the witnesses of recovery need not be examined. 12. Once the search goes out of the record there is nothing left on the basis whereof the prosecution may survive. 13. In the result the appeal is allowed and the conviction is set-aside. 14. We are grateful to Sri D.S. Mishra, Advocate who has acted as Amicus Curiae in the appeal and was of great help to the Court. It may also be recorded that he refused to accept any remuneration for his labour.