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2010 DIGILAW 307 (JHR)

Allauddin Ahmad v. The State of Jharkhand

2010-03-10

PRADEEP KUMAR

body2010
JUDGMENT : Pradeep Kumar, J.- The appeal is directed against the judgment of conviction dated 23.12.2004 and order of sentence dated 24.12.2004 passed by Shri Prakash Rai, Special Judge (N.D.P.S. Act), Hazaribagh in G.R. Case No. 2042 of 1992; T.R No.1 of 2004 arising out of Sadar P.S. Case No. 380 of 1992, by which judgment he found the appellant, Allauddin Ahmad guilty under Section 21 (b) of the Narcotic Drugs and Psychotropic Act and sentenced him to undergo R.I. for 10 year and also to pay a fine of Rs. one lakh and in 'default of payment of fine he shall undergo further RI. for 4 years more. However, he acquitted the co-accused, Jawed Akhtar .since the provision of Section 50 of the N.D.P.S. Act was not complied. 2. It is submitted by the learned counsel for the appellant that the appellant had raised two legal points before the Special Judge that since seizure was made by the police officers, who were riot specially empowered to conduct the search and seizure, hence the entire search and seizure is bad in law and fit to be set aside. It is further submitted that the persons making search and seizure in the house of the appellant, was not an authorized person to make search and seizure under the N.D.P.S. Act and as such the search and seizure itself is bad in law and hence the conviction of the appellant is only fit to be set aside. It was also argued by the learned counsel for the appellant before the trial court that the mandatory provisions of Section 50 to get the seizure made in presence of gazetted officer or a Magistrate was also not done in the instant case and as such the conviction of the appellant is also bad in law and fit to be set aside. 3. 3. On the other hand, learned counsel for the State has supported the prosecution case and stated that two persons were tried for the offence under Sections 18 and 21 of the N.D.P.S. Act and since contraband drug i.e. opium and brown sugar were recovered from the person of the accused-appellant, Allauddin Ahmad and he (sic) was acquitted since neither any Magistrate was called nor they were informed that they have got any right to search in presence of Magistrate or gazetted officer, but from the house of this accused-appellant 16 pouches of brown sugar was recovered in total 1 kg. 650 gms., in that view of the matter, his conviction is sufficient and does not require any interference by this Court. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of First Information Report lodged by Inspector of Police- P.W.10 stating therein that on secret information on the direction of S.P., Hazaribagh on 9.9.92 at 16:30 hrs. he alongwith police party all 'from Sadar Thana, Hazaribagh raided the house of the accused-appellant, Allauddin Ahmad in his double storied pucca house in presence of independent witnesses, Mukesh Kumar and Satish Kumar Sinha and from the possession of appellant, Allauddin Ahmad 16 pouches containing brown sugar kept in a container of pan parag. In the same house co-accused Minhaj was also searched and from his pocket 2 larger polythene containing brown sugar and co-accused, Krishna Kumar Singh was also found in the same house and from his pocket a small pouch containing brown sugar kept in a polythene was also recovered. Then, as per the statement of Allauddin Ahmad further recovered katha biscuits from his house which was kept on the north west corner. 5. On the basis of the said fardbeyan, the police registered a case under Sections 8(c)/17/20/21/22/27 of the N.D.P.S. Act and after' investigation submitted charge-sheet in this case and the case was tried by the Special Judge (N.D.P.S. Act), Hazaribagh, who found the appellant guilty as aforesaid. 6. In course of trial the prosecution has examined 11 witnesses. 5. On the basis of the said fardbeyan, the police registered a case under Sections 8(c)/17/20/21/22/27 of the N.D.P.S. Act and after' investigation submitted charge-sheet in this case and the case was tried by the Special Judge (N.D.P.S. Act), Hazaribagh, who found the appellant guilty as aforesaid. 6. In course of trial the prosecution has examined 11 witnesses. P.W.1, Rai Shekhar, P.W. 2, Ram Nandan Prasad, P.W. 3, Anil Kumar Jha, P.W. 4, Vinod Kumar, P.W.5, Mukesh Kumar, P.W. 6, Santosh Kumar Sinha, P.W. 7, Birendra Kumar Singh-Investigating Officer of this case, P.W.B, Jai Narayan Ram, P.W. 9, R.B. Nanhey, P.W. 10, Kumar -Amar Singh, informant and P.W. 11, Sula Boi Pai-l.O. of the Special Branch. 7. It is made clear that P.Ws. 2 & 3 were tendered for cross-examination and nothing was asked from them. P.Ws. 5 & 6 the seizure witnesses have although accepted their signatures on the seizure-list, but turned hostile and stated nothing was recovered in their presence. 8. Since, it has been alleged by the learned counsel for the appellant that the seizure was not made by an authorized person under Section 42(1), (2) of the N.D.P.S. Act and hence let -us first discuss the evidence of the informant-P.W.10, Kumar Amar Singh stated in Court on 9.9.92 he was posted at Hazaribagh Sadar 'Police Station as Inspector of Police and on 9.9.1992 on the basis of the secret information on the direction of S.P., Hazaribagh he alongwith police party all from Sadar Thana, Hazaribagh raided the house of the accused-appellant, Allauddin Ahmad at 16:30 hrs. situated at Azad Road and recovered brown sugar, Charas, opium etc. from his house and prepared seizure-list in presence of independent witnesses, Mukesh Kumar and Satish Kumar Sinha. He proved his written report and, also seizure-list, which are marked as Exts.4 and 5. At para 7, in his cross-examination, he admitted that he had not obtained any search warrant. He also admitted that he does not know chemical properties of brown sugar. He was also asked as to whether he had called any Magistrate or gazetted officer and he said that he had not obtained such requisition nor he had told the accused that they have got any right to be searched in presence of a Magistrate. He also admitted that he does not know chemical properties of brown sugar. He was also asked as to whether he had called any Magistrate or gazetted officer and he said that he had not obtained such requisition nor he had told the accused that they have got any right to be searched in presence of a Magistrate. At para 13, in his cross-examination, he also stated that he had not asked the persons that they have got right to be searched in presence of a Magistrate or a gazetted officer. 9. The seizure-list, which is as Ext.- 5, shows that the narcotics were recovered from the possession of the appellant, Allauddin Ahmad and 16 pouches of opium was recovered from his possession and there is no seizure from his house. 10. It appears that the learned Sessions Judge-cum-Special Judge, Hazaribagh was conscious of the fact and as such he has very elaborately discussed in para 15 of its judgment that if seizure was made by unauthorized person in violation of Section 50 of the N.D.P.S. Act then no conviction can be passed, but he admitted that since some quantity was recovered from the possession of Allauddin Ahmad, hence he was convicted, but I find that there is no separate seizure from the house of the appellant. More so, from the evidence of the informant, it is• clear that the informant-Inspector of Police, in his entire statement, failed to discuss that he was empowered under Section 41 (1), (2) of the N.D.P.S. Act to make search and seizure in the premises of appellant, Allauddin Ahmad. The prosecution has failed to produce any documentary evidence, otherwise to prove that the seizure was made in presence of a Magistrate or any other gazetted officer. The seizure witnesses- P.Ws. 5 & 6 have also not supported the fact that any seizure was made in their presence. 11. I, therefore, hold that the- conviction of the appellant under Section 22 of the N.D.P.S. Act is not sustainable in law and accordingly the judgment of conviction dated 23.12.2004 and order of sentence dated 24.12.2004 passed by Shri Prakash Rai, Special Judge (N.D.P.S. Act), Hazaribagh in G.R. Case No. 2042 of 1992"; T.R. No. 1 of 2004 arising out of Sadar P.S. Case No. 380 of 1992 is set aside and the appellant, Allauddin Ahmad is acquitted from the charges levelled against him. If he is in custody then the trial court will verify the same and shall issue release order immediately for his release.