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2012 DIGILAW 743 (ALL)

HARI RAM YADAV v. STATE OF U. P.

2012-03-28

SURENDRA KUMAR

body2012
Surendra Kumar, J.;- Heard Sri D.S. Yadav, learned counsel for the applicant and learned A.G.A. for the State. 2. This is the bail application on behalf of the accused applicant Hari Ram Yadav, who is involved in case Crime No. 42 of 2011, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as the N.D.P.S. Act), Police Station G.R.P., District Gorakhpur. 3. According to the prosecution case as alleged in the First Information Report lodged on 8.1.2011 at 7.50 P.M. against the applicant Hari Ram Yadav under Section 8/20 of the N.D.P.S. Act, the police of Police Station G.R.P., District Gorakhpur received an information by some informer that a person having Charas was standing near the railway station desiring to go anywhere. The police on that information, reached at Majar near railway station. The applicant was waiting for boarding some train. The applicant tried to run away seeing the policemen when he was arrested by the police. The applicant disclosed his name as Hari Ram Yadav during interrogation and told that he was having Charas in his bag. According to recovery memo, the applicant was informed of his right of search before the competent Gazetted Officer or the Magistrate. The applicant consented to his search by the policemen expressing faith in the police. The letter of consent from the applicant was got prepared by the police and then the police personnel took their mutual search and then 12 bundles of Charas wrapped in a piece of paper were recovered from the plastic bag held by the applicant. Licence/authority for keeping Charas was demanded from the applicant but the applicant could not show the same. The applicant was taken into custody by the police and the police took possession of the said Charas. The weight of the recovered Charas was found 6 Kg. and 100 Grams of Charas as sample was taken therefrom and then it was sealed. During arrest of the applicant, several persons were assembled there but they did not become ready to witness the said search and recovery. The recovery memo of the said Charas was got prepared in the torch light and light of electricity and copy of the same was given to the applicant. 4. According to the G.D. entry vide G.D. Rapat No. 52, time 19.50 dated 8.1.2011, a sum of Rs. The recovery memo of the said Charas was got prepared in the torch light and light of electricity and copy of the same was given to the applicant. 4. According to the G.D. entry vide G.D. Rapat No. 52, time 19.50 dated 8.1.2011, a sum of Rs. 550/- in cash and one railway pass bearing No. 379898 were found during search, while detaining/admitting the applicant at the police station. 5. The first submission of the learned counsel for the applicant is that the applicant has been falsely implicated in this case showing false recovery of the said Charas and he is aged about 70 years. He is a retired employee of the Railway Department and is a pensioner. Sanjay Kumar, the son of the applicant is an engineer in Satyam Computer at Delhi. The applicant after taking pension was going for his treatment to his son's house in Delhi on 7.2.2011 from Satyagrah Express Train from Raksaul Railway Station. While the train reached at Gorakhpur Railway Station, some police personnel compelled him to vacate his seat, the applicant refused to vacate the seat warning to report the matter to the officer concerned. The applicant was beaten by the police and then he was arrested showing false recovery of the said Charas. 6. The next submission of the learned counsel for the applicant is that the police of Police Station G.R.P. had recovered the said bundle from some other person but left that person after taking huge money from him and had shown false recovery of Charas from the applicant. It is further submitted by the learned counsel for the applicant that the police personnel have also snatched the money from the pocket of the applicant. The applicant is suffering from serious disease for which he was going to Delhi. It is further submitted that the police have not complied with the provisions of Sections 100 and 165 Cr.P.C. and Section 50 of the N.D.P.S. Act. The applicant has no criminal history. The applicant is in jail since 8.1.2011. 7. It appears from the recovery memo of the said Charas that the applicant was told that he had a right to be searched before the competent Gazetted Officer or the Magistrate. The applicant was simply informed about his right of search but he was not clearly and sincerely given option as required under Section 50 of the N.D.P.S. Act. 7. It appears from the recovery memo of the said Charas that the applicant was told that he had a right to be searched before the competent Gazetted Officer or the Magistrate. The applicant was simply informed about his right of search but he was not clearly and sincerely given option as required under Section 50 of the N.D.P.S. Act. Surprisingly the applicant expressed faith in his personal search by the police and gave his consent in writing to the police. The police have acted in extraordinary precautions manner. The following words find place in the recovery memo:- "IS PRAKAR PAKARE GAYE VYAKTI KO BATAYA GAYA KI TUMHARA YAH ADHIKAR HAI KI TUMHARI TALASHI KISI SAKSHAM RAJPATRIT ADKHIKARI VA MAGISTRATE KE SAMAKSH HO" 8. Learned counsel for the applicant has submitted that the provisions of Section 50 of the N.D.P.S. Act have not been complied in letter and spirit by the arresting officer. The Constitution Bench of the Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujrat, ( 2011) 1 Supreme Court Cases ( Cri) 497 - ( 2011) 1 Supreme Court Cases 609 in Criminal Appeal No. 943 of 2005 with Criminal Appeal No. 974 of 2003 and Criminal Appeal No. 1809 of 2009, vide judgment dated 29th October, 2010 after considering the earlier Constitution Bench decision given in the case of State of Punjab Vs. Baldev Singh ( 1999) 6 SCC 172 , has observed as follows: "29.In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50( 1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section ( 1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section ( 1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. 30. As observed in Re Presidential Poll, "13..... it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." 31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez ( supra) and Prabha Shankar Dubey ( supra) is neither borne out from the language of sub-section ( 1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case ( supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. 32. We also feel that though Section 50 gives an option to the empowered officer to take such person ( suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well." 9. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well." 9. In this case, as per the report dated 28.2.2011 of the Forensic Science Laboratory, the sample of the suspected Charas weighting around 102.08 grams wrapped in polythene tape, on analysis has been found Charas. The percentage of Charas in the said sample was not determined by the Laboratory so as to ascertain the exact and precise amount of Charas found in the said recovered Charas. If real percentage of Charas in the said recovered Charas had been determined then the actual quantity of recovered Charas could be ascertained to see whether the same was less than the commercial quantity. 10. This Court in the case of Shakeel Ahmad Vs. Union of India, 2009 ( 67) ACC 74 ( Allahabad High Court), considering 7 % of heroin in the sample while considering the other facts, granted bail under Section 8/20 and 27-A of N.D.P.S. Act. 11. The Hon'ble Apex Court in State of NCT of Delhi Vs. Asif Khan alias Kalu, ( 2009) 2 SCC ( Criminal) 54 held that the quantity of narcotic drug or psychotropic substance found in the mixture is relevant for the purpose of imposition of punishment. The Apex Court has taken a view that it is not the total quantity of the recovered article which has to be taken into consideration while awarding punishment but only the percentage of the actual contraband reported to be present therein. 12. As per submission of the learned counsel for the applicant, the same yardstick should be adopted in the case in hand. 13. Learned AGA has not disputed the aforesaid facts. 14. Considering the facts and circumstances of the case, nature of evidence and the above submission advanced and without expressing any opinion on merits of the case, the applicant is entitled to be released on bail. The bail application is allowed. 15. Let the applicant involved in Case Crime No. 42 of 2011, under Section 8/20 of the N.D.P.S. Act, Police Station G.R.P., District Gorakhpur be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the Court concerned.