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2013 DIGILAW 1440 (ALL)

Nawab Maujjan Shekh v. State of U. P.

2013-05-15

KALIMULLAH KHAN

body2013
Kalimullah Khan, J.— Heard learned counsel for the appellant Nawab and learned A.G.A on the point of bail in this criminal appeal No. 2847 of 2010 which has already been admitted and the lower court record is available on record. The learned counsel for the appellant has submitted that 1/2kg heroin was found in possession of accused/appellant for the keeping of which he had no licence. He has been convicted under section 8/22 of N.D.P.S. Act and sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of Rs.1.50 lac and in default of payment of fine the appellant is to undergo further imprisonment for one and half year. He has further submitted that according to prosecution case the appellant and co-accused Rashid are said to have been arrested on 25.7.2007 at about 11.00 A.M and the F.I.R was lodged against them under section 8/22 of N.D.P.S Act along with some other section of Motor Vehicle Act on 25.7.2007 at 1.15 P.M. According to him the concerned narcotic drug of 1/2 Kg heroin is said to have been recovered from the personal search of the appellant Nawab. He is said to have concealed it in a polithin bag inside his shirt.Therefore, according to section 50 of N.D.P.S Act the mandate of law is that the accused should have been apprised of his right to be searched before any gazetted officer or Magistrate prior to making his search because the arresting authorities had already come to know that the appellant is in possession of narcotic drugs. The following points have been urged by him to seek bail to accused/appellant Nawab. (i) There is non-compliance of section 50 of Narcotic Drugs and Psychotropic Substance Act, 1985; (ii) The charges under section 8/22 of N.D.P.S Act was amended during trial but no opportunity was provided to accused/appellant for further cross examination of the prosecution witness already examined; (iii) The incriminating circumstance occurred against the appellant during the course of trial and relied on by the prosecution for the purpose of conviction of the appellant were not put to him under section 313 Cr.P.C. Rather a wrong fact on the quantum of recovered article was put which has never been the case of prosecution. (iv) The Joint offer is said to have been given by the arresting authorities to both the accused to be searched before gazetted officer or Magistrate while separate offer should have been given. The joint offer is no offer in the eyes of law; (v) The appellant has already served out more than half of the minimum sentence provided for the offence; (vi) Without considering the provision contained under section 32(b) of N.D.P.S. Act,1985, the learned trial court has arbitrarily awarded sentence of 15 years rigorous imprisonment along with a fine of Rs.1.5 lac which is much above the minimum sentence provided for the offence alleged and; (vii) Lastly, amongst other point for bail he has submitted that for the recovery of illicit narcotic drugs viz heroin conviction and sentence has been recorded under section 8/22 of N.D.P.S. Act. Neither F.I.R was registered nor charge was framed against the appellant nor he has been held guilty under section 8/21 of the N.D.P.S Act. The conviction and sentence awarded to him is under section 8/22 of the N.D.P.S Act which provides the punishment for possession/transportation manufacturing etc of Ganja. The possession of Heroin is punishable under section 8/21 of N.D.P.S.Act. without applying the judicial mind the learned trial court has arbitrarily conducted the trial which culminated into conviction and sentence of the appellant as stated above. Therefore, considering the fact that the criminal appeal cannot be decided in near future due to huge pendency of work, the appellant may be enlarged on bail. Per contra, learned A.G.A has opposed the bail but he conceded the fact that there is no such mention in the recovery memo showing the communication of the right of accused to him to be searched before gazetted officer or Magistrate. Moreover, he has further conceded that none of the prosecution witnesses examined has deposed during trial the aforesaid facts that the accused/appellant was communicated of his right to be searched before gazetted officer or Magistrate in so many words although all the prosecution witnesses examined in this case are police witnesses. The perusal of the deposition made by the prosecution witnesses 1,2 and 3 makes it clear that they had asked the accused as to whether or not he wanted to be searched before gazetted officer or Magistrate. It has been settled by the Hon'ble Supreme Court in the case of Vijaysingh Chandubha Jadeja Vs. The perusal of the deposition made by the prosecution witnesses 1,2 and 3 makes it clear that they had asked the accused as to whether or not he wanted to be searched before gazetted officer or Magistrate. It has been settled by the Hon'ble Supreme Court in the case of Vijaysingh Chandubha Jadeja Vs. State of Gujrat (2011) 1 SC Cases(Criminal) 497 that it is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under section 50 of N.D.P.S Act to be searched before a gazetted officer or Magistrate. It is not necessary that the information required to be given under section 50 should be in a prescribed form or in writing, but it is mandatory that suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. The concept of "Substantial Compliance'' is neither borne out from the language of Section 50(1) nor it is in consonance with the law laid down in Baldev Singh Case (1999) 6 SCC 172 . Failure to ''inform'' the suspect about the existence of his said right would cause prejudice to him. Failure to comply with Section 50 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. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. In order to prevent abuse of provisions of the N.D.P.S.Act, which confer wide powers on the empowered officers, the safeguards provided by the legislature have to be observed strictly. The object of section 50(1), N.D.P.S.Act is to check the misuse of power, to avoid harm to innocent persons and minimise the allegations of planting or foisting of false cases by the law enforcement agencies. The object of section 50(1), N.D.P.S.Act is to check the misuse of power, to avoid harm to innocent persons and minimise the allegations of planting or foisting of false cases by the law enforcement agencies. 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, on endeavour should be made to produce the suspect before 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, which may verily strengthen the prosecution as well. In the light of the aforesaid strict mandatory provision of section 50 of N.D.P.S. Act it cannot be said that the submission made by learned counsel for the appellant is without substance. Learned A.G.A has admitted that recording of conviction of appellant under section 8/22 of N.D.P.S Act, 1985 instead of section 21 of N.D.P.S Act and his trial conducted by framing charges against him under section 8/22 of the N.D.P.S Act cannot be said to be justified in the strict sense of the terms but according to him it has not caused prejudice to the appellant in any way as he was in know of the fact during the trial that he was being tried for the recovery of 1/2Kg of heroin. Learned A.G.A has conceded the fact that incriminating evidence and circumstance occurred against the appellant have not been put to him during his examination under section 313 Cr.P.C. It is known to all concerned that examination of accused under section 313 Cr.P.C is not an idle formality rather it attaches with it a legal sanctity and if the conviction of the appellant/accused is based on the incriminating evidence which have not been put to him during his examination under section 313 Cr.P.C the conviction of accused would be bad in law. The perusal of the statement of the accused recorded under section 313 Cr.P.C shows that a question was put to him that the evidence has come against him that 1Kg of heroin was recovered from his possession of which he had no licence. Be it known that the case of prosecution was that 1/2 Kg. heroin was recovered from his possession. Be it known that the case of prosecution was that 1/2 Kg. heroin was recovered from his possession. The appellant has been tried on the charges of recovery of 1/2 Kg heroin. It has never been the case of prosecution that 1 Kg. Heroin was recovered from the possession of applicant Nawab. Non compliance of the provision contained under section 313 Cr.P.C is a evidence of non application of judicial mind by the Presiding Officer who has conducted the trial. Section 313 Cr.P.C reads as follows. (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such question to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause(b). (2)No oath shall be administered to the accused when he is examined under sub-section(1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section. In case of Inspector of Customs, Akhnoor, J. @ K. Vs. Yesh Pal @ Anr 2009 Cri. L. J. 2251 (Supreme Court). The Hon'ble Supreme Court has held in paragraphs 21 and 22 as under. (21) 'Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. Yesh Pal @ Anr 2009 Cri. L. J. 2251 (Supreme Court). The Hon'ble Supreme Court has held in paragraphs 21 and 22 as under. (21) 'Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. (22) At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word " may'' in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause(b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.' Admittedly the accused has already remained in jail for about six years and the minimum sentence provided for the offence alleged is imprisonment for 10 years and a fine of Rs.1 Lac. Meaning thereby the applicant has already served out more than half of the minimum sentence provided for the offence. The perusal of the impugned judgement makes it clear that without considering aspect mentioned in section 32(b) of N.D.P.S.Act, the sentence of 15 years imprisonment and a fine of Rs. 1.5 has been awarded to the applicant which is a matter to be dealt with in detail at the time of final disposal of the criminal appeal. Suffice it to say, at this stage, that there does not appear the rational and proper application of judicial mind of learned trial court in the matter of ascertaining the quantum of sentence to the appellant. In the result, the appellant who is said to have no criminal history deserves to be released on bail. The bail prayer stands allowed. Let the appellant Nawab, convicted and sentenced in Sessions Trial No. 180 of 2007 in connection with Case Crime No. 722 of 2007, under section 8/22 of NDPS. In the result, the appellant who is said to have no criminal history deserves to be released on bail. The bail prayer stands allowed. Let the appellant Nawab, convicted and sentenced in Sessions Trial No. 180 of 2007 in connection with Case Crime No. 722 of 2007, under section 8/22 of NDPS. Act, Police Station Loni, District Ghaziabad, be released on bail during pendency of the appeal subject to his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned provided the appellant deposits 1/3 of awarded fine within three months. ____________