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2017 DIGILAW 2175 (ALL)

RAM DULAREY v. STATE OF U. P.

2017-09-14

SHEO KUMAR SINGH-I

body2017
JUDGMENT : Sheo Kumar Singh-I, J. This criminal appeal has been filed against judgment and order dated 10.9.1999 passed by learned Additional Session Judge Court No. 7 in Session Trial No. 245 of 1996 whereby and where under the accused/appellant Ram Dularey was found guilty under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act arising out of case crime No. 292 of 1996, P.S. G.R.P. Charbagh, District Lucknow and was sentenced to rigorous imprisonment of 10 years and a fine of rupees one lac. Further in case of default of payment of fine, he have to further undergo imprisonment for one year. 2. The prosecution case in nutshell is that while S.I. Ram Sharan Chaudhary, SI K.K. Tiwari and S.I. U.S. Ray were busy in law and order duty with constable Jai Prakash and Constable Haider Ali at railway station Charbagh saw a man with jeans bag, who after watching the police man turned back to go out of the platform. The informer communicated the police personnel that he had some contraband items and after chasing him, he was caught hold by the police personnel's and was communicated to be searched by the police personnel. They have also communicated to the passengers to be witness of the fact but they refused to be witness and boarded to the train. The accused was interrogated and he has communicated his name as Ram Dularey Gautam. He was told regarding his right to be searched either before gazetted officer or magistrate but he communicated that police personnel may make his search. After searching each other, the accused appellant was searched and was found having one polythene packet with powder and some amount of rupees were also found in his pocket. 3. The weight and measurement was called by SI Uma Shanker Ray and each packet was weighted which was found to be 120 grams and there were total four packets and thus 480 grams powder was recovered from possession of accused appellant. 10 grams from each of the packet were taken out for sample for chemical examination and after that packets were kept in polythene which was sealed, signed and read over to the accused appellant. Thereafter the accused with contraband item was kept to G.R.P. and he was challaned. The contraband item was sent to laboratory where it was found to be of Heroin. 4. Thereafter the accused with contraband item was kept to G.R.P. and he was challaned. The contraband item was sent to laboratory where it was found to be of Heroin. 4. After investigation charge sheet was submitted against the accused appellant under Section 8C/21 of NDPS Act. After taking cognizance, the charges were levelled against the accused appellant by the court below for which he pleaded not guilty and claimed for trial. 5. In order to prove the prosecution case, PW 1 Ram Sharan Chaudhary, PW-2 Uma Shanker Ray, PW-3 Kaushal Kishore Tiwari and PW-4 Surendra Kumar Singh IO were examined. In the statement recorded under Section 313 Cr. P.C., 1973 the accused appellant has denied charges and stated that nothing was recovered from his possession and he has been falsely implicated in the case. After hearing learned counsel for parties, learned court below found the accused appellant guilty and sentenced as above. 6. Aggrieved by the order, this appeal has been filed on the following grounds:- (1) That the mandatory provisions relating to section 50, 51 and 55 of Narcotic Drugs and Psychotropic Substances Act has not been complied by the court below. (2) That there was no independent witness supporting the prosecution case. (3) That all the witnesses examined by the prosecution are police witnesses and they have falsely implicated the appellant in this case. (4) That the sample, which was alleged to be taken from possession of the accused-appellant, was sent to chemical examination after much delay. (5) That the material contraband was within possession of the complainant but falsely implicated the accused-appellant. 7. I have heard Mr. Kunwar Ravi Prakash learned counsel for appellant and Sri Izhar Husain learned Additional Government Advocate. 8. Learned counsel for appellant has submitted that mandatory provisions of Section 42(1) and 42(2) as well as Section 50 of Narcotic Drugs and Psychotropic Substances Act have not been complied with. He has further submitted that the independent witnesses have not supported the status of the recovery and the entire action had taken place at police station. The chain of event is not present so as to convict the accused. The test report is not admissible and readable. The contention of the counsel for accused were refuted by the learned counsel for State who supported the judgment of the learned court below. 9. The chain of event is not present so as to convict the accused. The test report is not admissible and readable. The contention of the counsel for accused were refuted by the learned counsel for State who supported the judgment of the learned court below. 9. The NDPS Act was enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and Regulation of operations relating to narcotic drugs and psychotropic substances. This Court had occasion to consider the provisions of NDPS Act in large number of cases. This Court has noted that the object of NDPS Act is to make stringent provisions for control and Regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. This Court in State of Punjab v. Balbir Singh 1994 (3) SCC 299 , in paragraph 15 has made the following observations:- "15. The object of NDPS Act is to make stringent provisions for control and Regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial." 10. To the similar effect are the observations of this Court in Saiyad Mohd. Saiyad Umar Saiyed and Ors. v. The State of Gujarat (1995) 3 SCC 610 . Following was stated in paragraph 6 of the said judgment:- "6. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial." 10. To the similar effect are the observations of this Court in Saiyad Mohd. Saiyad Umar Saiyed and Ors. v. The State of Gujarat (1995) 3 SCC 610 . Following was stated in paragraph 6 of the said judgment:- "6. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which May extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily". Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorized to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate." 11. In the present case, Section 42 is relevant which is extracted as below:- "42. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorized to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate." 11. In the present case, Section 42 is relevant which is extracted as below:- "42. Power of entry, search, seizure and arrest without warrant or authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other Article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other Article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other Article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other Article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." 12. The perusal of the judgment and order and statement of the witnesses reveals that there is no independent witness in this case though the prosecution witnesses and complainant have stated that they called the witnesses at platform but the passengers refused to be the witness and boarded from the train. 13. Learned counsel for appellant has submitted that the case is of Charbagh railway station. There are sufficient number of employees working there and there are so many gazetted officers posted at there. Further, there are two Magistrates posted there whose offices are at the platform. None of the gazetted officer was called or the accused appellant was not produced before Magistrate for search or none of the independent witness supported the prosecution case. It has further been contended by learned counsel for appellant that the version of the prosecution that the magistrate or gazetted officer were not available is not trustworthy because two offices of Magistrate are at the platform and various gazetted officers were working there. Further there is nothing on record to say that the accused was ever narrated that he can be searched before the Magistrate or Gazetted Officer. Thus, it is contended that there is breach of mandatory provision of Section 42(1) and Section 42(2) and section 43. 14. The breach of Section 42 has been narrated firstly that the secret information has not been recorded by the complainant. Secondly that the information was not communicated to the higher officers. 15. Section 42(2) requires that where an officer takes down an information in writing under Sub Section, he shall send a copy thereof to his immediate officer senior. There is nothing on record to show that the information was communicated to the higher officer and there was breach of Section 42(2) of Narcotic Drugs and Psychotropic Substances Act. 15. Section 42(2) requires that where an officer takes down an information in writing under Sub Section, he shall send a copy thereof to his immediate officer senior. There is nothing on record to show that the information was communicated to the higher officer and there was breach of Section 42(2) of Narcotic Drugs and Psychotropic Substances Act. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in Section 42 may:- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or Article liable to confiscation under this Act, any document or other Article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other Article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public." 16. The brief of the provisions which are required to be follow while search may be enumerated as follows:- (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Code of Criminal Procedure fails to strictly comply with the provisions 'of sections 100 and 165 Code of Criminal Procedure, 1973 including the requirement to record reasons, such failure would only amount to an irregularity." 17. The present is a case where prosecution himself has come with the case that secret information was received from the informer. The said information has not been reduced in writing or communicated to the higher officers. The search was not made before the Magistrate or any Gazetted Officer. The contraband material was not properly sealed and was communicated to be sealed by SI Uma Shanker Ray which is used by police personnel. It is further contended that material contraband was kept with the complainant in police station and was not sent for chemical examination for more than 9 days. No proper method of measurement was done by the police personnel. The sample of 10 grams can not be weighed by a measurement which was kept by vendor for weighting food items. 18. The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. 18. The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial. 19. Narcotic Drugs and Psychotropic Substances Act, 1985 Section 42(1) Search and seizure by Empowered Officer or an authorized officer under Section 41(2) carrying out search-He would be doing so under Ss 100 and 165 Cr. P.C. However, if there is no strict compliance with provisions of Cr. P.C. search would be illegal. 20. On prior information the empowered officer or authorized officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. 21. 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 person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). 22. Report of arrest and seizure.- Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. 23. To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. 24. In light of above provisions, this court is of the view that mandatory provision of search and seizure were not complied with. Thus the total proceedings is vitiated for non compliance of the mandatory provisions. Thus the conviction and sentence is not sustainable and deserves to be set aside. 25. Considering the above facts, the present criminal appeal is allowed and the conviction and sentence passed by learned court below in Session Trial No. 245 of 1996 under Section 8/21 of NDPS Act is set aside. The accused Ram Dularey is acquitted from the charges levelled against him. The accused is reported to be in jail. He be set at liberty and released immediately if not wanted in any other case. 26. Let a copy of this judgment and lower court record be sent immediately to the court concerned for compliance.