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Uttarakhand High Court · body

2017 DIGILAW 593 (UTT)

Hastra Devi v. State of Uttarakhand

2017-11-08

LOK PAL SINGH

body2017
JUDGMENT : This appeal, under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C), has been preferred against the impugned judgment and order dated 13.06.2014 passed by the Session Judge/Special Session Judge, Champawat in Session Trial No.02 of 2014, State vs Hastra Devi, whereby the Trial Court has convicted the appellant for the offences punishable under Section 8/20 of NDPS Act and sentenced him to undergo rigorous imprisonment for a period of 10 years alongwith a fine of Rs. 1 lakh and in default of payment of fine, the appellant shall undergo for one year rigorous imprisonment. 2. Heard Mr. Tarun Pande, learned Amicus Curiae and Mr. P.S. Bohara, learned Assistant Government Advocate for the State and perused the lower court record. 3. Prosecution story, in brief, is that PW-1 Harshuk Chauhan, S.I. (S.S.B.), Head Constable Harish Singh Dhami, Constables Rakesh Kumar Gaur, Suman Kumari and Munni Kumari were posted at Indian-Nepal check post on 07.10.2013 and on that day at about 8:00 AM, they were checking the persons coming and going from Nepal. Head Constable Harish Singh Dhami made a report at headquarter that when a horse cart (tanga) reached near the check post, it was stopped. When the horse cart (tanga) was checked it was found that one lady was carrying some hard object on her waist. When she was asked about the said object, she disclosed that it is charas. The said information was given to the higher officers. On being asked, she disclosed her name Hastra Devi W/o Late Jaybhan Garti Magar, residence- Hallanagar, ward No. 03, Thana, Sanota, District Kapilvastu, Lumbani Aanchal, Nepal. It is contended that appellant was duly informed by the Police regarding her right of being searched before a Gazetted Officer or a Magistrate. She declined that offer. In this regard, a consent letter was obtained from her. When the appellant declined to be searched before a Magistrate or a Gazetted Officer, the lady Police took her in a room for search. 1.9 kg of charas was found from her possession, kept in belt, tied in her waist. 4. As per the prosecution story, on search of the body of the accused appellant, 1.9 Kg charas was recovered from the waist of the appellant. 1.9 kg of charas was found from her possession, kept in belt, tied in her waist. 4. As per the prosecution story, on search of the body of the accused appellant, 1.9 Kg charas was recovered from the waist of the appellant. She was searched in a room by Constables Suman Kumari and Munni Kumari and after recovery of charas from the appellant, it was kept in a sealed cover and sent for forensic test. The forensic report suggests that it was the charas. The charge sheet was submitted against the appellant under Section 8/20 of NDPS Act. 5. The prosecution adduced as many as six witnesses S.I. Harsukh Chauhan PW-1, who prepared the memo of arrest and lodged the FIR which was registered as case crime No. 23 of 2013 under Sections 8/18/20 of NDPS Act, Head Constable Nandan Singh Negi PW-2 is the witness, who lodged the FIR on the complaint made by PW-1. Constable Suman Kumari PW-3 conducted the search of accused. Head Constable Dinesh Singh Rana PW-4 and Pan Singh PW-5 were the formal witnesses. S.I. Chandra Shekher Kanyal PW-6 was the Investigating Officer of the case. 6. From the perusal of memo, it would reveal that the information was not given to the appellant about her legal right that her search may be conducted before the Magistrate or the Gazetted Officer, if she wishes. What has been mentioned in the memo is “that she has been informed that her search can be conducted before the Magistrate or Gazetted Officer”. 7. S.I. Harsukh Chauhan PW-1 in her cross examination tried to develop his statement saying that he had informed the accused appellant about her legal right that her searched can be made before Magistrate or the Gazetted Officer and then accused stated that she has believe on him. In his cross examination, when he was asked a question as to why he did not try to procure independent witness from the public, he replied that he asked some persons to become the independent witnesses, but they denied on the ground that they did not want to involve in the controversy. 8. In case, a public witness denies giving statement, then it is obligatory on the part of the Police party to mention the name and address of the alleged persons, who denies becoming the public witnesses. 8. In case, a public witness denies giving statement, then it is obligatory on the part of the Police party to mention the name and address of the alleged persons, who denies becoming the public witnesses. The search party has not made any efforts to mention the name of any persons, who denied the witness of recovery. The search was not made in presence of complainants, the search was made in a room by Constables Suman Kumari and Munni Kumari, but it is not mentioned in the memo that the room was searched prior to the search of accused appellant. In order to make ensure that there was no contraband available in the said room. 9. Constable Suman Kumari PW-3, who allegedly searched the body of the accused and recovered the alleged contraband from her , made the statement that PW-1 has asked the accused at the spot that since accused stated that she is having charas, then she can be searched in presence of a Magistrate or Gazetted Officer. From the statement of Harsukh Chauhan PW-1 and Suman Kumari PW-3, it does not reveal that before making search of the accused, she was duly informed by the Police about her legal right to be searched before the Magistrate or the Gazetted Officer. Mere mentioning the words “that she has been informed that her search can be conducted before the Magistrate or Gazetted Officer” is not sufficient compliance of the Section 50 of NDPS Act. Sections 50 & 57, are extracted herein under: “50. 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). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. 2[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.] 57. 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.” 10. Learned Amicus Curiae has vehemently argued that there was no compliance of Section 50 of NDPS Act., he further submits that non compliance of mandatory provisions of Section 50 of NDPS Act., vitiate the trial. 11. Learned Amicus Curiae has submitted that after alleged recovery information was not sent to the higher officers in compliance of section 57 of NDPS Act. 12. Learned Amicus Curiae has submitted that information was not sent within 48 hours to the Senior Officers about the arrest and search of the accused appellant. Thus, there was no compliance of Section 57 of NDPS Act on the part of a search party. 13. Nothing is on record, which shows that information was sent by the complainant after search and recovery of the accused to the higher officer as provided under Section 57 of the NDPS Act. Mr. P. S. Bohara, AGA for the State has fairly admits that there is no compliance of Section 57 of NDPS Act., as the intimation was not sent to the superior officials within 48 hours of the alleged recovery. 14. Mr. P. S. Bohara, AGA for the State has fairly admits that there is no compliance of Section 57 of NDPS Act., as the intimation was not sent to the superior officials within 48 hours of the alleged recovery. 14. Hon’ble Apex Court in the case of Ashok Kumar Sharma vs State of Rajasthan reported in 2013 (2) SCC 67 has held that since the accused-appellant was not informed about her legal right to be searched before the Magistrate or the Gazetted Officer, thus there is no compliance of Section 50 of NDPS Act. 15. Hon’ble Apex Court in the case of Vijay Singh Chandubha Jadeja vs State of Gujarat reported in 2011 (1) SCC 609 wherein the question was referred to five Judges Bench of Hon’ble Apex Court in regard to the mandatory ingredients of Section 50 of the NDPS Act. The Five Judges Bench of Hon’ble Apex Court has answered the question referred in paragraph No. 32 of the judgment in affirmative, which is extracted herein under: “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 (1974) 2 SCC 33 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.” at 16. Hon’ble Apex Court in the case of Beckodan Abdul Rahiman vs State of Kerala reported in 2002 (4) SCC 229 has held that compliance is mandatory. Relevant paragraph No. 6 of the judgment, is extracted here under: “6. We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment.” 17. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment.” 17. Per contra, learned A.G.A. for the State has submitted that the appellant was informed about her legal right of being searched before a Magistrate or the Gazetted Officer. From the perusal of arrest memo, it would reveal that it has been mentioned in the memo that the search can be made before a Magistrate or the Gazetted Officer, thus the contention of learned counsel for the State has no substance. 18. Learned A.G.A. for the State placed reliance upon the judgment of Hon’ble Apex Court in the case of State of Punjab vs. Baldev Singh reported in 1999 (6) SCC 172 wherein it was held in paragraph No. 12 of the judgment, which is extracted herein under: “12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.” 19. Learned counsel for the State has submitted that since during the normal course of search, if contraband is found and recovered, then the provision provided under Section 50 of NDPS Act is not attracted. The ratio of the judgments (supra) submitted by the learned counsel for the State is not applicable in the present case. 20. In the case of Vijay Singh Chandubha Jadega (supra), the Five Judges Bench of Hon’ble Apex Court has made it clear that the compliance of Section 50 of NDPS Act is mandatory in nature. From the perusal of the record it depicts that the appellant was not informed about her legal right of search in view of Section 50 of NDPS Act., to be searched before the Magistrate or the Gazetted Officer. 21. From the perusal of the record it depicts that the appellant was not informed about her legal right of search in view of Section 50 of NDPS Act., to be searched before the Magistrate or the Gazetted Officer. 21. Thus, this Court is of considered view that the complainant has not made the mandatory compliance of Section 50 of NDPS Act., at the time of arrest of the appellant. Thus, on account of non-compliance of Section 50 of NDPS Act, the trial is vitiated. This court is of the opinion that the trial court has convicted the appellant without satisfying itself to the mandatory provisions of Section 50 of NDPS Act. 22. From the perusal of record, it depicts that neither there was a compliance of Section 50 of NDPS Act., nor the information was sent to the superior officials within 48 hours as mandatory under Section 57 of NDPS Act. Thus, there is non compliance of Sections 50 and 57 of NDPS Act. Therefore, the judgment and order passed by the learned trial court convicting & sentences the appellant under Section 8/20 of NDPS Act is liable to be set aside. 23. Accordingly, criminal appeal is allowed. Impugned judgment and order dated 13.06.2014 passed by the Session Judge/Special Session Judge, Champawat in Session Trial No.02 of 2014, State vs. Hastra Devi is hereby by set aside. Appellant is in jail. Let her be released forthwith, if not required in any other case. 24. LCR of the case shall be returned to the trial court for compliance of the judgment passed by this Court.