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2019 DIGILAW 136 (UTT)

Atar Singh @ Awtar Singh v. State of Uttarakhand

2019-02-26

NARAYAN SINGH DHANIK

body2019
JUDGMENT : Narayan Singh Dhanik, J. 1. Challenge in the present criminal appeal is to the judgment and order dated 17.4.2018 passed by the learned Special Sessions Judge, Uttarkashi in the Special Sessions Trial No. 20/2016 whereby the appellant has been convicted for the offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lakh twenty five thousand. 2. As per the prosecution story, at about 2.55 AM on 1.4.2016, 1.5 Kg illegal Charas was recovered from the possession of the appellant. Consequently, the case was registered against the appellant and after the investigation, the police submitted the chargesheet. Thereafter the Trial Court framed the charge punishable under Section 20 of the NDPS Act against the accused appellant. 3. Prosecution examined seven witnesses to prove its case. PW1 S.I. Ajay Singh is the witness of recovery. He is also the arresting officer and information to the Circle Officer (PW2) was given from his mobile phone. PW2 is the Circle Officer Devi Datt Chausali before whom the search of the accused was conducted and the alleged recovery was made. PW3 is Head Constable Sunil Kumar who prepared the Chick Report. PW4 S.I. M.L. Jhakmola is the witness of recovery. PW5 Constable Raghuveer Singh had taken the sample of recovered contraband to the Forensic Science Laboratory, Dehradun. PW6 Vijendra Kumar was the Malkhana Moharrir on the relevant date. PW7 S.I. Deep Kumar is the investigating officer who after completing the investigation filed the chargesheet against the accused appellant. 4. The accused in his statement under Section 313 CrPC has stated that he has been falsely implicated in this case. After the trial the accused appellant was convicted and sentenced, as already stated hereinabove. Being aggrieved, the convict appellant has filed the present appeal. 5. Learned Counsel for the appellant contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt as the alleged recovery of contraband substance is doubtful, mandatory provisions of the NDPS Act has not been complied with in the present case and there are material contradictions in the statements of the prosecution witnesses and the conviction of the appellant is based on extremely thin evidence. All the witnesses examined by the prosecution are police personnel and no independent witness has been examined by the prosecution. 6. Learned Counsel for the appellant contended that the alleged recovery itself is doubtful. It has come in the recovery memo that the police party left for law and order duty taking along the weighing scale and weights. It is not the case of the prosecution that the police had prior information that somebody was carrying contraband material or that the recovery of the contraband material is very frequent in the area, then what was the occasion for the police party to carry the weighing scale and weights. Further, there is no independent witness of the alleged recovery. It dents the prosecution story. 7. Learned Counsel for the appellant argued that compliance of Section 50 of the NDPS Act has not been made in the present case as the accused was not made aware of his legal rights in unambiguous term. For the sake of convenience, Section 50 of the NDPS Act is reproduced as 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. (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. (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.” 8. Learned Counsel for the appellant assailed the finding of the Trial Court that in the present case, there was no need to comply with the procedure contained under Section 50 of the NDPS Act as physical search of the accused was not conducted at the place of occurrence and the recovery was made from the bag, yet the police observed the safeguards provided in Section 50 of the NDPS Act. The Trial Court based this finding relying on the judgment of Hon’ble Apex Court rendered in Ajmer Singh v. State of Haryana, 2010 (1) NCC 651 SC. 9. I find substance in the contention of learned Counsel for the appellant inasmuch as from the recovery memo, it is very much evident that the physical search on the person of the accused appellant was also conducted. It has come in the recovery memo that, inter alia, one mobile phone of Lava company with two SIM and a memory card and one purse containing Rs. 2740/- and his voter identify card were also recovered from the different pockets of the trouser worn by the accused appellant and this fact proves that the personal search of the accused appellant was also conducted. 2740/- and his voter identify card were also recovered from the different pockets of the trouser worn by the accused appellant and this fact proves that the personal search of the accused appellant was also conducted. Learned Counsel for the appellant placed reliance on the judgment of the Hon’ble Apex Court rendered in the case of S.K. Raju ALIAS Abdul Haque ALIAS Jagga v. State of West Bengal, (2018) 9 SCC 708 . In paragraph 22 of the said judgment, the Hon’ble Apex Court has observed as under : “PW-2 conducted search of the bag of the appellant as well as of the appellant’s trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant’s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a Magistrate.” 10. In the present case also, search of the bag as well as the trouser of the appellant was conducted and, therefore, compliance of Section 50 of the NDPS Act was required. Hence, the finding of the Trial Court on this score is not proper. 11. 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 of Section 50 of the NDPS Act is mandatory. Relevant paragraph No. 6 of the judgment, is extracted as 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.” 12. 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.” 12. Learned Counsel for the appellant relied upon a judgment of a coordinate Bench of this Court passed on 8.11.2017 in CRJA No. 14/2016 wherein referring to the judgment of Hon’ble Apex Court in case of Vijay Singh Chandubha Jadeja v. State of Gujarat, 2011 (1) SCC 609 , this in paragraph 20 has observed as under : “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.” 13. Learned Counsel for the appellant rebutted the argument of learned State Counsel that for compliance of Section 50 of the NDPS Act, written consent of the accused appellant was obtained. Learned Counsel argued that the said consent is not as per the spirit of Section 90 IPC as the said consent has been obtained under misconception and it is not clear that what for the accused is giving his consent. Section 90 IPC reads as under : “90. Consent known to be given under fear or misconception.—A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” 14. I find substance in the contention of learned Counsel for the appellant. I find substance in the contention of learned Counsel for the appellant. It is not clear from the said consent letter that what for the accused is giving his consent. Only this much is written by the accused that “I Atar Singh give the consent. 15. Learned Counsel for the appellant further argued that it is not proved by the prosecution that the Circle Officer (PW2) was present at the spot at the time of alleged recovery. PW1 S.I. Ajay Singh in his examination-in-chief has stated that information to the C.O. Mr. Devi Datt Chaushali (PW2) was given from his official no. ‘9411112862’ to the official no. ‘9411112766’ of the C.O., who told that he is coming at the spot. However, call details of either of the mobile numbers have not been placed on the record nor any independent witness has been examined to prove this fact. Accused in his 313 CrPC statement has also stated that he was arrested by the police from the bus stand, and not from the place shown by the police. Therefore, alleged recovery from the accused appellant in the presence of Circle Officer (PW2) is doubtful. 16. Learned Counsel for the appellant argued that the presence of PW2 at the spot is also doubtful as PW2 and PW4, the witnesses of recovery, have given contradictory statements. PW2 Circle Officer Devi Datt Chaushali in his cross-examination has stated that “it is true that in the memo of personal search of each other, this thing is not mentioned as what all articles were found in the pockets of all those whose personal search were conducted. In the personal search of each other, nothing was found in the possession of anyone.” He further says on his own that “all the articles were kept in the vehicle”. To the contrary, PW4 S.I. M.L. Jhakhmola in his cross-examination has stated that “in my personal search at the spot, mobile, purse, handkerchief and pen were found in my pocket.” This witness has further stated in his cross-examination that “it is not like this that my mobile, handkerchief, purse and pen were not found in my pocket in the personal search conducted at the spot by the C.O.”. Such contradictory statements of the eyewitnesses create serious doubt in the prosecution story. 17. Such contradictory statements of the eyewitnesses create serious doubt in the prosecution story. 17. Learned Counsel for the appellant submitted that the police ought to have called the Magistrate in order to impart creditworthiness to the alleged recovery. I find force in the submission of learned Counsel. It has come in the cross-examination of PW1 S.I. Ajay Singh that “Uttarkashi headquarters is situated at the distance of about one kilometre from the place of occurrence. It is true that D.M., A.D.M, S.D.M., J.M., C.J.M. and many other Magistrates and Gazetted Officers live in the headquarters. I had contacted only the C.O.” In these circumstances, the police ought to have made endeavour to contact any Magistrate, but no effort in this regard was made. Reliance has been placed on the judgment of Hon’ble Apex Court rendered in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 . Paragraphs 29 and 32 of the said judgment are extremely important, which are reproduced below : “29. In view of the foregoing discussion, we are of the firm opinion that the object with which the 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 insofar 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. 32. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. 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.” 18. Learned Counsel for the appellant also contended that the prosecution has failed to comply with the provisions of Section 52-A of the NDPS Act inasmuch as the inventory as per the mandate of this section has not been prepared. Learned State Counsel refuted the contention by arguing that inventory in the present case has been prepared and drew the attention of this Court towards Ex. Ka-12. Section 52-A of the NDPS Act reads as under : “52-A. Disposal of seized narcotic drugs and psychotropic substances.—— (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs or psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs or psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” 19. In Ex. Ka-12 only this much is stated that on weighing the recovered Charas, its weight has been found to be 1.420 kilograms and after taking 100 gm as sample and sealing it along with the seal, it was sent to the FSL and the remaining quantity was sealed and direction given to deposit it in the Malkhana. Thus it is clear that the inventory has not been prepared as per the mandate of Section 52-A of the NDPS Act inasmuch as certification, photography, etc. of the recovered contraband has not been done in the present case. Thus it is clear that the inventory has not been prepared as per the mandate of Section 52-A of the NDPS Act inasmuch as certification, photography, etc. of the recovered contraband has not been done in the present case. Learned Counsel for the appellant relied on the precedent of Hon’ble Apex Court rendered in Union of India v. Mohanlal & Another, (2016) 3 SCC 379 . In paragraph 19 of this verdict, the Hon’ble Apex Court has held as under : “19. ……… There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions.” 20. Learned Counsel for the appellant further contended that in the present case, provision of Section 55 of the NDPS has also not been complied with. Section 55 reads as under : “55. Learned Counsel for the appellant further contended that in the present case, provision of Section 55 of the NDPS has also not been complied with. Section 55 reads as under : “55. Police to take charge of articles seized and delivered.—An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 21. I agree with the contention of learned Counsel for the appellant inasmuch as PW7 S.I. Pradeep Kumar, who was the investigation officer and the officer-in-charge of the concerned police station, has himself admitted in his cross-examination that during investigation he did not inspected the case property in the Sadar Malkhana. 22. In view of the foregoing discussion, this Court is of the opinion that the compliance of the mandatory provisions of the NDPS Act has not been done in the present case and the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Consequently, the appeal succeeds. Impugned judgment and order is hereby set aside. Conviction and sentence awarded the appellant are quashed. Appellant is in jail. He shall be released from the jail forthwith unless wanted in connection with any other case. 23. Let a copy of this judgment, along with the LCR, be sent the Court below for compliance.