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2019 DIGILAW 185 (ALL)

Tul Bahadur v. State of U. P.

2019-01-23

REKHA DIKSHIT

body2019
JUDGMENT : Rekha Dikshit, J. 1. This appeal assails the correctness of the judgment and order dated 06.10.2016 passed by learned 5th Additional Sessions Judge, Bahraich, in Sessions Trial No.13 of 2012, arising out of Case Crime No.644 of 2011, Police Station -Rupaideeha, District – Bahraich, whereby the Sessions Judge has convicted the appellant-accused, Tul Bahadur, and sentenced him under Section 8/20 Narcotic Drugs and Psychotropic Substances Act, for 10 years rigorous imprisonment with fine of Rs.1,00,000/-, in default, to undergo ten months additional simple imprisonment. 2. In brief, the prosecution case is that on 4.12.2011 around 12.00 noon information was received by the complainant Abhinav Kashyap, Sahayak Sena Nayak, who constituted a party of S.S.B. force and reached the spot, waited for informer to signal. As soon as they received signal, the appellant was checked and himself admitted carrying illegal contraband charas. Narrated a different story regarding being a carrier of the said illegal contraband. He was immediately arrested after explaining the reason of arrest to him and was informed regarding his rights and Section 50 N.D.P.S. Act to which he consented for being searched by the said police party, Rs.2600/-were recovered from his personal search apart from charas. Sample was accordingly done and the same was forwarded to the concerned party after putting seal on the same. On the basis of recovery memo, first information report was lodged at Case Crime No.644 of 2011, under Section 8/20 NDPS Act. 3. The case was investigated and after completion of investigation, charge-sheet was submitted against the appellant under Section 8/20 NDPS Act. Charge under Section 8/20 NDPS Act was framed against the accused-appellant, who denied and claimed trial. 4. To bring home the guilt of the appellant, the prosecution has examined as many as two witnesses, namely, P.W.-1 (Sonam) and P.W.-2 (Abhinav Kashyap). 5. PW-1, Sonam, has deposed in his oral testimony that on 4.12.2011, information was received that a person approaching from Nepal is carrying illegal contraband on which a team was constituted to which she was a member and the appellant was arrested with illegal contraband and the same day in her presence. He was also informed regarding his rights and Section 50 N.D.P.S. Act. Recovery memo (ext. ka-2 and ext. ka-1 have been proved by in her oral deposition. 6. He was also informed regarding his rights and Section 50 N.D.P.S. Act. Recovery memo (ext. ka-2 and ext. ka-1 have been proved by in her oral deposition. 6. PW-2, Abhinav Kashyap, complainant of the case, has substantiated the fact of recovery memo which establishes the happening of the said incident, arrest of the appellant, recovery of illegal contraband and preparation of recovery memo at the spot. He has also substantiated the recovery of Rs.2600/-from personal search of the appellant. Exhibit ka-4, ext. ka-5 and ext. ka-6 have also been proved by him. 7. Incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C. in which the appellant categorically denied and claiming himself to be falsely implicated in the present case. It has also been stated that due to enmity illegal contraband has been implanted to him. No documentary evidence has been adduced. 8. The trial court held that the appellant was in possession of contraband and prosecution established the circumstances, proving the appellant guilty, under Section 8/20 NDPS Act and sentenced him under Section 8/20 NDPS Act for 10 years rigorous imprisonment with fine of Rs.1,00,000/-, in default, to undergo ten months additional simple imprisonment. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal. 9. Heard Mr. Piyush Kumar Singh, learned counsel for the appellant, Mr. Rao Narendra Singh, learned A.G.A. for the State and perused the record. 10. Learned counsel for the appellant has submitted that the appellant has been falsely implicated in the present case and there is no compliance of Sections 50, 52, 55 and 57 NDPS Act. Learned counsel for the appellant has also submitted that sampling of illegal contraband has not been done as per procedure laid down in the Act. It has also been submitted that the eye witnesses and Malakhana register have not been produced in evidence before the Trial court. Further it has been stated that after receiving of information, it was not forwarded to Senior Officers nor family members of the accused were informed. Moreover, there are lot of discrepancies and contradictions in the statement of witnesses which falsify the prosecution case. 11. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellant in the commission of crime in this case. Moreover, there are lot of discrepancies and contradictions in the statement of witnesses which falsify the prosecution case. 11. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellant in the commission of crime in this case. The FIR version has fully been supported by ocular evidence, based on the said evidence, the court below rightly convicted the appellant and the impugned judgment warrants no interference. 12. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record. 13. In the present case, the alleged recovery of 2kg contraband (charas) was made by the patrolling party, which included P.W.-1 and P.W.2, from the appellant from the jacket he was bearing. The recovery memo (ext. ka-1) was accordingly prepared at the place of recovery in presence of P.W.-1 and P.W.-2 and accordingly, the appellant was charged and held guilty for offence under Section 8/20 N.D.P.S. Act. 14. The foremost argument submitted by learned counsel for the appellant relates to the compliance of Section 50 of the Act 1985. In this context, the statement of prosecution witnesses and recovery memo is to be considered, in which it has been categorically stated that the appellant was informed about his right being searched in the presence of gazetted officer or a magistrate, if he so desires. The appellant gave his consent that the police party, which arrested, may carry on with search of bag as well as himself. 15. 17. Section 50 N.D.P.S. Act, 1985 is quoted 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. (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 (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. 16. Another reference may be made to State of Punjab v. Baldev Singh; 1999 SCC (Cri) 1080 wherein it has been observed as under: "It is imperative for the investigating officer to inform the suspect orally or in writing, about his right to be searched before a gazetted officer or a Magistrate -failure to give such information would not vitiate the trial but render the recovery of illicit article illegal and vitiate the conviction and sentence if recorded only o the basis of possession of such illicit article." 17. A reference may be made to K. Mohan v. State of Kerala; 2001 (2) EFR 219 (S.C.) wherein it has been observed as under: "6. If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. .... This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with." 18. Another reference may also be made to Vijaysinh Chandubha Jadeja v. State of Gujarat; (2011) 1 SCC 609 wherein it has been observed as under: "24. .... This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with." 18. Another reference may also be made to Vijaysinh Chandubha Jadeja v. State of Gujarat; (2011) 1 SCC 609 wherein it has been observed as under: "24. Although the Constitution Bench in Baldev Singh's Case did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce." 19. Another reference may further be made to Suresh and Others v. State of Madhya Pradesh; (2013) 1 SCC 550 wherein it has been observed as under: "18. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce." 19. Another reference may further be made to Suresh and Others v. State of Madhya Pradesh; (2013) 1 SCC 550 wherein it has been observed as under: "18. We reiterate that sub-section (1) of Section 50 makes it imperative for the empowered officer to "inform" the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. We also reiterate that the said provision is mandatory and requires strict compliance." 20. Another reference may be made to Myla Venkateswarlu v. State of Andhra Pradesh; (2012) 2 SCC (Cri) 686 wherein it has been observed as under: "Strict compliance with Section 50(1) [it being the law that substantial compliance with Section 50(1) is not enough] what amounts to strict compliance -search of person for narcotic substance -right of person concerned of being taken to nearest gazetted officer (other than authorized officer who proposes to make search) or to nearest Magistrate for making search -clarity in communication of said right, to person concerned - cardinal necessity of. Circle Inspector who proposing to search person of accused in present case asked them "whether they wanted any other gazetted officer for their search and seizure in addition to him" or that "they have a right to have another gazetted officer in addition to him" -inadequacy of, for the necessary strict compliance with Section 50(1) -held, the above offer made by Circle Inspector to accused did not amount to a communication of their right to have the search conducted in presence of a Magistrate or a gazetted officer, since there is no clear communication of the said right." 21. In the present case, prosecution witnesses P.W.-1 and P.W.-2 have stated in their testimony that the appellant was informed about his right to be searched before a Magistrate or a Gazetted Officer but mere informing the appellant in such a manner is not sufficient enough, as the communication should be to the effect that the appellant understands his legal right and the implication as well as consequences thereto, therefore, it cannot be said that there was strict compliance of Section 50 of the Act, 1985 as required under the law because the entire conviction is based on mere recovery of contraband from the possession of the appellant. 22. The next contention of learned counsel for the appellant is that there is no compliance of Section 55 of the Act, 1985 as the sample taken by the arresting officer was not in consonance with the procedure laid down as per Section 55 of the Act, which is extracted below: “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." 23. There is also no evidence which may establish the safe custody of the recovered contraband as neither any documentary or oral evidence to establish the same has been produced by the prosecution. Absence of evidence about safe custody of the recovered contraband indicates violation of provisions of Section 55 of the Act, 1985 and consequently rendering the prosecution case is wholly doubtful. 24. It has also been argued that the procedure established in Section 57 of the Act, 1985 has also not been followed in strict sense of the law. Section 57 of the Act, 1985 quoted as under: "57. 24. It has also been argued that the procedure established in Section 57 of the Act, 1985 has also not been followed in strict sense of the law. Section 57 of the Act, 1985 quoted as under: "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." 25. As per provisions of Section 57, after arrest of the appellant and sealing of the contraband, the information regarding the same has to be forwarded to immediate superior officer within 24 hours but there is no evidence to establish and prove the same. Mere deposition of the prosecution witnesses in this context is not sufficient enough to establish the same. It is true that the compliance under the aforesaid provisions of the Act, 1985 is directory but compliance does affect the bonafide of the arrest and seizure may be said that non-compliance may not vitiate the trial and prejudice the accused but it is a definite requirement of law and if it has not been observed in letter and spirit, it will be presumed that important piece of evidence, which could have been in furtherance to the other proof of the alleged recovery has not been produced by the prosecution. If compliance of the provisions of Section 57 of the Act, 1985 was made, a copy of the report should have been filed. It would have been better proof of the fact that the recovery officer made this recovery of the seized contraband after arrest of the appellant. Mere statement of PW-1 is not sufficient enough to establish the compliance of the aforesaid section. As such in view of the aforesaid and also in absence of compliance of the said section of the Act, prosecution has to suffer. 26. Next argument placed on behalf of the appellant pertains to absence of any public witness at the time of arrest of the appellants and also non-production of docket witness, Malkhana register and Investigating Officer. Though PW-1 and PW-2 have specifically emphasized on the fact that they made a request to a number of people but none of them was ready to attest the alleged recovery. Though PW-1 and PW-2 have specifically emphasized on the fact that they made a request to a number of people but none of them was ready to attest the alleged recovery. Admittedly no enmity or any other reason for false implication by the police has been shown, in the circumstance their evidence may be treated independent enough for the alleged recovery and absence of public witness do not vitiate the entire prosecution case. 27. It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided there for in terms of Sections 41, 42 and 50 of the Act, 1985 should be complied with. In view of the aforesaid discussions, it can be concluded that non-compliance of Sections 50, 55 and 57 of the Act, 1985 creates a doubt in the alleged recovery or contraband from the accused-appellant. There is no evidence to establish proper link between the sample and the recovered material. Non-production of ''Malkhana register” and oral or documentary evidence do create a reasonable doubt in the proper procedure to be followed as per the provisions of the Act, 1985 in the circumstance the prosecution has failed to establish its case against the accused-appellant. 28. Thus, on the basis of analysis made herein above, this Court is of the view that the trial court's finding on the point of holding guilty to the accused appellant for the offence under Section 8/20 of the Act, 1985 is not in accordance with the evidence and law and the same is not sustainable and the appeal filed by the appellant is liable to be allowed. 29. For all the reasons stated above, the appellant is entitled to the benefit of doubt and accordingly entitled to acquittal. 30. In the result, the appeal is allowed and the judgment and order dated 6.10.2016 passed by learned 5th Additional Sessions Judge, Bahraich, in Sessions Trial No.13 of 2012 is hereby set aside. Appellant Tul Bahadur is acquitted on benefit of doubt from the charge under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 31. Appellant Tul Bahadur is in jail. If he is not wanted in any other case, he be released from jail forthwith. 32. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgment to the District Judge, Bahraich, forthwith.