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2019 DIGILAW 2368 (ALL)

Satte v. State of U. P.

2019-10-18

PRADEEP KUMAR SRIVASTAVA

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ORDER : PRADEEP KUMAR SRIVASTAVA, J. 1. This Criminal Appeal has been filed against the judgment and order dated 10.08.1998 passed by Ist-Additional Sessions Judge, Etawah in S.T. No. 53 of 1994 (State Vs. Satte @ Sattan) has been convicted and sentenced for the offence under Section 8/20 NDPS Act, Police Station Bharthana, District Etawah and sentenced for 10 years rigorous imprisonment and Rs. 1 lakh fine and, in default of payment of fine, for additional sentence of 3 years. 2. The brief facts of the case is that in the night of 03/04.02.1993 SI D.P. Awasthi of Police Station Bharthana was on patrolling duty along with constable Hari Shanker and Maharani Deen Mishra. On information received from a informant that Satte alias Sattan, accused of crime No. 422 of 1992 under Section 392 IPC is present along with looted tyre of bus with rim near the southern railway bridge of station and is about to carry the tyre by train to Etawah. After receiving this information, the police proceeded towards the above mentioned place and on the pointing of the informer, while the accused was trying to run away, he was arrested at about 2:30 AM at ten pace away from the bridge after using necessary force. He disclosed his name to be Satte @ Sattan and on his search 20 gm Charas was recovered from the pocket of his shirt and the tyre of Bus along-with rim and tube. He was taken into custody after informing the reason of his arrest. The recovered Charas was sealed in a clothe and recovery memo was prepared. A copy of recovery memo was given to the accused and he was brought to the Police Station Bharthana along with sealed Charas, Tyre and rim. On the basis of recovery memo, offence was registered under Section 18/20 NDPS Act. During investigation, statement of the witnesses were taken, site-map prepared and recovered Charas was sent for chemical examination for analysis. After investigation, charge-sheet was submitted against accused for the offence under Section 18/20 NDPS Act. Accused was summoned and charge was framed under aforesaid Section. Accused pleaded not guilty and claimed trial. 3. Prosecution examined only one witness SI D.P. Awasthi as PW-1 who proved recovery memo as Ex. Ka-1. After investigation, charge-sheet was submitted against accused for the offence under Section 18/20 NDPS Act. Accused was summoned and charge was framed under aforesaid Section. Accused pleaded not guilty and claimed trial. 3. Prosecution examined only one witness SI D.P. Awasthi as PW-1 who proved recovery memo as Ex. Ka-1. Statement of accused was recorded under Section 313 Cr.P.C., who denied the recovery of Charas from his possession and stated that he has been falsely implicated on account of enmity. He also stated that he was arrested from his house. He did not adduce any evidence in defence. 4. After hearing the learned counsel for the accused and learned ADGC (Criminal) for State and perusing the evidence on record, the learned trial court by impugned judgment convicted and sentenced the accused-appellant. 5. Aggrieved by the conviction and sentence, this appeal has been filed and the impugned judgment has been challenged to be illegal and without jurisdiction as the offence was not proved against the appellant. Evidence was wrongly appreciated to hold the appellant guilty. There was no compliance of the mandatory provisions of Section 42, 50 and 57 of the N.D.P.S. Act and for that reason the whole proceeding is vitiated. Therefore, the impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal. 6. In his statement SI D.P. Awasthi has stated on oath that at the time of incident he was posted at Police Station Bharthana. On 03.02.1993 and in the night when he was on patrolling duty with constables Harishanker and Maharani Deen Mishra, he received information regarding the accused who was wanted in crime No. 422 of 1092 under Section 392 IPC reportedly sitting near the bridge of Bharthana Railway Station along with looted tyre and rim and he was likely to escape with the looted articles by train. He tried to procure public witnesses, but nobody came forward to be witness. He reached near Railway bridge at about 2:30 AM and on the pointing of the informant when accused Satte @ Sattan tried to run away from there, by using necessary force he was arrested. When search was conducted, 20 gm Charas was recovered and tyre-tube and rim were also recovered from his possession. Recovered Charas was sealed on spot and the recovery memo was prepared which is Ex. Ka-1, on which the police official signed. When search was conducted, 20 gm Charas was recovered and tyre-tube and rim were also recovered from his possession. Recovered Charas was sealed on spot and the recovery memo was prepared which is Ex. Ka-1, on which the police official signed. The recovery memo was prepared in the light of torch, thereafter, the accused was taken to Police Station and the case was registered against him. In the cross-examination the witness has stated that he did not remember by what time he went from Police Station nor he has any GD with him. At the time of patrolling he had torch, revolver and other constables were having gun with them. They were also having various instruments. He has, however, stated that weight of the recovered Charas was not taken by him and he wrote the weight of the recovered Charas just by guessing. Electricity was there on the Railway Station but they used torch for the purpose of light. There is no Police Chauki of GRP on the Railway Station. 7. It has been argued from the side of the appellant that mandatory provisions of Section 50 NDPS Act was not complied with nor there was any witness nor corroborating evidence was given from the side of prosecution. The police papers like charge-sheet, FIR and GD were not proved by any witness. The prosecution failed to establish the guilt, even though the learned trial court convicted the appellant. 8. Learned AGA has, however, submitted that on the basis of cogent evidence on record, the learned trial court has given logical finding and the accused-appellant has been rightly convicted and sentenced him. 9. The report dated 28.02.1994 of the chemical examination is on record which shows that on analysis, the recovered article was found to be Charas. 10. From the perusal of the recovery memo, which has been proved as Ex. Ka-1 by PW-1, it appears that on search Charas was recovered from the pocket of accused's shirt which was 20 gm. There is no evidence on record that the recovered Charas was measured by any weighing machine whereas it was necessary that recovered Charas must have been measured with all exactness on a weighing machine and the sample which was taken out for chemical examination, should have been also measured with all accuracy. There is no evidence on record that the recovered Charas was measured by any weighing machine whereas it was necessary that recovered Charas must have been measured with all exactness on a weighing machine and the sample which was taken out for chemical examination, should have been also measured with all accuracy. It has been admitted by the PW-1 that the quantity of the recovered charas and the sample has been mentioned in the recovery memo on basis of guess work and the same was not measured. A crime based on quantity of illegal contraband, requires that the recovered contraband should be weighed with all accuracy and the same should be proved before the court. Moreover, the recovered charas was not produced and proved by prosecution before the learned trial court during trial. In order to prove the offence against the accused, it was necessary and this lapse and failure is fatal for the prosecution. 11. With regards to the availability of witnesses at the time of recovery of Charas, the recovery memo contains stipulation that nobody came forward to be witness of recovery but the police witnesses who were witness of recovery have not been examined in support of the single witness of the recovery. The absence of independent public witness is also very crucial in such kind of situation where the police had the early information. It is true that it is not always necessary to have a public witness during recovery and it depends upon the facts and circumstances of each case. It has been held in Jarnail Singh vs. State of Punjab, 2011 Cr.L.J. 1738 (SC) and Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 , it has been held by the Supreme Court that the obligation to take public witnesses(independent witness) is not absolute. If after making efforts which the court considers in the circumstances of the case reasonable the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer is believable after taking due care and caution in evaluating their evidence. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer is believable after taking due care and caution in evaluating their evidence. Therefore, it was incumbent for the police team to conduct search before public witness as it was having prior information and sufficient time to involve public witness during search. But it appears that serious effort was not made by police and this further makes the whole search seriously suspicious. 12. Another argument has been with regard to compliance of mandatory provision of section 50 of NDPS Act. The learned Amicus Curiae Sri Radhey Shyam Yadav for the appellant has argued that the police did not comply with the mandatory provision of section 50 of the NDPS Act. 13. Section 50 of NDPS Act is as follows: "Section 50: Conditions under which search of person shall be conducted:- (1) When any officer duly authorized U/s. 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 Gazettted 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. (5) When an officer duly authorized 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." 14. Section 50 provides reasonable safeguard to the accused before search of his person is made by an officer authorised under section 42 of the Act to conduct search. In State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 (Five Judge Bench), it was settled by the supreme court that search of person u/s. 50 of the NDPS Act does not include search & recovery from bag, briefcase and container etc. Sec. 50 applies where personal search of a person is involved. In T. Hamza vs. State of Kerala, (2000) 1 SCC 300 , it has been clarified that section 50 has been incorporated to provide statutory safeguard to lend credibility and fairness and to avoid arbitrariness keeping in view the severe punishment prescribed in the statute. It has been further clarified in Megh Singh vs. State of Punjab, (2003) 8 SCC 666 , that section 50 applies only in case of personal search of a person and does not extend to search of a vehicle, container, bag or premises. In Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 and Jarnail Singh vs. State of Punjab, 2011 Cr.L.J. 1738 (SC) 1, the above view was further affirmed. 15. In Kulwinder Singh Vs. State of Punjab, (2015) 6 SCC 674 Where bags containing poppy husk were seized from truck in his the accused were sitting, it has been held by the Supreme Court that it was not a case of personal search of the accused and Section 50 of the NDPS Act, 1985 was not attracted as Section 50 only applies in case of personal search of person and not applicable to search of vehicle, container, bag or premises. 16. In this instant case, the prosecution version is that the illegal charas was recovered from the accused from his pocket of shirt he was wearing at the time of search. PW-1 has admitted it and the same finds mention in the recovery memo. Clearly, it was a personal search of accused and therefore, compliance of section 50 NDPS Act was necessary. PW-1 has admitted it and the same finds mention in the recovery memo. Clearly, it was a personal search of accused and therefore, compliance of section 50 NDPS Act was necessary. Neither in the recovery memo nor in the testimony of PW-1 it has been anywhere mentioned that the accused was informed about his right of being searched before a magistrate or gazetted officer. It has been held in State of Rajasthan vs. Ram Chandra, (2005) 5 SCC 151 and Vijaychand Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609 that section 50 provides additional safeguard and stress is on adoption of just, fair and reasonable procedure and the first requirement is to inform the suspect about existence of such right. None of the documents prepared during search shows that the police team communicated the accused of his right to be searched before gazetted officer. In Suresh vs. State of MP, (2013) 1 SCC 550 , it has been held that section 50 is mandatory in nature and non-compliance would entail an order of acquittal. 17. In a crime based on recovery of illegal drugs for which stringent provision in terms of procedure and punishment has been provided in the NDPS Act, it is necessary to ensure free and fair investigation without any objectionable features and infirmities. Presumption against innocence based on possession of illegal drug and shifting the burden of proof on accused requires fair and untainted investigation without any glimpse of malice, mischief, doubt, falsity, fabrication and prejudice to the accused. Fairness and purity in investigation is so necessary for criminal justice administration that without it fair trial will become a mockery and will result in miscarriage of justice. 18. From the above discussion, it is clear that the police team did not inform the accused of his right to be searched before a gazetted officer or magistrate. Despite sufficient time and prior information, no serious effort was made to involve public witness in the process of search and recovery. It also appears that no witness has been examined in order to prove the site map, chick F.I.R. or the charge-sheet. Thus none of the police papers which have been prepared during the course of investigation has been proved and in absence of any proof of those papers they are not admissible in evidence. It also appears that no witness has been examined in order to prove the site map, chick F.I.R. or the charge-sheet. Thus none of the police papers which have been prepared during the course of investigation has been proved and in absence of any proof of those papers they are not admissible in evidence. It appears that proper proceeding for conducting trial in terms of adducing and proving the case by producing formal witnesses has not been followed. There is no reason in the whole judgment which can explain why this illegality took place and why the formal papers were not proved by producing any witness. I find the whole finding has been reached without observing due procedure and the findings of conviction is completely vitiated. The learned trial court has ignored the shortcomings and lapse in the prosecution version, recovery process and evidence and the finding of the learned trial court is perverse and illegal. The impugned judgment convicting and sentencing the accused is not sustainable under law and is liable to be set aside. 19. The appeal is therefore allowed. The judgment and order dated 10.08.1998 passed by Ist-Additional Sessions Judge, Etawah in S.T. No. 53 of 1994 convicting and sentencing accused-appellant Satte @ Sattan for the offence under Section 8/20 NDPS Act, Police Station Bhathana, District Etawah is set aside and consequently, accused-appellant Satte @ Sattan is acquitted. 20. The Amicus Curiae Sri Radhey Shyam Yadav shall be paid Rs. Ten Thousands only for the assistance and legal service provided by him in conducting this appeal for the accused-appellant. 21. Office is directed to transmit the lower court record along with copy of this judgment to the learned court below for information and necessary compliance.