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2019 DIGILAW 428 (UTT)

STATE OF UTTARAKHAND v. JAI PRAKASH

2019-08-07

R.C.KHULBE

body2019
JUDGMENT Hon'ble R. C. Khulbe, J. The present government appeal has been filed under Section 374 (3) Cr.P.C. against the judgment and order dated 22.09.2003 passed by the learned Additional Sessions Judge/Fast Track Court, Tehri Garhwal, in S.T. No.6/2000, under Section 20/21 of N.D.P.S. Act, Police Station Muni-Ki-Reti, District-Tehri Garhwal, whereby the accused has been acquitted for the offence punishable under Section 21 of N.D.P.S. Act. 2. Brief facts of the case are that the S.H.O. Muni-Ki-Reti, Shri Vinod Chauhan Chauhan along with Sub-Inspector Inderjeet Singh Sandhu, H.C. Surender Pal, Constable Krishan Kumar, Constable Baburam and Constable Sushil Kumar were on patrolling duty for maintaining law and order in the respective police station area. When they reach near Shivanand Gate the informant gave them secret information that two persons are coming from Sheesham Jhari Mohalla and are going towards Kailash Gate and they have smack and charas. On this information, the police personnel informed to the Circle Officer, Narender Nagar. The police party was waiting for Circle Officer at PWD T-Point. When the Circle Officer reached at 8:30 p.m. at PWD T-Point the Circle Officer was informed about the information and the police party tried to procure the public witness but none was ready to be the witness. After some time the informant identified both the accused and as per the information given by the informant the police party apprehended the accused at 9:30 p.m. The accused identified himself as Jai Prakash and on his personal search 20 gram smack was recovered from the pocket of accused-Jai Prakash. Recovery memo was prepared on the spot. 3. On the basis of aforesaid recovery, Case Crime No.341 of 2000 under Section 18/20 N.D.P.S. Act against the present accused-Jai Prakash was registered. 4. After completing the investigation a charge sheet was filed against the present accused and accordingly charge was framed on 29.09.2000 under Section 21 of the Narcotic Drugs and Psychotropic Substances Act against the accused, to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution produced as many as four witnesses, namely, PW1, Inderjeet Singh Sandhu, PW2 Vinod Chauhan, PW3 Const. Kamleshwar Prasad Joshi and PW4 H.C. Surender Pal. 6. After completion of prosecution evidence, statement of accused persons under Section 313 Cr.P.C. was recorded. In defence, no evidence was produced by the accused. 5. In order to prove its case, the prosecution produced as many as four witnesses, namely, PW1, Inderjeet Singh Sandhu, PW2 Vinod Chauhan, PW3 Const. Kamleshwar Prasad Joshi and PW4 H.C. Surender Pal. 6. After completion of prosecution evidence, statement of accused persons under Section 313 Cr.P.C. was recorded. In defence, no evidence was produced by the accused. However, stated that he has falsely been implicated in the crime. 7. After hearing both the parties, the learned trial Court placed its reliance on the judgment rendered by the Hon'ble Apex Court in the case of State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 and acquitted the present accused for the offence punishable under Section 21 of N.D.P.S. Act. Feeling aggrieved by it, the present appeal has been preferred by the State Government. 8. I have heard learned Counsel for the State and perused the evidence and other material available in the record. 9. It is argued by learned Counsel for the State that the judgment and order passed by the trial Court is illegal and contrary to the facts and material evidence available on record. The trial Court has committed grave error in appreciating the prosecution evidence and wrongly acquitted the accused. The finding recorded by the trial Court is wholly based on conjectures and surmises. The case of the prosecution has not been viewed in the right perspective and the acquittal is not justified in law and the same is liable to be dismissed. 10. I am unable to accept the submission made by the learned counsel for the State/appellant. 11. PW1 Inderjeet Singh Sandhu although narrated the same story as alleged in the recovery memo but stated that there are many shops nearby Shivanand Gate. The place of incident is near the house of Mr. Pokhriyal. There are other houses around the house of Mr. Pokhriyal but he do not know the names of people living there. Neither the police party tried to procure the public witness nor asked the people living in the nearby houses to be the witness. 12. PW2 Vinod Kumar stated that Shivanand Gate is at a distance of 1/4 Km from the Police Station. There are many shops at Shivanand Gate and the area comes under their Police Station. 13. PW3 Kamleshwar Prasad Joshi is the formal witness and stated that on the basis of recovery memo, chick FIR (Ex. 12. PW2 Vinod Kumar stated that Shivanand Gate is at a distance of 1/4 Km from the Police Station. There are many shops at Shivanand Gate and the area comes under their Police Station. 13. PW3 Kamleshwar Prasad Joshi is the formal witness and stated that on the basis of recovery memo, chick FIR (Ex. Ka2) was prepared by him on 08.05.2000. 14. PW4 Surender Pal Singh also stated that there are many shops nearby Shivanand Gate. The alleged incident took place on 08.05.200 at around 9:30 p.m. and the Circle Officer reached there at 8:30 p.m. and it is obvious that the shops were open at the time of alleged incident. He also stated that the Circle Officer was searched by S.O. 15. In the present case, the prosecution did not produce the G.D. of departure. It is not proved in what time the parties left the Police Station for the spot. PW-Vinod Kumar admitted in the cross examination that no such G.D. is on record. 16. As per recovery memo when the police party was on patrolling duty on 08.05.2000 an informer gave information to the police personnel that two persons were carrying charas and smack illegally. On the basis of information, the police personnel informed Circle Officer City when the Circle Officer City reached at the spot, the police personnel apprehended the accused and after search, 20 gram smack was recovered from the pocket of the present accused. 17. It is obvious from the statement of PW4 Surender Pal Singh that the Circle Officer also became part of the police party as he was searched by the S.H.O. 18. From the recovery memo (Ex.Ka-1), it is clear that the police personnel had already received prior information from the informant that the accused-Jai Prakash is carrying smack illegally. Although as per the evidence produced by the prosecution, the Circle Officer of the police reached at the spot but neither the Circle Officer nor the police personnel apprised the accused about his legal rights as envisaged in Section 50 of the Act. The Constitutional Bench of the Hon'ble Apex Court in State of Punjab Vs. Although as per the evidence produced by the prosecution, the Circle Officer of the police reached at the spot but neither the Circle Officer nor the police personnel apprised the accused about his legal rights as envisaged in Section 50 of the Act. The Constitutional Bench of the Hon'ble Apex Court in State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 laid down the following conditions:- “(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazette officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazette officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazette officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazette 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 his person, during a search conducted in violation of the provisions of Section 50 of the Act. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are left off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50-a. the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search. (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act." 19. PW4 Surendra Pal Singh admitted in his cross examination that the C.O. asked the accused that whether he wanted to get him searched before the gazetted officer. PW4 also admitted that he did not ask the accused whether he wanted to get searched before the Magistrate. In the present case the police personnel did not apprise the accused about his right at the spot and even they did not take any consent letter from the accused. There is clear violation of the law as laid down by the Apex Court in the judgment (supra). 20. The learned additional Sessions Judge acquitted the accused since the police personnel did not follow the law and the learned Additional Sessions Judge after assessment of the evidence found that there is no clinching evidence against the present accused and acquitted him accordingly. 21. Having reassessed the entire evidence on record, I concur with the view taken by the Trial Court that the prosecution has failed to prove charge of offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act against the present accused. 22. On the basis of aforesaid discussion, I found no illegality and perversity in the impugned judgment and the appeal preferred by the State lacks merit and is, accordingly, dismissed. the judgment and order dated 22.09.2003 passed by the learned Additional Sessions Judge/ Fast Track Court, Tehri Garhwal, in S.T. No.6/2000, under Section 20/21 of N.D.P.S. Act, Police Station Muni-Ki-Reti, District-Tehri Garhwal, whereby the accused has been acquitted for the offence punishable under Section 21 of N.D.P.S. Act, is hereby affirmed. 23. Let the lower court record be sent back.