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2023 DIGILAW 210 (UTT)

Islam Ahmad v. State of Uttarakhand

2023-02-28

ALOK KUMAR VERMA

body2023
JUDGMENT : Alok Kumar Verma, J. Present Criminal Appeal has been filed against the judgment dated 13.11.2007, passed by learned Sessions Judge, Pauri Garhwal, in Special Sessions Trial No.9 of 2006, “State of Uttarakhand vs. Islam Ahmad”, by which, the appellant-Islam Ahmad has been convicted and sentenced to undergo rigorous imprisonment for a period of two years along with a fine of Rs.10,000/- for the offence under Section 20 read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “the Act, 1985”). 2. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record is that on 25.02.2002, informant Kailash Panwar, Station House Officer (PW3) along with Sub-Inspector Jagdev Singh Malik (PW2) and other police personnel were on patrolling duty at the bus station. Hukum Singh Khati, Circle Officer of Police, (PW1) had also come there. While the informant was talking to Hukum Singh Khati, he got a secret information that Islam Ahmad (appellant herein), a truck driver, is sitting under a tree on Pauri Road and has a lot of Charas. The informant requested Hukum Singh Khati to accompany him and said that according to the NDPS Act, personal search has to be conducted in front of the Gazetted Officer. In spite of an endeavour, no public witness could be secured. Accordingly, a raid was conducted. Appellant was apprehended at 17.15 hrs. On enquiry, he disclosed his name and address. Informant told him that they had information that he was in possession of charas, so they would search him. After taking permission from Hukum Singh Khati, his personal search was conducted by the informant. In this personal search, charas (Material Ext. 6) was recovered from the right pocket of the jacket he was wearing. On weighing the charas, its weight was found to be 500 grams. Appellant was arrested. The recovered contraband was sealed. The said recovered contraband was taken into possession vide recovery memo (Ext. Ka2). An FIR (Ext. Ka5) was lodged by the informant. Sample was taken before the court concerned. The sample so taken was sent to the Chemical Examiner, who found the same to be “charas”. After completion of the investigation, charge- sheet was filed. 3. Charge under Section 20 read with Section 8 of the Act, 1985 was framed. Appellant pleaded not guilty and claimed to be tried. 4. Sample was taken before the court concerned. The sample so taken was sent to the Chemical Examiner, who found the same to be “charas”. After completion of the investigation, charge- sheet was filed. 3. Charge under Section 20 read with Section 8 of the Act, 1985 was framed. Appellant pleaded not guilty and claimed to be tried. 4. Prosecution, in order to establish the charge, examined five witnesses. 5. (PW1) Hukum Singh Khati, Circle Officer of Police, (PW2) Jagdev Singh Malik, Sub-Inspector, and (PW3) Kailash Panwar, informant, were members of the raiding party. (PW4) H.C. Vijay Pal Singh is the scriber of the First Information Report. (PW5) D.P. Tyagi, Sub- Inspector, is the Investigating Officer. 6. Statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution against him. 7. Appellant did not adduce any defence evidence. 8. Learned Trial Court heard the arguments, appreciated the evidence and passed the impugned judgment, by which, the appellant has been convicted on the basis of recovery. 9. Heard Mr. Rajat Mittal, learned counsel for the appellant and Mr. S.T. Bhardwaj, learned Deputy Advocate General assisted by Mrs. Shivangi Gangwar, learned Brief Holder for the State. 10. Mr. Rajat Mittal, learned counsel for the appellant, argued that in the present matter provision of Section 50 of the Act, 1985 was not followed. It is mandatory for the raiding party to give the appellant the option of being searched before a Magistrate or a Gazetted Officer. This option was not given. 11. On the other hand, Mr. S.T. Bharadwaj, learned Deputy Advocate General, has supported the impugned judgment. 12. The provisions of Section 50 of the Act, 1985 are 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). (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 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.” 13. Section 50 of the Act, 1985, casts duty on empowered officer to inform the suspect of his right to be searched in the presence of the Gazetted Officer or Magistrate. 14. In “Vijaysinh Chandubha Jadeja vs. State of Gujrat, (2011) 1 SCC 609 ”, Constitutional Bench of the Hon’ble Supreme Court has held as under:- “29. In view of the foregoing discussion, we are of the firm opinion that the object with which 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 in so far 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 a strict compliance. We have no hesitation in holding that in so far 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 a 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.” 15. In Arif Khan vs. State of Uttarakhand, (2018) 18 SCC 380 , the Hon’ble Supreme Court held that the suspects may or may not choose to exercise the right provided to them under Section 50 of the NDPS Act but as far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. 16. It is well settled that when the law provides for doing of an act in a particular manner, it necessarily prohibits the doing of that act in any other manner. 17. In the present matter, appellant was not informed of his said legal right, therefore, non-compliance of Section 50 of the Act, 1985 makes sufficient case for acquittal. Accordingly, the present appeal is allowed. The impugned judgment of the conviction and sentence dated 13.11.2007, passed by learned Special Sessions Judge, Pauri Garhwal are set aside. Appellant is acquitted of the charge under Section 20 read with Section 8 of the Act, 1985. Appellant is on bail. His bail bonds are ordered to be cancelled. 18. Appellant is directed to make compliance of Section 437 A of the Code of Criminal Procedure, 1973 within eight weeks from today by appearing before the court concerned and execute a personal bond and two reliable sureties, each in the like amount to the satisfaction of the court concerned.