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2024 DIGILAW 90 (UTT)

State of Uttaranchal v. Hem Upadhyay

2024-02-19

PANKAJ PUROHIT

body2024
JUDGMENT : Pankaj Purohit, J. This is an appeal preferred by the State under section 378 (3) of the Code of Criminal Procedure, 1973 (hereinafter to be referred as the “CrPC”) assailing the judgment and order dated 31.03.2004, passed by the learned Special Judge, Pithoragarh, in Session Trial No.05 of 2003, “State Vs. Hem Upadhyay”, whereby the said court has acquitted the respondent/accused for the offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances, 1985 (hereinafter to be referred as the “Act”). 2. In brief the facts of the case are that on 09.06.2003, at about 8 PM at place Bhadelbada Tiraha, Kumord, within the territorial jurisdiction of Police Station Kotwali and District Pithoragarh, the police recovered 500 gram of contraband article (charas) from the illegal possession of the accused, for which the accused did not have any licence. On the spot, the recovery memo exhibit ka 1 was prepared, on the basis of which the chik FIR exhibit ka 4, was prepared on the spot. The registration of the case was made in the general diary, a copy whereof of the exhibit ka (5). Before effecting the search, the consent letter from the accused (exhibit ka 2) was prepared. Memo of arrest (exhibit ka 5) was also prepared. During investigation, the Investigating Officer inspected the place of occurrence and prepared the site plan (exhibit ka 6). The recovered contraband was sent to the Forensic Science Laboratory, for which the memo (exhibit ka 7) was prepared. The report given by the Forensic Science Laboratory exhibit ka 8) is on record, according to which, the recovered contraband article was found to be “charas”. On completion of the investigation, the Investigating Officer has submitted the chargesheet against the respondent/accused in the court under sections 18/20 of the Act, which is (exhibit ka 9) on the record. 3. Vide order dated 29.08.2003, the learned Special Judge/Sessions Judge, Pithoragarh, framed the charge under section 20 of the Act against the accused, to which he denied and claimed to be tried. The prosecution in order to prove its case has produced as many as 4 witnesses, which are PW 1 Constable Satyapal Singh, PW 2 SO K.S. Rawat, PW 3 Constable Keshavlal and PW 4 SO P.C. Pandey. The prosecution in order to prove its case has produced as many as 4 witnesses, which are PW 1 Constable Satyapal Singh, PW 2 SO K.S. Rawat, PW 3 Constable Keshavlal and PW 4 SO P.C. Pandey. The accused did not lead any evidence in his defence and denied the allegations made against him in the statement recorded under section 313 of CrPC. After conclusion of the trial, the learned Trial Court proceeded to acquit the accused as mentioned in paragraph 1 of this judgment. 4. I have heard the learned counsels for the parties at length, and carefully perused the entire evidence available on record. The prosecution in order to prove its case has produced PW 1, according to him, on 09.06.2003, at about 8 PM, 500 gram of “charas” was recovered from the accused, for which he did not have any licence. PW 1 Constable Satyapal Singh, reiterated the version of the FIR. According to him, on 09.06.2003, he along with other police personnel had gone for patrolling duty. At the relevant point of time one person at the spot, one person was found on the way leading to Kumord. The police personnel came down from jeep, checked that person and caught him. On being asked, he disclose his name as Hem Upadhyay (respondent-accused). On being nabbed, he had shown the “charas” wrapped in a polythene bag. Since it was a lonely place, the accused was taken into custody. A weight scales was brought and on weighing the contraband, it was found to be 500 gram. The necessary formalities were done on the spot. 5. Similarly PW 2 K.S. Rawat, Station House Officer, was also examined, who also duly corroborated the evidence given by the PW 1. He also stated that the accused gave a consent letter on the spot, and stated that he wants to being searched before the police personnel only. 6. PW 3 Keshavlal, another police constable was also examined, who also stated the version as made in the body of the FIR. 7. PW 4 P.C. Pandey, is the Investigating Officer of the case. He conducted the investigation of the case, and submitted the chargesheet against the accused on completion of the investigation. He also stated that the recovered contraband was sent for chemical examination, the report given by the FSL is exhibit ka 8 on the record. 8. 7. PW 4 P.C. Pandey, is the Investigating Officer of the case. He conducted the investigation of the case, and submitted the chargesheet against the accused on completion of the investigation. He also stated that the recovered contraband was sent for chemical examination, the report given by the FSL is exhibit ka 8 on the record. 8. In this matter, learned counsel for the appellant argued that the trial court has erred in law in rendering the judgment of the acquittal against the respondent-accused. According to him, the prosecution has duly proved its case against the respondent-accused beyond all reasonable doubt, and the judgment passed by the learned trial court is liable to be interfered with. 9. On the other hand, learned counsel appearing for the respondent-accused vehemently argued that the judgment passed by the learned trial court is based on the evidence available on record, and there is no iota of evidence, which may bring home the charge against the accused. 10. In this matter, on a perusal of the entire evidence available on record, it appears that the provisions of section 50 of the Act, have not been complied with. It may be taken note of that the police personnel have themselves conducted the search of the accused on the basis of the consent letter given by the accused (exhibit ka 2). Without proceeding any further, it would be apt to reproduce section 50 of the Act, which reads 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 (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.” 11. According to the provisions of the aforesaid Act, it is necessary to take the accused person to the nearest Gazetted Officer or any of the Department mentioned under section 42 of the Act, or to the nearest Magistrate for conducting his search. This right given to the accused is mandatory, non compliance whereof is fatal for the prosecution story. 12. On the perusal of the evidence of PW 1 and PW 2, who are the police witnesses, it appears that the accused stated that he was having “charas”. None of these witnesses have stated in their examination-in-chief that they apprised the accused of his right about his option to search him before any Gazetted Officer or any Magistrate, nor any such memo was prepared informing the accused of his legal right. 13. So far as the consent letter is concerned, learned Trial Court has recorded the finding of fact that it is a document procured by the police witnesses just to complete the formality of law. I find no reasonable ground to interfere with the findings recorded by the learned Trial Court in this regard. 14. The Trial Court has also recorded the findings of fact that the police witnesses did not try to procure any public witness, which may prove that the accused was arrested on the relevant date along with the contraband article. 15. I find no reasonable ground to interfere with the findings recorded by the learned Trial Court in this regard. 14. The Trial Court has also recorded the findings of fact that the police witnesses did not try to procure any public witness, which may prove that the accused was arrested on the relevant date along with the contraband article. 15. It is a trite law that where two views are possible and one view which favours the accused has been adopted by the learned Trial Court, the Appellate Court should be slow in interfering with the judgment of acquittal. 16. For the reasons recorded hereinabove, I do not find any ground much less reasonable to interfere with the findings of the acquittal recorded by the learned Trial Court. The findings so made are based on the basis of the material available on record and there is no ground to interfere with the same. 17. The appeal sans merit, and the same is accordingly dismissed. 18. Let a copy of this judgment and order along with the LCR be transmitted to the court concerned for information and necessary action.