Shaheer vs State Of U.P.
2013 Latest Caselaw 3646 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 48 of 1996
 

 
Appellant :- Shaheer
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.Zaheer,Ram Chandra Verma,S.B. Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
And
 

 
Case :- CRIMINAL APPEAL No. - 61 of 1996
 

 
Appellant :- Khalil
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.C.Verma
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Anurag Kumar,J.

Shaheer son of Mohd. Zahoor has preferred Criminal Appeal No. 48 of 1996 and Khalil son of Raies has preferred Criminal Appeal No. 61 of 1996 aggrieved by the common judgment and order dated 24.1.1996 passed by IInd Additional Sessions Judge, Barabanki in Criminal Trial Nos. 178 of 1991 and 179 of 1991 convicting and sentencing each of the appellants under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short N.D.P.S. Act), for 10 years rigorous imprisonment and a fine of Rs.1,00,000/- (one lac) to each and in default of payment of fine to suffer rigorous imprisonment of one year.

Since both these criminal appeals have been preferred against the one and the same judgment and order dated 24.1.1996 as such they are being heard together and disposed of by a common order.

The prosecution case in brief is that Sri Lal Surendra Pratap Singh, Station House Office, Police Station Masauli, district Barabanki along with constable was on patrolling duty by his Sarkari Jeep No. U.P.-J/5317. On his returning from Sahadatganj town, when he arrived at Masauli crossing Sri Girdhar Prasad Gupta, Sub Inspector and constable Vijai Narain Tiwari, who were on patrolling duty met him and they proceeded together. When they reached near the canal culvert, south of Shahabpur, constable Shiva Nand Tiwari and Homeguard Ram Sewak, who were deputed on prevention of road hold up duty, were present.

Sri Shiva Nand Tiwari informed the S.O. Sri Lal Surendra Pratap Singh that often on the road from Tikra to Jahangirabad psychotropic substance and smuggled articles were carried and today or tomorrow there is possibility that some one may be found with psychotropic substance.

On receiving this information, Station Officer, decided to lay seize near the canal culvert. The force members under the direction of the S.O. concealed themselves and waited. At about 9.15 p.m. two persons on one cycle were coming towards west. Police party asked them to stop but they tried to escape after abandoning of the cycle. However, both were apprehended after a short chase.

On interrogation they disclosed their names as Shaheer and Khalil and on taking their personal search by police party, two packets wrapped in polythene were found concealed in the undergarment (Langota) of Shaheer, these packets contained about 500 grams of heroin and from the cloth bag of Khalil held in his right hand, two packets wrapped in polythene were recovered which also contained about 500 grams of heroin. On further interrogation Shaheer informed that he was carrying the said heroin from the place of Bachchan Miyan of Village Tikra to Iliyas, resident of Jahangirabad. He also confessed that in past also he carried such substances. Khalil also informed that he was carrying the packets from Bachchan Miyan of Tikra to Gullu of Jahangirabad.

Accused persons were stopped and composite Fard Baramdagi/seizure memo was prepared and recovered articles were sealed. Before their arrest, they were informed about the reasons leading to their arrest and the accused along with recovered articles were brought to the police station and an F.I.R. was registered and Sub Inspector-Chandra Shekhar Sharma was entrusted investigation of the offence registered at crime nos. 210 and 211 of 1991.

The investigation officer started the investigation and in presence of Magistrate, Ramsanehighat, samples were taken and sent to Scientific Laboratory, Lucknow for chemical analysis. After completion of investigation a chargesheet was submitted and cognizance was taken.

The prosecution in support of his case, examined P.W. 1 Sub Inspector Lal Surendra Pratap Singh, P.W. 2 Girdhar Prasad Gupta, P.W. 3 C.P. Vijai Narain Tiwari and P.W. 4 Sub Inspector-Chandra Shekhar Sharma and proved the seizure memo Ext. Ka-1, Chik F.I.R. Ext. Ka-2, G.D. extract dated 24.9.1991 Ext. Ka-3, site plan Ext. Ka-4 Dockets relating to Shaheer and Khalil as Ext. Ka-5 and Ext. Ka-6 respectively, besides samples sealed, charge-sheets as well the expert's reports dated 20.12.1991 in crime no. 210 and 211 of 1991.

After hearing the submissions of both sides, learned Sessions Judge by his impugned order dated 24.1.1996 convicted the appellants under Section 8 read with Section 21 of the N.D.P.S. Act and sentenced rigorous imprisonment of ten years and fine of Rs.1,00,000/- (one lac) each and in default of payment of fine to suffer imprisonment for one year.

Aggrieved by the said order present appeals have been preferred separately by the appellants.

Learned counsel for appellants submitted that there is no compliance of Section 50 of the N.D.P.S. Act making the recovery illegal. In spite of prior information no compliance of Section 42 of the N.D.P.S. Act was made. There is no independent witness of the recovery. The recovered articles were not weighed and their weight was just by imagination. At the time of arrest except heroin nothing like money etc. were recovered, which is quite impossible and creates doubt regarding recovery. There are major contradictions in the statement of witnesses. P.W. 2 stated that Afeem/opium was recovered from each of the accused persons, thus, the prosecution failed to prove his case.

Learned A.G.A. refuted the arguments and submitted that compliance of Section 50 of the N.D.P.S. Act is not mandatory. It is only directory and the substantial compliance of Section 42 has been made. The prosecution proved his case beyond all reasonable doubts against the accused-appellants. Learned Sessions Judge after discussing each and every aspect of the matter has rightly held the accused-appellants guilty under Section 8 read with Section 21 of the N.D.P.S. Act.

After giving thoughtful submission to the arguments of both sides, first of all it is to be seen that whether any compliance of Section 50 of the N.D.P.S. Act was made or not.

From the perusal of recovery memo as well as statement of the witnesses of fact it is clear that arresting officer did not inform the accused-appellants regarding their rights to have searched before any Gazetted Officer. In the recovery memo as the accused-appellants were apprehended by the police persons and immediately personal search was taken without informing their rights of search before any Gazetted Officer. Even in the statement of witnesses of fact P.W.1 Lal Surendra Pratap Singh, P.W. 2 Girdhar Prasad Gupta and P.W. 3 Vijai Narain Tiwari, there is nothing that they have informed the accused-appellants regarding their rights that if they desire their search can be made before a gazetted officer. P.W. 1, later on in his statement tried to improve the fact but even from that improvement no compliance of Section 50 of the N.D.P.S. Act was appeared to be made out.

Learned A.G.A. on this point has relied upon the judgment of the Apex Court in the case of Karnail Singh Vs. State of Haryana [2009(3) Supreme Court Cases (Cri) 887]. The Apex Court in para-31 held as under:

"The safeguard or protection to be searched in the presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. But this strict procedural requirement has been diluted by the insertion of Sub-section (5) and (6) to the Section by Act 9 of 2001, by which the following subsections were inserted accordingly:

50(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.

Through this amendment the strict procedural requirement as mandated by Baldev Singh's case was avoided as relaxation and fixing of the reasonable time to send the record to superior official as well as exercise of Section 100 of CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance of Section 50 by Baldev Singh's case was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only to balance an urgent situation. As a consequence the mandate given in Baldev Singh's case is diluted."

Learned A.G.A. also relied on 2010(2) Supreme Court Cases (Cri) 859/2010(4) Supreme Court Cases 445 (Bahadur Singh Vs. State of Haryana) in which the Apex Court held that with the advance of technology and availability of high speed exchange of information some of the provisions of N.D.P.S. Act including Section 42 have to be read in the changed context. The delay caused in compliance with the provisions of Section 42 would result in escape of offender or even removal of the contraband. Substantial compliance is sufficient if the information received were subsequently sent to the superior officer.

Leaned counsel for appellants, on the other hand, relied on 2013 AIR SCW 210: 2012(12) SCALE 429 (Kishan Chand Vs. State of Haryana). In this case the Apex Court laid down that when there is total and definite non-compliance of statutory provisions, question of prejudice loses its significance. It will per se amount to prejudice, element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance but duty is absolute, element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out element of prejudice where there is total non-compliance of provision. He further relied on 2012(12) SCALE 699 (Sukhdev Singh Vs. State of Haryana). In this case, the Apex Court laid down that compliance of Section 42 is mandatory and there cannot be escape from its strict compliance. There is patent illegality in case of prosecution and such illegality is incurable. This is a case of total non-compliance and question of substantial compliance would not even arise for consideration.

The Constitution Bench of the Apex Court in the case of Baldev Singh, 1999(6) Supreme Court Cases, 172 in para 57 concluded as under:

"57. (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 gazetted 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 gazetted 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 gazetted officer or a Magistrate for search 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 his person, during a search conducted in violation of the provisions of Section 50 of the Act.

x x x x x

(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."

He also relied on 2011(1) Supreme Court Cases (Cri) 497/2011(1) Supreme Court Cases 609 [Vijaysinh Chandubha Jadeja Vs. State of Gujrat]. In para-29 the Apex Court held as under:

"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 minimize 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 authorized 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."

He also relied on 2012(1) Supreme Court Cases (Cri) 385/2011(12) Supreme Court Cases 207 [State of Delhi Vs. Ram Avtar alias Rama]. In this case, Apex Court held that merely asking accused whether he wished to be searched before a gazetted officer or a Magistrate without informing him that he enjoyed a right in that behalf, held, is not compliance with Section 50 of the Act would cause prejudice to the accused and therefore would amount to denial of fair trial.

From the above decisions of the Apex Court it is quite clear that the compliance of Section 50 of the Act is necessary and if there is no compliance of Section 50 of the Act it will cause prejudice to the accused.

In the light of the above it is clear that in the present case neither accused was informed about his rights to be searched before a Magistrate or gazetted officer nor search was conducted before any Magistrate or gazetted officer and there also appears to be any urgent situation which required any urgent search without informing accused of his right, which has been provided under Section 50 of the Act and hence in the present case compliance of mandatory provisions of Section 50 of the Act has not been complied with.

As per prosecution case and as per statement of witnesses of fact P.W.1 and P.W.3, recovery of 500 grams of heroin was made but P.W.2 in his statement stated that 500 grams of Afeem/opium was recovered, which also creates doubt regarding recovery.

Another important aspect of the matter is that weight of the recovered psychotropic substance was without measuring it, it was just by guess and it is not clear from the prosecution evidence what is the actual quantity of the psychotropic substance recovered.

From the evidence of witnesses, it is quite clear that independent public witnesses were present at the place of arrest and in spite of prior information that there are possibility of recovery of smuggled psychotropic substance, no attempt was made to have any independent witness of the recovery, which also creates doubt regarding recovery.

From the above discussions it is quite clear that the prosecution has fully failed to prove its case and there is no compliance of Section 50 of the Act and as well as of Section 42, hence appeal is liable to be allowed and the accused persons are liable to be acquitted.

Both the Criminal Appeals No. 48 of 1996 and 61 of 1996 are allowed and both the accused-appellants, namely, Shaheer and Khalil are hereby acquitted.

Let lower court records along with a copy of this order be sent to the learned trial court for necessary compliance.

Order Date :- 4.7.2013

Prajapati