Ramesh Chandra vs State Of U.P.
2014 Latest Caselaw 3816 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 
 
 
Case :- CRIMINAL APPEAL No. - 4272 of 2008 
 
Appellant :- Ramesh Chandra 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- N.K. Singh,Amit Tripathi,Suresh Chandra Verma 
 
Counsel for Respondent :- Govt. Advocate 
 

 
Hon'ble Bharat Bhushan,J. 

1. This criminal appeal is directed against the judgement and order of conviction dated 7.6.2008 passed by Ist Addl. Sessions Judge, Kannauj in Special Trial No. 5 of 2007 (State Vs Ramesh Chandra), arising out of Crime No. 639 of 2007, under Section 21/22 of Narcotic Drugs and Psychotropic Substances Act, 1985, (In short N.D.P.S. Act) P.S. Kannauj, District Kannauj whereby the appellant has been found guilty and convicted under Section 21/22 of N.D.P.S. Act and sentenced to undergo rigorous imprisonment for ten years along with fine of Rs. One lac with default stipulation.

2. The prosecution story as unfolded before the Trial court is that on 17.4.2007 at about 17.15 hours, a secret information was received by Sub inspector and In-charge SOG Virender Kumar Yadav, S.I. Kaushal Kishore Chaudhary, Constable Munna and others while they were busy in their picket duty that two persons are roaming on Bajaj Platina motorcycle and are likely to sell the suspicious material. Acting on the said information, the S.I. Virejdra Kumar Yadav requested the passers-by to join the investigation but none agreed and thereafter the police team came near Railway Station Kannauj City along with informer. There, they apprehended the accused persons at the instance of informer at about 6 p.m. On inquiry, they revealed their name as Ramesh Chandra (appellant) and Udhan. Accused admitted possession of a packet containing heroine. They were told that if they desire, they could be searched in the presence of any nearest Magistrate or any gazetted officer. On this, appellants stated that they are ready to get themselves searched by the arresting officials. Thereafter, the appellant Ramesh Chandra was searched. He was having a polythene bag in his right hand from which about 450 grams of heroine was said to have been recovered. No separate recovery was made from the co accused Udhan. Necessary procedure of drawing samples and sealing was followed and recovery memo (Ex-Ka-1) duly prepared. Thereafter a case was registered on 17.4.2007 at 20.40 hours at P.S. Kotwali Kannauj, District Kannauj. One sample was sent for chemical examination on 27.6.2007 and the chemical examiner found it to be heroine. On this basis, the charge sheet (Ex-Ka-3) was filed against the accused persons under Section 21/22 of NDPS Act.

3. Learned Sessions Judge framed the charges against the accused persons on 28.7.2007 u/s 21/22 of N.D.P.S. Act. They pleaded not guilty and claimed trial. In support of its case, prosecution examined as many as six witnesses namely Sub Inspector Kaushal Kishore Chaudhary, P.W.-1, Sub Inspector Virendra Kumar Yadav, P.W.-2, Sub Inspector Vishram Singh, P.W.-3, Constable Raj Kumar, P.W.-4, Sub Inspector Sheikh Ahmad, P.W-5 and Sub Inspector Shiv Prasad Yada, P.W.-6.

4. Accused were examined under Section 313 Cr.P.C. They denied the prosecution case and contended that no recovery was made from them. The accused, however, did not adduce any evidence in their defence.

5. Learned Sessions Judge after considering the evidence on record came to the conclusion that the prosecution has been able to establish its case beyond reasonable doubt. Consequently, the Trial Judge convicted the appellant Ramesh Chandra for the offence under Section 21/22 of NDPS as aforesaid and simultaneously acquitted the other accused Udham. Feeling aggrieved, this appeal has been filed by the appellant Ramesh Chandra.

6. Contention of learned counsel for the appellants is that accused had been wrongly implicated in this case and that the learned Trial Court failed to properly appreciate the evidence on record. According to him, the prosecution had failed to comply with the mandatory provision of Section 50 of the NDPS Act, vitiating the trial. Merely giving an offer or option to the appellant would not cover the mandatory requirements of Section 50 of the NDPS Act. In this regard, reliance has been placed by the appellant on the case of Vijay Singh Chandubha Jadeja Vs State of Gujrat, reported in (2011) 1 SCC 609

7. It is further submitted that the mandatory provisions of Section 52 A(2) of the N.D.P.S. Act have also not been complied with by the prosecution and therefore the appellant is entitled to acquittal on that ground also.

8. It is further contended by learned counsel for the appellant that the weight of the contraband was not ascertained. It is pointed out by learned counsel for the appellant that Section 57 of the N.D.P.S. Act requires that the report of arrest and seizure be sent to superior officers within 48 hours, which has not been done in the present case.

9. To the contrary, learned AGA appearing on behalf of the State submitted that the prosecution has complied with all the mandatory provisions of Section 50, 52(A)(2) and Section 57 of the NDPS Act. He further submitted that there is no error in the judgement. The prosecution has complied with all the mandatory provisions under the Act. Learned AGA has argued that the contraband was recovered from the polythene bag carried by the appellant but his personal search did not yield any illicit material and hence the strict compliance of Section 50 of NDPS Act was not required.

10. Heard Mr Amit Tripathi, learned counsel for the appellant and Mr. J. K. Upadhyay, learned AGA appearing for the State.

11. Principal argument of counsel for the appellant is that the mandatory provision of Section 50 of NDPS Act was not followed at the time of his arrest.

12. So far as the argument with regard to non compliance of Section 50 of the NDPS Act is concerned, the issue is no longer res-integra. It has been held in catena of decisions by Hon'ble Apex Court that the non compliance of the mandatory provision of Section 50 of NDPS Act would vitiate the trial and the accused would thus be entitled to acquittal. Section 50 of the Act provides that 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.

13. Learned Counsel for the appellants has contended that it is the right of the accused person to be informed that they can be searched before a Gazetted Officer or a Magistrate and in this case the appellant was not informed about his right by the arresting officials and this violated the mandatory provision of Section 50 of the NDPS Act.

14. To secure a conviction under the N.D.P.S. Act, the possession of the illicit article is a sine qua non. Such contraband must be recovered in accordance with the provisions of Section 50 of the Act, otherwise, the recovery itself shall stand vitiated in law. Whether the provisions of Section 50 of the Act were complied with or not, would be a matter to be determined on the basis of the evidence produced by the prosecution.

15. In the case of State of Punjab Vs. Balbir Singh, 1994 (3) SCC 299, it has been held by Hon'ble Apex Court while considering the provisions of Section 50 of the NDPS Act that it is imperative and mandatory on the part of authorised officer to inform the accused about the right of person to be searched in presence of Magistrate/Gazetted Officer.

16. The aforesaid case of Balbir Singh was followed by the Apex Court in the case of Saiyad Mohd. Saiyad Umar Saiyad and others Vs. State of Gujrat, (1995) 3 SCC 610, wherein this legal position was again reiterated and it was held that the requirement on the part of the officer conducting the search to inform the accused of his right to choose to be searched in the presence of a Gazetted Officer or a Magistrate is mandatory and the prosecution must prove that the accused was made aware of this right but he did not choose to be searched before a Gazetted Officer or a Magistrate. If no evidence to this effect is given, court must assume that the accused was not informed of his right and the possession of the illicit articles was not established.

17. The Constitution Bench of the Hon'ble Apex Court again considered this point in the case of State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 and held that it is not enough that the accused be informed or intimated that he could be searched in presence of a Gazetted Officer or a Magistrate but he should be informed of his "right" to be searched in presence of a Gazetted Officer or a Magistrate and if there is any violation in this regard it will be violation of Section 50 of the NDPS Act.

18. Recently in the case of Vijay Singh Chandubha Jadeja Vs State of Gujrat, reported in (2011) 1 SCC 609, it has been held by the Constitution Bench of Hon'ble Apex Court that any conviction, based on the recovery of an illicit item in a search conducted without informing the accused of his right would stand vitiated. The short question decided by the Constitution Bench in this case was as to whether Section 50 of the NDPS Act casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section. The issue so framed by the Constitution Bench was answered in para 29 in the following terms:

"29. In view of the foregoing discussions, we are of the firm opinion that the object with which the 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 insofar 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 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."

19. In Union of India v. Shah Alam, (2009) 16 SCC 644, heroin was first recovered from the bags carried by the respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip (Dilip & Anr. v. State of Madhya Pradesh, (2007) 1 SCC 450), it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the respondents on that ground.

20. In view of the aforesaid decisions, the question required to be considered in this case is as to whether mandatory provisions of Section 50 of the NDPS Act have been followed at the time of arrest of appellant. In the instant case, perusal of the fard recovery (Ex-Ka-1) shows that arresting officers had jointly asked the accused persons whether they desire to be searched before a Magistrate or a Gazetted Officer and then both of them consented to be searched by arresting officials. This shows that a mere offer was made to the appellant that in case if he so desires, his search could be conducted in presence of a Gazetted Officer or a Magistrate. Thus, from the decisions quoted above, it is clear that a mere proforma offer would not satisfy the mandatory ingredients of section 50 of the NDPS Act. The court below has opined that since the recovery was made from a bag carried by the appellant, therefore, Section 50 would not apply. However, the Apex Court in the recent case of State of Rajasthan Vs Parmanand reported in LAWS (SC) 2014 271 has held that Section 50 of NDPS Act would be applicable even in these cases if personal search had also been conducted. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer/witness. In the instant case, what was actually said was that he (accused) had an option to get him searched in presence of a Gazetted Officer or a Magistrate. The intimation given to the accused could not be treated as communication to him that he had a right under law to be searched before the aforesaid authorities. As it is, there was no independent witness to the recovery. It is evident that there was no compliance of Section 50 of the NDPS Act and the findings recorded by the learned Trial Court in this regard are not tenable.

21. Surprisingly, recovered articles were not weighed either at the spot or subsequently. Appellant was prosecuted for possession of commercial quantity of contraband yet its weight admittedly was never ascertained. Chemical report shows that 20.5 gram of heroine was received for examination in the lab but it cannot be said that recovered substance would fall within the definition of commercial quantity. As per the prosecution case, and as per statements of eye witnesses P.W.-1 Kaushal Kishore and P.W-2 Virendra Yadav, 450 grams of heroine was recovered but the prosecution has failed to give any evidence as to how the quantity was determined. The testimonies of P.W.-2 Virendra Yadav, who had prepared the recovery memo would reveal that he had mentioned quantity of contraband on the basis of guess without ascertaining the actual weight of contraband.

22. In the present case, sampling was also done in a peculiar manner. P.W-1 Kaushal Kishore in his deposition has stated that out of said recovered material he had taken out 20 grams of contraband separately without ascertaining the weight, which also appears to have been done in contravention of the rules prescribed for sampling of the contraband. Another glaring aspect of the matter as per record of the case is that the sample was sent before Forensic Science Laboratory, Lucknow on 27.6.2007, after more than 70 days of the incident. This inordinate delay is highly disturbing. The trial court failed to consider this aspect in its correct perspective. The effect of delay in sending the contraband has not been considered by the trial court. Record of the case as well as the depositions of the police witnesses clearly reveal that sample of the recovered contraband was not prepared properly. Record also reveals that sample of seal was not produced before the trial court. Relevant portion of judgement is extracted as under:-

" nksuks xokgku (P.W.-1 & P.W.-2) us crk;k fd eky lhy eksgj djus ds ckn uewuk eksgj fy;k FkkA ysfdu uewuk eksgj i=koyh ij miyC/k ugha gS tks gsjksbu uewus ds fy, vyx ysdj lhy eksgj dh xbZ mldk uewuk eksgj fof/k foKku iz;ksx'kkyk y[kum pyk x;kA bl fy, og i=koyh ij nkf[ky ugha gks ldkA ysfdu tks gsjksbZu 'ks"k vyx ls iqfyans ij lhy dh xbZ mldk uewuk eksgj iqfyl ikVhZ ds ikl gh jgk ysfdu og i=koyh ij nkf[ky ugha gSA"

23. In view of discussion made herein above, I have come to the conclusion that the prosecution has failed to establish its case against the accused appellant beyond reasonable doubt.

24. Accordingly, the appeal is allowed and the conviction of the appellant is set aside and the accused is acquitted of the charges he stood trial for. The accused shall be released forthwith unless he is wanted in any other case.

The record of the court below be returned forthwith.

Order Date :- 31.07.2014

RavindraKSingh