Smt. Rita Chaudhari vs State Of U.P.
2017 Latest Caselaw 1469 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
                                                                    Reserved On 9.5.2017
 
Delivered On 31.5.2017
 
Court No. - 53
 
Case :- JAIL APPEAL No. - 1869 of 2014
 
Appellant :- Smt. Rita Chaudhari
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Avinash Jaiswal Ac
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Pratyush Kumar,J.

The instant Jail Appeal filed on behalf of the convict-appellant Smt. Rita Chaudhari under section 374(2), Cr.P.C. is directed against the judgment and orders dated 27.3.2014/28.3.2014 passed by Shri Jitendra Kumar Singh, Special Judge/Additional Sessions Judge, Court No.1, Maharajganj in Special Case No.55 of 2011 (State Vs. Smt. Rita Chaudhari) arising out of Case Crime No.834 of 2011 whereby the appellant has been convicted under section 8/23 NDPS Act and directed to serve rigorous imprisonment of ten years and to pay fine of Rs.1,00,000/-. In default thereof to further undergo imprisonment of one year.

The facts giving rise to the present appeal maybe noticed as under:-

That on 16.9.2011 at 4.00 p.m. one police party of P.S. Sanauli led by S.I. Ram Shabd Verma received an information from mukhbir that some women were likely to come to Sanauli from Nepal bringing illicit Charas. After receiving this information he took with him police personnel and started to check the road coming from Nepal. One woman carrying a child in her lap behaved suspiciously. She was stopped and interrogated. She admitted that she had Charas with her. Thereafter, she was informed that she would be searched before the Gazetted Officer. When she waived the condition, she was searched by a woman constable and from her back 16 packets Charas enveloped in a clothe were recovered, which weighed about 4-1/2 Kg. After taking samples from each packet, contraband Charas and samples were sealed. Recovery memo was prepared. One copy was provided to the appellant.

At this check FIR was scribed at 6.45 p.m. at the police station. Case Crime No.834 of 2011, under section 8/23, NDPS Act was registered. Investigation was entrusted to S.I. Ram Saran Yadav, who inspected the spot, prepared the site plan and examined the witnesses. Sample was sent to State Forensic Science Laboratory. Thereafter, investigation was transferred to S.I. Kamlesh Singh, who after completing the investigation submitted the charge sheet.

The appellant stood for trial before the Court of Special Judge. She denied the charge. In order to prove the charges on behalf of the prosecution documentary evidence was filed and six witnesses were examined. Thereafter, statement of the appellant under section 313, Cr.P.C. was recorded. She gave no evidence in the defence. After hearing the arguments learned Special Judge found the prosecution version trustworthy and convicted and sentenced the appellant as above.

Feeling aggrieved the appellant preferred this appeal.

Heard Shri Avinash Jaiswal, learned Amicus Curiae for the appellant and Shri Shailendra Singh Rathore, learned A.G.A. for the State.

On behalf of the appellant it has been submitted that compliance with provisions contained in sections 42, 50, 52 and 57, NDPS Act has not been made. It has been further submitted that no independent person has been made witness to the recovery. It has been further submitted that all the witnesses examined by the prosecution are police witnesses and due to departmental affinity they were deposing falsely. In the last it has been submitted that members of the police party have not searched each other, therefore, search made by constable Gayatri Yadav was illegal and no conviction can be held on the basis of such illegal search and recovery.

On behalf of the State-Respondent these arguments have been repelled.

Before entering into the merits of the respective argument I would like to place on record briefly the evidence adduced by the prosecution.

S.I. Ram Shabd Verma, PW-1 is the scribe of recovery memo and first informant. He has fully supported the prosecution version. He has proved recovery memo, Exb.Ka-1 and Exb.Ka-2. He has identified 16 packets of Charas kept in a piece of cloth, Material Exb.1 to 16.

Constable Rakesh Kumar Singh, PW-2 is the witness of recovery. He has fully supported the prosecution version.

Constable S.S.B. Gayatri Yadav, PW-3 is the lady constable, who had searched the appellant and recovered 4-1/2 Kg. Charas from her possession. She has fully supported the prosecution version.

Constable Mohit Prasad, PW-4 is the scribe of check FIR. He has proved check FIR, Exb.Ka-3 and copy of the report of the General Diary, Exb. Ka-4.

S.I. Ram Saran Yadav, PW-5 is the first Investigating Officer. He gave details of the steps taken in the course of the investigation and he proved site plan, Exb.Ka-5.

S.I. Kamlesh Singh, PW-6 is the second Investigating Officer. He has proved charge sheet, Exb. Ka-6.

The defence of the appellant before the trial court was simple denial.

According to the appellant she was going to Gorkahpur to her husband's house. She was taken to the police station. Nothing incriminating was recovered from her possession.

In the present case three witnesses of the recovery have been examined. They were also witnesses of the recovery memo. Their presence at the spot at the relevant time is not doubtful.

I have perused the statements of all these three witnesses with the help of counsel for the parties. During cross examination of S.I. Ram Shabd Verma, PW-1 nothing adverse could be extracted. Similar is the case with constable Rakesh Kumar Singh, PW-2. Constable Gayatri Yadav, PW-3 was also cross examined. In her statement there is one discrepant statement. According to earlier two witnesses scale was brought from S.S.B. Office whereas this witness says that it was brought from the market. This discrepant statement does not touch the substratum of the prosecution version. Overall her statement is also confidence inspiring. She has faced the test of cross examination successfully. I find all these three witnesses worthy of reliance.

Now, there remains legal pleas. First argument is that compliance with the provisions contained in section 42(2) NDPS Act was not made out. Here, I notice that S.I. Ram Shabd Verma, PW-1 does not say that as soon as he received the information from the mukhbir, he recorded that information in writing. On this point on behalf of the appellant reliance has been placed in the case of State of Punjab Vs. Balbir Singh, AIR 1994 SC 1872.

This argument is without substance. Section 42 of the NDPS Act relates to recording of information where it is necessary for making search to enter an enclosed premises. Section 43 specially provides power of seizure and arrest in public place. Here no such condition has been imposed that prior information should be reduced into writing.

The second legal ground raised before me is non compliance of Section 50 of the NDPS Act. The submission on behalf of the appellant is that appellant was merely informed that she would be searched before a Gazetted Officer or Magistrate. She was not informed about her right. On this point reliance has been placed in para 17 of the case of State of Punjab Vs. Balbir Singh (supra). In this para Hon'ble Apex Court has held that a person supposed to be searched should be made aware of his right that if he so requires, he can give his search before a Gazetted Officer or Magistrate. In para 21 of the report the Hon'ble Apex Court has held that provisions of section 50 is mandatory.

I am also unable to accept this argument that in the present case substantial compliance with provisions contained in section 50 of the NDPS Act was made out. None of the witness of recovery was suggested that appellant was not informed about her right to give search before a Gazetted Officer or Magistrate and further the memo reflects that she was given an option to give her search before the Gazetted Officer or Magistrate, but she declined to do so vide Exb. Ka-2. In the case of T.T. Haneefa Vs. State of Kerala, AIR 2004 SC 3316 the Hon'ble Apex Court has held that when the searching officer gives option to the accused to be searched in presence of the Magistrate, it is the sufficient compliance. In view of above, I am of the opinion that in the present case substantial compliance with Section 50 of the NDPS Act was made.

Third legal plea is non compliance with section 52 of the NDPS Act, but there is nothing on record that seized material was not deposited with the nearest police station rather copy of the report of the General Diary belies this argument.

Since the appellant was arrested and produced before the Magistrate within 24 hours, it is sufficient to show that compliance with section 57 NDPS Act was made because remand request and the case diary always go through the Circle Officer.

I also do not find substance in the argument that no independent person was made a witness of recovery, as it has been explained by the first informant in his statement.

Further, the other argument that police personnel did not take their search was also without substance, lady constable Gayatri Yadav was alone a woman accompanying the police party, there was no woman to search her, more so she has not been suggested she planted Charas on the appellant.

In view of the above, appeal is without substance. I do not find any illegality or infirmity in the impugned judgment and orders, hence, appeal is dismissed. Judgment and orders dated 27.3.2014/28.3.2014 are, hereby, affirmed.

Appellant is in jail. She shall serve out her sentence. The period already undergone by her shall be adjusted towards the substantive sentence in accordance with the provisions contained in section 428, Cr.P.C.

Office is directed to communicate this order to the court concerned and to send back the record to the court below.

Shri Avinash Jaiswal, Advocate was appointed as Amicus Curiae on behalf of the appellant Smt. Rita Chaudhari to assist the Court in hearing the Jail Appeal No.1869 of 2014. Shri Avinash Jaiswal, Advocate, rendered valuable assistance to the Court. The Court quantifies Rs.7,500/- to be paid to Shri Avinash Jaiswal, Advocate towards fee in lieu of the assistance provided by him in hearing the Jail Appeal referred to above. The above amount be paid to Shri Avinash Jaiswal, Advocate by the Registry of the Court within two months.

Order Date :- 31st May 2017

T. Sinha