Smt. Amrita Chaudhary vs State Of U.P.
2017 Latest Caselaw 4887 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 A.F.R.
 
Court No. - 23
 

 
Case :- JAIL APPEAL No. - 4191 of 2015
 

 
Appellant :- Smt. Amrita Chaudhary
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Raghuraj Kishore(A.C.)
 
Counsel for Respondent :- A.G.A.
 
with
 
Case :- JAIL APPEAL No. - 4192 of 2015
 

 
Appellant :- Smt. Kuliya
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 
and
 

 
Case :- JAIL APPEAL No. - 4193 of 2015
 

 
Appellant :- Smt. Raj Kumari
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Siddhartha Varma,J.

The instant criminal appeal was heard with Criminal Appeal No. 4192 of 0215 and criminal appeal no. 4193 of 2015 as the judgement and order dated 28.2.2015 passed by the Additional Sessions Judge/F.T.C., Siddhartha Nagar in Special Session Trial No. 16 of 2011 (State Vs. Amrita Chaudhary), Special Session Trial No. 17 (State Vs. Smt. Kuliya) and Special Session Trial No. 18 (State Vs. Smt. Rajkumari) was common to all the sessions trial.

Briefly stated the facts of the case are that on 13.3.2011 Sub-inspector Sri Ram Samujh Prabhakar, in charge, Badni, Police Station- Debarua and Sub-inspector Bhupal Singh, Head Constable- Santram Sharma, Constable- Laxman Rao, Constable - Sujeet Koibattra, lady Constables - Km. Seema, Neetu Nadar, Neela Yadav and Vijya Yadav alongwith a team of Special Security Branch (S.S.B.) of District Siddhartha Nagar were checking doubtful persons on the "no man's land" at Chatti Bazar, Kasba- Badni. When they felt that three women were trying to escape checking, they requested them to stop. Instead of stopping the three women tried to escape but they were somehow apprehended. Upon being asked, they told that their names were Amrita Chaudhari, Kuliya and Raj Kumari and they also admitted that they were fleeing as they had contraband charas with them. They were informed about their right to get themselves searched by a Magistrate or a Gazetted Officer. However, they declined the offer and requested a search by the police team itself. They gave their consent to be searched and, thereafter, the male police after searching each other and the female police after searching each other, when were sure that none of them had any objectionable article, searched the three suspects. From the waist of Amrita Chaudhary ten packets of charas wrapped in a brown tape were found. From the waist of Kuliya, ten packets charas again wrapped in a brown tape were found and from the waist of Raj Kumari only 8 packets of charas wrapped in a brown tape were found. The necessity of weighing the contraband arose and therefore constable Santram Sharma was asked to get an electronic weighing machine and it was found that the charas from the possession of Amrita Chaudhary was weighing 5.026 kilograms, the charas from Kuliya was weighing 5.020 kilograms and the charas from the possession of Raj Kumari weighed 4.016 kilograms. They were not having any licence to carry the contraband and, therefore, they were arrested at around 2:10 pm for offences punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act). They were taken into police custody. From the packets, which were found from the three women, 10 grams were taken out from each packet separately. The confiscated contraband was kept in a separate white cloth and the sample was kept in a different white cloth and they were sealed separately. On the spot a recovery memo was prepared and signatures of the accused were taken on them. The copies of the recovery memos were handed over to the accused. On the basis of the recovery memos, a first information report was lodged and investigation was under-taken by Sub-inspector Ram Dulare Yadav who recorded the statements of the various prosecution witnesses and also prepared the site plan. Against Amrita Chaudhary and Kuliya charge sheet was submitted under Sections 8/20 of the N.D.P.S. Act. Against Rajkumari charge sheet was submitted under Section 20(b)(II)(C) of the N.D.P.S. Act.

The Court on 7.6.2011 framed charges under Section 8/20 of the N.D.P.S. Act against the accused Amrita Chaudhary and Kuliya and on 19.9.2011 framed charges under Section 20(b)(II)(c) of the N.D.P.S. Act against Raj Kumari. The accused denied the charges and claimed trial.

From the side of the prosecution P.W.- 1 Sub-inspector Ram Samujh Prabhakar, P.W. 2 - Sub-inspector Bhupal Yadav, P.W. 3 Lady Constable - Neelam Yadav, P.W. 4 Sub-inspector - Ram Dulare Yadav (Vivechak), P.W. 5 Constable - Ram Bhajan Saroj, P.W. 6 Constable - Sudama Paswan and P.W. 7 H.C.P - Jay Mangal Singh Baghel were examined.

Further, from the side of the prosecution various documentary evidence were also produced and proved.

The accused in their statements recorded under Section 313 Cr.P.C alleged a false implication and stated that the prosecution witnesses were giving false evidence owing to enmity. In fact on the day of arrest they were only going around as beggars but the police had wrongly arrested them.

The Trial Court, upon weighing the evidence as was placed before it, found Amrita Chaudhary and Kuliya guilty under Section 8/20 of the N.D.P.S. Act and Raj Kumari was found guilty under Section 20(b)(II)(c) of the N.D.P.S. Act and they were sentenced for imprisonment for ten years each. The guilty were also fined and they had to pay a fine of Rs. 1 lac each. In case they could not pay the fine then they had to undergo a further imprisonment of one year.

The counsel for the appellant made the following submissions.

I. The prosecution had not produced any independent witness as the search was not undertaken in the presence of any independent witness.

II. The witnesses were all police personnel, therefore, they were not independent.

III. There was no compliance of Section 42 of the N.D.P.S. Act.

IV. There was a definite violation of Section 50 of the N.D.P.S. Act as the search was done by Lady Constables and not by officials enumerated in Section 42 of the N.D.P.S. Act.

V. There was no evidence of the fact that the sample was ever brought to the Malkhana and thus there was no compliance of Section 55 of the N.D.P.S. Act.

VI. As the incident was not informed to the higher officials there was non compliance of the Section 57 of the N.D.P.S. Act.

VII. The place of occurrence as had been given out by the prosecution witnesses also had contradictions.

VIII. The arrest could not have been made by the Indian Police on the "no man's land" on the Indian Nepal Border.

IX. The recovery memo did not disclose that the contraband was wrapped in a polythene(panni) but the contraband as was produced in the Court was wrapped in a polythene(panni)

X. From the accused Raj Kumari only 8 packets were alleged to have been recovered and it was averred that 10 grams were taken out from each of the alleged eight packets which meant that only 80 grams of sample could have been sent to the laboratory, but the sample disclosed that there was 100 grams of the sample of the contraband which was sent even from the possession of Rajkumari. This made the whole case of the prosecution absolutely suspicious.

XI. From the statement of P.W.- 6 Sudama Paswan it was evident that the sample was sent under the seal of the circle officer but the laboratory report indicates that the sample was sent under the seal of S.S.B.

XII. The first informant Ram Samujh P.W. 1 also on 30.11.2011 in his examination in chief had stated that the sample was sent under his seal but on 19.3.2012 in cross examination he changed his statement and stated that the sample was sent under the seal of the S.S.B.

XIII. How the confiscated contraband was wrapped was not clear as certain prosecution witness told about a different wrapping from the other witnesses. Thus there were contradictions in the statements of the various witnesses.

Learned AGA supported the judgement and order of the Trial Court dated 20.2.2015 and submitted that as no independent witness was ready to give evidence the requirement of having independent witnesses could be waived off. He also submitted that the requirements of Sections 42, 50, 52 and 57 of the N.D.P.S. Act were only directory in nature and their non-compliance did not vitiate the trial and also if the sample was sent without entry in the Malkhana register it did not matter much.

Learned AGA further submitted that even if the prosecution, at the beginning had stated that it had taken out 10 grams from each of the packet, it did not matter much as, in fact, 100 grams were taken out from the 8 packets which were found in the possession of Raj Kumari.

After having heard the learned counsel for the parties and after having gone through the record I am of the view that the appeal deserves to be allowed. Apart from there being various contradictions in the statements of the various prosecution witnesses I find that the provisions of Sections 42, 50 and 57 were definitely not adhered to. Despite the fact that there was a crowd of people travelling from Nepal and India and vice-versa no independent witness could be made available to the search team. In 1999 (6) SCC 172 ( State of Punjab Vs. Baldev Singh) the Hon'ble Supreme Court has observed that the non-compliance of Section 50 was fatal for the trial. In para 57 of the judgement the safe guards have been given in the following terms:-

"57. On the basis of the reasoning and discussion above, the following conclusions arise:

(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 N.D.P.S. Act.

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain aboveboard. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concepts of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.

(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 N.D.P.S. 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.

(8) A presumption under Section 54 of the N.D.P.S. Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the N.D.P.S. Act."

Furthermore, in 2014 (85) ACC 662 (SC) (State of Rajasthan v. Parmanand) it has been observed :-

"In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parmanand and search of person of the respondents is, therefore, vitiated and reluctantly their conviction is also vitiated."

In the instant case, even if the accused appellants had given their consent for being searched by the constables it was mandatory as per the Section 50 of the N.D.P.S. Act that the accused ought to have been searched in the presence of the Magistrate or a gazetted officer. The accused should have been personally, and individually told that they had a right to be searched in the presence of a Magistrate or a Gazetted Officer. A Joint communication to all the three accused did not satisfy the mandate of Section 50.

A composite reading of the N.D.P.S. Act makes it clear that the offence was the carrying of the contraband itself which results in very severe punishments. Therefore, the N.D.P.S. Act has contemplated that the search, recovery and seizure, the test of samples and the storing of it all should be done in a very effective and a definite manner. Right from the arrest of an accused, to the recovery of the contraband, to the testing of the sample of the contraband and to the storage of it no missing link is to be tolerated. To avoid any planting of the contraband on any individual Section 42 provides that the search had to be done by the officers stipulated in that section. Section 50 of the N.D.P.S. Act very categorically states that if the contraband is found on the person of any suspect, then the search should be done in the presence of a Magistrate or a Gazetted officer. Section 55 elaborates as to how the contraband is to be stored during the trial and as to how only by the permission of a Magistrate the sample for being tested could be taken out. Section 42 and 57 of the N.D.P.S. Act very categorically state that the higher officials should always be kept informed and that too in writing. Therefore, the Investigating Authorities have to be very careful while they are transferring a sample for being tested or taking the contraband to the Court as evidence. Any missing link anywhere vitiates the trial.

In the instant case, the search party which was posted at the "no man's land" on Chatti Bazar, Kasba- Badni, was fully aware of the fact that certain individuals who were carrying the contraband charas would be crossing Indo-Nepal border. When they were conscious of this fact, then they should have in the very beginning informed the higher officials whom they state had been subsequently informed by radio transmitters and not in writing. When they were aware of the fact that certain contraband charas would be smuggled through the Indo-Nepal Border they should have been careful enough to have kept a weighing machine which should have also been produced as evidence in the Court. Furthermore, when the prosecution, trial and conviction all depended on the weight of the contraband which was being carried then the weighing should have been done properly and the first informant who was a police man cannot say that by mistake he had mentioned that he was taking out 10 grams from each of the 8 packets which Raj Kumari was carrying even though he was taking out more from each of the packets. Still further, when the transferring of the sample had to take place from the place where the contraband was stored to the laboratory then the seal which was put by the police official who was in charge should have been properly put on the packet of the sample.

In the instant case, the first informant at one place on 30.11.2011 stated that he had put his seal on the sample but on 19.3.2012 in cross examination stated that the seal of the S.S.B. was put. The constable Sudama Paswan had also stated in his statement that sample was taken to the laboratory under the seal of the circle officer but the laboratory report which is there on the record of the case shows that the sample which had reached the laboratory was under the seal of the S.S.B. In 1971(3) SCC 436 (Yudhistir Vs. the State of Madhya Pradesh) the Supreme Court has laid down that such improvements which are made by the witnesses weakens the prosecution case. All this definitely goes to indicate that there was slackness on the part of the Investigating Agency and also on the part of the prosecution. The fact that only 80 grams of sample from the packets found in the possession of Raj Kumari were sent but actually 100 grams reached the laboratory also shows that 20 grams extra which reached the laboratory were added by someone during transportation. If this was a possibility then there can be no surety that the contraband was not planted.

Under such circumstances, I hold that the trial was vitiated. The impugned order dated 28.2.2015 passed in Special Sessions Trial Nos. 16 of 2011, 17 of 2011 and 18 of 2011 are set aside. In the result the appeals are allowed.

The amicus curiae Sri Raghuraj Kishore was a great assistance to the Court. The Registrar to see that payments are made to him within a month from today.

Order Date :- 03/10/2017

praveen.