Shamsuddin vs State Of U.P.
2017 Latest Caselaw 6003 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 7.10.2017
 
Delivered on 30.10.2017
 
Court No. - 13
 

 
Case :- JAIL APPEAL No. - 1034 of 2016
 

 
Appellant :- Shamsuddin
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. This appeal has been directed against the judgment and order dated 2/11/2015 of the Additional District and Sessions judge, Court No.7, Deoria passed in Criminal Case No. 21 of 2013, State of Uttar Pradesh vs. Shamshuddin, whereby the accused-appellant has been punished under section 8/22 of the NDPS Act with rigorous imprisonment of 10 years and fine of Rs.1.00 lakh and in default of payment of fine with further rigorous imprisonment of 6 months.

2. In brief, the prosecution case is as follows.

3. On 18/7/2013 Shri Baijnath Singh, SHO, PS GRP, Railway Station Bhatni along with Constable Chandrika was busy in performing his duty of maintaining law and order at platform no. 1. At that very time, Constable Sahadev Dubey, Constable Brijendra Singh, Constable Baboo Ram Yadav, Constable Dharmendra Nayak and Constable Ajai Kumar of SOG, GRP, Gorakhpur also reached there and were discussing regarding criminals. All of them were proceeding towards western direction; they were told by informer that 2 persons were sitting on Railway platform No.1 at the western end who possessed Narcotic powder and could give effect to some offence of administering such drug/substance to public. Believing this information the police party departed towards western end of the platform No. 1 and just before 20 metres from the western end of the platform, the informant indicated them where those two persons were sitting and left the spot. The police party surrounded both these persons and arrested them at about 8.20 p.m.. Upon being arrested, they disclosed their names to be Shamshuddin and Baijil Seliven and further apprised that they had alprazolam powder with them, which they used to administer to the travellers of train and upon their turning unconscious, they used to take away their belongings. Both the persons were apprised of their right that they could opt to be searched in front of a Magistrate or a Gazetted Officer. In response, they stated that they had already disclosed about the alprazolam powder being in their possession, hence the police party could take their search; they had no intention to be searched before any Magistrate or a Gazetted Officer as they were satisfied with the search to be made by them. Thus after taking their consent in writing (Exhibit Ka-1) and having searched themselves to ensure that they did not have any illegal article, they took search of Shamshuddin and found alprazolam powder from his pant's pocket which was rolled in a newspaper cutting. Baijil Seliven was also searched and from him also the same powder was recovered. Constable Chandrika was sent to bring a weighing machine from the nearby township and the recovered contraband was weighed separately. The quantity of powder recovered from Shamshuddin which turned out to be 140 grams while that recovered from other accused was 120 grams and they did not have any license to possess the same and pleaded to be excused. After being told that they had committed an offence under section 8/21 of NDPS Act, both the accused were taken into police custody (arrest memo is Exhibit Ka-2) and the recovered contraband was separately sealed and the sample of seal was prepared. A large number of people had gathered on the spot, but none of them was ready to be a witness of this recovery. The memo of recovery (Exhibit Ka-4) was written by Constable Sahadev, which was read out to the accused and thereafter their signatures were obtained thereupon and a copy each of recovery memo was provided to them. An information to higher authorities was sent on the same day which is Exhibit Ka-3. On the basis of recovery memo Case Crime No. 84/2013 under sections 8/21/22, NDPS Act was registered at PS, GRP against accused Shamshuddin on 18/7/2013 at 10:30 AM (Chick F.I.R. is Exhibit Ka-5). The entry of institution of this case was made in GD at report no. 19 at 10:30 AM (Exhibit Ka-6). The investigation was assigned to S.I. Shri Ashok Kumar (PW-4), who prepared the site plan (Exhibit Ka-7) at the instance of the first informant Baijnath Singh (PW-1) and after recording statements of other witnesses namely, Sahadev Dubey (PW-2), Ashok Kumar Jaiswal (PW-3), Ashok Kumar (PW-4) and taking into consideration the report of Forensic Science Lab (Exhibit Ka-9), submitted charge- sheet against the accused under sections 8/21/22 of NDPS Act (Exhibit Ka-8).

4. The charge was framed against accused on 6/12/2013 under section 8/22 of the NDPS Act, to which he pleaded not guilty. After the trial, the prosecution adduced above named witnesses in support of the charge. Thereafter the statement of accused under section 313 Cr. P.C. was recorded, in which he stated that no such recovery was made and that he had been falsely challaned.

5. The learned Court below after making in depth scrutiny of the statements of the witnesses and evidence on record, held the accused guilty under section 8/22 of the NDPS Act and awarded him afore- mentioned punishment.

6. The learned Amicus Curiae Ms. Kalpana Singh, defending the appellant has made following arguments. The informant ought to have given information in writing. No public witness of recovery has been produced. Accused has no criminal history. No compliance of the provisions of section 50, NDPS Act has been made as interpreted by the Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujrat (2011) 1 SCC 609. The police did not inform its senior authorities about the arrest of the accused with contraband which was essential as per law.

7. On the other hand, the learned AGA put forth that recovery of contraband is well proved on the basis of statements of witnesses, PW-1 to PW-4, which comprise at least two witnesses of fact. The compliance of section 50 has been made. The provisions of section 42 (1) to 44 and section 57 of NDPS Act are not mandatory, contending so, reliance has been placed on Sajan Abraham vs State of Kerala, 2001 (43) ACC 528; and State of Punjab vs Balbir Singh, 1994 (31) ACC 351.

8. First of all, the objection raised by the learned amicus curiae relating to non-compliance of section 50 of NDPS Act in the present case is being taken up.

For the sake of convenience, section 50 of the NDPS Act provides as follows: -

"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.

(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.

(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."

9. In large number of cases the Supreme Court has interpreted provision mentioned above and now the law is almost settled by pronouncement made in Vijaysinh Chandubha Jadeja Vs. State of Gujrat (2011) 1 SCC 609. In this case the question before the Apex Court for consideration was "whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "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?"

10. The answer to this question has been given in paras 29 to 32 of the judgment which are reproduced as follows:

"29. 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 minimise 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 authorised 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.

30. As observed in Presidential Poll, In re (1974) 2 SCC 33 (SCC P.49, para 13)

"13....... it is the duty of the courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole."

31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.

32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

11. From a perusal of the above view of the Supreme Court, it is apparent that the compliance of the provisions under Section 50 of N.D.P.S. Act is not a mere formality. It has to be done by the empowered officer in letter and spirit. Whether or not the procedure prescribed had been followed and the said requirement of Section 50 of the Act has been made, has to be judged on the basis of evidence recorded during the trial. Hence, it would be pertinent to scrutinize the relevant portions of the statements of witnesses in connection with the fact as to whether the accused in the present appeal had been apprised by the arresting officer of his right or not that he could opt to be searched in front of a Magistrate/Gazetted Officer.

12. In the recovery memo it has been mentioned that the accused was apprised about his right of being searched before Magistrate or a Gazetted Officer because he himself had disclosed that he was possessing alprazolam powder but he along with other accused in unison stated that they would like to be searched by them only and they did not want to be presented before any Gazetted Officer or Magistrate because they were satisfied with the search to be made by police party. Not only this it has also been mentioned in the said recovery memo that a written consent was also obtained from him. The said written consent is on record which is Exhibit Ka-1, on which the accused appellant has put his signature on 18/7/2013 and this consent is to the following effect that he was arrested by police on 18/7/2013 with alprazolam powder and he was apprised of his right that he could give his search before any Gazetted Officer or Magistrate, but since he was caught by the police and he had told them that he possessed alprazolam powder hence they could take his search. There was no need to call any Magistrate or a Gazetted Officer because he was satisfied with their proceedings. In this regard PW-1, Baijnath Singh has stated that both the accused, on their revealing that they possessed alprazolam powder, they were apprised about the right to be searched before a Magistrate or a Gazetted Officer but the accused opted not to be searched in front of them, instead chose to be searched by the police party itself. It was thereafter only that his search was made and 140 grams of alprazolam was found from him. He has also stated in examination in chief that memo of agreeing to be searched by police party and not by Magistrate/Gazetted Officer was also prepared which is Exhibit Ka-1, signed by the accused. Nothing has emerged in the cross-examination on this point that he did not sign the said agreement of his own accord or that the signatures were obtained by fraud or coercion. Similarly PW-2 has also stated in examination in chief that the accused had agreed in writing to be searched by police party after being apprised of his right of being searched before Magistrate or a Gazetted Officer, whereafter only he was searched. From this witness also no such cross-examination is made which might give rise to any doubt that no such written consent was given by the accused appellant. Even from the investigating officer (PW-4) nothing was asked in cross-examination regarding the written consent given by the accused. In view of this it appears that the learned Court below has rightly held that the compliance of the provision of section 50 of the NDPS Act has been done properly by the prosecution in this case.

13. It appears from perusal of the judgment of the Court below that the argument that the compliance of the provisions of section 42 of NDPS Act was also not made, was also made before the learned Court below but the same was also not found proved. This point, though not raised in appeal before this Court, but it would be proper to take this point also into consideration. It may be made clear that as facts reveal that the recovery of contraband was made from an open public place, i.e. railway platform, the same would not be covered under section 42 of the Act, because for recovery from public place, section 43 of the Act would be applicable which is as follows: -

"43. Power of seizure and arrest in public place. - Any officer of any of the departments mentioned in section 42 may -

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this fact;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation. - For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by or accessible to the public.

14. It is apparent that under the provisions of section 42, when search is required to be made in an enclosed place, for which a search warrant is required to be obtained and in case the same is not obtained because that would afford opportunity to the accused for concealment of incriminating evidence or facilitate escape of the accused, in that case the empowered officer may arrest the accused with the rider that he will record grounds of his such belief as provided under clause (1) and under clause 2 of that section it is provided that such an officer, who takes down any information in writing and records grounds of belief as above, he shall within 72 hours, send a copy thereof to his immediate superior official. But there is no such rider of recording reasons before arresting an accused from open public place under section 43 nor is there any mandate to send such kind of information to the higher authorities within 72 hours. However there is no denying the fact that the compliance of provisions under section 57 of the Act would still be required to be done, which is a directory provision, which if not complied with promptly, may be complied with delay with proper justification. It would be proper to reproduce the provisions of section 57 here-in-below: -

"57. Report of arrest and seizure. - Whenever any person makes any arrest or seizure, under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior".

15. The record reveals that a written information was communicated on 18/7/2013 itself to the authorities (mentioned as "Pradhikariyon" in Hindi) to the effect that Shamshuddin son Mustafa resident of Tola Jaiswal Bazar, village and post Raja Bari, PS Pipi Ganj, District Gorakhpur was taken into custody in crime no. 84/2013 under sections 8/21/22, NDPS Act, GRP Bhatni, Deoria who was arrested by SO Baij Nath Singh, PS GRP Bhatni along with co-police personnel and was lodged at PS after his arrest. This document has been proved by PW-1 as Exhibit Ka-3. In cross examination although questions have been asked which were responded by this witness by saying that they have contacted with higher authorities. At the time of arrest, information was not given to any higher authority. For taking search, there is no provision to inform higher authorities. Even the Station Master was not informed nor any effort was made to inform him. Before making search of the accused Shamshuddin, no effort was made to give information to higher authorities. These questions which have been answered would reveal that not a single question was made as to whether after arrest of the accused, any information was sent to the immediately higher authorities by the arresting police party; no question is put with regard to Exhibit Ka-3 so as to clarify as to who were the authorities ("Pradhikariyon") who were informed in writing. Even PW-2 stated that the information given to the officers was prepared by him in his handwriting which is Exhibit Ka-3. There is no reason why it be not held that the police party which arrested accused had intimated the higher authorities on the same day when they made arrest of the accused. This would be treated to be adequate compliance of section 57 of NDPS Act.

16. Another important point which needs to be paid attention is whether the recovered contraband was sealed on the spot and the same was sent to the Forensic Science Lab in sealed condition and after its test, the same was sent back to the prosecution with the seal, leaving no scope for any kind of tampering, till the same was presented before Court in evidence. In this regard PW-1 has stated in examination in chief that the material recovered from the accused was presented before him in Court, which was opened. Looking the same, it was stated by him that it was the same alprazolam powder which had been recovered from the accused and was marked as Exhibit-1. In cross-examination this witness stated that the contraband recovered from Shamshuddin was 140 grams, which was sent for being tested to Forensic Science Lab. The report of FSL shows the weight of said contraband to be 136.3 gram. At the time of its recovery, signature of the accused was taken on the cloth in which the same was sealed and he had also signed the same. At the time of its presentation before him during his statement he identified that one seal on the presented case property was his while the other seal was that of FSL. He had sent the entire recovered material and not its sample. The Investigating Officer had sent docket of the material to be tested. Before being sent to the FSL this recovered material remained in Malkhana. PW-2 has stated that 140 grams alprazolam was recovered from the accused, which was brought to the police station along with accused. On the said recovered material, he had put his signature. After the said material was brought to the police station, the same was handed over to the Head Morrier. PW-4 (Investigating Officer) has stated in examination in chief that on 2/8/2013, he had received a report regarding depositing of the recovered material. On 3/8/2013, test report was received in the office of the Police Station. On 13/9/2013, Constable Jaishankar Rai had got the concerned chemical examination report received to him. In cross-examination this witness states that the recovered material was sent to the Forensic Science Lab on 27/7/2013. Before being sent to FSL the said material was kept in Malkhana. The said material was sent for being tested by him after getting the docket prepared, which was taken by Constable Jaishankar. The examination report was received by him on 13/9/2013. From the above statements it appears that the recovered contraband was kept in Malkhana for about 10 days and thereafter it was sent for chemical examination to Forensic Science Lab. During the presentation of this material before the trial Court, PW-1 identified that the cloth which contained this material bore two seals - one, which he himself had affixed and the other that of FSL. It clearly establishes that despite the fact that the said recovered material was sent for being tested by Forensic Science Lab 10 days after the recovery, it was not tampered as nothing has come on record that the seal was found broken at the time when the statement of PW-1 was being recorded. The only infirmity which has come to light is that in the Forensic Science Lab report (Exhibit Ka-9) it has been mentioned that 136.30 grams suspected contraband powder, rolled in a Newspaper cutting, sealed in a cloth was found by them and after being tested it was found to be alprazolam. It would be in the fitness of things to say that chemical examination report would not be required to be proved formally in view of provision contained in section 293 of Criminal Procedure Code. The question as to how it's quantity was found to be 136.30 grams instead of 140 grams also came for consideration before the Court below because it was argued before it that this difference in weight makes it doubtful that it was the same material which was alleged to have been recovered from the accused. But the learned Court below explained it away by saying that the said difference is negligible which could be possible due to different weighing machines by which the same was weighed. No infirmity is found in such a conclusion drawn by the learned lower Court in this regard because the kind of explanation which is being furnished by the Court below does sound reasonable. Hence it is held that the Court below rightly held that the said contraband was recovered from the accused, for possessing which he did not have licence.

17. No argument was made in regard to discrepancies in the statements of PW-1 and PW-2, the witnesses of fact regarding the place of occurrence, however it was argued that no witness of public was endeavoured to be taken by the police party to give authenticity to the recovery made from the accused. The law is settled on this point that that non-examination/non-availability of a public witnesses would not be detrimental for proof of a case under NDPS Act if the Police Officers/Officials tender cogent evidence proving the charge which are found to be believable after meticulous scrutiny. In Tasawwar Ansari vs Union of India, 1997 (35) ACC 675, following is held by this Court in paragraph 32: -

"32 . In these days, totally unconcerned people do not dare to appear against criminals as they have a lot of financial as well as political patronage available to them. Such smugglers are invariably armed and then can take revenge against such public persons without hesitation. That is why, finally, the public witnesses avoid to support the prosecution case. If at all they agree at the time of raid, search etc., they try to resile from the same in trial Court as is evident from the statement of Shri K.D. Sharma, PW 2. The departmental witnesses cannot be seen with an eye of suspicion especially when they have no anterior enmity with the accused and they are doing their official duties. If such a cynical view is taken, every person shall become interested and the departmental witnesses will have to be thrown away without any rhyme or reason. This is not law of the land. The law is that the departmental witnesses per se are not got up witnesses and their evidence cannot be discarded simply because they are people of the department. Doing one's official duty is not a crime. Therefore, the question of seeing the statement of these witnesses with an eye of suspicion is unreasonable, unworkable and is totally illegal in approach. The Hon'ble Supreme Court has rightly rejected the plea that departmental witness should always be seen with an eye of suspicion. Rather the law is that their evidence should be seen with a caution and the evidence should be analysed and examined very thoroughly. But once it is found that the presence of such departmental witnesses is established and they are telling the truth, that shall be utilised as a valuable piece of evidence and conviction can be based upon that."

18. In view of above position of law, the police witnesses are not shown to have any anterior enmity with the accused because of which it would be difficult to believe that these witnesses would be deposing against the accused with ulterior motive. No suggestion is given of any kind of enmity even. Hence their statements, when meticulously analysed, prove the fact that accused was found in illegal possession of 140 grams of alprazolam, for which he had no license. It can also be mentioned here that the quantity recovered from the accused is much higher than the quantity described as commercial, which would be difficult to be planted by police keeping in view the price that it would entail. In statement under section 313 of the Criminal Procedure Code, the accused has taken the plea of false application, but has failed to produce any witness in defence in support of his version. Once the possession of contraband articles is established, the burden shifts on accused to establish that he had no knowledge of the same under section 35 and 54 of the Act as has been interpreted and held by the Supreme Court in Gyanchand and others vs State of Haryana, (2013) 14 Supreme Court cases 420. Therefore taking into consideration all aspects there is no infirmity found in the judgment under appeal.

19. In view of above detailed analysis, this Court is of the view that the learned Court below has not committed any error in reaching the conclusion that the accused-appellant was guilty of committing offence under section 8/22 of NDPS Act. The appeal deserves to be dismissed and it is, accordingly, dismissed.

20. Let the lower Court record be returned to the Court below for further necessary action.

21. Learned Amicus Curiae Ms. Kalpana Singh shall be paid Rs.7,500/- for assisting the Court in deciding the appeal.

Order Date :- 30.10.2017

AU/d