Rajesh @ Compile vs State Of U.P.
2018 Latest Caselaw 84 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Court No. - 14
 
Case :- CRIMINAL APPEAL No. - 1689 of 2017
 

 
Appellant :- Rajesh @ Compile
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Piyush Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Rekha Dikshit,J.

1. This appeal assails the correctness of the judgment and order dated 26.02.2016 passed by learned Additional Sessions Judge, Court No.3, Bahraich, in Sessions Trial No.69 of 2013, arising out of Case Crime No.526 of 2013, Police Station Ramgaon, District Bahraich whereby the Sessions Judge has convicted the appellant-accused namely, Rajesh @ Compile and sentenced him under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 19851 for ten years rigorous imprisonment with fine of Rs.1,00,000/-, in default, to undergo one year's additional imprisonment.

2. In brief, the prosecution case is that on 12.08.2013 Sub Inspector Ajeet Kumar Shukla along with other police personnel was on official duty, when he received information from the informer that a person possessed with contraband is coming from Baluha Bhakuruha towards Bagiyaghat, on which they kept waiting for the said person, when he appeared, the informer pointed out and the police personnel checked him on which he starting running, accordingly forcefully he was caught hold and he informed about the contraband in his possession. He was personally searched after obtaining his consent and contraband 1200 grams 'charas' was found in the bag in his right hand. A sample of 100 grams was extracted and sealed at the spot, rest of 1100 grams 'charas' was sealed separately. Recovery memo, accused-appellant and the contraband were deposited in the police station. On the premise of recovery, first information report was registered at Case Crime No.526 of 2013 under Section 8/20 of the Act, 1985.

3. The case was investigated by Sub Inspector, Pradeep Kumar Singh, who prepared site plan exhibit Ka-6 and after usual investigation, charge-sheet exhibit Ka-7 was submitted against the appellant under Section 8/20 of the Act, 1985. The charge under Section 8/20 of the Act, 1985 was framed against the accused-appellant, who denied all of them and claimed trial.

4. To bring home the guilt of the appellant, the prosecution has examined as many as four witnesses and has adduced documentary evidence recovery memo exhibit Ka-1, chik F.I.R. Exhibit Ka-4, copy of G.D. Exhibit Ka-5, site plan exhibit Ka-6, arrest memo exhibit Ka-2, consent letter exhibit Ka-3, docket letter exhibit Ka-8 and charge-sheet exhibit Ka-7.

5. PW-1 Sub Inspector Ajeet Kumar Shukla has substantiated recovery memo and has categorically stated that on 12.08.2013 on the information of the informer, the accused-appellant was checked and searched, consequently 1200 grams of contraband was recovered from a bag in his right hand in presence of other police personnel. Accordingly, recovery memo was prepared, consent letter of the appellant was obtained and sample was taken, which was forwarded for chemical analysis as per established procedure.

6. PW-2 Basant Kumar Srivastava, Sub Inspector has corroborated the F.I.R. version as well as deposition of PW-1 confirming the recovery of 1200 grams contraband from the possession of the appellant and extraction of 100 grams sample, which was sealed and submitted in the Malkhana of police station concerned in safe custody.

7. PW-3 Constable Ratnesh Nigam has proved chik F.I.R. Exhibit Ka-4 and copy of G.D. Exhibit Ka-5 in his oral testimony.

8. PW-4 Pradeep Kumar Singh, Sub Inspector, Investigating Officer, who prepared site plan exhibit Ka-6 and charge-sheet exhibit Ka-7 in his oral testimony.

9. Incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C. in which he has stated that he has been falsely implicated in this case due to political enmity. The witnesses have falsely deposed against him on the instigation of village pradhan Dhanu Bahadur @ Chhabar. No documentary or oral evidence has been adduced in defence by the appellant.

10. The trial court held that the appellant was in possession of contraband and prosecution established the circumstances, proving the appellant guilty, under Section 8/20 of the Act, 1985 and sentenced him under Section 8/20 of the Act, 1985 for ten years rigorous imprisonment with fine of Rs.1,00,000/-, in default, to undergo one year's additional imprisonment. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal.

11. Heard Mr. Piyush Kumar Singh, learned counsel for the appellant, Mr. G.D. Bhatt learned A.G.A. for the State and perused the record.

12. Learned counsel for the appellant has submitted that there is no compliance of Sections 42, 50, 57 of the Act, 1985 by the investigating agency. It has also been argued that no consent letter was ever given by the appellant and no information by the police was given to the family members of the appellant regarding alleged arrest. It has further been submitted that there is inordinate delay in sending the sample for chemical examination, which affects the prosecution case.

13. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellant in the commission of crime in this case. The FIR version has fully been supported by ocular evidence, based on the said evidence, the court below rightly convicted the appellant and the impugned judgment warrants no interference.

14. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record.

15. In the instant case, as per prosecution case, on 12.08.2013 1200 grams contraband (charas) was recovered by the police party from a bag carried by the appellant in his right hand. Sample was prepared accordingly and the report confirmed the material to be contraband and accordingly, the appellant was charged and held guilty for offence under Section 8/20 of the Act, 1985.

16. The foremost argument submitted by the learned counsel for the appellant relates to compliance of Section 50 of the Act, 1985. In this context, the statement of PW-1, PW-2 and recovery memo is to be considered in which it has been categorically stated that the appellant was informed about his right being searched in the presence of gazetted officer or a magistrate, if he so desires. The appellant gave his written consent that the police party, which arrested may carry on with the search of his bag as well as himself.

17. Section 50 of the Act, 1985 is quoted as under:

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 (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.

18. Another reference may be made to State of Punjab v. Baldev Singh; 1999 SCC (Cri) 1080 wherein it has been observed as under;

"It is imperative for the investigating officer to inform the suspect orally or in writing, about his right to be searched before a gazetted officer or a Magistrate - failure to give such information would not vitiate the trial but render the recovery of illicit article illegal and vitiate the conviction and sentence if recorded only o the basis of possession of such illicit article."

19. A reference may be made to K. Mohan v. State of Kerala; 2001 (2) EFR 219 (S.C.) wherein it has been observed as under:

"6. If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. .... This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with."

20. Another reference may also be made to Vijaysinh Chandubha Jadeja v. State of Gujarat; (2011) 1 SCC 609 wherein it has been observed as under "

"24. Although the Constitution Bench in Baldev Singh's Case did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, 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 the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce."

21. Another reference may further be made to Suresh and Others v. State of Madhya Pradesh; (2013) 1 SCC 550 wherein it has been observed as under:

"18. We reiterate that sub-section (1) of Section 50 makes it imperative for the empowered officer to "inform" the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. We also reiterate that the said provision is mandatory and requires strict compliance. "

22. Another reference may be made to Myla Venkateswarlu v. State of Andhra Pradesh; (2012) 2 SCC (Cri) 686 wherein it has been observed as under:

"Strict compliance with Section 50(1) [it being the law that substantial compliance with Section 50(1) is not enough] - what amounts to strict compliance - search of person for narcotic substance - right of person concerned of being taken to nearest gazetted officer (other than authorized officer who proposes to make search) or to nearest Magistrate for making search - clarity in communication of said right, to person concerned - cardinal necessity of. Circle Inspector who proposing to search person of accused in present case asked them "whether they wanted any other gazetted officer for their search and seizure in addition to him" or that "they have a right to have another gazetted officer in addition to him" - inadequacy of, for the necessary strict compliance with Section 50(1) - held, the above offer made by Circle Inspector to accused did not amount to a communication of their right to have the search conducted in presence of a Magistrate or a gazetted officer, since there is no clear communication of the said right."

23. In the present case, though there is consent letter in writing allegedly given by the appellant which he has refused as the same was obtained under pressure by him. The prosecution witness PW-1 has stated in his testimony that the appellant was informed about his right to be searched before a Magistrate or a gazetted officer but mere informing the appellant in such a manner is not sufficient enough as the communication should be to the effect that the appellant understand his legal right and the implication as well as consequences thereto, therefore, it cannot be said that there was strict compliance of Section 50 of the Act, 1985 as required under the law because the entire conviction is based on mere recovery of contraband from the possession of the appellant.

24. Since the recovery was made from the bag, the appellant was carrying in his right hand, a reference may be to Dilip and another v. State of M.P.; (2007) 1 SCC (Cri) 377, wherein it has been observed that in those cases, where the search is conducted in respect of a person as well as in respect of a vehicle, compliance of Section 50 of the Act, 1985 would be mandatory.

25. In State of Rajasthan v. Parmanand and another; 2014 (2) JIC 136 (SC) wherein it has been observed as under:

"12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application."

26. In the present matter, the recovery was from the bag carried by the appellant which included his personal search also and in view of the aforesaid, compliance of Section 50 of the Act is mandatory in such circumstances also. Thus, it can be concluded that strict compliance of Section 50 of the Act, 1985 was not made by the investigating agency as such the consequence has to follow.

27. The next contention of the learned counsel for the appellant is that there is no compliance of Section 55 of the Act, 1985 as the sample taken by the arresting officer was not in consonance with the procedure laid down as per Section 55 of the Act, 1985. Section 55 in the Act, 1985 is extracted below:

55. Police to take charge of articles seized and delivered: An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."

28. There is also no evidence which may establish the safe custody of the recovered contraband as neither any documentary or oral evidence to establish the same has been produced by the prosecution. Absence of evidence about safe custody of the recovered contraband indicates violation of provisions of Section 55 of the Act, 1985 and consequently rendering the prosecution case is wholly doubtful.

29. It has also been argued that the procedure established in Section 57 of the Act, 1985 has also not been followed in strict sense of the law. Section 57 of the Act, 1985 quoted as under:

"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."

30. As per provisions of Section 57, after arrest of the appellant and sealing of the contraband, the information regarding the same has to be forwarded to immediate superior officer within 24 hours but there is no evidence to establish and prove the same. Mere deposition of the prosecution witnesses in this context is not sufficient enough to establish the same. It is true that the compliance under the aforesaid provisions of the Act, 1985 is directory but compliance does affect the bonafide of the arrest and seizure may be said that non compliance may not vitiate the trial and prejudice the accused but it is a definite requirement of law and if it has not been observed in letter and spirit, it will be presumed that important piece of evidence, which could have been in furtherance to the other proof of the alleged recovery has not been produced by the prosecution. If compliance of the provisions of Section 57 of the Act, 1985 was made, a copy of the report should have been filed. It would have been better proof of the fact that the recovery officer made this recovery of the seized contraband after arrest of the appellant. Mere statement of the PW-1 is not sufficient enough to establish the compliance of the aforesaid section. As such in view of the aforesaid and also in absence of compliance of the said section of the Act, prosecution has to suffer.

31. Another argument placed on behalf of the appellant pertains to absence of any public witness at the time of arrest of the appellant. Though PW-1 and PW-2 have specifically emphasized on the fact that they made a request to a number of people but none of them was ready to attest the alleged recovery. Admittedly no enmity or any other reason for false implication by the police has been shown, in the circumstance their evidence may be treated independent enough for the alleged recovery and absence of public witness do not vitiate the entire prosecution case.

32. It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefor in terms of Sections 41, 42 and 50 of the Act, 1985 should be complied with. In view of the aforesaid discussions, it can be concluded that non compliance of Sections 50, 55 and 57 of the Act, 1985 creates a doubt in the alleged recovery or contraband from the accused-appellant. There is no evidence to establish proper link between the sample and the recovered material. Non production of ''Malkhana' register and oral or documentary evidence do create a reasonable doubt in the proper procedure to be followed as per the provisions of the Act, 1985 in the circumstance the prosecution has failed to establish its case against the accused-appellant.

33. Thus, on the basis of analysis made herein above, this Court is of the view that the trial court's finding on the point of holding guilty to the accused appellant for the offence under Section 8/20 of the Act, 1985 is not in accordance with the evidence and law and the same is not sustainable and the appeal filed by the appellant is liable to be allowed.

34. For all the reasons stated above, the appellant is entitled to the benefit of doubt and accordingly entitled to acquittal.

35. In the result, the appeal is allowed and the judgment and order dated 26.02.2016 passed by learned Additional Sessions Judge, Court No.3, Bahraich, in Sessions Trial No.69 of 2013 is hereby set aside. Appellant Rajesh @ Compile is acquitted on benefit of doubt from the charges under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

36. Appellant Rajesh @ Compile is in jail. If he is not wanted in any other case, he be released from jail forthwith.

37. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgement to the District Judge, Bahraich, forthwith.

Order Date:-20.4.2018

Anupam S/-