Daya Ram Gupta vs State Of U.P.
2018 Latest Caselaw 87 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
                                                                                                         AFR
 
Court No. - 14
 

 
Case :- CRIMINAL APPEAL No. - 1711 of 2012
 

 
Appellant :- Daya Ram Gupta
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Pratap Singh,Ayodhya Prasad Mishra,Dr. Chetnarayan Singh,Nadeem Murtaza,Salil Mohan
 
Counsel for Respondent :- Govt. Advocate
 

 
and 
 
Case :- CRIMINAL APPEAL No. - 1716 of 2012
 

 
Appellant :- Pramod Kumar Sahu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sudhakar Misra,Virendra Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
and 
 
Case :- CRIMINAL APPEAL No. - 1775 of 2012
 

 
Appellant :- Abhai Raj Verma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Virendra Misra,Dilip Kumar Pandey,Manoj Kumar Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
and 
 
Case :- CRIMINAL APPEAL No. - 1723 of 2012
 

 
Appellant :- Shahzad Ahmad
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Nadeem Murtaza
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Mrs. Rekha Dikshit,J.

1. All the above mentioned appeals arise from one of the same judgment and order dated 28.11.2012, hence, they are being decided by a common judgment.

2. These appeals assail the correctness of the judgment and order dated 28.11.2012 passed by learned District & Sessions Judge/ Ex-Cadre, Court No.2, Sultanpur, in Criminal Case No.22 of 2009 and Criminal Case No.60 of 2010, Case Crime No.1280 of 2009, whereby the Sessions Judge has convicted the accused-appellants, namely, Pramod Kumar Sahu, Daya Ram Gupta, Abhai Raj Verma & Shahzad Ahmad and sentenced them under Section 8/21 of NDPS Act for ten years rigorous' imprisonment with a fine of Rs.1,00,000/-each, in default, to undergo six months additional imprisonment.

3. Narrated concisely, prosecution case against the appellants is that on 11.6.2009 around 17.15 hours Sub-Inspector, Dhirendra Kumar Shukla along with Constables Santosh Singh, Premchand Pandey, Vivek Pandey, Padmakar Singh and Dhirendra Singh was in search of criminals, in Vehicle No. UP 44G 0096. As soon as the police party reached K.N.I. Gate, the informer gave an information that four people are carrying illegal substance (charas) in a Mahindra Pickup Vehicle No. UP 44T 0976 from Bihar via Faizabad. On this information, instructions were given to all the members of the police party, Inspector Janardhan Dubey was requested for cooperation who reached the spot with constable Om Prakash Singh after sometime. A little latter one Mahindra Pickup (white colour) was seen, which the informer pointed out then the vehicle was stopped by the police party. Immediately one of the person rushed out of the vehicle and ran away and rest of the three persons were enquired, who disclosed their names as Pramod Kumar Sahu, Dayaram Sahu (alleged owner of the vehicle), Abhay Raj Verma and Shahjad the absconder. They admitted being involved in alleged trafficking of charas which was hidden in the vehicle. Accordingly, Circle Officer, City, D.P. Shukla was requested to be present at the spot so that the search can be made in his presence. The accused-appellants told that the contraband will be sold by them in Haryana, from where it will be forwarded to the international market. After sometime, Circle Officer, City along with constable Ashutosh Rawat came, and in his presence, the vehicle was searched, on the pointing out of the accused-appellants a huge contraband was recovered in 200 packets, each packet was of 500 grams, which comes to almost one quintal charas. Consequently, the accused-appellants were arrested for the offence under Section 8/21 of NDPS Act. Recovered contraband was sealed in three separate bags and sample seal was prepared. The vehicle UP 44 T 0976 was seized but no public or independent witness was ready to attest the seizure and search. On the premise of said recovery, case against accused-appellants was registered at Case Crime No.1280 of 2009 under Section 8/21 of NDPS Act. Investigating Officer inspected the place of occurrence, prepared site plan, recorded statements of witnesses and submitted charge sheet (Ext. Ka-7) against the appellants. Charge against the accused-appellants Pramod Kumar Sahu, Dayaram Gupta, Abhayraj Verma was framed on 22.2.2010 and against accused-appellant Shahjad Ahmad on 30.12.2010 under Section 8/21 of NDPS Act to which they denied and claimed trial.

4. To bring home the guilt of the appellants, the prosecution has examined as many as six witnesses.

5. PW-1 Dhirendra Kumar Shukla, Sub-Inspector has deposed on oath that 11.6.2009 around 17.15 hours, he was in search of a criminal along with police party, on receiving information regarding contraband being carried by the accused-appellants in a vehicle, stopped the vehicle, enquired with the people sitting in the vehicle and searched the same, after being told by them that they were carrying illegal substance in the same to be sold in Haryana. He has substantiated and corroborated the entire version and procedure mentioned in the recovery memo (Ext. Ka-1). He has also stated that the recovery was made in presence of Circle Officer and the recovered substance was sealed in separate bag. One packet was kept separately as sample and the vehicle was also seized. The recovered contraband was deposited in the Malkhana and Shri Kamlesh Chand Tewari was nominated as investigating Officer.

6. PW-2 D.P. Shukla the then C.O. City stated on oath that he reached the spot on the request of incharge S.O.G, Dhirendra Shukla, where a Mahindra Pickup van UP 44T-0976 along with three persons was being checked. ON enquiry it was told that illegal contraband is being carried by this vehicle and the same was recovered on their pointing out which included 200 packets each of 500 grams which comes to one quintal charas (illegal substance). The recovered material was sealed in three separate bags and one packet from each bag was kept as sample for chemical analysis. He has also proved the material Exts. 2 - 4 in his deposition.

7. PW-3 Inspector Janaradhan Dubey has also corroborated and substantiated the version of recovery memo as well as PW.-1 and PW.-2 which corroborated the recovery of contraband (charas) from the seized vehicle and the search which was made in the presence of Circle Officer, a Gazetted Officer as per provisions of the Act. He has also identified his signatures on Ext. Ka-1.

8. PW-4 Constable has proved chik FIR (Ext. Ka-2) and copy of G.D. (Ext. Ka-3) in his statement.

9. PW-5 Constable Santosh Kumar has narrated the entire episode in his testimony on oath corroborating the testimony of PW.-1 and PW.-2 and version of recovery memo. He has also substantiated the alleged recovery from the vehicle.

10. PW-6, Sub-Inspector Kamlesh Chand Tripathi was the investigating officer, who prepared site plan, recorded statement, and accordingly submitted charge sheet against the accused-appellants.

11. Incriminating evidence and circumstance were put to the appellants under Section 313 Cr.P.C. in which the accused-appellant Abhay Raj Verma has stated that due to land dispute he has been falsely implicated. Accused-appellant Daya Ram Gupta has admitted that though he is the owner of the seized vehicle and the same was being plied by his family members and he used to reside in Kolkata for his business thus he has been falsely implicated after arresting him from his house and rest of the accused have denied the entire incident.

12. In defence no documentary evidence has been adduced but two witnesses have been produced.

13. D.W.-1 Ravi Shukla has deposed on oath that on 11.6.2009 around 7.00 P.M. Police came to the house of accused-appellant Daya Ram Gupta and took him stating that his vehicle has been seized and subsequently he was falsley implicated and challaned under this act.

14. D.W.-2 Shiv Kumar Singh has stated on oath that the appellant Daya Ram Gupta is resident of his village, who presently resides in Kolkata in connection with his business. His family resides in the village and the said vehicle was used by them. On 11.6.2009 around 7.00 P.M. Police came to his house, took him along with them and subsequently implicated him in the present case.

15. The trial court held that the appellants were in possession of contraband and prosecution established the circumstances, proving the appellants guilty, under Sections under Section 8/21 of NDPS Act and sentenced them for ten years rigorous' imprisonment with a fine of Rs.1,00,000/-each, in default, to undergo six months additional imprisonment. Aggrieved by the verdict of the conviction, the appellants preferred the present appeal.

16. Heard Shri Ayodhya Prasad Mishra, Shri Sudhakar Misra, Shri Virendra Mishra and Shri Nadeem Murtaza, learned counsel for the appellants, Shri Alok Upadhyay, learned A.G.A. for the State and perused the record.

17. Learned counsel for the appellants has vehemently argued that there is non-compliance of Section 42 of the Act, as no information was reduced to writing and forwarded as required under the said provision. Further it has been submitted that if the compliance of mandatory provision of Section 50 of the Act has not been made.

18. Learned counsel for the appellants has submitted that the recovered contraband was not produced before the court during the trial and the sample was not taken from each of the packet. Merely three packets were taken as sample which cannot be said to represent the entire material allegedly recovered from the vehicle. It has further been argued that no independent witness was made in the recovery memo at the time of recovery and seizure though admittedly the entire incident happened in a busy place.

19. The next contention on behalf of the appellants is that there is non-compliance of Sections 55 and 57 of the Act which provides that after search and seizure of any contraband, the Station Incharge of Police Station shall take the same in his own custody and the particulars be forwarded to superior officers within 48 hours. Moreover, no independent witness is adduced to substantiate the said search and seizure. The delay in forwarding the sample for chemical analysis has not been explained by the prosecution.

20. It has also been submitted that the original seal has not been produced before the court and it was never forwarded to the Forensic Laboratory to link the sample so sent. The notification No.1/88 issued by Government of India in respect of drawl and dispatch of samples of the narcotic contraband has not been followed which is held mandatory in nature for its compliance.

21. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellants in the commission of crime in this case. The FIR version has fully been supported by the prosecution witness. On the basis of evidence on record, the court below rightly convicted the appellants and the impugned judgment warrants no interference.

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

23. In the instant case, huge recovery of 200 packets was made on 11.6.2009 by the police party from the vehicle Mahindra Pickup No. UP 44T 0976 which was occupied by the accused-appellants. Three of the appellants were arrested at the spot, whereas one of them fled away. Accordingly, the accused-appellants were charged and held guilty for the offence under Section 8/21 of the Act.

24. It has been submitted on behalf of the appellants that admittedly the searched was based on prior information and as per mandate of Section 42 of the Act. The same should have been reduced to writing and thereafter forwarded to superior officers within 72 hours. There is no evidence led by the prosecution which may substantiate the information so received was reduced into writing or forwarded to superior officer which may lead to the conclusion that the same was neither reduced in writing nor forwarded to superior officer. Prosecution witnesses P.W.-1, P.W.-2, P.W.-3 and P.W.-5 have neither deposed regarding reducing the information in writing or forwarding it to the superior officers, nor have adduced any documentary evidence in support of the same.

25. In this context, learned counsel for the appellants has cited judgements rendered in State of Punjab versus Balbir Singh, (1994) 3 SCC 299, Abdul Rashid Ibrahim Mansuri versus State of Gujrat (2000) 2 SCC 513 : 2000 SCC (Cri) 496 and Karnail Singh versus State of Punjab (2009) 8 SCC 539 : (2009) 3 SCC (Cri) 887 and State of Rajasthan versus Jagraj Singh (2017) 1 SCC (Cri) 348 : 2016 11 SCC 687, wherein it has been observed that compliance with Section 42 of the Act is mandatory in a case where the search was of a private vehicle - search conducted in breach of Sections 42(1) proviso and 42(2) of the NDPS Act - accused seriously prejudiced - conviction rightly reversed".

26. The next argument submitted by the learned counsel for the appellants relates to compliance of Section 50 of the Act, 1985, which 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.

27. 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."

28. 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."

29. 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."

30. 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."

31. 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."

32. In the present case, accused-appellants were personally searched under suspicion first and thereafter the vehicle in question was searched. The entire prosecution evidence do not establish that the appellants were informed about their legal right in such a manner that they understand their 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 as required under the law because the entire conviction is based on mere recovery of contraband from the possession of the appellants. The presence of Circle Officer will not amount to waiver of the same. The legal right and its implication has to be communicated to be understood.

33. Since the alleged recovery was made from the vehicle, upon which the appellants were boarding, the applicability of the provisions of Section 50 of the Act is to be assessed. A reference is made to Dilip and another v. State of M.P.; (2007) 1 SCC (Cri) 377, wherein it has been observed that in this case, where the search is conducted in respect of a person as well as in respect of a vehicle, hence, compliance of Section 50 of the Act, 1985 would be mandatory. In this regard State of Punjab versus Balbir Singh reported in 1994 3 SCC 299, Abdul Rashid Ibrahim Mansuri versus State of Gujrat reported in 2000 2 SCC 513 : 2000 SCC (Cri) 496 and Karnail Singh versus State of Punjab reported in 2009 8 SCC 539 : 2009 3 SCC (Cri) 887 have been referred.

34. 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."

35. In the present matter, the recovery was from the vehicle carried by the appellants 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.

36. 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."

37. 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 wholly doubtful.

38. 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."

39. As per provisions of Section 57, after arrest of the appellants 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 appellants. Mere statement of the prosecution witnesses 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.

40. Indisputably, the sample taken on 11.6.2009 was forwarded for chemical analysis on 1.7.2009 and there is no explanation by the prosecution as to why this inordinate delay was caused in sending the sample to the laboratory. Such procedural aspect may not vitiate the entire prosecution case but they do create sufficient doubt in the alleged recovery or the case has framed by the prosecution. This fact is also not disputed that 200 packets of contraband was recovered from the alleged vehicle and only three packets of 500 grams each was sent for chemical examinations, it is for the prosecution to establish that the sample was properly extracted from the material recovered which may represent the entire material so recovered. Mere sending three packets for analysis and only on that basis confirming that the entire 200 packets contained charas cannot be logically accepted. Moreso, in the light of that there is no link evidence which may establish that the samples were properly extracted from each of the packets and each of the packets contained the contraband. This circumstance also creates a serious dent in the prosecution case. Similar is the case with the seal through which the samples and the material so recoverd were sealed, which has to be established before the court by proper link evidence though documentary as well as oral evidence. In this context, the notification of the Government of India referred by learned counsel for the appellants may taken into consideration which has been duly considered and held to be mandatory in the case of Noor Aga versus State of Punjab reported in 2008 10 SCR 379 : 2008 16 SCC 417 by the Hon'ble Apex Court.

41. 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-appellants.

42. 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 appellants 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 appellants is liable to be allowed.

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

44. In the result, the appeal is allowed and the judgment and order dated 28.11.2012 passed by learned District & Sessions Judge/ Ex-Cadre, Court No.2, Sultanpur, in Criminal Case No.22 of 2009 and Criminal Case No.60 of 2010, Case Crime No.1280 of 2009 is hereby set aside. The accused-appellants, namely, Pramod Kumar Sahu, Daya Ram Gupta, Abhai Raj Verma & Shahzad Ahmad are acquitted on benefit of doubt from the charges under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

45. Appellants Pramod Kumar Sahu, Daya Ram Gupta, Abhai Raj Verma & Shahzad Ahmad are in jail. If the are not wanted in any other case, they be released from jail forthwith.

46. 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

KR