Allahabad High Court
Manoj Kori vs State Of U.P. on 4 May, 2018
Bench: Rajiv Lochan Mehrotra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 42
Case :- CRIMINAL APPEAL No. - 899 of 2017
Appellant :- Manoj Kori
Respondent :- State Of U.P.
Counsel for Appellant :- Vinay Kumar Singh,Rajesh Kumar Singh
Counsel for Respondent :- G.A.
Hon'ble Rajiv Lochan Mehrotra,J.
(1) Heard learned counsel for the appellant, learned A.G.A. and perused the material available on record.
(2) The judgment and order dated 30.11.2016 passed in Special Sessions Trial No. 112 of 2008 by Sessions Judge, Jhansi convicting and sentencing the appellant for ten years rigorous imprisonment coupled with a fine of Rs. 75000/- under Section 20(b)(ii)(B) of N.D.P.S. Act is under challenge in the present criminal appeal.
(3) The prosecution story in nut shell is that on 8.7.2007 a police team led by S.I. Ashok Kumar was busy in routine checking on the platforms at railway station Jhansi. They noticed a suspected man sitting on platform no. 1. Seeing the police party approaching towards him, the said person tried to run away but the police party intercepted him at 7.10 PM after using usual force. He disclosed his name as Manoj Kumar of district Jhansi. He was searched immediately on the spot. As disclosed the arresting team that he was having some illicit Charas in the right pocket of his pant, therefore, he was told that, in case, he so wishes he may be searched before a magistrate or a gazetted officer but on his consent to this effect he was searched by the raiding team itself. 530 gm. Charas was recovered from the right pocket of his pant out of which 35 gm. was taken as a representative sample. The representative sample as well as the remaining quantity of Charas was sealed in separate bundles, recovery memo was prepared on the spot and thenafter the recovered articles as well as the arrested accused was taken to the police station.
(4) The investigation into the matter was entrusted to Sub Inspector Anand Kumar Vaish in whose supervision the representative sample was sent to the forensic lab for its verification. The Investigating Officer after recording the evidence and obtaining the confirmation report of the forensic lab submitted the charge-sheet under Section 18/20 N.D.P.S. Act against the appellant. Thereafter a charge was framed against the appellant under Section 8/20 N.D.P.S. Act which he denied and claimed trial.
(5) In order to prove the charge, prosecution examined PW-1 constable Lalit Kumar as the sole witness of fact. PW-2 Head Constable Balram Tiwari lodged the report in the light of the recovery memo and made its entry into the G.D. This witness further stated that the representative sample under the seal of Superintendent of Police was transmitted to the Forensic Lab for its verification. PW-3 Anand Kumar investigated the matter and submitted the charge sheet against the appellant.
(6) A perusal of the recovery memo as well as the statement of PW-1 constable Lalit Kumar transpires that the accused was immediately searched after his arrest and thenafter was told about his statutory rights as enshrined under Section 50 of the N.D.P.S. Act. It is no where explained by the PW-1 constable Lalit Kumar that when the raiding team has come to know that appellant was having illicit Charas in his pocket why was he not told immediately about his statutory right of Section 50 N.D.P.S. Act. The consent letter, alleged to have been written by the appellant is available on record as Paper No. 8-A. The contents of the said letter is extracted hereinbelow:
QnZ jtkeUnh
ÞvfHk;qDr eukst dqekj ,[email protected] Jh gjpju dksjh fuoklh uUnuiqjk Fkkuk lhijh cktkj ftyk >kWlh dh jtkeUnh ls tkek ryk'kh yh xbZ rks igus gq, iSUV dh nk;h tsc ls pjl otu djhc 530 xzk0 cjken gqbZ QnZ jtkeUnh fy[kdj vfHk;qDr dks lqukdj vykekr cuok;s tk jgs gSAß
A perusal of the abovesaid document does not disclose the free consent of the appellant.
(7) It is admitted by PW-1 constable Lalit Kumar that just outside the platform No. 1, there is office of Superintendent of Police, Jhansi. Moreover, D.R.M. office is also just outside the railway station wherein so many gazetted officers are available why the accused was not brought before any of the gazetted officer, could not be explained by the prosecution.
(8) Thus it is clear that the prosecution has failed to comply the provisions of Section 50 of N.D.P.S. Act in its literal form. Reliance has been placed on Narcotics Central Bureau Vs. Sukh Dev Raj Sodhi Laws (SC)-2011-5-54 para - 3 of which is extracted hereinunder:-
"The obligation of the authorities under Section 50 of the N.D.P.S. Act has come up for consideration before this Court in several cases and recently, the Constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] has settled this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed.
From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate."
(9) In the instant case, as per evidence available on record and the recovery memo the personal search of the appellant was also taken by the raiding team but as per law laid down by Hon'ble the Apex Court in Vijaysinh Chandubha Jadeja (Supra) It cannot be said that the prosecution has complied the provision of Section 50 N.D.P.S Act.
(10) Thus, the prosecution has failed to comply the provisions of Section 50 of the N.D.P.S. Act. Apart from it, no independent witness has been examined or cited in the recovery memo. The S.I., who arrested the appellant has also not been examined. There remains only one witness of fact and that too is a constable. Therefore, on such evidence it shall not be proper to uphold the conviction of the appellant. Hence the conviction and sentence dated 30.11.2016 passed in this respect in Special Sessions Trial No. 112 of 2008 against the appellant is liable to be set-aside.
(11) Accordingly, the appeal is allowed and the impugned order of conviction and sentence dated 30.11.2016 passed against the appellant is set aside and he stands acquitted. The appellant is in jail, he be set free, if not required in any other case.
(12) Let a copy of this judgment alongwith the record of the case be sent back to the court below for needful action and necessary entries in the relevant registers.
Order Date :- 4.5.2018
BKM/-
