Deepu Rajput vs State Of U.P.
2018 Latest Caselaw 424 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
A.F.R.
 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 4986 of 2012
 

 
Appellant :- Deepu Rajput
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arun Kumar Tripathi,J.K. Mishra,K.S.Yadav,Rajesh Kumar Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rajiv Lochan Mehrotra,J.

[1] Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

[2] The present appeal has been preferred against the judgment and order dated 29.11.2012 passed by Additional Sessions Judge Court No. 7, Farrukhabad in Special Sessions Trial No. 114 of 2011 arising out of case crime No. 415 of 2011 police station-Rajepur, district-Farrukhabad thereby convicting the appellant for ten years rigorous imprisonment and a fine of Rs. One lac under Section 21/22 of N.D.P.S. Act.

[3] The prosecution story in nutshell is that on 16.10.2011, Sub-Inspector Ranvir Singh along with Constable Om Singh and Manoj Kumar Singh were busy in routine checking. Meanwhile, they received an information from the informer to the effect that a man having nitrazepam powder is coming from the side of Nibia. On receiving such information, the police team tried to arrange some independent witnesses but no one became agree to be a witness. After sometime, a person coming from the side of Nibia was pointed out by the informer. The said person was apprehended by the police at about 5:25 pm. He disclosed his name as Deepu Rajput, resident of Gram-Bhuddanpur, Police Station-Rajepur, District-Farrukhabad and said that he is having 1 kg. Nitrazepam powder with him. He was told that in case he wishes, he may be searched before the Gazetted Officer or Magistrate as per provision of Section 50 of N.D.P.S. Act but he expressed his trust to the raiding team and said that raiding team could search him. He was searched and some nitrazepam powder contained in a bag held by him in his right hand was recovered. Constable Om Singh was sent to the market along with recovered article for its measurement. On weighing, it was found 1 kg out of which 50 gm powder was separated as representative sample. Representative sample and the remaining contraband were kept in separate bundles and both these bundles were sealed separately on the spot.

[4] Relevant formalities as required under law were completed on the spot and thenafter the arrested person and the recovered contraband were taken to the police station where on the basis of recovery memo, first information report was lodged.

[5] The investigation came into motion. The sample was sent to the Forensic Lab for its verification. The Investigating Officer, after recording the statements of witnesses and after completing the investigation submitted the chargsheet against the appellant under Section 21/22 of N.D.P.S. Act.

[6] Charge was framed against the appellant under Section 21/22 of N.D.P.S. Act, which he denied and claimed trial.

[7] In order to prove the charge, prosecution examined PW-1, SI Ranvir Singh and PW-2, Constable Manoj Kumar as witnesses of facts. PW-3, SI Sunhari Lal investigated the matter and proved the relevant documents.

[8] Statement of appellant was recorded under Section 313 Cr.P.C. wherein he denied the possession of alleged recovered goods and said that nothing was recovered from his possession, the witnesses have wrongly deposed against him and he has been falsely implicated in the present case.

[9] Both the witnesses of facts have clearly admitted that the accused was physically searched also by the raiding team. Thus the compliance of Section 50 of N.D.P.S. Act comes into force immediately. Consent letter is said to have been obtained by the raiding police team which is annexed in the lower court record. As per admission of prosecution witnesses, the accused is not able to write anything except putting his signature. Thus, in these circumstances, the consent letter was written by Sub-Inspector, Ranvir Singh and thereafter the accused was asked to make his signature over it.

[10] It is next argued that the prosecution has failed to comply the provisions of Section 50 of the N.D.P.S. Act in its literal form. As per the recovery memo and the deposition of witnesses, the appellant was told that in case he wishes, he may be searched before the Gazetted Officer or a Magistrate and as per his consent, he was searched by the arresting team.

[11] Hon'ble the Apex court in Arif [email protected] Khan Vs. State of Uttarakhand in Criminal Appeal No. 273 of 2007 decided on 27.04.2018 has observed that non-compliance of the mandatory provisions prescribed under Section 50 of the N.D.P.S. Act is fatal to the prosecution.

[12] Reliance has also 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 NDPS 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."

[13] Apart from it, as per admission of both the prosecution witnesses, they received the information before arrest of the accused. Whether sufficient time to pen down this information and also to forward it to the senior officers was there or not, is to be proved by the prosecution. The prosecution could not produce the copy of the G.D even to prove this fact that they were busy in routine checking or not. Moreover, as per admission of PW-2, Constable Manoj Kumar, the said information was neither pen down by SI Ranvir Singh nor the information was forwarded to the senior officers. It is further admitted by PW-2, Constable Manoj Kumar that even after the arrest of the accused along with the recovered nitrazepam powder, no information to this effect was forwarded by SI Ranvir Singh to the senior officers. Thus, there is a clear violation of Section 42 of the N.D.P.S. Act also.

[14] Hon'ble the Apex Court in Kishan Chand Vs. State of Haryana 2013(2) SCC Page 502 has clearly held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the information forthwith to the immediate officer superior may cause prejudice to the accused.

[15] After the arrest of the accused, he was brought before the In-charge police station by the arresting team. But as per admission of Constable Manoj Kumar, the recovered article was never handed over to the In-charge police station. PW-1, SI, Ranvir Singh also admitted that the recovered contraband was never entrusted to the in-charge police station. Thus, there is clear violation of the mandatory provision of Section 55 of the N.D.P.S. Act. Section 55 of the N.D.P.S. Act is extracted hereinunder :-

"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."

[16] The recovered article was not weighed on the spot by the raiding team rather it was sent to the market for its measurement which was against the provisions of law. No link evidence is produced by the prosecution to prove this fact that the representative sample was forwarded to the forensic lab for its verification. PW-3, Sunhari Lal, the Investigating Officer in his examination-in-chief has admitted that the said representative sample was forwarded on 02.11.2011 by Constable Manoj Kumar to the forensic lab for verification but the report of F.S.L available on record shows that the alleged sample was received in the lab on 31.10.2011 while it was forwarded with a letter dated 29.10.2011 by the Investigating Officer. Thus, it can be said that the Investigating Officer also could not lead appropriate evidence regarding transmission of representative sample to the forensic lab.

[17] In the instant case, the prosecution has failed to comply the provisions of Sections 42, 50 and 55 of the N.D.P.S. Act.

[18] In the light of the abovesaid discussion, it shall not be proper to uphold the conviction of the appellant, hence the conviction and sentence date 29.11.2012 passed against the appellant is liable to be set-aside.

[19] Accordingly, the appeal is allowed and the impugned order of conviction and sentence dated 29.11.2012 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.

[20] Let a copy of this judgment along with the record of the case be sent back to the court below for needful action and necessary entries in the relevant registers.

Order Date :- 08.05.2018

Sumit S