Shahid Akhtar vs State Of U.P.
2018 Latest Caselaw 499 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42
 
Case :- CRIMINAL APPEAL No. - 223 of 2018
 

 
Appellant :- Shahid Akhtar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Anand Priya Singh,Rashmi Srivastav Ac
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rajiv Lochan Mehrotra,J.

(1) The judgment and order dated 29.4.2009 passed by Additional Sessions Judge / Fast Track Court No. 2, Mau in S.T. No. 67/2005 arising out of case crime No. 950 of 2005 convicting the appellant for one year imprisonment and a fine of Rs. 10,000/- is under challenge in the present criminal appeal.

(2) Brief facts of the case are that on 21st July, 2005 a police team led by S.I. Laik Ahmad was busy in routine checking. When the team reached at Kajeetola two persons were seen coming from the side of Gola Bazar towards Kajeetola. Noticing the police party approaching towards them, they immediately took a turn and tried to run away. On suspicion of being criminals, they were chased and apprehended by the police at about 10.45 AM. They disclosed their names as Shahid Akhtar and Nehal and also disclosed that they were having some illegal heroin with them. They were asked, if so wishes, they may be searched before a gazetted officer or a magistrate but both of them expressed their trust to the arresting team and said that arresting team itself could search them. After searching each other, police team searched the apprehended persons. 86 tiny packets of heroin, having total weight of 10 gm., were recovered from the pocket of the shirt of Shahid Akhtar while two tiny packets of heroin, having total weight of 2.50 gm, were recovered from the possession of the other accused Nehal Ahmad. The recovered narcotic contraband was sealed on the spot. Recovery memo was prepared and signed by all the witnesses including the accused persons. None of the public man became ready to be a witness in the case. After completing all the formalities, arrested persons alongwith recovered goods were taken to the police station wherein recovered goods were kept in the Malkhana while in the light of the recovery memo, FIR was lodged against accused persons.

(3) Matter was investigated. The recovered narcotic contraband was transmitted to the forensic lab for its verification. After collecting the evidence and the confirmation report of the forensic lab, the Investigating Officer submitted the charge-sheet against the appellant Shahid under Section 8/21 N.D.P.S. Act.

(4) A charge was framed against the appellant under Section 8/21 N.D.P.S. Act which he denied and claimed trial.

(5) In support of the charge, prosecution examined PW-1 S.I. Sahjad Yadav and PW-2 S.I. Laik Ahmad as witnesses of facts. PW-3 S.I. Ram Murti Singh investigated the matter and proved the charge-sheet and other relevant documents. PW-4 Head Constable Akhilesh Pathak lodged the report and made its entry into the G.D. while PW-5 Brijesh Kumar Tiwari transported the recovered article to the forensic lab for its test.

(6) Statement of appellant under Section 313 Cr.P.C. was recorded wherein he denied any sort of recovery from his possession and said that on account of the enmity he has been falsely implicated in the matter.

(7) In the instant case as per recovery memo the recovered contraband was weighed on the spot and it's total weight was found as 12.5 gm while as per forensic lab report it received 17.2 gm. Of heroin. The Prosecution could not explain the difference in this measurement.

(8) It is nowhere mentioned in the recovery memo that the accused persons were told by the arresting team that it was their legal right to be searched before a magistrate or a gazetted officer. Though the prosecution has tried to improve its case during the trial wherein the prosecution witnesses have said that the accused was told that it was his legal right to be searched before a magistrate or a gazetted officer but the recovery memo does not contain this averment. PW-1 Shahjad Yadav in his cross examination has said that the arresting team has tried to get a gazetted officer or a magistrate but after the consent given by the accused, the team itself searched the accused. PW-2 Laik Ahmad on the other hand admitted that a consent letter was furnished by the appellant before the search but the said letter is not available on record.

(9) Not disclosing the fact to accused that the search before a magistrate or a gazetted officer is his legal right is a clear violation of Provisions laid down under Section 50 N.D.P.S. Act. In the recovery memo, it is nowhere mentioned that a written consent letter was obtained from the appellant before his search but as per admission of PW-2 Laik Ahmad, before the search, the appellant has furnished a written consent letter to the arresting team which has neither been narrated in the proceedings nor is available on the record.

(10) Hon'ble Apex Court in Arif Khan @ Agha 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.

(11) 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 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."

(12) In the instant case, as per evidence available on record and the recovery memo the personal search of the appellant was 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.

(13) It is admitted by the prosecution witnesses that the investigating officer in the present case is junior to the complainant of the case which is also irregular and in these circumstances a fair investigation always becomes doubtful.

(14) As per prosecution story, the arrest was made at about 13.15 Hrs. and as per admission of the prosecution witnesses it was a public place and all the shops were open at that time. Who were asked to be witness from the public are not disclosed by the arresting team even in the recovery memo or in their evidence which also doubts the prosecution story.

(15) Therefore, in these circumstances, it shall not be proper to uphold the conviction of the appellant. Hence the conviction and sentence dated 29.4.2009 passed in this respect in Sessions Trial No. 67 of 2005 against the appellant is liable to be set-aside.

(16) Accordingly, the appeal is allowed and the impugned order of conviction and sentence dated 29.4.2009 passed against the appellant is set aside and he stands acquitted. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. The appellant is directed to submit his personal bonds along with two sureties each in the like amount to the satisfaction of the court concerned in compliance of Section 437-A Cr.P.C. within 15 days from the date of the judgment.

(17) Before concluding, this Court must put on record its appreciation of the efforts put in by the learned Amicus Curiae in providing valuable assistance to the Court. It is, therefore, directed that a sum of Rs. 10,000/- be paid to Ms. Rashmi Srivastav, learned Amicus Curiae towards fees.

(18) 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 :- 14.5.2018

BKM/-