State Of U.P. vs Tohabbar @ Gulle And Anr.
2022 Latest Caselaw 9167 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- GOVERNMENT APPEAL No. - 1000017 of 2018
 

 
Appellant :- State of U.P.
 
Respondent :- Tohabbar @ Gulle And Anr.
 
Counsel for Appellant :- Govt. Advocate
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard learned AGA for the State and perused the record.

By filing instant application for grant of leave to appeal a prayer has been made by the State to grant leave to appeal against the judgment and order dated 18.10.2017 passed by Additional District and Sessions Judge, Court No.2, Barabanki in S.T. No. 1007 of 2014 and 1008 of 2014 arising out of Case Crime Nos. 9/2014 and 10/2014, under Sections 8/21 N.D.P.S. Act, Police Station Kothi, District Barabanki, whereby respondents no. 1 and 2 have been acquitted of the charges framed against them under Sections 8/21 N.D.P.S. Act.

Learned AGA while referring to the judgment and order passed by trial court, submits that trial court has committed material illegality in not convicting the accused persons and have acquitted the respondents no.1 and 2 only on the basis of wrong interpretation of Sections 50, 55 and 57 of the N.D.P.S. Act.

It is further submitted that trial court has completely disregarded the testimony of the prosecution witnesses with regard to the fact that the right of the accused persons to be searched before the Gazetted officer or Magistrate was conveyed to the accused persons in very clear terms and there was no ambiguity and the trial court has given much importance to the minor contradictions which had occurred in the testimony of the prosecution witnesses.

It is also submitted that the judgment and order of the trial court is against the evidence available on record and is based on surmises and conjectures and thus the impugned judgment and order is liable to be set-aside and the respondents no. 1 and 2 are liable to be convicted for the offence under Sections 8/21 of the N.D.P.S. Act and sentenced accordingly.

Having heard learned AGA for the State and having perused the record, it would be evident that the first information report pertaining to this case was lodged by the Sub Inspector- Akhilesh Kumar Rai of Police Station Kothi, District Barabanki on 11.1.2014 at 14.00 hours alleging therein that on the relevant date and time the police party was checking suspicious persons and vehicles and in the meantime a motorcycle came from the side of Barabanki whereon two persons were sitting and after seeing the police party they attempted to run away, however, they were apprehended and on being interrogated they confessed that they are having morphine with them, on which it was informed to them that your search may be taken before the Magistrate or Gazetted Officer, on which they consented to be searched by the police party itself and have also written a consent letter and on being searched 500 grams morphine was recovered from each of the accused persons, namely, Tahabbar @ Gulle and Yunus Tailor. The recovered contraband after taking some quantity for the purpose of sampling was sealed at the spot and seizure memo was prepared, a copy of which was also given to the accused persons and on the basis of the seizure memo the instant FIR was lodged and the recovered contraband was kept in safe custody of 'Malkhana'.

Two criminal cases bearing case Crime Nos. 9/2014 and 10/2014 under Sections 8/21 N.D.P.S. Act were registered against the accused persons. The investigation of the crime was entrusted to the Sub Inspector Ram Narayan Singh, who visited the spot and prepared site plan and after preparing Docket sent the sample for Forensic examination to Forensic Lab, Mahanagar, Lucknow and after recording the statements of the prosecution witnesses and procuring the FSL report forwarded a charge sheet against the respondents no. 1 and 2.

Charges under Sections 8/21 of N.D.P.S. Act were framed against the respondents no. 1 and 2, to which they denied and claimed trial.

In order to prove the charges the prosecution has produced P.W.1 (informant) Akhilesh Kumar Rai, P.W.2 Constable Baijnath Yadav, P.W.3 Constable Rajesh Kumar Maurya, P.W.4- Sub Inspector- Ram Narayan Singh, PW.5- Sub Inspector Vijay Kumar Paswan. Apart from oral testimony the prosecution has also relied on consent letter Ext. Ka-1 pertaining to accused Tahabbar, consent letter Ext. Ka-2 pertaining to accused Yunus Tailor, seizure and arresting memo Ext. Ka-3, Sample seal Ext. Ka-4, Ka-5, Docket and entry of taking the sample from ' Malkhana' and also of returning the same in the 'Malkhana' Ext. Ka-6, Ext. Ka-7, Ext. Ka-8 and Ext. Ka-9. Site plan Ext. Ka-10, charge sheet pertaining to accused Tahabbar Ext. Ka-11, Charge sheet pertaining to accused Yunus Tailor Ext. Ka-12, Chick FIR Ext. Ka-13, G.D. Qayami Ext. Ka-14 and also material Ext. 1 to 4 pertaining to accused Tahabbar and material Ext. 5 to 8 with regard to accused Yunus Tailor.

After the completion of prosecution witnesses the statement of the accused persons were also recorded under Section 313 Cr.P.C. wherein they have stated that recovery shown from the accused persons is false. The sample has not been properly secured and all the witnesses are police personnel, accused Tahabbar had given an application to the police and on being annoyed the police party has arrested him from his house on 10.1.2014 and has falsely implicated him in this case.

No witness has been testified by the accused persons in their defence. The trial court after considering the prosecution evidence available on record came to the conclusion that prosecution has failed to prove its case beyond reasonable doubt and thus acquitted accused persons from all the charges against them.

Perusal of the impugned judgement and order passed by the trial court would reveal that the trial court has acquitted the accused persons on the following grounds:-

(I) That mandatory provision of Section 50 of the N.D.P.S. Act has not been complied as it was the duty of the arresting police party to inform the accused persons about their legal right to be searched before a Gazetted Officer or a Magistrate which has not been done in the instant case.

(II) The consent letter allegedly signed by the accused persons also do not contain the fact that accused persons have been informed of their right to be searched before a Magistrate or a Gazetted Officer as provided under Section 50 of N.D.P.S. Act.

(III) The register of 'Malkhna' has not been presented / proved before the trial court in order to prove that sample and contraband seized from the accused persons was kept in safe custody.

(IV) No Higher Police Officer has been informed about the arrest and seizure of the contraband as provided under Section 57 of the N.D.P.S. Act and thus police party has followed Mandatory provision of Section 57 of the N.D.P.S. Act.

Perusal of the record would reveal that the case of the prosecution is that on the relevant date and time the accused persons were apprehended by them and on being aware that they are possessing morphine they were informed that they would be having an option to be searched before the Magistrate or the Gazetted Officer but they deposed faith in the police party and asked the police personnel to search and has also signed on consent letters. The trial court while appreciating the evidence with regard to the claim that the accused persons were made aware of their right to be searched before the Magistrate or the Gazetted Officer has referred to the two consent letters signed by the accused persons whereby they had consented/ searched by the police party itself. The trial court was of the view that the compliance of Section 50 is not a mere formality but mandatory provision as contained under Section 50 of the N.D.P.S.Act is to be complied in letter and spirit. While referring to the various portions of the evidence of the prosecution witnesses the trial court was of the view that it could not be inferred from the recovery memo and evidence made available on record that the accused persons were made aware of their right to be searched before the Magistrate or the Gazetted Officer. The trial court while referring to the two consent letters allegedly signed by the accused persons has highlighted that in these consent letters also it is not written that the accused persons had been made aware of having a right to be searched before the Magistrate or the Gazetted Officer. Thus having regard to all the facts, evidence and circumstances the trial court was of the view that Section 50 of the N.D.P.S. Act has not been complied in this case and thus the recovery as well as the arrest of the accused persons has become void ab-initio.

The trial court has substantiated its view by referring to Vijay Singh Chandubha Jadeja Vs. State of Gujrat 2011 (1) J.I.C. 624; wherein it is held that it is imperative on the part of the Empowered Officer to apprise the person, intended to be searched, of his right under Section 50 of the N.D.P.S. Act to be searched before the Magistrate or a Gazetted Officer.

It is also held therein that no prescribed proforma may be made regarding providing an opportunity to be searched in compliance of section 50 of the NDPS Act, but it is mandatory that suspect be made aware of his right to be searched before a Gazetted Officer or a Magistrate. It is also held therein that Section 50 is a mandatory provision and requires strict compliance. It is also held therein that in order to impart authenticity, transparency and worthiness to the entire proceeding, in the first instance an endeavour should be made to produce suspect before the nearest Magistrate who enjoys more confidence of the common man in comparison to any other officer.

The trial court has also quoted with authority The State of Rajasthan Vs. Parmanand and one another A.I.R. 2014 Supreme Court Page 1384 and also State of Delhi Vs. Ram Autar @ Ramana AIR 2011 Supreme Court page 2699 and came to a conclusion that Section 50 of the N.d.P.S. Act has not been complied.

Having regard to all the facts and circumstances of the case, I do not find any illegality in this reasoning given by the trial court. The police party before the search of the accused persons was entrusted with a mandatory duty which has been provided under Section 50 of the N.d.P.S. Act to make the accused persons aware of their right to be searched before a Magistrate or a Gazetted officer, which appears to be completely lacking in this case even if the consent letter allegedly signed by the accused persons are also taken into cognizance, wherein also no right is shown to have been conveyed to the accused persons pertaining to their right to be searched before a Magistrate or a Gazetted Officer.

Thus this case is a glaring example of non compliance of the mandatory provision contained under Section 50 of the N.d.PS. Act.

The trial court while considering Section 57 of the N.D.P.S. Act has also concluded that no information of the recovery and seizure of contraband has been given to the higher officers of the police for compliance of Section 57 of the N.D.P.S. Act which renders the arrest and recovery as highly suspicious. The P.W.1- Akhilesh Kumar Rai in his cross examination has admitted that no information pertaining to arrest and seizure of the contraband was given to the higher officers of the police. In this back ground the trial court was of the view that the trial court, while referring tot he criminal Appeal No. 35 of 2000 Gurubaksh Singh Vs. State of Haryana decided on 6.2.2001, came to a conclusion that non informing the higher officers of the police also casts a doubt about the arrest and recovery.

Perusal of the judgement of the trial court in the back ground of the evidence available on record would reveal that the trial court has considered the case of the prosecution in view of the law laid down in Nirdayaj Vidhi State of U.P. Vs. Subhash Kumar Singh Tomar, AIR 2009 Supreme Court 2441, K. Mohan Vs State of Kerala, 2000, Supreme Court Cases (Crl) 1228, Nirmal Singh Pahalwar @ Nimma Vs. Inspector Custom, 2011 (74) ACC 892(SC), Ramzan Vs. State of U.P. 2011(72) ACC 105 (All.), Jodha Singh Vs. State of Punjab, EFR, 1998 (2) Page 221 (Punjab & Haryana High Court), T.B. Anthoni Vs. Bharat Sangh, 2008, Dand Nirday Sar, 477 (All), Irshad Ahamd @ Shekhu Vs. State, 2005(53), ACC 133 (All), K. Thadi Ram Vs. State of Haryana, 2000 Supreme Court Cases (Crl) 189, State of Rajasthan Vs. Daulat Ram, 1980 Supreme Court Cases, (Crl.) 683, Shivcharan Vs. State of U.P., 1999(1) J.I.C. 707 (All.) (L.B.), Jitendra Singh Rathaur Vs. State of U.P. 2014 (184) A.C.C. 598 (All) and State of Rajasthan Vs. Gurmail Singh, 2005 (1) EFR 435 (SC) and came to a conclusion that prosecution has miserably failed to prove its case beyond reasonable doubt and thus acquitted the accused persons.

The question as to how the application for grant of leave to appeal preferred under Section 378(3) of the Code should be decided by the High Court and what are the parameters which this Court should keep in mind remains no more 'res integra '. This Issue has been examined and settled by the Hon'ble Apex Court in cases of Sanwat Singh and others v. State of Rajasthan, AIR 1961SC715, Ajmer Singh v. State of Punjab, 1953 SCR 418, Sadhu Saran Singh Vs. State of Uttar Pradesh and Others, 2016 CrL. J. 1908 and State of Maharashtra vs. Sujay Mangesh Poyarekar, MANU/SC/8073/2008.

From the above mentioned decisions some general principles which may emerge are that the appellate court is having full power to review or re- appreciate or reconsider the evidence upon which the order/ judgment of acquittal has been based and there is no limitation, restriction on exercise of such power by the appellate court and that the appellate court may reach at it's own conclusion on the same set of evidence, both on question of facts as well as on law. However, it is to be kept in mind that in case of acquittal, the presumption of innocence which was initially with the accused persons gets fortified, reaffirmed and strengthened. The golden principle which runs through the web of criminal jurisprudence is that if two reasonable and logical conclusions can be derived on the basis of evidence on record, the appellate court should not normally disturb the finding of the trial court. But simultaneously it is also to be kept in mind that the benefit of only a reasonable doubt can be given to accused persons in a criminal trial. The accused persons cannot claim the benefit of each and every doubt. To get the benefit of doubt the same has to pass the test of reasonableness and a reasonable doubt is a doubt which emerges out of the evidence itself.

The above discussion would reveal that compliance of 50 and 57 of the N.D.P.S. Act is not merely formality as held by Hon'ble Supreme Court in its various Land Mark Judgments, it is the duty of the arresting officer to make the suspect aware of his right to be searched before a Magistrate or a Gazetted Officer and it is also opined that to add credibility in the recovery and arrest every endeavour should be made to get the accused persons searched before the Magistrate who enjoys the confidence of the general public. The consent letters on which much emphasis has been given for projecting the compliance of the Section 50 of N.D.P. S. Act would also not to be on any help to the persecution, as from these letters also it could not be inferred that accused persons were made aware of their right to be searched before a Magistrate or a Gazetted Officer. The record would also reveal that there are some other suspicious circumstances which renders the case of the prosecution suspicious as the Register of 'Malkhana' has not been produced and no reasonable explanation of the same has been given and thus it was not proved before the trial court that sample as well as seized contraband was kept in safe custody and was not taken out of 'Malkhana' unnecessarily. The information of the arrest and seizure of the contraband of such a huge quantity was also not brought in the knowledge of the higher officers of the police as required by Section 57 of the N.D.P.S. Act. Though Section 57 of N.D.P.S. Act is not mandatory and is directory but if the lapse of not informing the higher officers is coupled with the non-compliance of Section 50 of the N.D.P.S. Act , the result would be that the prosecution was not able to prove its case before the trial court beyond reasonable doubt and thus in the considered opinion of this Court no illegality or to say any infirmity has been committed by the trial court while acquitting the accused persons of the charges framed against them.

A criminal trial proceeds with the presumption of innocence of the accused person(s) and this presumption of innocence stands fortified with the acquittal of the accused persons. So, very strong and cogent reasons must exist for interfering in the judgment of acquittal. In view the above factual and legal position, we are of considered opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt and it cannot be said that the view taken by the Trial Judge is perverse or unreasonable. Per contra, the view taken by the trial Court is a possible view and the judgment of the trial court cannot be said to be not based on material on record or illegal or illogical or improbable. Accordingly, no interference in the judgment of the trial Court is called for.

Thus, the prayer for grant of leave to appeal is hereby rejected.

Since application for grant of leave to appeal has been rejected, the appeal would also not survive. Consequently, the appeal is also dismissed.

Order Date :- 4.8.2022

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