Liyaqat Ali vs State Of U.P.
2023 Latest Caselaw 17320 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


AFR
 
Neutral Citation No. - 2023:AHC-LKO:45684
 
Reserved on :-  03.04.2023
 
Delivered On:-14.07.2023
 
Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 12 of 1999
 

 
Appellant :- Liyaqat Ali
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rishad Murtaza,Alok Singh,Syed Mehfuzur Rehman,Vikas Vikram Singh
 
Counsel for Respondent :- Government Advocate
 

 
Hon'ble Shree Prakash Singh,J.

1). Heard Sri Vikas Vikram Singh and Sri Syed Mehfuzur Rehman, learned counsel for the appellant, learned AGA for the State and perused the record.

2). The instant appeal has been preferred under Section 374 of Cr.P.C. against the judgement and order dated 29.10.1998 passed by Additional Sessions and District Judge, VIIIth, District Lucknow in Session Trial No. 110 of 1994, arising out of Case Crime No. 352 of 1994, Police Station Hazratganj District Lucknow, wherein, the appellant, Liyaqat Ali, has been convicted and sentenced for the offence under Section 8/21 of Narcotics Drugs and Psychotropic Substance Act, 1985, (hereinafter referred as 'NDPS Act') for 10 years rigrious imprisonment with fine of Rs. 1,00,000/- and in default of payment of fine he shall further undergo two years of simple imprisonment and in Case Crime No. 353 of 1994, Police Station Hazratganj, District Lucknow, in addition to the aforesaid sentence, the appellant has also been convicted and sentenced for the offence under Section 25/4 of the Arms Act, 1959 for one year of simple imprisonment. Both the sentences were ordered to be run concurrently.

3). The prosecution case in brief is that on 23.03.1994 at 11:45, the appellant/accused was arrested by the Police at the boundary of Gora Kabristan and a knife as well as 500 gms Smack was recovered from his possession. On being confronted to produce the license of keeping the knife as well as the contraband/smack, the accused-appellant failed to produce any valid document. Inspector Sunil Kumar Mishra prepared the recovery memo on the place of occurrence on the basis of which Head Constable Harful Verma scribed the First Information Report and made an entry in the GD regarding the possession of illegal arm and contraband with the accused-appellant on basis of which the First Information Report was registered and the investigation was carried by Sub-Inspector S.S. Hussain and on account of incompletion of the investigation, the investigation was entrusted to Sub-Inspector, R.K. Tiwari but also due to some reasons, he could not complete the investigation and then the investigation was entrusted to V.K. Trivedi who after completing the investigation and on the basis of FSL Report ascertaining that the contraband recovered from the possession of the appellant is Smack, filed a charge-sheet against the appellant under Section 8/21 of the NDPS Act and under Section 25/4 of the Arms Act.

4). Charges for the offence under Section 8/21 of the NDPS Act and Section 25/4 of the Arms Act were framed by the learned trial Court and it was read to the appellant which he denied and claimed for trial.

5). The prosecution, in order to prove its case produced Sub-Inspector Sadanand Rai (P.W.1) and Constable Satendra Pachori (P.W.2). Apart from the aforesaid two witnesses, there were no other witness produced by the prosecution for the reason that the learned counsel appearing on behalf of the appellant before the learned trial Court confessed the certification of the documentary evidence.

6). After conclusion of the prosecution witness, the statement was recorded under Section 313 of Cr.P.C. where he denied the prosecution and stated that no recovery was made from his possession and all the documents were prepared fraudulently with a motive to falsely implicate him.

7). To controvert the prosecution story, Nisar (D.W.1) and Ikrar Ahmed (D.W.2) were examined by the appellant and a copy of the telegram of intervening night 22/23 dated 23.03.1994 to the Station House Officer, Hazratganj was also produced as an evidence in which it was stated that at about 1 of 2 in the night, some police personals called Ikrar and Liyaqat Ali and both were taken by the police personals on a pretext that the Inspector of Police Station has called them. Apart from the aforesaid, there is no other evidence produced on behalf of the appellant.

8). After the conclusion of the trial, the learned trial Court hold the appellant guilty under Section 8/21 of NDPS Act and 25/4 of Arms Act and sentenced him as above vide impugned judgement and order.

9). Aggrieved with the impugned judgement this appeal has been preferred.

10). The learned counsel appearing for the appellant submits that he is innocent and has falsely been implicated in this case by the Police. The learned counsel for the appellant has further submitted that the Police has also not complied the mandatory provision of Section 50 of the NDPS Act. It is further submitted by the learned counsel for the appellant that no public witness was produced despite the said recovery was alleged to be made in a busy public place. The learned counsel for the appellant submits that there are sufficient infirmities in the procedural steps which ought to have been undertaken by the Police and statutory provisions regarding search and seizure have been disregarded by the Investigating Officer. He further submits that as a matter of fact the appellant was illegally arrested in the intervening night of 22/23.03.1994 at around 02:00 A.M. by the Police of Police Station, Hazratganj and subsequently, he was falsely implicated in the present criminal case on 23.03.1994. It is further submitted by the learned counsel for the appellant that from the perusal of the First Information Report it is evident that there is over writing in the column relating to the date of occurrence and the date of lodging of First Information Report. It is further submitted that the Police was not carrying any instrument of weighing and there is no explanation as to how the weight of the recovered articles were assessed. It is further submitted by the learned counsel for the appellant that the percentage of narcotic substance were not assessed by the chemical analysis in the report dated 06.06.1999. He added that the alleged recovery is of 23.03.1994 and the sample reached the Forensic Laboratory on 16.05.1994 and there is no plausible explanation for the delay caused and there is complete violation of provision of the NDPS Act by the Police as Section 50 of NDPS Act has been violated as well as Section 42 of NDPS Act has also not been complied with by the Police.

11). In support of his contention, the learned counsel for the appellant has also placed reliance on the following judgements and referred the following paragraphs:-

1) Vijaysinh Chandubha Jadeja Vs. State of Gujrat, (2021) 1 SCC 609 and has referred paragraphs 29, 30 and 32 which are quoted herein under:-

"29.In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50(1)of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.

30.As observed in Re Presidential Poll, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole."

32.We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

2) Munnan Vs. State of U.P. arising out of Criminal Appeal No. 437 of 1997 decided on 05.01.2021 and has referred paragraphs 16, 17, 18 and 19 which are quoted herein:-

"16. The Hon'ble Supreme Court in a catena of decisions, has discussed the importance of Section 50 of NDPS Act. In State of Punjab vs. Baldev Singh AIR 1999 SC 2378, the Constitutional Bench of Supreme Court has elaborately discussed the importance and scope of mandatory provisions of Section 50 of NDPS Act as follows :

"55. On the basis of the reasoning and discussion above, the following conclusions arise :

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;

(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search 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 his person, during a search conducted in violation of the provisions of Section 50 of the Act:

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair.

(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial;

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; ....................."

(Emphasis supplied)

17. In Vijaysing Chandubha Jadeja vs. State of Gujarat, AIR 2011 SC 77 while discussing the scope of Section 50 of NDPS Act, the Constitutional Bench of Supreme Court while observing that mere informing the accused his willingness to be searched before Gazetted Officer or Magistrate is not sufficient but it is the duty of the concerned officer to apprise the accused about his/her right of Section 50 of the Act has held as under :-

"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll14, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

(Emphasis Supplied)"

18. In Arif Khan @ Agha Khan vs. State of Uttarakhand AIR 2018 SC 2123, Hon'ble Supreme Court while discussing the importance of compliance of mandatory provision of Section 50 of N.D.P.S. Act, has held as below:-

"21. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172: (AIR 1999 SC 2378) and Vijaysinh Chandubha Jadeja (AIR 2011 SC 77) (supra).

22. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (AIR 2011 Sc 77) (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.

23. Their Lordships have held in Vijaysinh Chandubha Jadeja (AIR 2011 SC 77) (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392) : (AIR 2011 SC 1939)."

(Emphasis Supplied)

19. Thus, it is clear that if the contraband narcotics was recovered in contravention of specific mandate of Section 50 of the Act, the whole prosecution story becomes doubtful and the appellant is entitled for acquittal. "

3) Ram Pratap Vs. State of U.P. arising out of Criminal Appeal No. 357 of 1999 decided on 22.05.2020 and has referred paragraphs 16, 17 and 18 which are quoted herein:-

"16. Severe punishment has been provided in the N.D.P.S. Act to check the misuse of this Act by the police personnel or officers and certain safeguards particularly Section 50 of N.D.P.S. Act has been incorporated in this Act that search of the suspected person must be done before the Magistrate or Gazetted Officer. Similarly Section 55 and 57 of N.D.P.S. Act provides that seized contraband article be kept by Station House Officer in safe custody and report of arrest and seizure be sent immediately to immediate Superior Officer within 48 hours.

17. Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, 2010 (2) EFR 755, while discussing the importance and relevancy of section 50 of N.D.P.S. Act, in para-22, has held as under:-

"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll (1974) 2 SCC 33, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

(Emphasis supplied)

18. Hon'ble Supreme Court in State of Rajasthan Vs. Parmanand and another, (2014) 2 SCC (Cri) 563, again in paragraph-17, has held as under:-

"In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval."

4) Vijay Jain Vs. State of Madhya Pradesh, (2013) 14 SCC 527 and has referred paragraphs 10, 11, 12 and 13 which are quoted herein:-

"10. On the other hand, on a reading of this Court's judgment in Jitendra case [Jitendra v. State of M.P., (2004) 10 SCC 562 : 2004 SCC (Cri) 2028] , we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123 : (2011) 2 SCC (Cri) 547] this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.

11.In the present case, finding of the trial court that the seized contraband goods were produced in a suitcase is contrary to the evidence of PW 11, which is to the following effect:

"81. Note.--A big suitcase from the store materials on which No. 466/05 is written has been received in a white cloth along with seal of the sealing material. In this the lock is of numbers and the lock is not getting open because of this AGP is directed to call some technical person for opening the lock, on this AGP had called Shri Shakoor who expressed that the lock is of numbers and cannot be opened, it can be broken. In the case, the evidence material is important and therefore it was directed to break the lock, the lock was opened. In the suitcase on the opening a big packet wrapped in cloth was found but the cloth is torn and blue colour polythene is being seen in which clothes are there. The cloth which is rolled on blue colour polythene there is no seal visible on it, nor any description is being seen, because the cloth is damp and has been in contaminated condition and is torn and no note is marked on it. In the polythene there are 5 pants and 5 shirts which are in wet condition.

***

111. Today I cannot say that in what colour bag the rest of the substance was packed in the bag. The material which was seized from Vijay Jain, out of it two samples 25-25 gm were made and marked B-1 and B-2 which were shown to the witness when he said that they were taken out from the material found with Vijay Jain on site. No other packet except the two samples and rest of material were made on the site. The said both packets which have been submitted in the court are sealed and on them the seizure chit is not affixed showed the B-1 and B-2 packet and asked that the seal of police station is affixed then the witness said the seal of police station is affixed then the witness said that it is the seal of the Tahsildar, Indore. Leaving aside rest of the substance and mobile the other seized material from Vijay is submitted in the court. This is true that I had not given the mobile for sealing to the Incharge of stores. Today I cannot say where that mobile is."

Thus the only evidence before the court was that in the suitcase in which the contraband goods were allegedly kept when opened, there was only a big packet wrapped in cloth and the cloth was torn and there was a blue-coloured polythene in which there were clothes. There is no mention in the evidence of PW 11 of any brown sugar having been found in the suitcase. There is, however, evidence that samples were prepared of 25-25 gm which were shown to the witnesses and were marked B-1 and B-2 but we find that PW 3 has stated before the court in his examination that these samples were not prepared in his presence and PW 2 has stated before the court that the witnesses were not taken to the site where the materials were seized.

12.We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable.

13.In the result, we allow these appeals and set aside the impugned judgment of the trial court as well as the High Court. The appellants are stated to be in jail. They shall be released forthwith if not required in connection with any other case."

5) Jitendra Vs. State of M.P., (2004) 10 SCC 562 and has referred paragraph 6,9 and 10 which are quoted herein:-

"6.In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched.

9.Taking the cumulative effect of all the circumstances, it appears to us that the material placed on record by the prosecution does not bring home the charge beyond reasonable doubt. We are of the view that upon the material placed on record it would be unsafe to convict the appellants. They are certainly entitled to the benefit of doubt.

10.In the result, we allow the appeals, set aside the judgment of the High Court and the trial court and quash the conviction of the appellants. The appellant Jitendra is directed to be released from custody forthwith, if not required in any other case."

6) Ashok @ Dangra Jaiswal, (2011) 5 SCC 123 and has referred paragraphs 10, 11, 12 and 13 which are quoted herein:-

"10.The seizure of the alleged narcotic substance is shown to have been made on 8-3-2005, at 11.45 in the evening. The samples taken from the seized substance were sent to the FSL on 10-3-2005, along with the draft, Ext. P-31. The samples sent for forensic examination were, however, not deposited at the FSL on that date but those came back to the police station on 12-3-2005 due to some mistake in the draft or with some query in respect of the draft. The samples were sent back to the FSL on 14-3-2005, after necessary corrections in the draft and/or giving reply to the query and on that date the samples were accepted at the FSL. From the time of the seizure in the late evening of 8-3-2005, till their deposit in the FSL on 14-3-2005, it is not clear where the samples were laid or were handled by how many people and in what ways.

11.The FSL report came on 21-3-2005, and on that basis the police submitted charge-sheet against the accused on 31-3-2005, but the alleged narcotic substance that was seized from the accused, including the appellant was deposited in the malkhana about two months later on 28-5-2005. There is no explanation where the seized substance was kept in the meanwhile.

12.Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its non-production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused.

13.It may be noted here that in Jitendra v. State of M.P. [(2004) 10 SCC 562 : 2004 SCC (Cri) 2028] , on similar facts this Court held that the material placed on record by the prosecution did not bring home the charge against the accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra [(2004) 10 SCC 562 : 2004 SCC (Cri) 2028] , the Court observed and held as under: (SCC pp. 564-65, paras 5-6)

"5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect them with the samples sent to the forensic science laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the forensic science laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the chemical examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, 'non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced'. The High Court relied on Section 465 CrPC to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused.

6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched."

12). On the other hand, the learned AGA appearing for the State submits that the statement of prosecution witnesses can not be rejected only on the ground that they are police personnels and there is no illegality in the impugned judgement and order and it is a settled provision of law that only on a solitary testimony of witness, conviction can be maintained. He further submits that the impugned judgement and order passed by the trial Court is well reasoned, well discussed and is liable to be affirmed.

13). Considering the rival submissions advanced by the learned counsel for the parties, the following facts and law emerges for discussion.

14). Prior to discussing the eivdences and material available on record, it is relevant to be aware about the stringent provisions of Narcotics Drugs and Psychotropic Substance Act, 1985 for the offences relating to the quantity, which is not less than 10 years of regirous imprisonment with a minimum fine of Rs. 1,00,000/-. Because of the nature of sever punishment and the strict laws of the Act, certain safeguards have also been provided to prevent the misuse of the Act and time and again, the Hon. Apex Court has also discussed the aforesaid laws and have given its finding.

15). In view of the gravity and severity of the punishment certain important safeguards have been provided under Section 50 of the NDPS Act with a view to prevent the misuse of the Act, which is 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. 1[(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.]"

16). Coming to the fact of this case, admittedly, the contraband narcotic and knife was recovered from the personal search of the appellant from his trousers worn by him. In addition to the above, a recovery memo was prepared on the place of the arrest and the First Information Report was registered against the appellant.

17). S.I. Sadanand Rai was examined as P.W. 1 before the learned trial Court and in his deposition as deposed before the trial Court that on input of the Police informer, the Police already reached at Gora Kabristan and found a person, when stopped by the Police, he tried to fled away but was apprehended by the Police and disclosed his identity as Liyaqat Ali resident of Singhahi, Police Station Fakharpur, Bahraich and a knife and contraband was recovered from the pocket of his trousers worn by him. It was deposed that many persons passing from the place of occurance were requested to be a witness of the recovery but all of them denied and therefore the search was conducted before the Police that was deposed that the appellant was informed that he may be searched before any Magistrate or Gazetted Officer but the appellant refused the same on the pretext that the contraband has been recovered from his possession, therefore there is no necessity for producing him before any Magistrate or Gazetted Officer. It was further deposed that the alleged recovered contraband was 500 gms smack which has been sealed.

18). Constable Satendra Pachori has been examined as P.W. 2 before the trial Court and in his deposition he has stated that on an input provided by the Police informer that a person is possessing contraband narcotics and illegal weapon, Police reached at Gora Kabristan, where a person was found and being stopped, he tried to fled but was apprehended by the Police. It was deposed that several persons were requested to be a witness of the recovery but all denied and in the aforesaid circumstances, the search was conducted before the Police only. It was stated by the witness that the appellant was informed that his search may be conducted before the Magistrate or Gazetted Officer but the appellant denied for the same that since he is now being arrested, therefore there is no purpose of producing him before any Magistrate or Gazetted Officer.

19). In the present case, admittedly, S.I. Sunil Kumar Mishra, who is most vital witness of the prosecution, who prepared the recovery memo has not been examined by the prosecution and no explanation has also been given by the prosecution, as to why this star witness has not been examined. Thus in view of the above, the concern of search given by the appellant becomes doubtful.

20). It is also noticiable that in the present case, the prosecution has failed to prove the compliance of mandatory provision of Section 50 of the NDPS Act.

21). It is worth of mentioning that severe punishment has been provided in the N.D.P.S. Act to check the misuse of this Act by the police personnel or officers and certain safeguards particularly Section 50 of N.D.P.S. Act has been incorporated in this Act that search of the suspected person must be done before the Magistrate or Gazetted Officer. Similarly Section 55 and 57 of N.D.P.S. Act provides that seized contraband article be kept by Station House Officer in safe custody and report of arrest and seizure be sent immediately to immediate Superior Officer within 48 hours.

22). As above regard, the view of the Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat (supra) has emphasized the importance and relevancy of section 50 of N.D.P.S. Act, in para-22, which says that "in view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll (1974) 2 SCC 33, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

23). Further the Hon'ble Apex Court in case of State of Rajasthan Vs. Parmanand and another, (2014) 2 SCC (Cri) 563 has again held in paragraph-17 that "In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval."

24). In the present case, from the perusal of the testimonies of P.W. 1 and P.W. 2 recorded before the learned trial Court, it is evident that the appellant was never informed regarding his statutory right to be searched before the Magistrate or Gazetted Officer and being so, this Court finds that there is gross violation of the Section 50 of the NDPS Act. Thus, it is clear that if the recovery of the contraband narcotics has been made in contravention to the mandate of the Section 50 of the NDPS Act, the whole prosecution story becomes doubtful and the appellant gets entitled for acquittal.

25). Since the Court finds that the recovery of the contraband from the possession of the appellant is doubtful, therefore the same will lead to the inference that the recovery of knife from the possession of the appellant is also doubtful.

26). Thus I am of the view that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. The trial Court has not properly discussed the evidence produced by the prosecution and has passed the impugned judgment and order against the settled principle of law including provisions of N.D.P.S. Act. Being so there is no reason to uphold the conviction and sentence of the appellant. The appellant is entitled to be acquitted. The impugned judgment and order is liable to be set aside and accordingly, appeal is liable to be allowed.

27). In view of the above, impugned judgment and order dated 29.10.1998 passed by Additional Sessions and District Judge, VIIIth, District Lucknow in Session Trial No. 110 of 1994 arising out of Case Crime No. 352 of 1994 and Case Crime No. 353 of 1994 under Sections 8/21 of Narcotics Drugs and Psychotropic Substance Act, 1985 and 25/4 of the Arms Act, 1959, Police Station Hazratganj District Lucknow, is set aside and accused appellant is acquitted. Consequently, the appeal is allowed.

28). Keeping in view the provision of Section 437-A of the Code, appellant-Liyaqat Ali is hereby directed forthwith to furnish a personal bond of a sum of Rs. 20,000/- and two reliable sureties each of the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellant-Liyaqat Ali, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.

29). Appellant is on bail, his personal bond is cancelled and sureties stand discharged.

30). Let a copy of this judgment along with the lower court record be sent immediately to the Trial Court concerned for necessary compliance.

Order Date :- 14.07.2023

Anurag