Jharkhand High Court
Umesh Rai Son Of Baidyanath Rai vs The State Of Jharkhand on 4 November, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
2025:JHHC:33099-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 470 of 2003
......
[Against the Judgment of conviction and sentence dated 12.03.2003 and
13.03.2003 respectively, passed by learned 1st Additional Sessions Judge
cum Special Judge, Bokaro in G.R. Case No.1412 of 1995]
......
Umesh Rai son of Baidyanath Rai, resident of Dundibagh, P.S.
B.S. City District Bokaro.
.... .... Appellant
Versus
The State of Jharkhand
.... .... Respondent
......
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
......
For the Appellant : Mr. Binod Kumar, Advocate
For the State : Mrs. Nehala Sharmin, Spl. P.P.
......
C.A.V. on 30.10.2025 Pronounced on 04.11.2025
Per Pradeep Kumar Srivastava, J.
1. We have already heard Mr. Binod Kumar, learned counsel
appearing for the appellant and Mrs. Nehala Sharmin, learned
Spl. P.P. appearing for the State.
2. It is to be mentioned at the very outset that appellant No.1 Krishna
Rai died during the pendency of this appeal and vide order dated
22.07.2025, appeal of Krishna Rai has been abated.
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3. Instant criminal appeal arises out of judgment of conviction and
sentence of the appellant passed by 1st Additional Sessions Judge
cum Special Judge, Bokaro in G.R. Case No.1412 of 1995 dated
12.03.2003 and 13.03.2003 respectively, whereby and whereunder
the appellant has been held guilty for the offences under Section
21 of the Narcotic Drugs and Psychotropic Substances Act, 1985
and sentenced to undergo R.I. for 10 years along with fine of
Rs.1,00,000/- with default stipulation.
FACTUAL MATRIX
4. Factual matrix giving rise to this appeal is that on 20/21.11.1995
at about 03:30 a.m., S.I. Muktinath Singh in the course of
patrolling duty received a confidential information that in the hut
of Dundibagh near Khatal, illegal sale of brown sugar is going on.
Accordingly, a police patrolling party headed by informant along
with other armed forces proceeded to verify the said information
and reached at the place of occurrence, then two persons started
fleeing away who were chased and apprehended. It is further
alleged that in the presence of two independent witnesses namely,
Subhas Yadav and Ramjee Tewary search was conducted and one
puria of brown sugar was recovered from the kurta of accused
Krishna Rai (deceased). The other miscreant disclosed his name
as Umesh Rai and upon search one puria of brown sugar was
recovered from the pocket of his shirt, which was also brown
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sugar. Accordingly, seizure list was prepared in presence of
witnesses and apprehended accused persons were remanded to
judicial custody.
On the basis of written report of informant (Ext.3) B.S. City
P.S. Case No.450 of 1995 dated 21.11.1995 was registered for the
offences under Sections 21, 22 and 25 of the N.D.P.S. Act and
charge of investigation was given to S.I. Sitaram Singh, who after
conclusion of investigation submitted charge-sheet against the
above named two accused persons for the aforesaid offences.
5. The accused persons denied the charges levelled against them and
claimed to be tried.
6. In the course of trial, altogether 4 witnesses were examined by the
prosecution along with one court witness (C.W.1) Shankar
Thakur, Advocate Clerk.
Apart from oral testimony of above witnesses, following
documentary evidence have been adduced :-
Exhibit 1 : Carbon copy of F.S.L. Report
Exhibit 2 : Formal F.I.R.
Exhibit 3 : Written report
Exhibit 4 & 4/1 : Two seizure list of puria recovered
from accused
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7. On the other hand, one witness namely, Kauleshwar Mahato
(D.W.1) was examined on behalf of accused Umesh Rai (present
appellant).
8. The case of defence is denial from occurrence and false
implication.
9. The learned trial court after scrutinizing the evidence available on
record oral as well as documentary led by the parties recorded the
finding of guilt of the appellant for the offence under Section 21
of the N.D.P.S. Act and the present appellant was sentenced to
undergo R.I. for 10 years along with fine of Rs.1,00,000/- with
default stipulation.
10. Learned counsel for the appellant assailing the impugned
judgment of conviction and sentence has strenuously argued that
the learned trial court has miserably failed to appreciate that in
case of search of person, Section 50 of the N.D.P.S. Act mandates
that the search and seizure must be effected in presence of
Gazetted Officer, which has been ignored by learned trial court,
simply assigning the reason that the occurrence took place at
about 03.30 a.m. and at this odd time, no Gazetted Officer could
be present, therefore, search and seizure in presence of
independent witnesses cannot be disbelieved. It is submitted that
the Section 50 of the N.D.P.S. Act carves out no such exception or
proviso rather the provision is mandatory and absolute. It is
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further argued that the co-accused Krishna Rai (since deceased)
was running a Khatal and the present appellant was working as a
labour in his Khatal. The said Krishna Rai might have been
indulged in selling brown sugar or any intoxicating narcotic
substance but the appellant has no concern in such activities. He
has been made scapegoat of circumstances. The learned trial court
has further committed serious error of law in not attaching any
weightage to the evidence of defence witness (D.W.1). Therefore,
impugned judgment of conviction and sentence of the appellant
Umesh Rai is absolutely illegal and fit to be set aside. The
appellant deserves acquittal from the charge levelled against him.
11. On the other hand, learned Special Public Prosecutor for the State
controverting the aforesaid contentions raised on behalf of the
appellant has submitted that the learned trial court has very wisely
and aptly analyzed, evaluated and appreciated the oral and
documentary evidence available on record and arrived at right
conclusion which suffers from no illegality or infirmity calling for
any interference in this appeal. There is no legal force in the
contentions raised on behalf of appellant and no merits in this
appeal which is fit to be dismissed.
12. The only point for determination in this appeal is that "whether
learned trial court has committed serious error of law in
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construing the provision of Section 50 of the N.D.P.S. Act in right
perspective ?"
13. Before imparting our verdict on the above point, we have to
appraise with the oral testimony of witnesses along with
documentary evidence led by prosecution in the light of relevant
provisions of law.
14. P.W.1 S.I. Umraon Rai was a member of patrolling party.
According to his evidence on 20.11.1995 at about 03:30 a.m.,
confidential information was received that two persons are hiding
in Dundibagh hutment. Upon raid, both the persons were
apprehended, who disclosed their names as Umesh Rai and
Krishna Rai. Upon search of apprehended persons, one packet
brown sugar was recovered from the shirt of the Krishna Rai and
one puriya (sachet) was also recovered from the possession of
Umesh Rai which was seized and seizure list was prepared and
both accused persons were brought to police station.
In his cross-examination, he has failed to disclose the names
of independent witnesses in whose presence the brown sugar was
seized from the possession of accused persons. He also admits
that the search was not conducted before any Gazetted Officer or
Magistrate.
P.W.2 Umesh Kumar Singh is a Constable, who was also
along with the patrolling party. According to him, information was
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received by police officers that some persons are selling brown
sugar in a hut situated in Dundibagh. He along with other police
personnel went to the place of occurrence and two accused
persons were apprehended, who disclosed their names as Krishna
Rai and Umesh Rai and from the pocket of shirt of both the
accused persons one sachet brown sugar was recovered from the
possession of each accused person. The seizure list was prepared
and accused persons were brought to police station.
In his cross-examination, this witness has also failed to
disclose the names of independent witnesses in whose presence,
the brown sugar was recovered from the possession of accused
persons and also admits in clear terms that no Gazetted Officer or
Magistrate was present at the time of search and seizure.
P.W.3 A.S.I. Ratneshwar Das is the Investigating Officer,
who has only collected F.S.L. Report in respect of seized materials
and no part of investigation was conducted by him.
P.W.4 Gopalji Jha is Assistant Scientist F.S.L., Ranchi, who
has proved the F.S.L. Report in respect of seized materials as
Ext.1. According to him, brown sugar was sent from two sachets
recovered from the accused persons and after scientific
examination, it was found to be brown sugar.
One court witness (C.W.1) namely, Shankar Thakur,
Advocate Clerk has been examined to prove the formal
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documents who has proved the formal F.I.R. as Ext.2 and written
report of S.I. Muktinath Singh as Ext.3. Seizure list prepared by
A.S.I. Gaya Singh and signed by S.I. Muktinath Singh as Ext.4
and another seizure list as Ext.4/1.
15. On the other hand, D.W.1 Kauleshwar Mahato has deposed that
Umesh Rai (present appellant) was residing in the house of his
sister at Dundibagh. Krishna Rai is brother-in-law of Umesh Rai.
He has further stated that nothing was recovered from the
possession of Umesh Rai and he has been falsely implicated.
16. From the aforesaid evidence led by prosecution, it is quite obvious
that no seizure list witness has been examined and search and
seizure of the accused persons were not affected in presence of
Gazetted Officer as mandated by Section 50 of the N.D.P.S. Act
which reads 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
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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.
[(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.
(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 a
seventy-two hours send a copy thereof to his
immediate official superior.]"
17. The Hon'ble Apex Court in the case of State of Punjab vs. Baldev
Singh, (1999) 6 SCC 172, it was held that the accused has
indefeasible right to be searched in presence of Gazetted Officer.
The compliance of provision under Section 50 of the N.D.P.S. Act
must be substantive, not symbolic or substantial compliance.
18. The Hon'ble Apex Court in the case of Arif Khan @ Agha Khan
vs. State of Uttarakhand, (2018) 18 SSC 380, it was held that
failure to comply with Section 50 is fatal to the prosecution case.
19. In the instant case, we find that neither independent seizure
witnesses nor the Investigating Officer has been examined.
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Admittedly, the personal search and seizure of the appellant was
not conducted in presence of any Gazetted Officer and he was also
not intimated about his right to be searched in presence of
Gazetted Officer. Therefore, there is explicit violation of provision
of Section 50 of the Narcotic Drugs and Psychotropic Substances
Act, which is mandatory in nature. This right of accused is an
indefeasible right and protection provided to the accused from
illegal search and seizures. It is settled position of law that any
drugs or contraband recovered during a personal search conducted
in violation of Section 50 shall be deemed inadmissible by the
Court of law, if the recovery of contraband is the only evidence
against the accused and it was obtained through an illegal search,
the violation can be a strong ground for acquittal. The Hon'ble
Apex Court has repeatedly upheld this principle, quashing
convictions, where officers failed to inform the accused of their
rights to be searched before the Gazetted Officer. The non-
compliance of the above provision also gives rise to a
presumption that the accused was prejudiced by undermining their
right to a fair trial. The onus is on the prosecution to prove that the
procedure was followed accurately, correctly and in strict manner.
20. In view of aforesaid settled legal proposition of law, we are of the
firm view that the learned trial court has miserably failed to
appreciate the evidence available on record in the light of
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mandatory provisions under Section 50 of the N.D.P.S. Act and
arrived at wrong conclusion while recording findings about guilt
of the appellant. Therefore, we find merit in this appeal. The
conviction and sentence of appellant is absolutely unwarranted
under law, accordingly, this appeal is allowed and conviction and
sentence of the appellant is set aside.
21. The appellant is on bail. he is discharged from the liability of bail
bond and sureties are also discharged.
22. Let a copy of this judgment along with trial court record be sent
back to concerned trial court for information and needful.
23. Pending I.A., if any, stands disposed of.
(Rongon Mukhopadhyay, J.)
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated: 04/11/2025
Sachin / NAFR
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