U.O.I.(Cbn) vs Satyanarayan
2023 Latest Caselaw 15425 MP

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                                  IN THE HIGH COURT OF MADHYA PRADESH
                                                                   AT I N D O R E
                                                                           BEFORE
                                                HON'BLE SHRI JUSTICE ANIL VERMA

                                                   ON THE 20th OF SEPTEMBER, 2023
                                                    CRIMINAL APPEAL No. 217 of 2000

                          BETWEEN:-
                          UNION OF INDIA, THROUGH CENTRAL
                          BUREAU OF NARCOTICS, INDORE (MADHYA
                          PRADESH)

                                                                                                                  .....APPELLANT
                          (BY SHRI MANOJ KUMAR SONI - ADVOCATE)

                          AND
                          SATYANARAYAN S/O RAMKALYAN AGRAWAL,
                          AGED 38 EYARS, R/O VILLAGE KHANPUR,
                          OPPOSITE DHARAMSHALA, P.S. AND TEHSIL
                          KHANPUR,      DISTRICT      JHALAWAR
                          (RAJASTHAN)
                                                                                                               .....RESPONDENT
                          (BY SHRI ANAND BHAT - ADVOCATE)
                          ...................................................................................................................
                                   This appeal coming on for hearing this day, the court passed the
                          following:
                                                                    JUDGMENT

The appellant has preferred present criminal appeal under Section 378(4) of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the impugned judgment of acquittal dated 29/01/1999 passed by Special Judge, Indore (M.P.) in Special Case No.12/1998, whereby the

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 9/22/2023 3:01:00 PM

respondent / accused Satyanarayan has been acquitted for the offence under Section 8/18 of Narcotics Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act').

02. The brief facts of the case are that Inspector D. L. Prajapati, Central Bureau of Narcotics, Indore has been authorized for conducting arrest and investigation for the offences under the NDPS Act. On 11/12/1997, Inspector D. L. Prajapati along with other officers of Preventive Team of Central Bureau of Narcotics, Indore was carrying routine checking. At about 05:30 AM, they have inspected a bus of Rajasthan Roadways bearing registration number RJ-26-PO-95 near the Marimata Square, Indore. During the search, respondent / Accused Satyanarayan was found seated at Seat No.46 in suspicious condition. He has been made aware of his right under Section 50 of the NDPS Act. Accused had given his consent to conduct his search before the Superintendent of Police A.B. Acharya. During the search a packet was recovered from his undergarment, which was containing 500 gram opium without having any valid licence. As per the due procedure of search, seizure, arrest and sampling, an offence under Section 8/18 of the NDPS Act has been registered against the respondent / accused.

03. After completion of investigation, charge sheet has been filed against the respondent / accused before the Special Judge, (under NDPS Act), Indore. The trial Court has framed the charges against the respondent under Section 8/18 of the NDPS Act. The accused abjured his guilt and pleaded that he is completely innocent and has been falsely implicated in this matter. After completion of trial and scrutinizing the evidence available on record, learned Special Judge acquitted the

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respondent from all the charges, against which present appeal has been filed.

04. Learned counsel for the appellant submits that the learned trial Court has erred in disbelieving the evidence of Atul Chatterjee (PW-3) and A.B. Acharya (PW-6) and overlooked the fact that aforesaid witnesses have specifically stated that search and the memo were prepared at place where the bus was stopped. The trial Court has committed error by holding that the provisions of Section 50 were not duly complied with. The trial Court has erred in giving the benefit of non-compliance of Section 52, 55 and 57 of the NDPS Act. The statement of the accused made to the officers of Central Bureau of Narcotics as it fall within the purview of confession as it was not made to the police officer. There is no material contradictions and omissions in the statement of prosecution witnesses. The prosecution has proved his case beyond reasonable doubt. Therefore, it is prayed that the judgment of acquittal passed by the trial Court be set aside and the respondent / accused be convicted and sentenced according to the law.

05. Per contra, learned counsel for the respondent / accused opposed the prayer by submitting that the trial Court after scrutinizing the evidence available on record has rightly acquitted the respondent / accused from all the charges and there is no scope of interference by this Court.

06. Both the parties heard at length and perused the record.

07. Many legal issues involving the provisions of Section 42, 43, 50 and 57 of the NDPS Act were urged before the trial Court and the learned trial Court during the course of judgment held that on the facts

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of the case Section 43 of the NDPS Act was not applicable since recovery in question was made in a public place. It also came to the conclusion that there has been violation of various provisions of NDPS Act like non-recording of the information received in advance, non- compliance with Section 57 of the NDPS Act in not reporting the arrest of the accused person. It is also came to the conclusion that though the accused person was informed of his legal right of being searched by a gazetted officer or a Magistrate as per his desire, he ought to have been taken to the gazetted officer to be searched and the search made by the Superintendent of Police A.B. Acharya, who himself was a gazetted officer was contrary to the provisions of Section 50 of the NDPS Act since he was a member of the raiding party. Therefore, the material available on record is sufficient to establish that statement of respondent / accused was obtained under coercion, which itself creates serious doubt as to the prosecution case.

08. Learned counsel appearing on behalf of the appellant contended that the findings of the Court below there has been violation of Section 42, 43, 50 and 57 of the NDPS Act is wholly erroneous and contrary to the decisions of this Court.

09. It is crystal clear that from Section 50(1) of the NPDS Act that where a search of a person is made by an officer without a search warrant as provided in Section 42 of the NDPS Act in exercise of powers conferred by Section 41, 42 or 43 of the NDPS Act, he mush give an opportunity to the accused is he so requires to the effect that search and seizure are made before the nearest gazetted officer or before of any of the departments mentioned in Section 42 of the NDPS Act or before the

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nearest Magistrate.

10. Hon'ble the apex Court in the case of State of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 has firmly held that the compliance of Section 50(1) of the NDPS Act is mandatory on the part of the Investigating Agency and it cannot take shelter behind the plea that the accused did not require it to comply with Section 50(1) of the NDPS Act.

11. In the instant case, Sub Inspector Atul Chatterjee (PW-3) deposed that he has given option to the respondent Satyanarayan that he is free to gave his search before the gazetted officer or Magistrate or the Superintendent of Police A.B. Acharya, who is also a gazetted officer. A.B. Acharya (PW-6) also corroborated the statement of Atul Chatterjee (PW-3), therefore, it appears that Investigating Officer Atul Chatterjee (PW-3) has given three options to the accused, but as per the provisions of Section 50(1) and 42 of the NDPS Act, the third option which relates to search before the Superintendent of Police A.B. Acharya is not permissible. Thus, this Court comes to the conclusion that there was non-compliance of Section 50(1) of the NDPS Act.

12. Hon'ble the apex Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in (2011) 1 SCC 609 held as 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

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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."

13. Hon'ble the apex Court in the case of State of Punjab Vs. Baljinder Singh and Another reported in (2019) 10 SCC 473 has observed as under:-

"13. The law is thus well settled that an illicit article seized from the person during personal search conducted in violation of the safe-guards provided in Section 50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contraband. But the question is, if there be any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance."

14. Considering the aforesaid, this Court is of the view that the learned Court below has rightly acquitted the respondent and no illegality or impropriety is found in the impugned judgment. This Court is of the considered opinion that the learned trial Court has not committed any

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error in acquitting the respondent / accused. Therefore, I am inclined to maintain the impugned judgment dated 29/01/1999 passed by the Special Judge, Indore (M.P.) in Special Case No.12/1998.

15. Accordingly, the appeal is hereby dismissed.

16. Let a copy of this judgment be sent along with the record to the concerned trial Court for information and necessary action.

Certified copy as per rules.

(ANIL VERMA) J U D G E Tej

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