Aasiq Hussain vs State Of Uttarakhand
2021 Latest Caselaw 213 UK

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Appeal No. 484 of 2007

Aasiq Hussain S/o Sri Bhura
R/o Ward No. 7 P.S. Kichha
District Udham Singh Nagar
                                          ......Appellant

                              Vs.
State of Uttarakhand                       ......Respondent


Mr. M.S. Pal, Senior Advocate assisted by Mr. Sachin,
Advocate for the appellant.
Mr. Subhash Tyagi Bhardwaj, Deputy Advocate General with
Ms. V.S. Rathore, A.G.A. for the State.

Hon'ble Lok Pal Singh, J.

This appeal has been preferred against the judgment and order dated 21.11.2007, passed by the Additional District Judge, Kashipur, Udham Singh Nagar in Sessions Trial No. 62 of 2006, whereby the said court has convicted the appellant under section 20 of the Narcotic Drugs and Psychotropic Substances, Act (for short N.D.P.S. Act) and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 20,000/-.

2. Prosecution story in nutshell is that Sub- Inspector Naresh Chauhan (PW1) along with Constable Pushkar Dutt Bhatt (PW2) and constable Dharmendra Kumar were on patrolling duty; they got information through the informant that the train via Lalkuan-Kichha-Kashipur, which reached Sarkada at 3 hours a person was traveling in it, who was carrying contraband item with him.

Relying on the said information the police personnel started search. The informer pointed towards the appellant that he is the person who is having charas. On seeing the police personnel the appellant tried to run from the spot then police personnel surrounded the appellant and arrest him at 3:15 hrs. On being asked, the appellant disclosed his name Aasiq Hussain and stated that was carrying 1kg charas. On this, the police party told the accused/appellant that if he desires his search can be made before the Magistrate or any Gazetted Officer. Prosecution case is that the accused/appellant opted to be searched in the presence of police personnel. The accused were taken into custody and search was made and 1 kg., charas was recovered which was kept in green polythene inside the bag. The recovery memo (Ex. A2) was prepared, and 100 gm., of sample was taken from the recovered charas and rest of the charas was sealed. The police personnel tried to arrange some independent witness but no one is ready for the same. On the basis of the recovery memo, a report was lodged and chik FIR (Ex. A3) was prepared. Investigation of the case was taken up by S.I. Mohd. Akram. After investigation, charge sheet (Ex. A7) was filed against accused/appellant and the sample was sent to Forensic Science Laboratory, Uttaranchal. Report was received from Forensic Science laboratory disclosing that sample gave positive report of charas.

3. On receipt of the charge sheet, after giving necessary copies, Special Court appears to have heard the parties, and framed charge of offence punishable under section 20 of the N.D.P.S., Act, in reply to which accused/appellant pleaded not guilty and claimed to be tried. On this prosecution got examined as many as four witnesses, namely, P.W.1 Naresh Chauhan (complainant and witness of recovery who arrested the accused, P.W.2 Pushkar Dutt Bhatt (witness of search and recovery) P.W. Prakash Chandra (subscriber of FIR) and P.W.4 S.I. Mohd. Akram (who investigate the crime and submitted the charge sheet).

4. After examining four witnesses, prosecution proceeded to record the statement of the accused persons under section 313 Cr.P.C., in reply to which he pleaded that evidence adduced against him is false. However, no evidence in defence was adduced. The trial court, after hearing the parties found accused Aasiq Hussain guilty of charge of offence punishable under section 20 N.D.P.S Act and sentenced him for a period of five years with fine of Rs. 10,000/-.

5. Perusal of the lower court record shows that P.W.1 S.I. Naresh Kumar and, P.W. 2 Constable Puskhkar Dutt Bhatt have corroborated the prosecution story and have stated that on 22.04.2006 they were on patrolling duty; they got

information through the informant that the train via Lalkuan-Kichha-Kashipur, which reached Sarkada at 3 hours, a person was traveling in it, carrying contraband item with him. Relying on the said information the police personnel started search. The informer pointed towards the appellant that he is the person who is having charas. On seeing the police personnel the appellant tried to run from the spot then police personnel surrounded the appellant and arrest him at 3:15 hrs. On being asked, the appellant disclosed his name Aasiq Hussain and stated that was carrying 1kg charas. On this, the police party told the accused/appellant that if he desires his search can be made before the Magistrate or any Gazetted Officer. Prosecution case is that the accused/appellant opted to be searched in the presence of police personnel. The accused were taken into custody, search was made and 1 kg., charas was recovered which was kept in green polythene inside the bag. The recovery memo (Ex. A2) was prepared, and 100 gm., of sample was taken from the recovered charas and rest of the charas was sealed. The police personnel tried to arrange the some independent witness but no one is ready for the same. On the basis of the recovery memo, a report was lodged and chik FIR (Ex. A3) was prepared. It is further stated that the charas was sealed and sample was taken out of it and the same was also sealed.

6. PW3 Constable Prakash Chandra is the subscriber of the report who proved G.D. and its signature on it.

7. P.W. 4 S.I. Mohd. Akram, in his statement has stated he made entries of chik in his case diary, recorded the statement of Constable Prakash Chandra, S.I. Naresh Kumar, Constable Pushkar Dutt Bhatt, Dharmendra Kumar and the appellant, prepared site plan and sent the contraband to the laboratory and on completion of investigation submitted charge sheet (Ex. A7) against the present accused appellant.

8. Learned senior counsel appearing on behalf of the appellant submitted that neither there is any public witness of the recovery, nor recovery was made in the presence of any Gazetted Officer. Learned counsel further submitted that the learned trial court did not consider the provision of section 50 of the N.D.P.S. Act. It is also submitted that non compliance of mandatory provisions of Section 50 of NDPS Act., vitiate the trial.

9. Hon'ble Apex Court in the case of Ashok Kumar Sharma vs State of Rajasthan reported in 2013 (2) SCC 67 has held that since the accused-appellant was not informed about her legal right to be searched before the Magistrate or the Gazetted Officer, thus there is no compliance of Section 50 of NDPS Act.

10. Hon'ble Apex Court in the case of Vijay Singh Chandubha Jadeja vs State of Gujarat reported in 2011 (1) SCC 609 wherein the question was referred to five Judges Bench of Hon'ble Apex Court in regard to the mandatory provisions of Section 50 of the NDPS Act. The Five Judges Bench of Hon'ble Apex Court has answered the question referred in paragraph No. 32 of the judgment in affirmative, which is extracted herein under:

"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 (1974) 2 SCC 33 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."at

11. Hon'ble Apex Court in the case of Beckodan Abdul Rahiman vs State of Kerala reported in 2002 (4) SCC 229 has held that compliance is mandatory. Relevant paragraph No. 6 of the judgment, is extracted here under:

"6. We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment."

12. Per contra, learned counsel for the State has submitted that the appellant was informed about his legal right of being searched before a Magistrate or the Gazetted Officer. From the perusal of arrest memo, it would reveal that it has been mentioned in the memo that the search can be made before a Magistrate or the Gazetted Officer if the appellant so desires, thus the contention of learned counsel for the State has no substance. The appellant was not apprised by his legal rights to be searched before the Magistrate or Gazetted Officer.

13. Learned Deputy A.G. for the State placed reliance upon the judgment of Hon'ble Apex Court in the case of State of Punjab vs Baldev Singh reported in 1999 (6) SCC 172 wherein it was held in paragraph No. 12 of the judgment, which is extracted herein under:

"12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."

14. Learned counsel for the State has submitted that since during the normal course of search, if contraband is found and recovered, then the provision provided under Section 50 of NDPS Act is not attracted. The ratio of the judgments (supra)

submitted by the learned counsel for the State is not applicable in the present case.

15. In the case of Vijay Singh Chandubha Jadega (supra), the Five Judges Bench of Hon'ble Apex Court has made it clear that the compliance of Section 50 of NDPS Act is mandatory in nature. From the perusal of the record it depicts that the appellant was not informed about his legal right of search in view of Section 50 of NDPS Act., to be searched before the Magistrate or the Gazetted Officer.

16. Thus, this Court is of considered view that the complainant has not made the mandatory compliance of Section 50 of NDPS Act., at the time of arrest of the appellant. Thus, on account of non- compliance of Section 50 of NDPS Act, the trial is vitiated. This court is of the opinion that the trial court has convicted the appellant without satisfying itself to the mandatory provisions of Section 50 of NDPS Act. Therefore, the judgment and order passed by the learned trial court convicting the appellant and to undergo imprisonment for a period of one year with fine under Section 8/20 of NDPS Act is liable to be set aside.

17. Accordingly, criminal appeal is allowed. Impugned judgment and order dated 21.11.2007, passed by the Additional District Judge, Kashipur, Udham Singh Nagar in Sessions Trial No. 62 of

2006 is hereby by set aside. Appellant is on bail. He need not surrender. His bail bond is cancelled. Sureties are discharged.

18. Let a copy of this judgment along with lower court record be sent back to the court below for ensuring compliance.

                              (Lok Pal Singh, J.)
Parul                              15.01.2021