Uttarakhand High Court
CRLA/276/2008 on 28 April, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
28th APRIL, 2023
CRIMINAL APPEAL NO.255 OF 2008
Between:
Nukta Prasad .....Appellant
and
State of Uttarakhand .....Respondent
Counsel for the Appellant : Mr. D.K. Sharma, Senior
Advocate assisted by Mr.
Nivesh Bahuguna,
Advocate holding brief of
Mr. Vipul Sharma,
Advocate.
Counsel for the State : Mr. S.S. Adhikari,
Deputy Advocate
General assisted by Mr.
B.S. Thind, Brief Holder for
the State.
WITH
CRIMINAL APPEAL NO.276 OF 2008
Between:
Manoj Kumar .....Appellant
and
State of Uttarakhand .....Respondent
Counsel for the Appellant : Mr. D.K. Sharma, Senior
Advocate assisted by Mr.
Nivesh Bahuguna,
Advocate holding brief of
2
Mr. Vipul Sharma,
Advocate.
Counsel for the State : Mr. S.S. Adhikari,
Deputy Advocate
General assisted by Mr.
B.S. Thind, Brief Holder for
the State.
Hon'ble Alok Kumar Verma, J.
These Two Criminal Appeals have been filed
against the judgment dated 04.09.2008, passed by learned
Special Sessions Judge, Champawat in Special Sessions Trial
No.03 of 2004, "State vs. Nukta Prasad", and in Special
Sessions Trial No.04 of 2004, "State vs. Manoj Kumar.
2. Appellant - Nukta Prasad has been convicted and
sentenced to undergo rigorous imprisonment for a period of
ten years along with a fine of Rs.1,00,000/- (Rupees One
Lakh) for the offence under Section 8 read with section 20 of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(in short, 'Act, 1985') and in default of which, he has been
directed to undergo further imprisonment for a period of two
years in Special Sessions Trial No.03 of 2004.
3. Appellant - Manoj Kumar has been convicted and
sentenced to undergo rigorous imprisonment for a period of
ten years along with a fine of Rs.1,00,000/- (Rupees One
Lakh) for the offence under Section 8 read with section 20 of
the Act, 1985, and, in default of payment of fine, he has
been directed to undergo additional imprisonment for a
period of two years in Special Sessions Trial No.04 of 2004.
4. These two criminal appeals are connected appeals,
therefore, these appeals are being decided by this common
judgment. Criminal Appeal No.255 of 2008 will be treated as
a leading case.
5. Briefly stated the prosecution case as it emerges
from re-appreciation of the evidence on record is that on
02.12.2003, Station Officer C.S. Yadav (PW1), Constable
Harbhajan Singh (PW2) along with other police personnel
were on patrolling duty. They were going from Pilibhit road
market to the main market. When they reached near the
railway crossing on the east side of the roadways, they saw
the accused persons coming from the south side. Seeing the
police, they turned back and started walking towards the
railway station. On suspicion, they were apprehended at
2:00 a.m. On enquiry, they told their names and addresses.
They told that they had one kilogram Charas. (PW1) C.S.
Yadav asked the accused persons to give their search before
a Magistrate or a Gazette Officer. The accused persons said
that they have full faith in him and they do not want to go to
any Magistrate or any Gazette Officer for their search. They
asked him to search. After preparing the consent letter of
the accused persons by C.S. Yadav (PW1), they were
searched by him. On personal search, Charas (Material
Ext.1) were recovered from inside the shirts worn by them.
They were arrested. In spite of an endeavour, no public
witness could be secured. The recovered materials were
seized. The said materials were taken into possession vide
Recovery Memo (Ext. Ka.1). As per the Recovery Memo
(Ext. Ka.1), about one kilogram of Charas was recovered
from each accused. An FIR (Ext. Ka.4) was lodged by C.S.
Yadav (PW1). A 100-100 grams samples, from the
recovered materials, were taken before Special Judge,
Champawat. The said samples were sent to the Forensic
Science Laboratory, Agra. On examination, the Chemical
Examiner found the same to be "Charas". Charge-sheets
were filed after completion of investigation.
6. Charges under Section 8 read with section 20 of
the Act, 1985 were framed. Appellants - accused persons
pleaded not guilty and claimed to be tried.
7. The prosecution, in order to establish the charges,
examined five witnesses.
8. (PW1) C.S. Yadav and (PW2) Constable Harbhajan
Singh were members of the arresting party.
9. According to (PW3) Constable Gaje Singh, on
18.12.2003, he took out the recovered sealed materials
from the Malkhana of the police station and produced it
before the Special Sessions Judge, Champawat. In front of
Special Judge, 100 - 100 grams samples were taken out
from each sealed packet and the sample packets were
sealed. He deposited the said samples to the Forensic
Science Laboratory, Agra on 20.12.2003.
10. (PW4) Station Officer, Bipin Chandra Pant is
Investigating Officer.
11. (PW5) Head Constable Gopal Ram is the scriber of
the First Information Report (Ext. Ka.4).
12. Statements of appellants - accused persons were
recorded under Section 313 of the Code of Criminal
Procedure, 1973. They denied all the incriminating evidence,
produced by the prosecution.
13. Appellants did not adduce any defence evidence.
14. Learned Trial Court heard the arguments,
appreciated the evidence and passed the impugned
judgment, by which the appellants have been convicted on
the basis of recovery.
15. Aggrieved by the judgment of conviction and
sentence, awarded by the Trial Court, appellants appealed to
this Court.
16. Mr. D.K. Sharma, learned Senior Advocate,
contended that the provision of Section 50 of the Act, 1985
was not followed in this case. It is mandatory for the
arresting party to give the appellants the option of being
searched before a Magistrate or a Gazette Officer. This
option was not given, and, there are material contradictions
in the statements of the prosecution's witnesses. Therefore,
their evidence do not inspire confidence.
17. On the other hand, Mr. S.S. Adhikari learned
Deputy Advocate General for the State, has supported the
judgment.
18. I heard the learned counsel for the parties and
have carefully assessed the evidence, adduced by the
prosecution.
19. As per the case of the prosecution, about one
kilogram of Charas was recovered during the personal
search of each of the appellants. PW1 C.S. Yadav has stated
in his cross-examination that the recovered contrabands
were not weighed.
20. As per the Table prepared in terms of Section 2
(xxiii-a) and Section 2 (vii-a) of the Act, 1985, lesser than
100 grams of Charas is small quantity and greater than 01
kilogram is commercial quantity (Entry No.23). Therefore,
according to the prosecution, recovered contraband was
non-commercial.
21. The provisions of Section 50 of the Act, 1985 are
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.
(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."
22. Section 50 of the Act, 1985, casts duty on
empowered officer to inform the suspect of his right to be
searched in the presence of the Gazetted Officer or
Magistrate.
23. In "Vijaysinh Chandubha Jadeja vs. State of
Gujrat, (2011) 1 SCC 609", Constitutional Bench of the
Hon'ble Supreme Court has 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
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."
24. In Arif Khan vs. State of Uttarakhand, (2018)
18 SCC 380, the Hon'ble Supreme Court held that the
suspects may or may not choose to exercise the right
provided to them under Section 50 of the NDPS Act but as
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.
25. It is well settled that when the law provides for
doing of an act in a particular manner, it necessarily
prohibits the doing of that act in any other manner.
26. The case of the prosecution is that PW1 C.S.
Yadav asked the appellants to give their personal search
before a Magistrate or a Gazette Officer. Appellants said that
they have full faith in him and they do not want to go to any
Magistrate or any Gazette Officer for their search. Then,
their personal search were conducted by PW1 C.S. Yadav. In
these circumstances, it is quite clear that the appellants
were not informed about their legal right to be searched
before any Magistrate or Gazette Officer. Therefore, non-
compliance of mandatory provision of Section 50 of the Act,
1985 makes sufficient case for acquittal.
27. According to PW1 C.S. Yadav, police party did not
conduct its own search on the spot, while not supporting the
said evidence of PW1 C.S. Yadav, (PW2) Constable
Harbhajan Singh has stated in his cross-examination that he
did search the police party on the spot. Therefore, there are
material contradictions in the statements of the
prosecution's witnesses. In these circumstances, the
statements of the prosecution's witnesses also do not inspire
confidence.
28. As a result, I accept the case of the appellants.
Accordingly, both the appeals are allowed. The impugned
judgment dated 04.09.2008, passed by learned Special
Sessions Judge, Champawat in Special Sessions Trial No.03
of 2004, "State vs. Nukta Prasad", and in Special Sessions
Trial No.04 of 2004, "State vs. Manoj Kumar", are set aside.
Appellants, Nukta Prasad and Manoj Kumar are acquitted of
the charge under Section 8 read with Section 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985.
Appellants are on bail. Their bail bonds are cancelled and the
sureties are discharged.
29. A copy of this judgment be placed in the
connected Appeal.
__________________
ALOK KUMAR VERMA, J.
Dated : 28th April, 2023
Pant/
