Uttarakhand High Court

Sessions Judge vs Unknown on 10 April, 2023

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                       10th APRIL, 2023

              CRIMINAL APPEAL NO. 01 of 2006



Between:

Devendra Singh Malik                          .....Appellant

and

State of Uttarakhand
                                             .....Respondent


Counsel for the Appellant     :    Mr. Sandeep Adhikari,
                                   Amicus Curiae (through
                                   video conferencing).

Counsel for the Respondent     :    Mr. S.T. Bhardwaj,
                                    Deputy Advocate General.


Hon'ble Alok Kumar Verma,J.

Present Criminal Appeal has been filed against the

judgment dated 15.12.2005, passed by learned Special

Sessions Judge, Champawat in Special Sessions Trial No. 03

of 2003, "State vs. Devendra Singh Malik", by which, the

appellant Devendra Singh Malilk has been convicted and

sentenced to undergo rigorous imprisonment for a period of

ten years along with a fine of Rs. 1,00,000/- for the offence

under Section 18 read with Section 20 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (in short, "Act,

1985").

2. Facts to the limited extent necessary, are that on

07.11.2003, Sub-Inspector K.P. Singh (PW1), Constable

Ramesh Ram and Constable Mubarik Hassan Rizvi (PW3)

were on patrolling duty. When they reached near the bridge,

they saw the accused coming from Nepal. Seeing the police,

he started going back. On suspicion, he was apprehended at

15:00 hrs. He was asked the reason for running away. He

told that he had one kilogram Charas. On enquiry, he told

his name and address. Sub-Inspector K.P. Singh told the

accused that he has to be searched before a Magistrate or a

Gazette Officer, so does he want to go to any of them for

search. The accused said that he has full faith in him. He

does not want to go to anyone. The accused asked him to

search. His personal search was conducted. On search,

Charas (Material Ext. 1) was recovered from his pajama he

was wearing. On weighing, its weight was found to be one

kilogram. He was arrested. In spite of an endeavour, no

public witness could be secured. The recovered article was

seized. The said recovered article was taken into possession

vide recovery memo (Ext. Ka3). An FIR (Ext. Ka4) was

lodged by Sub-Inspector K.P. Singh. Sample of recovered

material was sent to Forensic Science Laboratory, Agra. On

examination, the Chemical Examiner found the same to be

"Charas". Charge-sheet was filed after completion of

investigation.

3. Charge under Section 18 read with Section 20 of

the Act, 1985 was framed. Appellant-accused pleaded not

guilty and claimed to be tried.

4. Prosecution in support of his case, examined five

witnesses.

5. (PW1) Sub-Inspector K.P. Singh, informant, and

(PW3) Constable Mubarik Hassan Rizvi were members of

arresting party.

6. (PW2) Constable Laxman Chand is the scribe of

the First Information Report.

7. (PW4) Station Officer B.C. Pant is the

Investigating Officer. He proved the charge-sheet (Ext. ka

9).

8. (PW5) Head Constable Hansraj Singh produced

100 gram sample of the recovered material in sealed

condition before the Special Court on 11.11.2003 and on

14.11.2003, he made the sample available to the Forensic

Science Laboratory, Agra.

9. The Special Court examined Alok Shukla, Senior

Scientist, (CW1) as a Court witness. He proved the report

(Ext. Ka 7) of Forensic Science Laboratory, Agra.

10. Statement of the accused was recorded under

Section 313 of the Code of Criminal Procedure, 1973. He

denied all the incriminating evidence, produced by the

prosecution.

11. Accused has not adduced any defence evidence.

12. Mr. Sandeep Adhikari, learned Amicus Curiae,

contended that mandatory provision of Section 50 of the

Act, 1985, was not followed by the searching party.

Appellant was not informed of his legal right by the

searching officer. Therefore, the impugned judgment is bad

in the eyes of law.

13. On the other hand, Mr. S.T. Bhardwaj, learned

Deputy Advocate General for the State, has supported the

impugned judgment.

14. As per the Table prepared in terms of Section 2

(XXiiia) and Section 2 (Viia) of the Act, 1985, lesser than

100 grams of Charas is small quantity and greater than 1 kg

is commercial quantity (Entry No. 23). Therefore, according

to the prosecution, recovered contraband was non-

commercial.

15. 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."

16. PW1 Sub-Inspector, K.P. Singh and PW3

Constable Mubarik Hassan Rizvi stated that on 07.11.2003,

when they were on patrolling duty, appellant-accused was

apprehended and he told that he had one kg. Charas.

Appellant-accused was told that he was to be searched

before a Magistrate or a Gazetted Officer, so did he want to

go to any of them for search. He replied that he has full faith

in them and he does not want to go to anyone. He asked the

police party to search him. On his search, one kg. Charas

(Material Ext. 1) was recovered from his pajama he was

wearing. According to these two witnesses, appellant-

accused was not appraised of his right to be searched before

a Gazetted Officer or a Magistrate. Appellant-accused was

not informed of his legal right to be searched in the presence

of a Gazetted Officer or a Magistrate. What was informed to

him, was that as if he desires, he can be searched before the

Magistrate or a Gazetted Officer.

17. 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.

18. 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."

19. 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.

20. 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.

21. In the present matter, appellant was not informed