CRLA/547/2022
2023 Latest Caselaw 2277 UK

             Office Notes, reports,
             orders or proceedings
SL.
      Date     or directions and                       COURT'S OR JUDGES'S ORDERS
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             Registrar's order with
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                                      CRLA No. 552 of 2022
                                      With
                                      CRLA No. 547 of 2022
                                      Hon'ble Pankaj Purohit, J.

Mr. Vinod Sharma, learned counsel for the appellants/applicants.

2. Mr. B.P.S. Mer, learned Brief Holder for the State of Uttarakhand.

3. Heard learned counsel for the parties.

4. This appeal is directed against the judgment and order dated 29.11.2022 passed by Special Judge (NDPS Act), Uttarkashi in Special Session Trial No. 75 of 2020, "State Vs. Mandeep and others", whereby the appellants-Kasis and Mandeep Singh were convicted for the offence under Section 15 of the The Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced 10 years rigorous imprisonment each and fine of Rs.1,00,000/- each, with default stipulation of one year additional rigorous imprisonment.

5. The appellants today pressed their bail applications.

6. It is submitted by learned counsel for the appellants that the appellants of both the appeals, were travelling in a private car being no. PB-11- CU-4480 (Verna Car) owned by appellant Mandeep Singh, when they were intercepted by the police party and 102.828 Kg Doda was recovered from the gunny bag kept in the said car on 10.07.2020, though no time is mentioned there in the recovery memo. The first information report was lodged on 21:26 hrs. on 10.07.2020 in police station Dharasu, Uttarakashi under Sections 8/15/16 of the NDPS Act.

7. In order to buttress the argument, it is submitted by learned counsel for the appellants that the provisions of Sections 42(1), 50, 52A Sub- Section 2, 3 and 4 of NDPC Act have not been

complied with by the police party, while making the alleged recovery from the appellants and therefore, the entire case of the prosecution is highly doubtful and accordingly, the order of conviction recorded by the learned Special Sessions Judge, Uttarakashi is bad in law.

8. In order to substantiate his argument, it is submitted that since the alleged recovery was made from the private car of the appellant-Mandeep Singh, and the police party has got the prior information, it was obligatory upon the S.I. Sameep Pandey to reduce that information in writing before making the trap and intercepting the appellants and as per Section 42(2) of the NDPS Act, the said information should be forwarded to the superior officer.

9. Learned counsel for the appellants drew the attention of this Court to the recovery memo, from where it has been reflected that at 16:09 hrs, S.I. Sameep Pandey alongwith police party, set out for the patrolling and after reaching at Nagun Barrier, some information was handed down to the police party by the informer when they reached at barrier. From the recovery memo, it has also reflected that from Nagun Barrier, the police party after getting the information, reached through Mathiyali Band to a road leading to village Kansi, when a car being no. PB-11-CU-4480 (Verna Car) was seen coming from Diwarikhol and it is when the said vehicle was intercepted and the alleged contraband was recovered from the said private vehicle.

10. It is further submitted by the learned counsel for the appellants that no compliance of the Section 50 of the NDPS Act has been made for the reason that it is reflected from the recovery memo that the appellants themselves told S.I. Sameep Pandey that since there waas nothing in their pocket therefore, there would be no need to call the Gazetted Officer.

11. In order to appreciate the argument advanced by the learned counsel for the appellants, I have gone through the provision of Section 42(1) of the

NDPS Act, which applies only when the recovery is made from any building, conveyance and enclosed place and if the prior information is there with the officer enumerated in Section 42 Sub-Section (1), such information should be reduced into writing and as per Section 42 (2), the information so reduced in writing shall be sent within 72 hours to the immediate superior officer.

12. From the perusal of the recovery memo, it appears that the police party got the information when they reached at Nagun Barrier and it is thereafter, the raid was made and the vehicle was intercepted and the contraband was found. In this view of the matter, it was obligatory on the part of S.I. Sameep Pandey to reduce that information which he allegedly received from the informer in writing and send the same to immediate superior officer.

13. So far as the compliance of Section 50 of the NDPS Act is concerned, it is submitted by learned counsel for the appellants relying upon the judgment of State of Punjab Vs. Baldev Singh reported in (1999) 6 Supreme Court Cases 172, that if a search is made on prior information, in that eventuality, the information of right of accused to be searched before the Magistrate/Gazetted Officer shall be given to the accused persons. To support his argument, he relied upon para 57 sub-para 1 of the said judgment, which is quoted herein as under:

"57(1). That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing."

14. Per contra, learned State Counsel submitted that this is not a case of prior information rather it's a case of sudden information, which was received

by the police party when they reached at Nagun Barrier. In order to substantiate his argument, he referred the statement of PW-2 Constable Anil Chauhan, wherein it has been stated that Nagun Barrier is at a distance of two and a half kilometre from Police Station Dharasu, but, when this Court put a specific query to the learned State Counsel that from Nagun Barrier what was the distance of the place at road leading to village Kansi, where the private car of the appellant-Mandeep Singh was intercepted, he said that there is no such information as per the evidence of the prosecution.

15. Having heard learned counsels for the parties and carefully perused the record of the case and the Case law submitted by the learned counsel for the appellants in order to substantiate that the provision of Section 50 of NDPS Act has not been complied with and it was required to be complied with for the reason that the search was made on prior information. I do not find substance in this argument for the reason that in Para 57 sub-para (1) of the aforesaid Constitution Bench judgment itself reflected that when prior information is about to search a person, it is imperative to inform the person concerned his right sub-section (1) of Section 50 of NDPS Act of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, in the case in hand, the search has not been made from the person of appellants rather the search was made from the private vehicle. Therefore, the requirement of compliance of Section 50 of NDPS Act is not to be compulsory.

16. So far as the argument of the learned counsel for the appellants regarding the non-compliance of Section 42 (1) and (2) of NDPC Act is concerned, this Court finds that the police party has got

sufficient time when they reached at Nagun Barrier and was informed by the informer about the information of some vehicle carrying contraband coming and S.I. Sameep Pandey has got every opportunity to reduce that information in writing.

17. In this view of the matter, prima facie, it is found that the mandatory provisions of Section 42 Sub-Section 1 and 2 of NDPS Act have not been observed. The non-observation of the mandatory provisions especially in view of the stringent provisions of the NDPS Act, will come to the rescue of the appellants and at this stage, they are entitled to be released on bail.

18. Without expressing any opinion on merits of the appeals, let the appellants-Kasis in CRLA No.

of 2022 be released on bail during the pendency of this appeal on their executing personal bonds and furnishing two reliable local sureties by each, each of like amount, to the satisfaction of the learned Special Sessions Judge, Uttarkashi. Realisation of fine shall also remain stayed during pendency of the appeals.

19. List on 18.10.2023.

20. The observations made herein are especially for the purpose of consideration of the bail applications and the same shall not have any bearing upon the hearing of the appeals.

(Pankaj Purohit, J.) 17.08.2023 PN/-