Uttarakhand High Court
State Of Uttaranchal vs Hem Upadhyay on 19 February, 2024
Author: Pankaj Purohit
Bench: Pankaj Purohit
Reserved on:14.02.2024
Delivered on :19.02.2024
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
GOVERNMENT APPEAL NO.429 of 2007
State of Uttaranchal ..........Appellant
Versus
Hem Upadhyay ...............Respondent
Presence: Mr. K.S. Bora with Mr. Devendra Bisht, learned A.G.As for the State-
appellant.
Mr. Lokendra Dobhal, Advocate for the respondent - accused.
Hon'ble Pankaj Purohit, J.
This is an appeal preferred by the State under section 378
(3) of the Code of Criminal Procedure, 1973 (hereinafter to be referred
as the "CrPC") assailing the judgment and order dated 31.03.2004,
passed by the learned Special Judge, Pithoragarh, in Session Trial
No.05 of 2003, "State Vs. Hem Upadhyay", whereby the said court has
acquitted the respondent/accused for the offence punishable under
section 20 of the Narcotic Drugs and Psychotropic Substances, 1985
(hereinafter to be referred as the "Act").
2. In brief the facts of the case are that on 09.06.2003, at
about 8 PM at place Bhadelbada Tiraha, Kumord, within the territorial
jurisdiction of Police Station Kotwali and District Pithoragarh, the
police recovered 500 gram of contraband article (charas) from the
illegal possession of the accused, for which the accused did not have
any licence. On the spot, the recovery memo exhibit ka 1 was prepared,
on the basis of which the chik FIR exhibit ka 4, was prepared on the
spot. The registration of the case was made in the general diary, a copy
whereof of the exhibit ka (5). Before effecting the search, the consent
letter from the accused (exhibit ka 2) was prepared. Memo of arrest
(exhibit ka 5) was also prepared. During investigation, the Investigating
Officer inspected the place of occurrence and prepared the site plan
(exhibit ka 6). The recovered contraband was sent to the Forensic
Science Laboratory, for which the memo (exhibit ka 7) was prepared.
The report given by the Forensic Science Laboratory exhibit ka 8) is on
record, according to which, the recovered contraband article was found
to be "charas". On completion of the investigation, the Investigating
Officer has submitted the chargesheet against the respondent/accused
in the court under sections 18/20 of the Act, which is (exhibit ka 9) on
the record.
3. Vide order dated 29.08.2003, the learned Special
Judge/Sessions Judge, Pithoragarh, framed the charge under section 20
of the Act against the accused, to which he denied and claimed to be
tried. The prosecution in order to prove its case has produced as many
as 4 witnesses, which are PW 1 Constable Satyapal Singh, PW 2 SO
K.S. Rawat, PW 3 Constable Keshavlal and PW 4 SO P.C. Pandey.
The accused did not lead any evidence in his defence and denied the
allegations made against him in the statement recorded under section
313 of CrPC. After conclusion of the trial, the learned Trial Court
proceeded to acquit the accused as mentioned in paragraph 1 of this
judgment.
4. I have heard the learned counsels for the parties at length,
and carefully perused the entire evidence available on record. The
prosecution in order to prove its case has produced PW 1, according to
him, on 09.06.2003, at about 8 PM, 500 gram of "charas" was
recovered from the accused, for which he did not have any licence. PW
1 Constable Satyapal Singh, reiterated the version of the FIR.
According to him, on 09.06.2003, he along with other police personnel
had gone for patrolling duty. At the relevant point of time one person at
the spot, one person was found on the way leading to Kumord. The
police personnel came down from jeep, checked that person and caught
him. On being asked, he disclose his name as Hem Upadhyay
(respondent-accused). On being nabbed, he had shown the "charas"
wrapped in a polythene bag. Since it was a lonely place, the accused
was taken into custody. A weight scales was brought and on weighing
the contraband, it was found to be 500 gram. The necessary formalities
were done on the spot.
5. Similarly PW 2 K.S. Rawat, Station House Officer, was
also examined, who also duly corroborated the evidence given by the
PW 1. He also stated that the accused gave a consent letter on the spot,
and stated that he wants to being searched before the police personnel
only.
6. PW 3 Keshavlal, another police constable was also
examined, who also stated the version as made in the body of the FIR.
7. PW 4 P.C. Pandey, is the Investigating Officer of the case.
He conducted the investigation of the case, and submitted the
chargesheet against the accused on completion of the investigation. He
also stated that the recovered contraband was sent for chemical
examination, the report given by the FSL is exhibit ka 8 on the record.
8. In this matter, learned counsel for the appellant argued that
the trial court has erred in law in rendering the judgment of the
acquittal against the respondent-accused. According to him, the
prosecution has duly proved its case against the respondent-accused
beyond all reasonable doubt, and the judgment passed by the learned
trial court is liable to be interfered with.
9. On the other hand, learned counsel appearing for the
respondent-accused vehemently argued that the judgment passed by the
learned trial court is based on the evidence available on record, and
there is no iota of evidence, which may bring home the charge against
the accused.
10. In this matter, on a perusal of the entire evidence available
on record, it appears that the provisions of section 50 of the Act, have
not been complied with. It may be taken note of that the police
personnel have themselves conducted the search of the accused on the
basis of the consent letter given by the accused (exhibit ka 2). Without
proceeding any further, it would be apt to reproduce section 50 of the
Act, which reads 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."
11. According to the provisions of the aforesaid Act, it is
necessary to take the accused person to the nearest Gazetted Officer or
any of the Department mentioned under section 42 of the Act, or to the
nearest Magistrate for conducting his search. This right given to the
accused is mandatory, non compliance whereof is fatal for the
prosecution story.
12. On the perusal of the evidence of PW 1 and PW 2, who are
the police witnesses, it appears that the accused stated that he was
having "charas". None of these witnesses have stated in their
examination-in-chief that they apprised the accused of his right about
his option to search him before any Gazetted Officer or any Magistrate,
nor any such memo was prepared informing the accused of his legal
right.
13. So far as the consent letter is concerned, learned Trial
Court has recorded the finding of fact that it is a document procured by
the police witnesses just to complete the formality of law. I find no
reasonable ground to interfere with the findings recorded by the learned
Trial Court in this regard.
14. The Trial Court has also recorded the findings of fact that
the police witnesses did not try to procure any public witness, which
may prove that the accused was arrested on the relevant date along with
the contraband article.
15. It is a trite law that where two views are possible and one
view which favours the accused has been adopted by the learned Trial
Court, the Appellate Court should be slow in interfering with the
judgment of acquittal.
16. For the reasons recorded hereinabove, I do not find any
ground much less reasonable to interfere with the findings of the
acquittal recorded by the learned Trial Court. The findings so made are
based on the basis of the material available on record and there is no
ground to interfere with the same.
17. The appeal sans merit, and the same is accordingly
dismissed.
18. Let a copy of this judgment and order along with the LCR
be transmitted to the court concerned for information and necessary
action.
(Pankaj Purohit, J.)
NR/
