TMI Blog2017 (12) TMI 1510X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned lower court in judgment - In the case at hand, in the light of evidence on record, it is apparent that the accused was given option to be taken before a Magistrate or a Gazetted Officer as has been stated by both the witnesses of fact i.e. PW-1 and PW-3 and entry in that regard has also been made in the recovery memo, but they certainly had not apprised him about his legal right of being searched before a Magistrate or a Gazetted Officer in right earnest, in letter and spirit, as has been laid-down in the Vijaysinh Chadubha Jadeja's case (Supra) which goes to the extent to lay down that an endevour should be made to produce the suspect before the nearnest Magistrate who enjoys more confidence of common man, hence this Court finds that compliance of section 50 of NDPS Act was not made in right earnest by apprising the accused of his legal right that he could opt to be searched before a Magistrate or a Gazetted Officer, but only such option was given to him, hence the finding of lower court in this regard is found to be erroneous. Whether the prosecution has been able to prove that the alleged recovered contraband (Heroin) from the accused was the same which was se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts case to the hilt beyond shadow of doubt against the accused regarding illegal recovery of heroin - accused is held not guilty of offense under Section 21 of NDPS Act and deserves to be released forthwith in this case - appeal allowed. - Criminal Appeal No. 2835 of 1999 - - - Dated:- 14-12-2017 - Hon'ble Dinesh Kumar Singh-I, J. For the Appellant : N. D. Shukla For the Respondent : Govt. Advocate ORDER 1. This criminal appeal has been filed against the judgment and order dated 23rd September, 1999 passed by then IVth Additional Sessions Judge, Varanasi in Criminal Case No. 559 of 1995 arising out of Case Crime No. 146 of 1995, P.S. Maruwadih District Varanasi whereby the accused appellant Anil Kumar has been convicted and awarded punishment under Section 21 of NDPS Act of 10 years rigorous imprisonment, fine of ₹ 1,00,000/- and in default of payment of fine to further undergo two years rigorous imprisonment. 2. Facts of this case, in nut-shell, are as follows. 3. On 3.9.1995 S.I. Pramod Kumar Pandey (PW-1), along with Head Constable Shyam Narain Yadav (PW-3) were busy in night patrolling duty and and were present at Maruwadih Inter-Section (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he police station with the recovered contraband substance along with sample seal and the accused and got the case registered. Chick FIR (photo copy paper no. 9Ka/1), was prepared by Shivdarshan Giri (not examined) and the entry of this case was made by him in General Diary dated 3.9.1995 (Paper no. 9ka/1), at report no. 38 at time 20.30 hours. The Investigation was assinged to Inspector Nafees Ahmad (PW-2), who made inspection of the place of occurrence at the instance of PW-1 and prepared the site plan (Exhibit Ka-2). He had sent the contraband substance recovered from the accused to FSL through Constable Sanjay Kumar Tiwari on 11.9.1995, whereafter the FSL sent its report (Exhibit Ka-4), in which it was found that all the seven pudias contained hereoin. Thereafter, PW-2, Nafees Ahmad after having recorded entire evidence filed charge sheet(Exhibit Ka-3) under Sections 21 of NDPS Act against accused appellant Anil Kumar Dubey. 4. The court below, on the basis of evidence collected by police, framed charge against accused appellant under Section 21 of NDPS Act on 7.6.1996, to which accused pleaded not guilty. 5. Thereafter the prosecution examined Pramod Kumar Pandey (S.I.) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nafees Ahmad was present at the time of occurrence but when the accused along with recovered substance was taken to police station, whether S.O. was present there or not, he does not remember. No seal of S.O. Maruwadih was affixed. Referring to above statement it is argued by the learned counsel for the appellant that it was mandatory for the prosecution (police party which arrested accused on the spot) to weigh each pudia separately and the sample ought to have been taken from each pudia for being sent to FSL for being examined/tested. If that was not possible then the entire weight of all the seven pudias ought to have been taken on the spot and its weight should have been recovered in the recovery memo and some definite quantity from each of the seven pudias ought to have been taken and the same should have been sent for being tested by the FSL. All this has not been done rather the entire allegedly recovered seven pudias are said to have been sent to the FSL for being tested, which is against the provisions. The quantity/weight of entire recovered contraband substance has been narrated by PW-1 on the basis of conjecture, to be little more than 1/2 gram or it could also be 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of keeping it on file. The envelope which was sent, the same is not available on file. He had recorded statement of S.I. Pramod Kumar Pandey(PW-1) on 6.6.1995. 10. Drawing attention towards above statement of investigating officer, PW-2 who is also reported to have remained present on the spot at the time of occurrence by PW-1, it is argued that the seal which was affixed on the contraband material recovered from the accused on the spot, of S.I. P.K. Pandey was broken in the Court of VIIth ACJM and the seal of VIIth ACJM was affixed on the said contraband material which was sent for being tested/examined by the FSL, while in the report of FSL, it is mentioned that it found the seal of S.I. 'PK Pandey' affixed on it when it received the contraband material. Therefore, in the light of contradictory evidence on record regarding the seal of contraband substance sent for examination to FSL, it is argued that it cannot be held that the contraband material allegedly recovered from the accused was the same which is alleged to have been recovered from the accused and sealed on the spot and therefore, the entire recovery of the said contraband material stands not proved. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Authority within 48 hours and in this regard reliance has been placed upon Md. Idrish Vs. State of U.P., 2017 (101) ACC 156. 15. From the side of learned A.G.A., the sole argument made in rebuttal is that the accused has been rightly convicted by the learned court below because the recovery of Heroin has been made from him. It is stated that the occurrence belongs to 3.9.1995 regarding which the judgment has been delivered by the court below on 23.9.1999, while the amendment in the NDPS Act 1995 has been brought in 2001 with effect from 2.10.2001 whereby the punishment under Section 21 NDPS Act has been provided separately for illegal possession and recovery of small quantity, more than small but less than commercial quantity and commercial quantity. Earlier to that under the un-amended Section of 21 of NDPS Act, following punishment was provided. 21. Punishment for contravention in relation to manufactured drugs and preparations-Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. From perusal of the above provisions I agree with the law laid down in Raju Prasad Gupta's case that the provisions contained under Section 42 to 55 are mandatory and the law requires quality of evidence in its stricter sense in the cases of graver punishment like the present one. The law requires that where any person is detained, on the basis of credible information for having any Narcotic Durgs or Psychotropic substances in his possession, and to be searched, if he so requires, it shall be in presence of Gazetted Officer enumerated under Section 42 or the nearest Magistrate. No doubt it is a valuable right of the accused to be so searched so as to give and attach more authenticity about the recovery from his possession. In the present days of police manipulating and concocting false cases against the citizens, laying emphasis on this provision, it has been said in Raju Prasad Gupta's case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegality in this regard committed by PW-1 or claim prejudice. 19. It has to be seen by this Court as to whether the above conclusion drawn by learned court below has any infirmity in the light of evidence on record. 20. In recovery memo (Exhibit Ka-1), it is apparent that on 3.9.1995, PW-1 had received information from an informant, pursuant to which the same day, the accused was arrested and prior to his search he was apprised that since an information was received by police that he was carrying contraband substance, if he wanted his search to be made in presence of a Magistrate or a Gazetted Officer, he could opt so, but on being so told, he stated to the police that since he had already been arrested, hence, police could proceed with his search, pursuant to whcih the seven pudias of brown sugar (Heroin) kept in a match-box tucked in his right side of trouser were recovered. PW-1 who is a witness of fact, who made arrest, has stated in examination-in-chief that when from accused it was inquired whether he would like to be searched in presence of a Magistrate or a Gazetted Officer, he stated that the police itself could take his search. In cross-examination this witness has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party). 21. Now the position of law has to be examined in this regard which has been relied upon by the learned counsel for the appellant in State of Punjab Vs. Baldev Singh (supra) in paragraph 57 of the judgment. 57.On the basis of the reasoning and discussion above, the following conclusions arise : (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 concerned person 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; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat failure to inform the person concerned of his right as emanating from Sub-section (1) of Section 50 , may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to be told about his right under Section 50 before he is searched and that is a mandatory requirement. No presumption to that effect can be raised. As there is no evidence on record to show that the appellant was informed about his said right, it has to be held that the said mandatory requirement of Section 50 was not complied with in this case. On this short point, this appeal deserves to be allowed. Accordingly, we allow this appeal, set aside the conviction of the appellant and also quash the order of sentence passed against him. 24. Therefore, from above citation, it is clar that it is mandatory for the prosecution to prove that the accused was apprised of his right to be searched in presence of a Magistrate or a Gazetted Officer. In case such right has not been apprised the conviction would vitiate. 25. The next citation relied upon by the learned counsel for the appellant is Vijaysinh Chandubha Jadeja Vs. State of Gujrat (supra) in which following is held in para 29, 30, 31 and 32. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate, who enjoys more confidence of 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. 26. The next citation relied upon by the learned counsel for the appellant is Santosh Kumar Gupta Vs. State of U.P.(supra) in which following is held in para 12 of the judgment. Upon hearing the parties counsel and considering the arguments, I feel it appropriate to discuss prosecution case on following points which have been raised in this appeal in the light of evidence on record. (i) Compliance of Section 50 of N.D.P.S. Act: Section 50 of N.D.P.S. Act requires that when an officer duly authorized, is about to search any person, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the department mentioned in section 42 or to the nearest Magistrate. The F.I.R./recovery memo on record does not state that the accused was made aware of his right to be searched before some Gazetted Officer or the Magistrate as mentioned above and is not alleged to have given any consent for being searched by the first informant Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been able to prove that the alleged recovered contraband (Heroin) from the accused was the same which was sent for being examined by the FSL and was found to be heroin and whether not recording the weight of recovered contraband, would cause prejudice to the accused. 29. This is also a matter of fact which needs to be analysed in the light of evidence on record. In recovery memo, it is recorded that seven pudias of heroin were recovered from the accused kept in a match box tucked in right side of his trouser which were not weighed on the spot and the sample seal was prepared. PW-1 in this regard in cross examination has stated that seven pudias of heroin were recovered from the accused and they were sealed on the spot. Recovery memo was prepared on the spot in the light of torch and electricity and the signature of his companion (PW-3) were also taken thereon and a copy of the same was provided to the accused and thereafter, the accused along with recovered contraband substance were taken to police station and on the basis of recovery memo case was registered at police station and the recovered seized material was kept in malkhana. In cross-examination this witness has stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ket covered with cloth was received by FSL on 11.9.1995 in which seven pudias of suspected heroin were received which were marked as 1 to 7 in a Kishan Marka match box and it is mentioned in the report by FSL that contents of all pudias were separately analysed and in all of them Heroin was found. In its report dated 21.11.1995, no where has it been mentioned that the sample of seal was also received by the FSL of 'P.K. Pandey, S.I., U.P.P.' which was compared by the FSL and was found intact. It was important in view of the statement of PW-2 which come on record saying that the seal of P.K. Pandey, S.I., U.P.P. was used in sealing the heroin (recovered contraband material) on the spot which was broken in court of VIIth A.C.J.M. on 6.9.1995 and thereafter the said material was sent to FSL after sealing it under the seal of VIIth ACJM along with sample seal of VIIth ACJM. How was it possible then that the FSL found the packet containing contraband having seal of P.K. Pandey, 'S.I., U.P.P'. The prosecution has failed to give any explanation of this which creates doubt in the mind of court that material which was sent to the FSL for being tasted was the same contrband m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. 35. It is mandatory as per the above section that when search and seizure is made of a contraband substance and the accused is arrested, within 48 hours thereof a full report containing all the details of such arrest and seizure are mandatory to be reported to immediate superior officials. Learned counsel for the accused-appellant has laid much emphasis on this breach of compliance of this Section. The reliance is also placed by him on Md. Idrish Singh Vs. State of U.P. (Supra). 17. Further there is no evidence on record proving that PW1 Param Hans Tiwari after arresting the accused-appellants and seizing contraband articles from their vehicle within 48 hours next after such arrest or seizure had made a full report of all the particulars of such arrest or seizure to his immediate official superior as required by Section 57 of the NDPS Act. Although the recovery memo Ext. Ka1 contains a recital that PW1 had informed his immediate superior officers about the arrest of the appellants and seizure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Sub-Sections 1 and 2 of Section 42 of the NDPS Act cannot be sustained and is liable to be set aside. 36. It is apparent from the above citation that the court had considered it exteremely important that the prosecution must have made compliance of Section 57 by submitting a report to immediate higher authority under Section 57 about the recovery of contraband having been made and also the accused having been arrested within the time stipulated. 37. In the case at hand, learned counsel for the appellant has taken this court through entire evidence, not a word has been found to have been mentioned that any report was prepared under Section 57 by the raiding party of the arrest of the accused and of having prepared any seizure memo, and of sending the same to the superior authority within 48 hours. Not only that even if there was compliance made of this section beyond 48 hours with justification of the lapse of time, it could have been brought on record that the said report was submitted. 38. It would be pertinent to refer here to the law laid down in this regard by Supreme Court in State of Punjab Vs. Balbir Singh, 1994 (3) SCC 299 in paragraph 24 25 of the said ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Section 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. 39. It is clear from the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of their samples and sealing them properly for being sent to the FSL for being tested; effort not being made of taking independent public witness; non production of malkhana register showing that the proper entry was made therein of the alleged recovered contraband substance; the production of the contraband material before court at the time of statement of witnesses; then certainly a cumulative effect of all these infirmities would have adverse impact on the prosecution's case. 41. In view of above infirmities, this court finds that prosecution has failed to adduce proper evidence on record which weakens the prosecution's case. It has not been able to prove its case to the hilt beyond shadow of doubt against the accused regarding illegal recovery of heroin. The learned lower court has omitted to take into consideration above mentioned infirmities noticed by this Court and has gone on to convict the accused with huge penalty of 10 years rigorous imprisonment and one lakh rupees fine. 42. This court is of the view that conviction held by the court below is not liable to sustain and needs to be set-aside in view of above infirmities. The accused is held not guilty of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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