TMI Blog2021 (1) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... ot stated that Narendra Singh Yadav (PW-4) had also put his signature on this consent memo (Ex.Ka.4), whereas, Narendra Singh Yadav has stated that on consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit, he had also put his signature - Admittedly, S.I. Kripa Shankar Dixit, who was star witness of the prosecution, who prepared the consent memo (Ex.Ka.4) and recovery memo (Ex.Ka.5) and the said recovery was made in his presence has not been examined by the prosecution and the prosecution has also not given any explanation, as to why, this important witness was not examined. Thus, in view of the above, the consent for search, given by the appellant, before his personal search as well as the preparation of consent memo is also doubtful. The prosecution has failed to prove the compliance of mandatory provision of Section 50 of the Act, whereby the prosecution story as well as said recovery, becomes doubtful. The prosecution has miserably failed to prove its case beyond reasonable doubt, against the appellant. The trial Court, without considering, the compliance of mandatory provision of N.D.P.S Act, has passed the said impugned judgment and order in cursory manner which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apology, he disclosed that he was carrying one k.g. morphine, wrapped in towel (anghocha) in his belly region. Upon further inquiry, he disclosed himself as Munnan s/o Jan Ali r/o Bhelwal, P.S. Loni Katra. District Barabanki. 3. Upon satisfying himself that the appellant was carrying a contraband morphine, S.I. Narendra Singh Yadav (PW-4) asked him, as to whether, he desired to be searched himself before any Magistrate or any Gazetted Officer or before the police party led by him (PW-4). In this regard, a consent memo (fard-razamandi-jama-talashi) (Ex.Ka.4) was prepared by S.I. Kripa Shankar Dixit on the direction of S.I. Narendra Singh Yadav (PW-4). Appellant consented that his search may be taken by the police party, led by S.I. Narendra Singh Yadav (PW-4) and upon his consent, appellant was searched and one k.g. morphine was recovered from his belly region, concealed below his kurta-lunghi, wrapped in light blue towel (anghocha). The said contraband was kept in a white polythene (wax paper) and was of brown colour. It was physically inspected, smelled by police party and was discovered as a morphine. The said recovered morphine was weighed with the help of scale, carried by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police with a view to falsely implicate him. He further stated that he was very poor person; Smt. Tarikunnisha, daughter of one Mohsin Ali, his neighbour, was married to one Hasib of village Tikkra. Hasib used to torture his wife Smt. Tarikunisha and threatened to kill her. He further stated that in view of the said dispute between Hasib and Smt. Tarikunnisha, Mohsin Ali sent him (appellant) to bring his daughter where Hasib Ali had quarreled with him and also beaten him. It is further stated that Hasib, with the help of local police, had falsely implicated him. It is further stated by him that he was not arrested from the place of occurrence as alleged by the police and no incriminating article was recovered from his possession. 8. To controvert the prosecution story, Ejad Ali (DW-1) was examined by the appellant who stated that the daughter of Mohsin, Tarikunnisha was married with Hasib and Hasib used to beat his wife Tarikunnisha and was also not sending her to her maternal house. He further stated that the appellant Munnan was sent by Mohsin Ali to take off (vidai) Tarikunnisha but Hasib had refused to send her and a quarrel had taken place between them. He further stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Contra, learned A.G.A. while vehemently opposing the submission made by learned counsel for the appellant submitted that as the alleged recovery was made in the night at 9:15 p.m, and no independent witness was ready to become witness of the recovery, non examination of any independent witnesses is not fatal to the prosecution story. Learned A.G.A. further submitted that the statement of prosecution witnesses cannot be rejected only on the ground that they are police personnel. Learned A.G.A. further submitted that there is neither delay in lodging the F.I.R. nor any delay in producing the contraband products before the concerned C.J.M for drawing the representative sample. Learned A.G.A. further submitted that the recovered article has also been found as contraband heroin in chemical examination by F.S.L. Learned A.G.A. further submitted that the appellant had failed to produce any reliable evidence to prove his innocence. The impugned judgment and order is will reasoned, well discussed and it requires no interference. 14. I have considered the rival submission made by learned counsel for the parties. 15. It is relevant to point out, before discussing the evidence and mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate 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 vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 50 of NDPS Act, the Constitutional Bench of Supreme Court while observing that mere informing the accused his willingness to be searched before Gazetted Officer or Magistrate is not sufficient but it is the duty of the concerned officer to apprise the accused about his/her right of Section 50 of the Act has held as under :- 22. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172: (AIR 1999 SC 2378) and Vijaysinh Chandubha Jadeja (AIR 2011 SC 77) (supra). 22. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (AIR 2011 Sc 77) (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject. 23. Their Lordships have held in Vijaysinh Chandubha Jadeja (AIR 2011 SC 77) (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment. In this provision, the third option, as to whether, the accused wants to be personally searched before the concerned police officer himself, has not been provided. Hon'ble Supreme Court, in State of Rajasthan vs. Parmanand and another (supra), where for compliance of Section 50 of Act, three options were given by the concerned Sub Inspector of Police to the accused-appellant, whether he wants to be searched before nearest Magistrate or before nearest gazetted officer or before concerned police officer i.e. J.S. Negi (PW-5), dismissing the appeal filed by the State against the acquittal order passed by High Court, held as under:- We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in his presence has not been examined by the prosecution and the prosecution has also not given any explanation, as to why, this important witness was not examined. Thus, in view of the above, the consent for search, given by the appellant, before his personal search as well as the preparation of consent memo is also doubtful. 26. In view of the above, the prosecution has failed to prove the compliance of mandatory provision of Section 50 of the Act, as required in the light of law laid down by Hon'ble Supreme Court in Baldev Singh (supra), Vijay Singh (supra), Arif Khan (supra) and Parmananad (supra), whereby the prosecution story as well as said recovery, becomes doubtful. 27. It is also pertinent to note at this juncture that according to the prosecution, one kg morphine was recovered from the possession of appellant. PW-3 and PW-4 have clearly stated that after weighing the said contraband morphine was again wrapped in the said anghocha (towel) and was also sealed. Neither these prosecution witnesses have stated that any sample was separated from the said contraband morphine at the place of recovery nor it has been mentioned in recovery memo (Ex.K.a5). According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered contraband was morphine and the sample was separated therefrom. None of the witness had stated anything, anywhere regarding the quantity of sample, separated and sent for chemical examination. Constable Kamlesh Kumar Mishra (PW-2), in his examination in chief, has also not stated regarding the identity of container, wherein, the sample was kept. In cross-examination, he admitted that the said container was of 100 grams of Tobacco Casket No. 132 which was provided by peon of concerned C.J.M. He further stated that he did not learn regarding the detailed identification of the said casket. In docket (Ex.Ka.3), it has been mentioned that only 2 grams morphine was separated. PW-2, has not stated anything regarding the weighing machine by which the said sample was separated in presence of concerned C.J.M. He has also not stated that who brought the said weighing machine. 30. From perusal of report dated 26.8.1991 (Ex.Ka.10), prepared by F.S.L, Lucknow, it is clear that no quantity of contraband sample was mentioned. In the said report, it has been mentioned that the said sample was received on 2.7.1991, as suspicious heroine, wrapped in a paper and kept in a chand-tara-mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of motorcycle, ridden by Kripa Shankar Dixit, and one constable was also sitting behind him (appellant). According to this witness, all the police personals including the appellant came to the concerned police station from the place of occurrence by motorcycle. He (PW-4) has also admitted that no recovery memo of appellant's cycle was prepared. Thus, if all the police personnel including the appellant came to concerned police station by motor cycle and no prosecution witness has stated that how and by whom the cycle of appellant was brought to the concerned police station, the prosecution story that appellant was riding on cycle, was taken into custody and was brought at police station, becomes doubtful. 32. In addition to above, S.I. Narendra Singh Yadav (PW-4) has admitted that a secret information was received by him at 7:30 pm but he had not informed the same to his superior officer and also did not record the said information in writing. He has also admitted that he did not call any public witness nor felt its necessity. S.I. Mukhram Yadav (PW-3) in cross-examination had admitted that after arrival of PW-4, he had gone in village Chandauli to call witness, but he did n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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