Court No. - 42
Case :- JAIL APPEAL No. - 5272 of 2017 Appellant :- Chandra Bahadur Thapa Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Dr.Abida Sayed Ac Counsel for Respondent :- A.G.A.
Hon'ble Rajiv Lochan Mehrotra,J.
[1] Heard Dr. Abida Sayed, learned Amicus Curiae appearing for the appellant, learned A.G.A. for the State and perused the record.
[2] The present appeal has been preferred against the judgment and order dated 27.07.2017 passed by Additional Sessions Judge(Fast Track Court-1) Maharajganj in Special Sessions Trial No. 17 of 2015 arising out of case crime No. 54 of 2015 police station-Sonauli, district-Maharajganj thereby convicting the appellant for ten years rigorous imprisonment and a fine of Rs. One lac under Section 8/20 of N.D.P.S. Act.
[3] The prosecution story in nutshell is that on 08.02.2009, a police team headed by Sub-Inspector Brijesh Kumar Singh, In-charge police station-Sonauli was busy in routine checking at Indo-Nepal Border. At about 2:30 pm, a man with a black bag in his right hand was seen coming from the side of Nepal towards India. The man was intercepted and his bag was checked. Three polythene bags of illegal charas were recovered from his bag. The intercepted person confessed that he is carrying the said charas for the pupose of its sale in India. He was told that in case he wishes, he may be searched before the Gazetted Officer or Magistrate as per provision of Section 50 of N.D.P.S. Act but he expressed his trust to the arresting team and said that arresting team could search him. Three round shaped balls of black colour were recovered wrapped in three transparent polythene from his bag which was weighed on the spot as 2.800 kg. A representative sample from each ball was taken on the spot and after mixing it together, it was sealed in another cover. Rest of the recovered goods were sealed in separate bundle.
[4] Relevant formalities as required under law were completed on the spot and thenafter the arrested person and the recovered goods were taken to the police station where on the basis of recovery memo, first information report was lodged. The sample was sent to the Forensic Lab for its verification. The Investigating Officer, after completing the investigation and after obtaining the confirmation report of Forensic Lab submitted the chargsheet against the appellant under Section 8/20/23 of N.D.P.S. Act.
[5] Charge was framed against the appellant under Section 8/20/23 of N.D.P.S. Act, which he denied and claimed trial.
[6] In order to prove the charge, prosecution examined PW-1, Brijesh Kumar Singh, PW-2, Constable Shiv Kumar Yadav, PW-3, SI Lal Bahadur Singh Rathore, PW-4, ASI Manoranjan Dutta as witnesses of facts. PW-5, Inspector Ajay Kumar Singh conducted the investigation and submitted its report.
[7] Statement of appellant was recorded under Section 313 Cr.P.C. wherein he denied the possession of alleged recovered goods and said that nothing was recovered from his possession, the witnesses have wrongly deposed against him and he has been falsely implicated in the present case.
[8] As per recovery memo and the evidence of the witnesses of facts after recovering the alleged charas from the possession of the accused-appellant, he was told about his statutory right of Section 50 of N.D.P.S Act which was not proper. All the witnesses of facts admitted this fact that when the appellant was intercepted, he told the arresting team that he was having charas in his bag but without following the provisions of Section 50 of N.D.P.S. Act, he was searched and thenafter was told about his legal right.
[9] It was also admitted by the prosecution witnesses that after the said arrest, information was given to senior officers but as per their admission no such evidence is available on record to prove this fact which is a clear violation of Section 57 of N.D.P.S. Act.
[10] As per prosecution story, the recovery was made on 08.02.2015 while PW-1, Brijesh Kumar Singh, leader of the police team admitted that his signature over the recovered bundle bears the date of arrest as 09.02.2015. No such explanation has been given either from the side of the prosecution or by this witness itself about the difference of dates. Even in the cross-examination when specifically asked, the witness admitted the abovesaid fact without any explanation.
[11] In the instant case, all the witnesses of facts are police officers and as per their admission, the recovery memo was prepared inside the police station after arrest of the appellant. Undisputably, the arrest was made on public place but why the recovery memo and other proceedings were not completed on the spot, has not been explained by the prosecution. Thus, it is a clear violation of Section 100 Cr.P.C.
[12] As per prosecution story, three packets were recovered from the possession of the appellant but instead of taking separate sample from each packet, the arresting team jointly took approximately 100 gm as representative sample and forwarded it to forensic lab for its verification which is also illegal. The sample seal(Namoona Mohar) as per admission of prosecution witness is also not available on record. PW-1, Brijesh Kumar Singh admitted this fact that the said sample seal was prepared under his own seal but this type of namoona mohar is not available on record. Signature of PW-2, Constable Shiv Kumar Yadav is also not available on the recovery memo, therefore, his presence on the spot also becomes doubtful.
[13] As per admission of Investigating Officer, the representative sample was forwarded through Constable Amarnath Yadav to the Forensic Lab. PW-5, Abhay Kumar Singh, the Investigating Officer could not answer the question whether the said sample was sent on the same day or at a later stage. Constable Amar Nath Yadav has not been examined by the prosecution which could have been the best witness for proving the link evidence. As per admission of PW-4, ASI, Manoranjan Dutta, the consent letter as required under Section 50 of the N.D.P.S. Act was prepared at police station and that too after arrest and recovery of the alleged contraband.
[14] Hon'ble the Apex Court in Kishan Chand Vs. State of Haryana 2013(2) SCC Page 502 has clearly held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the information forthwith to the immediate officer superior may cause prejudice to the accused.
[15] It is next argued that the prosecution has also failed to comply the provisions of Section 50 of the N.D.P.S. Act in its literal form. As per the recovery memo and the deposition of witnesses, the appellant was told that in case he wishes, he may be searched before the Gazetted Officer or a Magistrate and as per his consent, he was searched by the arresting team.
[16] Reliance has been placed on Narcotics Central Bureau Vs. Sukh Dev Raj Sodhi Laws(SC)-2011-5-54, para-3 of which is extracted hereinunder :-
"The obligation of the authorities under Section 50 of the NDPS Act has come up for consideration before this Court in several cases and recently, the Constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] has settled
this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed.
From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under Section
50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate."
[17] In the instant case, the prosecution has failed to comply the provisions of Sections 42 and 50 of the N.D.P.S. Act. Even the consent of the appellant was obtained only after his arrest and recovery and that too in the police station.
[18] In the light of the abovesaid discussion, it shall not be proper to uphold the conviction of the appellant, hence the conviction and sentence date 27.07.2017 passed in this respect in Special Sessions Trial No. 17 of 2015 against the appellant is liable to be set-aside.
[19] Accordingly, the appeal is allowed and the impugned order of conviction and sentence dated 27.07.2017 passed against the appellant is set-aside and he stands acquitted. The appellant is in jail. He be set free, if not required in any other case. The appellant is directed to submit his personal bonds along with two sureties each in the like amount to the satisfaction of the court concerned in compliance of Section 437-A of Cr.P.C.
[20] The material exhibits, if any, be destroyed after statutory period of appeal.
[21] Before concluding, this Court must put on record its appreciation of the efforts put in by the learned Amicus Curiae in providing valuable assistance to the Court. It is, therefore, directed that a sum of Rs. 10,000/- be paid to Dr. Abida Sayed, learned Amicus Curiae towards fees.
[22] Let a copy of this judgment along with the record of the case be sent back to the court below for needful action and necessary entries in the relevant registers.
Order Date :- 25.04.2018
Sumit S