Court No. - 42
Case :- CRIMINAL APPEAL No. - 3000 of 2014 Appellant :- Hasnain Respondent :- State Of U.P.
Counsel for Appellant :- Sunil Kumar Mehta,Bipin Pal Singh,Krishna Gopal,M J Akhtar,Shiv Kumar Mishra,Surendra Prasad Mishra,Yogendra Arya Counsel for Respondent :- Govt. Advocate Hon'ble Rajiv Lochan Mehrotra,J.
[1] Heard learned counsel 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 10.07.2014 passed by Additional Sessions Judge, Court No. 8, Firozabad in Special Criminal Case No.49 of 2012 arising out of Case Crime No. 170 of 2012 thereby convicting the appellant for ten years rigorous imprisonment and a fine of Rs. One lac under Section 17 of the N.D.P.S. Act.
[3] Brief facts of the case are that on 09.02.2012 on a secret information, the police team headed by Sub-Inspector Ashish Kumar Singh on suspicion intercepted an Indica car bearing no. U.P. 25 AB 0339 at about 12:30 in the night. On personal search of the appellant, they could get only Rs. 150 from his pocket. On the pointing out of the appellant, 5 kg. Illegal opium was recovered from the Indica car. Representative sample and rest of the narcotic goods were sealed on the spot. Recovery memo was prepared and after completing all the formalities, accused and the recovered article were taken to the police station.
[4] FIR was lodged on the same day at about 2:15 a.m. Investigation came into action. The sample of the recovered article was sent to the Forensic Lab for its verification. After collecting the entire evidence and obtaining the confirmation report from the Forensic Lab, police submitted the chargsheet against the appellant under Section 17/18 N.D.P.S. Act.
[5] Charge was framed against the appellant under Section 17/18 of N.D.P.S. Act, which he denied and claimed trial.
[6] In order to prove the charge, prosecution examined PW-1, Ashish Kumar Singh(complainant), PW-2, SI Narendra Kumar Singh, PW-3, Constable Akhlak Ahmad as witnesses of facts. PW-4, Constable Harpal Singh lodged the FIR and made its into the G.D. PW-5, Ummed Ali investigated the matter and proved the relevant documents. PW-6, Constable Mahesh Chandra Sharma transmitted the recovered sample to the forensic lab. PW-7, Om Prakash, Senior Scientist proved the report of Forensic Lab while PW-8, Constable Nizam proved the extract of the malkhana register.
[7] Statement of appellant was recorded under Section 313 Cr.P.C. wherein he denied the possession of alleged recovered goods and said that the witnesses have wrongly deposed against him and he has been falsely implicated in the present case. It is further submitted that he does not know car driving.
[8] As per first information report, the arrest was made at 00:30 in the night while PW-1, Ashish Kumar Singh(complainant) stated that the accused was arrested at 10:30 pm.
[9] It is mentioned in the recovery memo that initially a secret information was received with regard to the transportation of illicit arms only. They were not informed by the informer that any narcotic drug was also being carried by the appellant. Therefore, they did not comply the provision of Section 50 of N.D.P.S. Act. Moreover, as early as the appellant after his arrest disclosed this fact that he is having opium in his car, compliance of relevant provisions of N.D.P.S. Act were made. PW-2, SI Narendra Singh was also one of the member of the investigation team who when appeared before the court for the purpose of his evidence could not remember anything about the facts and deposed the entire story only on the basis of case diary. It is admitted by this witness in his cross-examination that he has recorded his entire examination-in-chief on the basis of the case diary made available to him. SI Narendra Singh admitted this fact also that there was a secret information regarding recovery of opium and despite having such knowledge, the arresting team did not comply the provisions of Section 42 of N.D.P.S. Act. PW- 5, Ummed Ali also admitted this fact that the informer informed the arresting team about the possession of possible recovery of opium as well as illicit arms. It is admitted by the prosecution witnesses that the search was made immediately after the arrest of the accused and he was not told about his statutory rights as given under Section 50 of the N.D.P.S. Act.
[10] Section 42 of the N.D.P.S. Act is extracted hereinunder :-
“42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”
[11] 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.
[12] 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.
[13] 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."
[14] it is clear that the arresting team was informed well within time about the alleged possession of opium as well as illicit arms being carried by the appellant but they did not care to comply the provision of Sections 42 and 50 of N.D.P.S. Act.
[15] 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 10.07.2014 passed in this respect in Special Case Crime No. 49 of 2012 against the appellant is liable to be set-aside.
[16] Accordingly, the appeal is allowed and the impugned order of conviction and sentence dated 10.07.2014 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. He is also 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.
[17] 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 :- 24.04.2018
Sumit S