1. This appeal has been preferred by the appellant against the judgment and order dated 4.11.2016, passed by learned Additional Sessions Judge, Allahabad, in Special Trial No.121 of 2009 (State vs. Manoj Kumar) arose out of Case Crime No.23 of 2009, under Section 8/21 Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as 'the Act, 1985'), Police Station-Mutthiganj, District-Prayagraj, by which appellant was convicted for 15 years rigorous imprisonment and fine of Rs.1,00,000/- (one lakh).
2. The relevant facts necessary for disposal of this appeal are as under:
(i) On 30.01.2009, Dhananjay Mishra, Sub-Inspector, In-charge-SOG along with other police-personnel reached at Kotha-Parcha near Dot-ka-pul within area of P.S.-Mutthiganj, where SHO, P.S.-Muthiganj was already present with other police-personnel. At that time, informer told police-party that a person is coming from the side of Arya Kanya Degree College Crossing, Naini on stolen motor-cycle bearing No.UP-70-Y-8695. On receiving this information, police-party led by Incharge-SOG and SHO, Mutthiganj went to Arya Kanya Degree College. Near the above college, informer pointed out the said motor-cycle. On trying to stop him by police, the person on motor-cycle tried to escape by turning the motor-cycle back, but he was caught by the police at 2:50 p.m. On inquiry, he told his name as Manoj Kumar Seth s/o Late Bechan Lal Seth. A fake registration certificate was recovered from his pocket. While searching the accused and motor-cycle, Heroin was recovered in a packet from the bag attached with the motor-cycle. Police gave option to the accused for his search before a Gazetted Officer or a Magistrate, but accused declined the offer.
(ii) The recovered contraband (Heroin) was weighted by the police and its weight was found 1.110 kg. Police asked the public to become witness on the recovery memo, but no one was ready to become witness. Out of recovered Heroin, 5 gm. was separated and it was sealed on the spot as sample. This sample was sent to Forensic Science Laboratory for chemical examination. Chemical Examination Report was received from the lab (Ex.ka-3) and it was reported in aforesaid report that the sample was Heroin. The accused-appellant was charged with the contravention of Section 8 read with section 21 of the Act and was put for trial. The Additional Sessions Judge, Allahabad, convicted him of the charges levelled against him. The accused appellant carried an appeal to this Court against his conviction.
3. Heard learned counsel for the accused-appellant, learned AGA for the State and perused the record.
4. The very first question argued by learned counsel for the appellant was that there was contravention of Section 50 of the Act inasmuch as the offer made to the accused for searching in presence of a Gazetted Officer or a Magistrate and he declined the offer and the same was not corroborated by any independent witness. It was vehemently submitted by learned counsel for the appellant that the place of occurrence was a crowded place and occurrence is said to have taken place in the day-light at 2:50 p.m., but there was no public witness of the occurrence.
5. As far as the compliance of Section 50 of the Act is concerned, it would relevant to quote Section 50 of the Act for ready reference:
50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorized 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. 1[(5) When an officer duly authorized 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.]
6. The Hon'ble Apex Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172, held as under:
"12. On its plain reading, Section 50 of the Act, would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search contraband under the NDPS Act, is also recovered, the requirements of Section 50 of the Act are not attracted."
7. Apart from this, it has also been held by Hon'ble Apex Court that the provision of Section 50 of the Act stands attracted in case of personal search and not in the case where the search was given effect otherwise than from the personal search of the accused. Following cases were relied:
1. Madan Lal and another vs. State of Himachal Pradesh, 2003 (47) ACC 763;
2. Megh Singh vs. State of Punjab, 2003 Cr.LJ 4329; and
3. State of Himachal Pradesh vs. Pawan Kumar, 2005 (52) ACC 710.
8. In the aforesaid judgments, it has been held by the Hon'ble Apex Court that Section 50 of the Act, applies only in case of personal search of a person. It does not extend to search of a vehicle or container or a bag or premises. In the present case, the contraband (Heroin) was recovered from a bag attached to the motor-cycle on which the appellant was riding. Hence, it was not a case of personal search.
9. Moreover, in the case of Pawan Kumar (supra) wherein meaning of the word 'person' has been discussed, the word 'person' would mean a human-being with appropriate covering and clothing and also footwear. A bag, briefcase or any such article or container etc., can, under no circumstances, be treated as a body of human-being. Hence, Section 50 of the Act patently has no application in this case because the recovery of Heroin was not from the person of the appellant, but from the bag attached to the motor-cycle. Hence, the compliance of Section 50 of the Act, was not mandatory. Learned Trial Court rightly held in the impugned judgment that Section 50 of the Act, is not at all applicable in the present case.
10. It is true that the recovery of Heroin was made from the possession of accused-appellant in day time at 2:50 p.m. at a crowded place, but there are no public witnesses. It is an admitted fact that no independent witness joined in this case. Witnesses of fact examined in this case PW1 to PW5 categorically stated in their statements that they tried their best to join independent witness from the public on the spot, but all the persons refused to become witnesses. Learned Trial Court opined in this regard that accused appellant was caught by the combined team of SOG, Prayagraj and Police-personnel of P.S.-Mutthiganj. Accused was arrested as per rules. In his statement before trial court under Section 313 Cr.P.C. Accused-appellant has stated that members of police party used to make illegal demand of money from him and due to not giving the money, he was falsely implicated in the case. It was a burden on accused-appellant to prove the above statement, but there is not even an iota of evidence in this regard. Accused-appellant has not put forward any sort of evidence, which could show that police party was on enmity or he was having hostile relations with the police-personnel. Five witnesses of fact were produced by the prosecution, but on their cross-examination also, defence could not extract any sort of evidence indicating any hostility of police-party with the appellant. Hence, there was no material on record to show that the public witnesses were withheld or suppressed by the prosecution with an ulterior motive and it alone could not extend any benefit in favour of accused-appellant.
11. Learned counsel for the appellant advanced argument on the point of Section 42 of the Act also. He has submitted that there is no compliance of Section 42 of the Act by the police at the time of alleged search and arrest in the case. Before making arrest of the accused, police did not take down the information of informer in writing and did not send a copy thereof to his immediate superior officer within 72 hours of the arrest. But, in my opinion, Section 42 of the Act has no applicability in this case because the police party did not get any information from the informer regarding the accused having possession of some contraband. But the police-party only got information from the informer that accused is coming from Naini towards Arya Kanya Degree College crossing on a stolen motor-cycle. Contraband Heroin was recovered by the police at the time of searching of motor-cycle from the bag attached to it for which the police did not get any prior information, therefore, in this case, Section 42 of the Act has no applicability and accused cannot be given any benefit of that.
12. It is also argued by learned counsel for the appellant that there was delay in filing first information report in this case. This Court is unable to agree with this argument as the record shows that occurrence took place at 2:50 p.m. and chick FIR (Ex.ka5) shows that case was registered against the appellant on the same day at 4:30 p.m., i.e., after 1:40 hours after the occurrence while the distance from the place of occurrence to the police station is shown one and a half km. It is quite natural that police had taken some time on the place of occurrence for preparing recovery memo etc. Hence, there cannot be said any delay in lodging the FIR by police after arrest of the accused-appellant.
13. Lastly, it was argued by learned counsel for the appellant that there was no criminal history of accused, but I am unable to agree with this argument as the learned trial court has convicted the accused-appellant after analyzing all the evidence available on record. Hence, if accused has no criminal history, it does not make any difference on the merit of the case.
14. No other argument was advanced from the side of appellant.
15. In view of above, I reach on definite conclusion that the appellant has been rightly convicted and sentenced by learned trial court.
16. The present appeal lacks merit and is, accordingly, dismissed.
Order Date :- 30/7/2021 LN Tripathi (Ajai Tyagi, J.)