JUDGMENT K.N. Ojha, J.
1. Instant appeal has been preferred against the order of conviction and sentence dated 12-1-1995 passed by learned V Additional Sessions Judge, Kanpur Dehat, in S.T. 18 of 1994 by which the appellant has been convicted with 10 years imprisonment and fine of Rs. 1 lac under Section 18/20 Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the Act) and in case of default for payment of fine one year's additional sentence.
2. The case was passed over many times on the request of the learned counsel for the appellant. Non bailable warrant was issued against the appellant but could not be executed. The appellant is absconding. Since non appeared for the appellant, hence argument of learned AGA was heard, record was perused and judgment is being delivered on merit.
3. According to prosecution Ashwini Kumar Sinha, Station Officer, police station Gajner, district Kanpur Dehat, constable Ajay Kumar and constable Sukhram were busy in examination duty on 7-4-1994 as they had to maintain law and order of Gajner Kathethui centre. They along with one R.B. Singh constable were coming back after the examination was over. When they reached on the turn of Jalalpur Magra one person, who was coming from the side of Nabipur all of a sudden turned back seeing the police party. When objection was raised he started to run away. The police party chased him and arrested him at 20 steps from the turn. On being arrested he told himself to be Raju alias Mama alias Ram Gopal of District Fatehpur. One Kg. Charas was recovered from his possession. While making recovery he was asked whether he wanted search being made in presence of some Gazetted Officer, but the accused expressed faith in the police and said that there was no need to produce him before the Magistrate. The police party made effort to search out some witness of the recovery but persons passing on the road were not ready to witness it. After recovery two bundles of 24 Gms. each were made for purposes of sample and rest was kept in a bundle. The occurrence is said to have taken place at about 10.45 a.m. on 7-4-1994.
4. Chick report was written at the police station on 7-4-1994 at 12.05 pm. by Head constable Parashuram. Investigation was made by one Naseem Ahmad Khan S.I. After recording statement of witnesses, preparing site pain and completing investigation, charge sheet was submitted against the appellant.
5. Sample of the recovered article was sent to Scientific Laboratory Lucknow. It was confirmed that it was Charas.
6. The accused alleged that recovery was not made from his possession and he was falsely involved in the crime by the police. The prosecution examined constable Ajay Kumar PW 1, S.I. Ashwini Kumar, PW 2, as eye witnesses of the recovery and arrest of the appellant, I.O. Naseem Ahmad Khan was examined as PW 3. No defence witness was adduced by the accused.
7. In the instant case recovery of one Kg. Charas is said to have been made by the police party on 7-4-1994 at 10.45 am. from turn of Jalalpur Magra where many persons were passing at that time, but there is no public witness of the recovery. Besides it the recovery was not made in presence of any Gazetted Officer. The question is whether such recovery deserves to be believed and it is sufficient for conviction or the recovery suffers from such illegality that it has caused prejudice to the accused-appellant the conviction is not in accordance with law.
8. Section 41 of the Act contemplates that a Metropolitan Magistrate or Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night of any building, conveyance or place in which he has reason to believe any narcotic drug or psyche-tropic 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.
9. Any such officer, if he has reason to believe from person knowledge or information given by any personal and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence 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 place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.
10. Section 50 of the Act contemplates that when any officer duly authorised 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.
11. If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate conferred to in Sub-section (1).
12. 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 direct that search be made.
13. Section 51 of the Act provides that the provisions of the Code of Criminal Procedure 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.
14. Thus from the provisions of the Act it becomes clear that search of narcotic drug or psychotropic substance to be made by the police after taking authority from the Magistrate concerned and the procedure of recovery will be as is contemplated under the Cr.P.C.
15. Section 100(4) of the Cr.P.C. contemplates that before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search to attend and witness the search and may issue an order in writing to them or any of them so to do.
16. Section 165(4) of Cr.P.C. envisages that the provisions of this Code as to search warrants and the general provisions as to searches contained in Section 100 shall, so far as may be apply to a search made under this Section.
17. Thus if the provisions of the Act read with provisions of the Cr.P.C. are taken together, it becomes manifest that if any narcotic drug or psychotropic substance is to be recovered from the possession of a person about whom there is reasonable belief of offence being committed the recovery is to be made after seeking authority from the Magistrate and as far as possible, effort should be made by the police officer to have at least two public persons of the locality to witness the arrest and the recovery.
18. In 1992 JIC 492, Rajuwa v. State of U.P. it has been held by this Court that N.D.P.S. Act is different from other criminal statutes inasmuch as minimum sentence to ten years imprisonment and Rs. 1 lac fine is prescribed for offences under the Act and the burden of proof is thrust upon the accused (vide Sections 35 and 54 of the N.D.P.S. Act). In view of these stringent and unusual provisions, the Legislature, in its wisdom, thought it fit to introduce certain statutory procedural safe guards to protect the accused against false or vexatious arrest. These are contained in Chapter IV of the N.D.P.S. Act, more particularly in Sections 42 and 50 of the Act. It was further held that thse provisions cast a statutory duty upon the police officers or the other authorities to reduce the information in writing and also give an option to the accused to be searched before a Gazetted officer or a Magistrate. These provisions are mandatory and violation thereof must, prima facie, be held to cause prejudice to the accused. Violation of the provisions is violation of mandate contained in Article 21 of the Constitution of India. It was also held that having regard to the mandate of Articles 21 and 14 of the Constitution and the law laid by the Supreme Court in the aforesaid cases, it must necessarily be inferred that the provisions contained in Sections 41 and 50 of the N.D.P.S. Act are mandatory. The words in these two sections are unambiguous and leave no scope of an interpretation to the effect that the police officer or any authority can violate these provisions at their whims and pleasure. The intention of the Legislature obviously is that, when such stringent punishments are provided under the Act, there should be sound safeguards to ensure that innocent persons are not harassed or unnecessarily detained by any arbitrary or whimsical actions of the police or the other authorities. It was also held that since the provision contained in Sections 42 and 50 of the Act are meant to ensure just and fair action on the part of police and other authorities, it would not be right to tell the accused that alleged violation of these provisions could not be looked into.
19. In 1994 All Cri C 351 : (1994 Cri LJ 3702), State of Punjab v. Balbir Singh it has been held by Hon'ble Apex Court that scope of Sections 165(4) and Section 100 of Cr.P.C. was examined in a number of cases (1981) 2 SCC 1 : (1981 Cri LJ 410), State of Punjab v. Wassan Singh, AIR 1956 SC 411 : (1956 Cri LJ 801), Sunder Singh v. State of U.P., AIR 1980 SC 1224 : (1980 Cri LJ 923). The State of Maharashtra v. P.K. Pathak, AIR 1963 SC 822 : (1963 (1) Cri LJ 809), Radha Kishan v. State of Uttar Pradesh, AIR 1956 SC 44: (1956 Cri LJ 140), Matajog Dubey v. H.C. Bahri and it has been held that irregularity in a search cannot vitiate the seizure of the articles but non compliance of the provisions would be fatal if injustice is caused. It was also held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstances, which made it impossible for it to comply with these provisions.
20. It was further held that it is thus clear that by a combined reading of Sections 41, 42, 43 and 51 of the N.D.P.S. Act and Sections of Cr.P.C. namely Sections 100 and 165, would be applicable to such arrest and search. Consequently, the principles laid down by various Courts as discussed above regarding the irregularities and illegalities in respect of arrest and search should equally be applicable to the arrest and search under the N.D.P.S. Act also depending upon the facts and circumstances of each case.
21. If an arrest or search is made by any officer, not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial. The Hon'ble Apex Court further held that the object of the N.D.P.S. Act is to make stringent provisions for control and regulation of operations relating to those drugs and substance. At the same time to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same in writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial.
22. Thus a valuable right is given to a person to be searched in the presence of Gazetted Officer or Magistrate, if he so requires. Since such a search would import much more authenticity and credit worthy things to the proceedings while actually providing safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by authorised officer by informing him. The language is clear and the provisions make it obligatory on the authorised officer to make known to the person about the search and his rights. If a police officer without any prior information makes a search or arrests a person in the normal course of investigation into an offence or suspected offence and when search is complete then provisions of Section 50 of the Act would not be attracted and the question of complying with the requirement there under does not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer, who thereafter has to proceed in accordance with the provisions of the Act. Under Section 41(2) of the Act only the empowered officer can give authorisation to his subordinate officer to carry out search of a person or search as mentioned therein. If there is a contravention of the provisions then it would affect the prosecution case and vitiate the conviction.
23. In instant case the recovery of 1 Kg. Charas is said to have been made from the possession of the appellant on 7-4-1994 at 10.45 a.m. from Magra turn, village Magra police station Gajner, district Kanpur Dehat. It was the time when High School examination was going on. The examination was conducted from 7.00 a.m. to 10.00 a.m. The examinations are at such large scale and are conducted in such large number of centres that generally it comes in the knowledge of an ordinary public person that examinations of High School and Intermediate are going on and the examinations are over at 10.00 a.m. The examinations are being conducted at such large scales that police force is applied and when examination is over the police goes back. Thus between 10.00 a.m. and 11.00 a.m. there is rush on the road and at turns of the roads there is possibility of police passing through the roads at 10.35 a.m. If a person deals in narcotic drug or psychotropic substance and is in the habit of carrying on such narcotic drug or psychotropic substance in such quantity of one kg, it is quite natural that he would be cautious that he has to pass through the road at solitary hour and not at the hour when there is crowd of students and public persons or where there is possibility of police party passing through the road. In such circumstances the possibility of the presence of accused at Magra turn as is alleged by the prosecution, does not appear natural.
24. As is evident from the statement of the police witnesses the appellant was going on foot. If a person has to sell one kg. Charas normally he will have some vehicle so that if required, he may make his escape good rather than going on foot all along when he can be apprehended at any time by the police personnels or public persons. Besides it if he was arrested, it was quite natural that he would have disclosed as wherefrom he was carrying the narcotic drug or psychotropic substance and what was his destination. There is nothing in prosecution evidence from which it may be inferred that he was coming from a particular place and he was on the way to a particular destination. Thus the time and manner of recovery of one Kg. Charas from the possession of the appellant by the police party does not appear natural.
25. The appellant is said to have been arrested in broad daylight from turn of the road when there were many persons. It is not said that the appellant is habitual offender nor any criminal history has been shown. The arrest has been made within district Kanpur Dehat. He is also resident of district Fatehpur. He is not a local person of the place of occurrence. It is not said that he has such a large criminal history that no one could pick up courage to make statement against him. The evidence shows that there was no arm with the appellant. In such circumstances when he was merely going on foot and if the police would have made effort for procuring two public witnesses to witness the recovery, the statement would have been made by the police witnesses and the names of the witnesses would have been specifically mentioned, who declined to become witnesses of the said recovery. Thus the contention of the prosecution is not maintainable that due to fear of the appellant no public was ready to become witness against him.
26. It is alleged that it was broad daylight occurrence, therefore, if the appellant would have been arrested, the police party, who was earlier busy in the examination, had no hurdle to produce the accused before the Magistrate. The statement of the police witnesses that when the appellant was asked as to whether he preferred to be searched in presence of some Magistrate, he expressed his full faith in the police and said that there was no such need. But no police witness has stated the name of the officer or the Magistrate about whom quarry was made from the appellants that in case the appellant opted, he was to be produced before a particular officer or Magistrate. If the prosecution story is taken to be true that the appellant wanted to make his escape good because he was knowing that he would be arrested by the police and if really the police personnel would have asked, the appellant must have expressed that search should be made in presence of such Magistrate or Officer. Therefore, to say that the appellant told the police witnesses that he had full faith in the police personnel and there was no need of search being made by the Magistrate, is a fact, which does not cross the hurdle or reliability. Therefore, the alleged search of the appellant at Magra turn where there was a no presence of some Gazetted Officer or Magistrate is such evidence which does not appear natural and reliable.
27. As observation has been made in the rulings, cited above, heavy punishment is provided under N.D.P.S. Act. In these circumstances non-compliance of the mandatory sections of the Act in respect of search and recovery of narcotic drug or psychotropic substance is such fact, which causes injustice to the appellant for non-compliance of these provisions. Therefore, the order of conviction and sentence passed against the appellant cannot be maintained and it deserves to be set aside.
28. The appeal is allowed and order of conviction and sentence passed against the appellant Raju alias Mama alias Ram Gopal under Section 20(b)(1) of the N.D.P.S. Act is set aside. The accused-appellant is acquitted from the charge. He is not in jail. Non-bailable warrant was issued against him. Now he is not to be arrested and non-bailable warrant issued against him is recalled. The material exhibit one Kg. Charas be destroyed after expiry of the period of appeal.
29. Let a copy of this judgment and order be sent to the Court concerned for compliance and report to this Court within two months.