Reserved on 04.04.2018 Delivered on 24.04.2018
Court No. - 42
Case :- CRIMINAL APPEAL No. - 971 of 2011 Appellant :- Rakesh Kori Respondent :- State Of U.P.
Counsel for Appellant :- Mathura Prasad,Deepakh Kapoor 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 appellant-Rakesh Kori was convicted under Section 20(b)(II)(C) of the N.D.P.S. Act for being in possession of 3 kg. charas by judgment and order dated 20.12.2010 passed by Additional Sessions Judge/F.T.C-I, Siddharth Nagar in Sessions Trial No. 46 of 2008 arising out of case crime no. 730 of 2008 Police Station-Dhebarua District-Siddharth Nagar. He has been sentenced to undergo rigorous imprisonment for ten years coupled with a fine of Rs.1 lac and in default thereof to further undergo simple imprisonment for one year.
[3] Brief facts of the case are that Imanwal Singh, Sub Inspector, 'B' company, S.S.B. Badhni District-Siddharth Nagar received an information on 07.10.2008 through an informer to the effect that a man having some illegal charas is coming from Nepal to Badhni. On receiving such information, constables present on the post were kept on alert. At 4 p.m, a person on the pointing out of the informer was intercepted in front of Badhni Post. On a query, he disclosed his name as Rakesh Kori and further said that he was in possession of charas. He was made aware of his legal rights to be searched in presence of the Gazetted Officer or a Magistrate but the appellant refused to exercise such option. On search, 3 kg charas wrapped in a blue cloth was recovered from his body. He could not show the license of having it. The accused was taken into custody. Representative samples were taken from each packet. Recovery memo was prepared on the spot. Though several people assembled on the spot during the arrest but no one was ready to be a witness in the matter. After completing all the formalities, accused and the recovered article were taken to the police station.
[4] On the basis of the said recovery memo, FIR was lodged on the same day at 10:05 pm at Thana-Dherua, District- Siddharth Nagar. Investigation came into action. The sample of the recovered article was sent to the Forensic Lab for verification. After collecting the entire evidence and obtaining the confirmation report from the Forensic Lab, police submitted the chargsheet in the present case.
[5] Charge was framed against the appellant under Section 20(b)(II)(C) N.D.P.S. Act, which he denied and claimed trial.
[6] In order to prove the charge, prosecution examined PW-1, Naib G.D. Hardev Singh and PW-2, SI Imanwal Singh as witnesses of facts. PW-3, Constable Ram Kishun Yadav proved the extract of the malkhana register of the year 2008 relating to above said recovered article. PW-4, A.K. Prajapati transported the samples of recovered article to the Forensic Lab for verification. PW-5, SI Rama Shanker Yadav investigated the matter while PW-6, V.K. Chaturvedi, Head Constable lodged the report and made its entry into the G.D.
[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] In the instant case, Sub Inspector Imanwal Singh received an information through an informer about the trafficking of illegal charas. The witness did not disclose the time of such information but as per his evidence, it appears that after getting such information, he asked his team to remain on alert. The entire team kept on waiting till the appellant reached in front of their post. The appellant was arrested at 4 pm and the FIR was lodged at 10:05 pm while the distance between the place of occurrence and the police station is only 6 k.m. It is nowhere stated by Sub-Inspector, Imanwal Singh that the said secret information received by him was reduced in writing or sent to the Higher Officers.
[9] 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.”
[10] 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. In the present case, prosecution has failed to prove this fact that the information was sent to the Superior Officers.
[11] 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 on the oral consent of the appellant, he was searched by the arresting team. It is admitted by the prosecution witnesses that the appellant was arrested ten yards away from the Custom Office at about 4 pm. The presence of any Gazetted Officer in the Custom Office cannot be ruled out. Moreover, the arresting team did not make any endeavor to arrange any Gazetted Officer.
[12] 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."
[13] In the instant case, the prosecution has failed to comply the provisions of Section 42 and Section 50 of the N.D.P.S. Act.
[14] 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 18.12.2010 passed in this respect in Sessions Trial No. 46 of 2008 against the appellant is liable to be set-aside.
[15] Accordingly, the appeal is allowed and the impugned order of conviction and sentence dated 18.12.2010 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. They are directed to submit their 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. within 15 days from the date of judgment.
[16] 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