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ALLAHABAD HIGH COURT
Dinesh Kumar Singh-I, J.
Anil Kumar Dubey —Appellant
versus
State of U.P. —Respondent
Criminal Appeal No.2835 of 1999
Decided on 14.12.2017
Counsel for the Parties:
For the Appellant:N.D. Shukla, Advocate
For the Respondent:Govt. Advocate
IMPORTANT POINT
It is mandatory for prosecution to prove that accused was apprised of his right to be searched in presence of a Magistrate or a Gazetted Officer.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 21 read with Section 50—Seizure of Heroin—Conviction and sentence—It is mandatory for prosecution to prove that accused was apprised of his right to be searched in presence of a Magistrate or a Gazetted Officer—In case such right has not been apprised conviction would vitiate—Compliance of provision of Section 50 of NDPS Act is extremely important right of accused, non-compliance of which would make recovery suspect—Compliance of Section 50 of NDPS Act was not made in right earnest by apprising accused of his legal right that he could opt to be searched before a Magistrate or a Gazetted Officer but only such option was given to him—Finding of lower court in this regard found to be erroneous. (Paras 25 and 28)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 57—Search and seizure—Provisions of Section 57 by itself is not mandatory but it contains certain procedural instructions for strict compliance by officers—If there is no strict compliance of any of these instructions that by itself cannot vitiate trial but it would affect preparative value of evidence regarding arrest or search and in some cases may invalidate arrest or search—It has to be shown that such non-compliance has caused prejudice and resulted in failure of justice—Non-compliance of Section 57 by itself may not be held to vitiate conviction or trial in this case but certainly it would have adverse impact on preparative value of evidence adduced by prosecution. (Paras 40 and 41)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 21 read with Section 57—Seizure of Heroin—Conviction and sentence—Contraband substance which was sent to court for being tested, its envelope was not on file nor was there any justification of keeping the same on file—It is doubtful that material which was sent to FSL for being tasted was same contraband material which was allegedly recovered from accused on spot—Prosecution must have made compliance of Section 57 by submitting a report to immediate higher authority under Section 57 about recovery of contraband having been made and also accused having been arrested within time stipulated—A very small quantity of heroin is alleged to have been recovered from accused which can easily be procured and may be planted—Looking to the fact that huge penalty has been provided under law under Section 21 of NDPS Act, it was strict liability of prosecution to prove recovery genuinely from accused—Prosecution has failed to adduce proper evidence on record which weakens prosecution’s case—It has not been able to prove its case to hilt beyond shadow of doubt against accused regarding illegal recovery of heroin—Conviction held by court below is not liable to sustain and needs to be set aside. (Paras 31, 32, 41 to 44)
Result: Appeal allowed.
JUDGMENT
Dinesh Kumar Singh-I, J.—This criminal appeal has been filed against the judgment and order dated 23rd September, 1999 passed by then IVth Additional Sessions Judge, Varanasi in Criminal Case No. 559 of 1995 arising out of Case Crime No. 146 of 1995, P.S. Maruwadih District Varanasi whereby the accused appellant Anil Kumar has been convicted and awarded punishment under Section 21 of NDPS Act of 10 years rigorous imprisonment, fine of Rs. 1,00,000/- and in default of payment of fine to further undergo two years rigorous imprisonment.
2. Facts of this case, in nut-shell, are as follows.
3. On 3.9.1995 S.I. Pramod Kumar Pandey (PW-1), along with Head Constable Shyam Narain Yadav (PW-3) were busy in night patrolling duty and and were present at Maruwadih Inter-Section (Chauraha). There, they received information from an informer that one person was coming from the side of Lahartara and would go towards Shivdaspur Mandi. He had heroin with him. If police party promptly reached there he could be arrested. Believing this information to be true PW-1 (Pramod Kumar Pandey, Sub-inspector) and PW-3 (Shyam Narain Yadav, (Head Constable) along with informer reached near Shivdaspur Mandi tri-section and concealing themselves behind Gomti situated there, waited for the said person to arrive. After some time the said person coming from the side of Lahartara reached Mandi tri-section. The informer pointed him out and went away from there. PW-1 Pramod Kumar Pandey directed that person to stop but looking to the police personnel, he turned around and tried to run away but was caught with the help of PW-3, Shyam Narain Yadav at 20.30 hours. On inquiry from him, he disclosed his name to be Anil Kumar Dubey s/o Vanshi Dhar Dubey. He was told that an information was received that he possessed contraband substance and that, if he wanted, he could be searched in presence of a Magistrate or a Gazetted Officer. At this, the accused stated that as he had already been arrested, therefore, his search could be made by them only. Pursuant to that consent his personal search was made in presence of PW-3, Shyam Narain Yadav and from right side of his trouser one match box was recovered which was tucked in his trouser. From the said match-box seven pudias (small packets) of brown sugar (Heroin) were recovered and when asked to show the licence to keep the same, he started apologising. He was apprised that this act of his amounted to offence under Section 21 of NDPS Act and thereafter he was taken into custody. All the seven pudias of heroin were placed again in the said match-box and were wrapped in a cloth and in the light of torch and electricity they were sealed on the spot and its sample seal was also prepared. At the time of his arrest a large number of people had assembled there who went away from there, when told to be the witness to the said recovery. The recovery memo was prepared on the spot in the light of torch and electricity and was read out to the accused and PW-3. Thereafter, the signature was obtained thereon of the accused. A copy of the said recovery memo (Exhibit Ka-1) was provided to the accused. The PW-3, Shyam Narain Yadav went to the police station with the recovered contraband substance along with sample seal and the accused and got the case registered. Chick FIR (photo copy paper no. 9Ka/1), was prepared by Shivdarshan Giri (not examined) and the entry of this case was made by him in General Diary dated 3.9.1995 (Paper no. 9ka/1), at report no. 38 at time 20.30 hours. The Investigation was assigned to Inspector Nafees Ahmad (PW-2), who made inspection of the place of occurrence at the instance of PW-1 and prepared the site plan (Exhibit Ka-2). He had sent the contraband substance recovered from the accused to FSL through Constable Sanjay Kumar Tiwari on 11.9.1995, whereafter the FSL sent its report (Exhibit Ka-4), in which it was found that all the seven pudias contained hereoin. Thereafter, PW-2, Nafees Ahmad after having rec
