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2005 Supreme(All) 1939
ALLAHABAD HIGH COURT
Mukteshwar Prasad
LIYAKAT GOOJAR
Versus
STATE OF U P
Decided On : 05 October 2005
Jail Appeal No. 1333 of 2004
Bahar Ali,
Non-compliance with mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 rendered the conviction unsustainable.
Headnote:
Narcotic Drugs - Criminal Appeal - Narcotic Drugs and Psychotropic Substances Act, 1985, Section 8, Section 21
Fact of the Case:
The appellant was convicted under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of morphine. The arresting officer found morphine on the appellant during a search without complying with the mandatory provisions of Section 50 of the Act.
Finding of the Court:
The court found that the non-compliance of the mandatory provisions of Section 50 of the Act rendered the conviction unsustainable, and the delay in sending the sample for analysis was not fatal. The court also noted the lack of a public witness associated with the alleged recovery.
Issues: Non-compliance with Section 50 of the Act, delay in sending the sample for analysis, lack of a public witness associated with the alleged recovery.
Ratio Decidendi: The non-compliance of the mandatory provisions of Section 50 of the Act rendered the conviction unsustainable, and the delay in sending the sample for analysis was not fatal. The lack of a public witness associated with the alleged recovery was also noted.
Final Decision: The appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted.
This criminal appeal by accused Liyakat Goojar from jail has been filed against the judgment and order dated 1-4-2004 passed by Additional Sessions Judge, Barabanki whereby he convicted the accused under Section 8 read with Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the act) and sentenced him to suffer rigorous imprisonment for a period of ten years and to pay a fine of rupees one lac. In default in payment of fine, he was ordered to undergo rigorous imprisonment for a further period of two years.
2. In brief, the facts of the case, which led to the trial of the appellant, are as under.
3. On 12-10-1994, S. I. Qazi Ahmad Ibrahim, the then S. O. Police Station Jaidpur, District Barabanki accompanied by police personnel was returning to the police station on Government vehicle. At about 3. 40 a. m. , the police party arrived at Takiya Crossing and saw someone concealing near the well. On suspicion, the S. O. questioned him. Thereafter, he started running. He was overpowered by the police party and on interrogation disclosed his name as Liyakat Goojar. He was wanted by the police in case crime No. 298/93, under Sections 307/394 I. P. C. After disclosing the grounds of arrest, he was formally arrested by the police.
4. The moment S. I. started taking his personal search he disclosed "jama TALASI LI JANE LAGI TO MAFI MANGATE HUYA RONE LAGA Kl SARKAR HAMARE PAS MORPHINE HAI. MAI BARBAD HO JAYGOONGA TAB USASE KAHA GAYA Kl THIK HAI TUMAHARI TALASI KISI RAJ PATRIT ADHIKARI DWARA LI JAYEGI.
ISPER BOLA KE SAHEB MAINETO BATA HI DIYA AB AAP HI TALASHI LEY LELIJIYE. SAB AAP KAY HATH MAY HAI. "
5. S. I. Ibrahim recovered 1. 200 kilograms of morphine (heroin) from the right pocket of his kurta. The arresting officer further recovered four puriyas of morphine, which was concealed in a polythine. The recovered contraband was sealed on the spot and a sample of seal was prepared. No public witness was available there and as such, no witness was associated with the alleged recovery. A seizure memo was prepared on the spot in the light of torch.
6. After investigation of the case, the accused was charge- sheeted and was tried. He was charged under Section 8 read with Section 21 of the Act to which he pleaded not guilty on 24-5-95.
7. At the trial, the prosecution examined P. W. 1 S. I. Qazi Ahmad Ibrahim, the then S. O. Police Station Jaidpur, who arrested the accused, P. W. 2 Constable R. P. Awasthi and P. W. 4 Constable Hari Prasad Pal. Besides, the I. O. of the case (Tahsildar Singh) was also examined. The prosecution further examined Constable Ramesh Chandra Sharma, who prepared Chik report and Constable S. C. Tiwari also who took the sample to Forensic Science Laboratory at Lucknow.
8. The accused in his statement recorded under Section 313 Cr. P. C. totally denied his arrest as well as recovery, as alleged by the prosecution and pleaded his false implication on account of enmity with the villagers. According to him, he was arrested by the police from his house. No evidence was led in defence.
9. After having considered the entire evidence on record and arguments advanced on behalf of the parties, the learned Judge found the accused guilty and convicted and sentenced him, as indicated above.
10. I have heard Sri Bahar Ali, learned amicus curiae, who was appointed by this Court vide order dated 7-4-2005 and learned A. G. A. and also perused the entire record carefully.
11. Learned amicus curiae has assailed the judgment under appeal mainly on the grounds that there has been total non- compliance of the provisions of Section 50 of the Act and the provisions are mandatory as held by the Apex Court of the country in a number of decisions. He has further submitted that the
alleged recovery was made by the police on 12-10-94. However, sample was sent to Forensic Science Laboratory, Lucknow on 6-12- 94 and thus sufficient delay took place. He has further urged that no public witn
