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2017 Supreme(All) 2545
IN THE HIGH COURT OF ALLAHABAD
DINESH KUMAR SINGH-I, J.
KAMLESH KUMAR YADAV - Appellant
Vs.
STATE OF UTTAR PRADESH - Respondent
Criminal Appeal Nos. 3958 and 3976 of 2014
Decided on : 30-11-2017
For the Appellant :Vinay Saran, Brij Gopal Singh, Brij Raj Singh and Prabhakar Vardhan, Advocates
For the Respondent:Govt. Advocate
Failure to comply with the mandatory provisions of Section 50 of the NDPS Act, which requires informing the accused of their right to be searched before a Gazetted Officer or a Magistrate, renders the search and recovery of contraband illegal and vitiates the conviction.
Headnote:
CRIMINAL APPEAL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 21(II)(C) - POSSESSION OF HEROIN - COMPLIANCE WITH SECTION 50 OF THE ACT - SEARCH OF PERSON AND VEHICLE - APPRISING THE ACCUSED OF THEIR RIGHT TO BE SEARCHED BEFORE A GAZETTED OFFICER OR A MAGISTRATE - FAILURE TO INFORM THE ACCUSED ABOUT THEIR RIGHT TO BE SEARCHED BEFORE A MAGISTRATE - VIOLATION OF SECTION 50 - RECOVERY OF HEROIN - DOUBTFUL - CONVICTION SET ASIDE.
Fact of the Case:
The police intercepted a car based on information received about the transportation of illegal weapons and articles. Upon searching the vehicle, they recovered 5 kg and 150 grams of heroin from the dicky of the car, in which the three accused were sitting. The accused were informed of their right to be searched in the presence of a Gazetted Officer, and the Circle Officer was called to the scene. The contraband was seized, and the accused were arrested. They were convicted under Section 21(ii)(C) of the NDPS Act and sentenced to 15 years' rigorous imprisonment and a fine of Rs. 1,50,000 each.
Finding of the Court:
The court found that the prosecution failed to establish the recovery of heroin beyond a shadow of doubt. It held that the compliance with Section 50 of the NDPS Act was not complete as the accused were not informed of their right to be searched before a Magistrate. The court also found that the procedure prescribed for collecting the sample by the Narcotics Control Bureau was not followed, and the recovery of the alleged quantity of heroin was doubtful.
Issues: 1. Whether the prosecution proved the recovery of heroin beyond a shadow of doubt? 2. Whether the provisions of Section 50 of the NDPS Act were complied with? 3. Whether the procedure prescribed for collecting the sample by the Narcotics Control Bureau was followed?
Ratio Decidendi: 1. The prosecution failed to establish the recovery of heroin beyond a shadow of doubt. 2. The compliance with Section 50 of the NDPS Act was not complete as the accused were not informed of their right to be searched before a Magistrate. 3. The procedure prescribed for collecting the sample by the Narcotics Control Bureau was not followed.
Final Decision: The court allowed both appeals, set aside the judgment and order of the lower court, and held the accused-appellants not guilty of the charge under Section 21(ii)(C) of the NDPS Act. The accused were ordered to be released forthwith if not detained in any other case.
Dinesh Kumar Singh-I, J.
Criminal Appeal No. 3976 of 2014 has been preferred by the accused-appellant Kamlesh Kumar Yadav against the judgment and order dated 22.09.2014, passed by Additional District & Sessions Judge, Court No. 3, Kushinagar, Padrauna in S.S.T. No. 38 of 2012 (State of U.P v. Kamlesh Kumar Yadav & others) whereby he has been convicted and sentenced to undergo 15 years' R.I., fine of Rs. 1,50,000/- and in default of payment of fine further to undergo one year's additional imprisonment under Section 21(ii)(C) of NDPS Act and the other Criminal Appeal No. 3958 of 2014 has been filed by the accused-appellants Shan Mohammad and Anwar Husain against the judgment and order dated 22.09.2014, passed by Additional Sessions Judge, Court No. 3, Kushinagar, Padrauna in S.S.T. No. 38 of 2014 whereby they have been convicted and sentenced under Section 21(ii)(C) of NDPS Act to undergo 15 years' R.I. each, fine of Rs. 1,50,000/- each and in default of payment of fine both have to undergo one year's additional imprisonment each.
2. Since both the above appeals arise out of common judgment, they are being taken up together.
3. In brief the facts of the case are as follows:
4. On 16.05.2012 the police party comprising So, Pawan Kumar Singh (PW-1) along with Constable Rajesh Singh Yadav (PW-5) and other co-police personnel were present in Kasba Salemgarh (small town) and were performing their patrolling duty. Sri Pawan Kumar Singh received an information through informer that a maruti car of grey colour coming from Gorakhpur side would go towards Bihar, in which illegal weapons and substance/articles were being carried, if promptly intercepted, they could be arrested. Believing this information, the police party waited at Police Chauki Bahadurpur for the said vehicle to arrive. After some time one maruti car was noticed coming from Gorakhpur side, seeing which the informer pointed out that the said vehicle was the same vehicle in which illegal articles were kept. Together the entire police party came on the road and tried to stop the vehicle, but the driver instead of slowing down, accelerated the same, but was intercepted at police barrier at small distance from there. When its door was opened it was found that there were three people sitting inside. When it was asked from them as to why they were trying to flee, they told that they had illegal smack/heroin in their vehicle because of which they were trying to flee from there. When it came to the knowledge of police party that they had smack, they were told whether they would like to be taken before a Gazetted Officer? They said, yes. Thereafter the Circle Officer was informed by telephone and names of all the three persons were enquired. They disclosed their names as Kamlesh Kumar Yadav son of Sri Krishna Kumar Yadav, Shan Mohammad son of Sri Jameel Ahmad and Anwar Husain son of Sri Abdul Samad respectively and further told that all of them together indulge in smuggling of psychotropic substances and whatever earning they have out of it they share among them. Today also they were going to Bihar with psychotropic substance. Further it was told that their patron was Hafeez Pyarul son of late Badkadeen who is a resident of Barabanki and who makes smack available to them for being taken to the destination and also provides money and for this business he has got maruti car (U.P. 32 B.R.-2365) transferred in the name of accused Kamlesh Kumar Yadav. All three of them do business with the help of this vehicle. Thereafter in the presence of Circle Officer Sri D.K. Singh the police party went towards rear portion of maruti and its dicky was opened. After removing rubber kept there a bag was taken out, in which a brown colour powder was kept in a packet of polythene. All the three confirmed that the same was smack. Thereafter Constable Sri Deepak Kumar was sent to bring weighing machine and after some time when he returned the same was weighed and the total smack was found to be 05
