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IN THE HIGH COURT OF ALLAHABAD
Siddharth, J.
Dil Kumari – Appellant
Vs.
State of U.P. – Respondent
Jail Appeal No. 1706 of 2015
Decided On : 07-07-2018
NDPS Act - Compliance of Section 50 - Section 8/23 N.D.P.S. Act
Fact of the Case:
The case involved the recovery of Charas from the accused appellants, Dil Kumari and Rajendra, and their subsequent conviction under Section 8/23 NDPS Act. The accused argued that the prosecution failed to prove the samples were taken from all the packets recovered from them and that the compliance of Section 50 of the NDPS Act was not met.
Finding of the Court:
The court found that the prosecution did not prove that samples were taken from all the packets recovered from the accused appellants, and the compliance of Section 50 was not met. The court also noted that the search of the first appellant by the lady Constable in violation of Section 42(1) of the NDPS Act cannot be approved.
Issues: Non-compliance of Section 50 of the NDPS Act, failure to prove the samples were taken from all the packets recovered, and the search of the first appellant in violation of Section 42(1) of the NDPS Act.
Ratio Decidendi: The court held that the recovery from the possession of the appellants was not proved beyond reasonable doubt in strict compliance with the provisions of the NDPS Act. It also emphasized the mandatory nature of informing the suspect of their right to be searched before a gazetted officer or a Magistrate under Section 50 of the NDPS Act.
Final Decision: The judgment and order passed by the trial court convicting and sentencing the appellants were quashed, and the appeal was allowed. The appellants were ordered to be released forthwith if not required in any other case.
Siddharth, J.
Sri Manu Sharma and Sri. D.K. Pandey, learned counsel for the appellant have been heard in Jail Appeal No. 1706 of 2015 and Sri. Radhey Shyam Yadav, learned Amicus Curiae has been heard in Jail Appeal No. 1707 of 2015 and Sri. Ashwani Yadav, learned A.G.A has been heard for the State.
2. This Jail Appeal is directed against the judgment and order dated 12.3.2015 passed by Additional District and Sessions Judge, Court No. 1, Maharajganj in Special Case No. 61 of 2011 (State v. Dil Kumari) registered as Case Crime No. 835 of 2011, under Section 8/23 N.D.P.S. Act, Police Station Sonauli, District Maharajganj and Special Case No. 62 of 2011 (State v. Rajendra Pun Magar) registered Case Crime No. 836 of 2011, under Section 8/23 N.D.P.S. Act, Police Station Sonauli, District Maharajganj.
3. The brief facts of the case are that on 17.9.2011, Sub-Inspector Ramshabad Verma, Constable Harish Shukla and Constable Deva Prasad got information that some people are coming to Sonauli with Charas and if proper checking is done, they can be apprehended. Accordingly, joint team was constituted and they found one woman with a child in a lap and another a man going back after seeking the police. Lady constable apprehended them and they told their name as Dil Kumari and Rajendra respectively and 39 packets of Charas were recovered from the waist of Dil Kumari, which was found to be 4 kg. Rajendra was found in possession of 20 packets of Charas in a black bag, which was 2 kg. in weight. From every packet, samples were collected about 100 gm. of Charas, was sealed as sample and remaining Charas was sealed and kept. No public witness agreed to give statement. The case was registered against them and after investigation, charge sheet was submitted. In the report of chemical analysis, the recovery of Charas was proved. PW-1, Sub Inspector, Ramshabad stated in his evidence that Dil Kumari was informed whether she would be like her search to make before a Gazetted Officer or Magistrate to which she refused and stated that a lady constable may make search from her body. Thereafter, her consent letter was prepared and she made signatures thereon. Lady Constable, Anuradha Singh recovered 39 packets from her waist and it was found to be 4 kg. in weight. Similarly, Rajendra was also given option of search in presence of a Gazetted Officer and Magistrate, he refused and accordingly, this consent letter was prepared and got signed by him and on search 20 packets of Charas were recovered from his bag. Therefore, they were charge-sheeted. PW-5, Head Constable, Akhilesh Kumar Pandey proved the lodging of report on 17.9.2011. PW-2 Constable Harish Shukla, PW-3 lady Constable Priti Kumar, PW-4 Sub Inspector Ram Sanware Yadav, proved prosecution case.
4. The learned trail court considered defence of the accused persons regarding non-compliance of Section 50 and held that there is no proforma for informing of accused of their rights. It is only necessary that they should be informed that they can be searched before a Gazetted Officer or Magistrate. This is sufficient compliance of Section 50. Learned trial court convicted and sentenced the accused appellants under Section 8/23 NDPS Act with 10 years rigorous imprisonment and fine of Rs. One lac each. Aggrieved by the same, this jail appeal has been preferred by the accused appellants.
5. Learned counsel for the accused appellants has argued that the prosecution fails to prove that samples were taken from all the packets recovered from the accused and were sent for examination nor any finding has been recorded in this regard by the court below. The recovery of 39 packets is alleged from Dil Kumari and 20 packets from Rajendra, but prosecution has not proved whether samples were taken from every packets recovered and were sent for examination by the expert. He has relied upon the judgment of this Court in the case of Jitendra Singh Rathore v. State of U.P., (2014) 4 AllLJ 76 (Paragraph Nos. 27
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