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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. Munir, J.
Shakti Dom – Appellant
Versus
State of U.P. – Respondent
Jail Appeal No. 1087, 1093, 1091, 6908 of 2017
Decided On : 12-10-2018
NDPS ACT - SECTION 8/21, 22 - SEARCH AND SEIZURE - SECTION 50 - RIGHT TO BE SEARCHED BEFORE A GAZETTED OFFICER OR MAGISTRATE - INDIVIDUAL NOTICE - SECTION 52, 55 AND 57 - NON-ADHERENCE - EFFECT ON PROSECUTION.
Fact of the Case:
Four appellants were convicted by the trial court for commission of an offence punishable under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the 'Act'). The appellants were alleged to have been found in possession of Alprazolam powder, exceeding the commercial quantity. The appellants challenged the conviction and sentences in each of the four appeals, on the ground that the mandatory provisions of Section 50(1) of the Act were violated, as there was no individual communication to each appellant about his right to be searched before a Gazetted Officer or a Magistrate.
Finding of the Court:
The Court held that the communication of the right to be searched before a Gazetted Officer or a Magistrate, under Section 50(1) of the Act, was not individual, clear and unequivocal. It was an omnibus communication to all the four appellants, who, considering the fact that three of them were absolutely illiterate, and, could not even sign, did not meet the mandatory requirements of a clear communication of the right under Section 50(1) of the Act, to each of the appellants. The Court further held that there was wholesale and gross non-adherence to the provisions of Sections 52, 55 and 57 of the Act, by the Investigating Officer, and, the apprehending police party also. It was held that though these provisions have been held to be directory and would per se not vitiate the trial or conviction, but that notwithstanding, non-adherence would effect the probity of the prosecution.
Issues: 1. Whether the mandatory provisions of Section 50(1) of the Act were violated, as there was no individual communication to each appellant about his right to be searched before a Gazetted Officer or a Magistrate? 2. Whether there was wholesale and gross non-adherence to the provisions of Sections 52, 55 and 57 of the Act, by the Investigating Officer, and, the apprehending police party?
Ratio Decidendi: 1. The Court held that the communication of the right to be searched before a Gazetted Officer or a Magistrate, under Section 50(1) of the Act, was not individual, clear and unequivocal. It was an omnibus communication to all the four appellants, who, considering the fact that three of them were absolutely illiterate, and, could not even sign, did not meet the mandatory requirements of a clear communication of the right under Section 50(1) of the Act, to each of the appellants. 2. The Court further held that there was wholesale and gross non-adherence to the provisions of Sections 52, 55 and 57 of the Act, by the Investigating Officer, and, the apprehending police party also. It was held that though these provisions have been held to be directory and would per se not vitiate the trial or conviction, but that notwithstanding, non-adherence would effect the probity of the prosecution.
Final Decision: The Court allowed the appeals, set aside the impugned judgment and order, and acquitted the appellants.
JUDGMENT :
1. These are four jail appeals arise out of a common judgment and order of Sri Rakesh Kumar Tripathi, the then Additional District and Sessions Judge, Court no.7, Deoria, dated 08.11.2016 passed in Criminal Case no.8 of 2013, State of U.P. vs. Basant Dom (arising out of Case Crime no.300 of 2012), under Section 8/21, 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'), Police Station G.R.P. Bhatani, District Deoria; Criminal Case no.9 of 2013, State of U.P. vs. Devendra Ram (arising out of Case Crime no.299 of 2012), under Section 8/21, 22 of the Act, Police Station G.R.P. Bhatani, District Deoria; Criminal Case no.10 of 2013, State of U.P. vs. Vikas Ram (arising out of Case Crime no.301 of 2012), under Section 8/21, 22 of the Act, Police Station G.R.P. Bhatani, District Deoria; and, Criminal Case no.11 of 2013, State of U.P. vs. Shakti Dom (arising out of Case Crime no.302 of 2012), under Section 8/21, 22 of the Act, Police Station G.R.P. Bhatani, District Deoria.
2. By the aforesaid judgment and order, each of the four appellants, have been convicted by the learned Trial Judge, of commission of an offence punishable under Section 8/22 of the Act, holding the charges to be proved beyond reasonable doubt, and, for the said offence the appellants, Devendra Ram, Basant Dom and Vikas Ram have been ordered to suffer 10 years Rigorous Imprisonment, besides being ordered to pay a fine of Rs. One lakh each. In default of payment of fine, the concerned appellant has been ordered to suffer one year R.I. Appellant, Shakti Dom has been sentenced to eight years Rigorous Imprisonment, besides being ordered to pay a fine of Rs.80,000/-. In the event of default, the appellant last mentioned, has been ordered to suffer a year's R.I.
3. All the four cases arise out of a common occurrence dated 29.12.2012 based on an alleged recovery of Alprazolam powder, exceeding the commercial quantity, from each of the four appellants. On the basis of the recovery, a common recovery memo was drawn up relating to all the four appellants, leading to registration of four separate crimes, against each of the appellants but founded on a common Chik FIR dated 29.12.2012, culled out from the common search-cum-recovery memo last mentioned. It is needless to say, that relating to each of four crime numbers separately assigned, requisite G.D. entries were made. In the said case crimes, though a common investigation was undertaken, four charge sheets have come to be filed, each giving rise to a separate criminal case on the file of the learned Additional Sessions Judge, as detailed hereinbefore.
4. The four cases aforesaid were consolidated vide order dated 13.03.2014, and, tried together by the learned Additional Sessions Judge, who entered a common judgment and order dated 08.11.2016, convicting and sentencing each of the accused appellants, in the manner hereinbefore indicated. The judgment and order dated 05.11.2016 is hereinafter referred to as the 'impugned judgment and order'.
5. Aggrieved by the impugned judgment and order, each of the four appellants filed four separate jail appeals, as defective appeals with some delay, that in due course, came to be condoned. These appeals have now been numbered as Jail Appeal No.1087 of 2017, Shakti Dom vs. State of U.P., Jail Appeal No.1093 of 2017, Vikas Ram vs. State of U.P., Jail Appeal No.1091 of 2017, Devendra Ram vs. State of U.P., and Jail Appeal No.6908 of 2017, Basant Dom vs. State of U.P. All these appeals not only arise from a common judgment, but trial too has proceeded on the basis of common evidence, recorded after consolidation. The appeals, therefore, have been heard together, with Jail Appeal No.1087 of 2017, Shakti Dom vs. State of U.P. being treated as the leading appeal, on the basis of a single paper book, filed in the said appeal.
6. Heard Ms. Rashmi Srivastav, learned Amicus Curiae on behalf of appellants and Sri Sanjay Sharma, learned Addition
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