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IN THE HIGH COURT OF ALLAHABAD
Pradeep Kumar Srivastava, J.
Aniruddh Lal Srivastava – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 3768 of 2018
Decided On : 25-07-2019
Constitution of India, 1950 – Article 226 – Appeal against conviction – Search and seizure – Enquiry – Criminal appeal has been preferred against the impugned judgment under sections 8/21 N.D.P.S. Act, whereby the appellant has been convicted and sentenced for the offence under section 21-B N.D.P.S. Act – Appeal – Held, Search team did not inform the accused of his right to be searched before a gazetted officer or Magistrate – From the recovery memo and evidence, it is established that accused was searched in person also and the mandatory provision of section 50 was not complied with and recovery memo was not read over to accused nor his signature was obtained and only a copy thereof was given and signature was obtained – The fact that such copy was given to accused is also doubtful as it has been stated by PW-3 that when the accused was brought to police station, on being searched, no such copy was found from him – The Investigating Officer was a subordinate of the recovery officer/complainant No public witness was associated with recovery of heroine from accused. The learned Trial Court appears to have ignored the above shortcomings and lapse in the prosecution version, recovery process and evidence – Crime based on recovery of illegal drugs for which stringent provision in terms of procedure and punishment has been provided in the N.D.P.S. Act, it is necessary to ensure free and fair search and investigation without any objectionable features and infirmities – Presumption against innocence based on possession of illegal drug and shifting the burden of proof on accused requires fair and untainted investigation without any glimpse of malice, mischief, doubt, falsity, fabrication undue influence and prejudice to the accused – Recovery of illicit article, without complying the mandatory provision of section 50, by a gazetted officer is illegal as the officer cannot act in dual capacity and no conviction can be based on such recovery – Trial Court in convicting and sentencing the accused suffers from perversity and illegality – The impugned judgment is not sustainable under law and is liable to be set aside – Appeal allowed. [Paras 22 to 25]
Facts of the case:
This criminal appeal has been preferred against the impugned judgment dated 2.7.2018, passed by Additional Sessions Judge, Court No. 11, Moradabad, in Special Sessions Trial No. 74 of 2011 (State v. Aniruddh Lal Srivastava @ Anulal), arising out of Case Crime No. 229 of 2011, under sections 8/21 N.D.P.S. Act, Police Station Pakbada, District Moradabad, whereby the appellant has been convicted and sentenced for the offence under section 21-B N.D.P.S. Act for six years imprisonment and Rs.20,000/- fine and in default thereof ten days additional imprisonment.
Findings of the case:
Search team did not inform the accused of his right to be searched before a gazetted officer or Magistrate – From the recovery memo and evidence, it is established that accused was searched in person also and the mandatory provision of section 50 was not complied with and recovery memo was not read over to accused nor his signature was obtained and only a copy thereof was given and signature was obtained – The fact that such copy was given to accused is also doubtful as it has been stated by PW-3 that when the accused was brought to police station, on being searched, no such copy was found from him – The Investigating Officer was a subordinate of the recovery officer/complainant No public witness was associated with recovery of heroine from accused. The learned Trial Court appears to have ignored the above shortcomings and lapse in the prosecution version, recovery process and evidence – Crime based on recovery of illegal drugs for which stringent provision in terms of procedure and punishment has been provided in the N.D.P.S. Act, it is necessary to ensure free and fair search and investigation without any objectionable features and infirmities – Presumption against innocence based on possession of illegal drug and shifting the burden of proof on accused requires fair and untainted investigation without any glimpse of malice, mischief, doubt, falsity, fabrication undue influence and prejudice to the accused – Recovery of illicit article, without complying the mandatory provision of section 50, by a gazetted officer is illegal as the officer cannot act in dual capacity and no conviction can be based on such recovery – Trial Court in convicting and sentencing the accused suffers from perversity and illegality – The impugned judgment is not sustainable under law and is liable to be set aside.
Result: Appeal allowed.
JUDGMENT :
Pradeep Kumar Srivastava, J.
1. This criminal appeal has been preferred against the impugned judgment dated 2.7.2018, passed by Additional Sessions Judge, Court No. 11, Moradabad, in Special Sessions Trial No. 74 of 2011 (State v. Aniruddh Lal Srivastava @ Anulal), arising out of Case Crime No. 229 of 2011, under sections 8/21 N.D.P.S. Act, Police Station Pakbada, District Moradabad, whereby the appellant has been convicted and sentenced for the offence under section 21-B N.D.P.S. Act for six years imprisonment and Rs.20,000/- fine and in default thereof ten days additional imprisonment.
2. The prosecution case is that on 4.6.2011, Sri Vijay Bhushan, S.P. City, Moradabad alongwith his companion police force was on law and order duty. In the evening on Deengarpur Tiraha, SO Pakbada with his jeep and SI Vijendra Singh, SI Satendra Singh, Constable Janardan Singh, Constable Shahnawaz and SOG SI Arvind Mohan Sharma, Arshad Saifi and Raghuveer Singh met in their vehicle with Constable Veerpal who were talking with SO Pakbada in respect of the incident of loot which took place on 31.5.2011. An information was received from the informer that three persons who have come from Bihar with heroine are present at the gate of TMU College. Believing on this information, the police team tried to search out public witnesses but failed. They searched each other to ensure that none of them have any incriminating articles. Leaving the vehicle on Deengarpur Tiraha, the police force reached in front of Nazar Hospital, where the informer pointed out towards three persons standing on the main gate of TMU College stating that these persons are having heroine in good quantity. The three persons seeing the police coming towards them, started walking hastily towards emergency gate and when asked to stop by the police, they started running away from there. Only one person out of three was caught by the police at TMU emergency gate at about 7:45 PM and other two persons despite all efforts made by police team, escaped from there. On inquiry, the arrested person told his name to be Aniruddh Lal Srivastava alias Anulal. When a search was conducted, a green packet of polythene in which two packets of Glucon-D were kept were recovered from his hand wherein some white substance was present and the accused said it to be heroine and when police team smelt it, they also found it to be heroine. The accused informed that the persons who ran away from the place, were Sudhanshu Mishra and Binda of Bihar. The recovered heroine was measured and it was found to be 500 grams in the bigger packet and 250 grams in the smaller packets. He could not show the license for keeping the said heroine. All the process relating to recovery was completed and recovery memo was prepared on which the accused and witnesses put their signature and a copy thereof was given to accused. Ten gm sample from each packet was taken out for chemical examination and remaining was sealed and thereafter, a case under the N.D.P.S. Act was registered against him. After investigation, charge-sheet was submitted against the accused. The accused appeared before the (Court and the charge under section 8/21 N.D.P.S. Act was framed against him. He denied the charge and claimed trial.
3. The prosecution examined PW-1 SI Satendra Bhadana, PW-2 Sri Vijay Bhushan, SP City, PW-3 SI Vipin Tyagi and PW-4 Akhilesh Pradhan, SHO, who proved the prosecution case and prosecution document such as sight plan, charge-sheet, recovery memo, GD, FIR, consent letter and arrest memo. The learned Trial Court after perusing the evidence on record held the accused guilty and convicted the and sentenced him as aforesaid.
4. Feeling aggrieved, the appellant has filed the present criminal appeal and has challenged the aforesaid impugned judgment and sentence on the ground that the sentence awarded to the appellant is excessive and too severe and bad in the eye of law. The Trial Court did not appreciate the evidence available on
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