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2019 Supreme(All) 2394
IN THE HIGH COURT OF ALLAHABAD
PRADEEP KUMAR SRIVASTAVA, J.
Satte - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 1782 of 1998
Decided On : 18-10-2019
Advocate Appeared:
For the Appellant : Dileep Kumar, Radhey Shyam Yadav, Amicus Curiae and Rajeev Gupta
The main legal point established in the judgment is the necessity of compliance with the mandatory provisions of the NDPS Act, fair and untainted investigation, and the production of formal witnesses to ensure a sustainable conviction.
Headnote:
NDPS Act - Criminal Appeal - Section 8/20 NDPS Act - [Section 8, Section 20 NDPS Act] - The court discussed the provisions of Section 50 of the NDPS Act, which provides safeguards for the search of a person, and emphasized the necessity of compliance with this section. The court also highlighted the importance of fair and untainted investigation in cases involving illegal drugs, stressing the need for adherence to due procedure and the production of formal witnesses. The judgment emphasized that the failure to comply with the mandatory provisions of the NDPS Act and the lack of proper procedure in the investigation rendered the conviction unsustainable under the law.
Fact of the Case:
The appellant was convicted and sentenced for the offence under Section 8/20 NDPS Act based on the recovery of Charas from his possession. The appellant denied the recovery and claimed to be falsely implicated due to enmity. The prosecution relied on the testimony of a single witness and failed to establish compliance with mandatory provisions of the NDPS Act.
Finding of the Court:
The court found that the prosecution failed to comply with the mandatory provisions of the NDPS Act, including Section 50, and did not conduct a fair and untainted investigation. The court concluded that the conviction and sentencing of the accused were unsustainable under the law.
Issues: Non-compliance with mandatory provisions of the NDPS Act, lack of fair and untainted investigation, failure to produce formal witnesses, and the unsustainable nature of the conviction and sentencing.
Ratio Decidendi: The court emphasized the necessity of compliance with the mandatory provisions of the NDPS Act, fair and untainted investigation, and the production of formal witnesses to ensure a sustainable conviction.
Final Decision: The appeal was allowed, and the judgment and order convicting and sentencing the accused-appellant were set aside, leading to the acquittal of the accused-appellant.
ORDER :
PRADEEP KUMAR SRIVASTAVA, J.
1. This Criminal Appeal has been filed against the judgment and order dated 10.08.1998 passed by Ist-Additional Sessions Judge, Etawah in S.T. No. 53 of 1994 (State Vs. Satte @ Sattan) has been convicted and sentenced for the offence under Section 8/20 NDPS Act, Police Station Bharthana, District Etawah and sentenced for 10 years rigorous imprisonment and Rs. 1 lakh fine and, in default of payment of fine, for additional sentence of 3 years.
2. The brief facts of the case is that in the night of 03/04.02.1993 SI D.P. Awasthi of Police Station Bharthana was on patrolling duty along with constable Hari Shanker and Maharani Deen Mishra. On information received from a informant that Satte alias Sattan, accused of crime No. 422 of 1992 under Section 392 IPC is present along with looted tyre of bus with rim near the southern railway bridge of station and is about to carry the tyre by train to Etawah. After receiving this information, the police proceeded towards the above mentioned place and on the pointing of the informer, while the accused was trying to run away, he was arrested at about 2:30 AM at ten pace away from the bridge after using necessary force. He disclosed his name to be Satte @ Sattan and on his search 20 gm Charas was recovered from the pocket of his shirt and the tyre of Bus along-with rim and tube. He was taken into custody after informing the reason of his arrest. The recovered Charas was sealed in a clothe and recovery memo was prepared. A copy of recovery memo was given to the accused and he was brought to the Police Station Bharthana along with sealed Charas, Tyre and rim. On the basis of recovery memo, offence was registered under Section 18/20 NDPS Act. During investigation, statement of the witnesses were taken, site-map prepared and recovered Charas was sent for chemical examination for analysis. After investigation, charge-sheet was submitted against accused for the offence under Section 18/20 NDPS Act. Accused was summoned and charge was framed under aforesaid Section. Accused pleaded not guilty and claimed trial.
3. Prosecution examined only one witness SI D.P. Awasthi as PW-1 who proved recovery memo as Ex. Ka-1. Statement of accused was recorded under Section 313 Cr.P.C., who denied the recovery of Charas from his possession and stated that he has been falsely implicated on account of enmity. He also stated that he was arrested from his house. He did not adduce any evidence in defence.
4. After hearing the learned counsel for the accused and learned ADGC (Criminal) for State and perusing the evidence on record, the learned trial court by impugned judgment convicted and sentenced the accused-appellant.
5. Aggrieved by the conviction and sentence, this appeal has been filed and the impugned judgment has been challenged to be illegal and without jurisdiction as the offence was not proved against the appellant. Evidence was wrongly appreciated to hold the appellant guilty. There was no compliance of the mandatory provisions of Section 42, 50 and 57 of the N.D.P.S. Act and for that reason the whole proceeding is vitiated. Therefore, the impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal.
6. In his statement SI D.P. Awasthi has stated on oath that at the time of incident he was posted at Police Station Bharthana. On 03.02.1993 and in the night when he was on patrolling duty with constables Harishanker and Maharani Deen Mishra, he received information regarding the accused who was wanted in crime No. 422 of 1092 under Section 392 IPC reportedly sitting near the bridge of Bharthana Railway Station along with looted tyre and rim and he was likely to escape with the looted articles by train. He tried to procure public witnesses, but nobody came forward to be witness. He reached near Railway bridge at about 2:30 AM and on the pointing of the informant when accused Satte @ Sattan tried to run away from there, by using necessary force he wa
