Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF ALLAHABAD
MOHD. FAIZ ALAM KHAN, J.
Guru Saran Singh @ Gulshan - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 227 of 1998
Decided On : 28-11-2022

Advocates:
Advocate Appeared:
For the Appellant : G.N. Mishra, Krishna Kumar Vishwakarma, Pradeep Kumar Srivastava, Shivam Gupta.

The main legal point established in the judgment is the mandatory nature of Section 50 of the NDPS Act and the requirement of strict compliance with the provision, particularly in communicating the right of the accused to be searched before a Gazetted Officer or Magistrate.

Headnote:
N.D.P.S. Act - Conviction under Section 8/21 N.D.P.S. Act - [Section 8/21 N.D.P.S. Act] - The court discussed the compliance of Section 50 of the NDPS Act, the requirement of informing the accused of the right to be searched before a Gazetted Officer or Magistrate, and the necessity of strict compliance with the provision. The court found that the right of the accused to be searched before a Gazetted Officer/Magistrate was not properly communicated, and the search of the accused was vitiated. The conviction of the accused was set aside, and he was acquitted of the charges.
Fact of the Case:
The appellant was convicted under Section 8/21 N.D.P.S. Act for possessing morphine. The prosecution's case was based on the recovery of morphine from the appellant's possession and the compliance of Section 50 of the NDPS Act. The appellant denied the charges and claimed trial.
Finding of the Court:
The trial court found the case of the prosecution proved beyond reasonable doubt and convicted the appellant. However, the High Court found that the right of the accused to be searched before a Gazetted Officer/Magistrate was not properly communicated, and the search of the accused was vitiated. The conviction of the accused was set aside, and he was acquitted of the charges.
Issues: The issues included the compliance of Section 50 of the NDPS Act, the communication of the right of the accused to be searched before a Gazetted Officer or Magistrate, and the reliability of the evidence presented by the prosecution.
Ratio Decidendi: The court emphasized the mandatory nature of Section 50 of the NDPS Act and the necessity of strict compliance with the provision. It found that the right of the accused to be searched before a Gazetted Officer/Magistrate was not properly communicated, and the search of the accused was vitiated, leading to the acquittal of the accused.
Final Decision: The conviction of the accused under Section 8/21 N.D.P.S. Act was set aside, and he was acquitted of the charges.

JUDGMENT :

1. Heard Shri Shivam Gupta, learned counsel for the appellant as well as learned AGA for the State and perused the record.

2. The instant appeal has been filed against the judgement and order dated 7.2.1998 passed by the Additional District and Sessions Judge (Ayodhya Matter), Lucknow in Sessions Trial No. 306/1993 'State Vs. Guru Saran Singh @ Gulshan', under Section 8/21 N.D.P.S. Act, Police Station Krishna Nagar, District Lucknow, whereby the trial court has convicted the appellant for committing offence under Section 8/21 N.D.P.S. Act and sentenced him to undergo rigorous imprisonment of 10 years and also with fine of Rs.1,00,000/- and in default of fine to undergo further imprisonment for two years.

3. In nutshell the case of the prosecution is that on 2.9.1993 Station House Officer, Police Station Sarojani Nagar, namely, Deo Dutt Singh Rathaur along with Sub Inspector Siddharth Tomar, Vinod Kumar Singh and Constable Suresh Mishra and Subhash Chandra were deputed at Lucknow Kanpur Road where they saw a person who was walking at Lucknow Kanpur Road from Chillawa and on witnessing the police party attempted to walk away. On becoming suspicious he was interrogated and arrested at 2.15 P.M. and told his name as Guru Saran Singh @ Gulshan and informed to the police party that he is possessing 'morphine' which is kept in the hand bag of black colour which he was carrying in his right hand. A consent memo was prepared separately and personal search of the accused Guru Saran Singh @ Gulshan was made and from the bag which he was holding in his right hand one polythene bag was recovered along with the material which was smelling as morphine and was of gray colour. On being weighed the weight of recovered 'morphine' was found 500 grams and he could not show any licence to carry this morphine and thus was arrested and a recovery/ arrest memo was accordingly prepared on spot. The accused also informed that he had purchased this contraband from a shop situated at Khadaha, however, he is not conversant with the name of the person from whom he had purchased morphine. Attempt was made to procure independent public witness but nobody consented to become witness and thereafter the recovered contraband and the accused was taken to the Police Station.

4. The First Information Report was lodged by Deo Dutt Singh Rathaur and the case was registered at Case Crime No. 239/993, under Section 8/18/20 N.D.P.S. Act at 14.45 hours on 2.9.1993 at Police Station Sarojani Nagar, Lucknow. The substance of the same was entered in the general diary Ext. Ka-7 and the investigation of the case was entrusted to Sub Inspector R.K. Singh Yadav and the investigation was entrusted to Sub Inspector Satya Prakash Sachan as the earlier Investigating Officer had gone on leave.

5. The Investigating Officer after recording the statement of the witnesses and after preparing the site plan and also after taking a sample from the recovered contraband and after sending the sample to the Forensic Lab submitted charge sheet against the accused/ appellant (Ext. Ka-4). Thereafter after receiving the result of Forensic Lab wherein recovered substance was found diacetylmorphine the report of the FSL was also submitted to the court.

6. The trial court after taking cognizance framed charges against the appellant/ accused under Section 8/21 NDPS Act. The accused/ appellant denied the charge and claimed trial.

7. The prosecution in order to prove its case presented before the trial court P.W.1-Siddharth Tomar, P.W. 2 Investigating Officer of the case, namely, Satya Prakash Sachan and apart from the oral evidence has also relied upon the following documentary evidence:-

I. Consent letter written by the accused/ appellant (Ext. Ka-1)

II. Seizure Memo (Ext. Ka-2)

III. Site Plan (Ext. Ka-3).

IV. Charge sheet ( Ext. Ka-4)

V. Report of Forensic Lab (Ext. Ka-5).

VI. Chik FIR (Ext. Ka-6).

VII. Kayami G.D. (Ext. Ka-7).

8. After conclusion of the evidence of the prosecution the statement of the ac