Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(All) 1106

IN THE HIGH COURT OF ALLAHABAD
HON'BLE SHAMIM AHMED, J.
Ikrar And Another - Appellant
Versus
Union of India - Respondent
Criminal Appeal No. 985 of 2002
Decided On : 26-07-2024

Advocates Appeared:
For the Appellant : A.P. Mishra.
For the Respondent: Rakesh Kumar Awasthi, Sm Singh Royekwar.

IMPORTANT POINT
The mandatory requirement under Section 50 of the N.D.P.S. Act to inform a suspect of their right to be searched in the presence of a Gazetted Officer or Magistrate is crucial for ensuring the fairness of the search process and protecting the rights of the accused.

Headnote:
N.D.P.S. Act - Narcotic Drugs and Psychotropic Substances - Sections 8, 21, 29, 50, 55, 57 - The court emphasized the mandatory nature of Section 50 of the N.D.P.S. Act, which requires that a suspect be informed of their right to be searched in the presence of a Gazetted Officer or Magistrate. The failure to comply with this provision rendered the search and subsequent seizure legally flawed, undermining the prosecution's case. The court also highlighted the lack of independent witnesses and procedural irregularities, which contributed to the decision to acquit the appellant.
Fact of the Case:
The appellants were convicted under the N.D.P.S. Act for their alleged involvement in the possession and distribution of heroin. The prosecution's case was based on the apprehension of two individuals who were allegedly receiving a consignment from the appellants. The trial court convicted the appellants despite the absence of direct evidence linking them to the narcotics.
Finding of the Court:
The court found that the prosecution failed to establish its case beyond a reasonable doubt due to non-compliance with Section 50 of the N.D.P.S. Act, lack of independent witnesses, and procedural irregularities in the investigation. The court concluded that the appellants were entitled to the benefit of doubt.
Issues: Whether the prosecution complied with the mandatory provisions of Section 50 of the N.D.P.S. Act, and whether the evidence presented was sufficient to uphold the conviction of the appellants.
Ratio Decidendi: The court held that the failure to inform the accused of their right to be searched in the presence of a Gazetted Officer or Magistrate is a significant lapse that undermines the legality of the search and the prosecution's case. The absence of independent witnesses further weakened the prosecution's credibility.
Final Decision: The appeal was allowed, the conviction and sentence of the appellant were set aside, and the appellant was acquitted of all charges.

JUDGMENT :

(Hon'ble Shamim Ahmed, J.) :

1. The case is taken up in the revised call.

2. This criminal appeal Under Section 374 (2) Cr.P.C. against the judgement and order dated 29.7.2002 passed by Learned Special Judge, B.D.P.S.Act, Lucknow in criminal case no. 650 of 1991 Under Section 8/21/29 N.D.P.S. Act, challaned by C.B. Mohd. Ikrar and other Vs. Union of India by which the appellants have been convicted for 6 years R.I. and fine of Rs 25000/- each with stipulate default

3. Considering the report of the Chief Judicial Magistrate, Barabanki dated 05.03.2024, the appeal in respect of appellant No.1-Ikrar has already been abated vide order dated 03.07.2024. Thus, the present appeal is decided on merit in respect of appellant No.2-Sushail.

4. Heard Sri A.P.Mishra, learned counsel for the appellant No.2-Suhail as well as Sri S.M.Singh Royekwar, learned counsel for the Union of India.

5. The Brief fact of the prosecution, on 13.9.1991, Inspector received confidential information that two individuals, Baijnath and Vinod, residents of Motihari, Bihar, were staying at Anand Hotel in Aminabad. They were expected to receive a consignment of heroin from Ikrar son of Moh. Anis and Suhail son of Nijju, residents of Tikra Baraki village. Based on this information a team was formed under the orders of Superintendent Radhe Raman, consisting of Inspector B.D. Pandey, S.I. Jayant, and other officers. On 14.9.91, the team surrounded Anand Hotel. Around 2 p.m., two suspicious individuals arrived on a motorcycle (Registration No. R.26/3439) and signaled towards the upper floor of the hotel. Subsequently, Baijnath and Vinod came out and engaged in conversation. During this exchange, a small packet was handed over to Vinod, who placed it in his bag. The team then apprehended Baijnath and Vinod.

6. On this allegation, Complainant had lodged a written report at Police Station-N.C.B, Lucknow District-Lucknow on 14.09.1991 Under Sections 8/21/29 N.D.P.S Act against appellants.

7. This case was entrusted to investigating officer who investigated this case and during investigation, he visited the place of occurrence and prepared the site plan ,recorded the statements of witnesses and after completing the investigation, investigating officer had submitted the charge sheet against the appellant and other accused persons.

8. That further after submission of charge-sheet before Court of learned Magistrate the said case was committed to Court of Session wherein it was registered as S.T. No. 650 of 1991 After committal, the trial court framed charges against the accused under Section 8/21/29 N.D.P.S Act. The accused-appellant denied the charges levelled against them and claimed to be tried.

9. That in order to substantiate its case, prosecution examined Seven witnesses namely PW-1 Inspector Radheraman lal , PW-2 Rama Shankar Prasad, PW-3 Inspector dina Nath Gupta, PW-4 Constable Shiv Shankar Singh, PW-5 Investigating Officer Mohd.Naseem, P.W-6 Constable Cheda Lal , P.W-7 B.D Panday.

10. The Appellant Ikrar, in his statement under Section 313 Cr.P.C., denied involvement in the incident. He claimed that he was not present at the scene and that his signatures were forcibly taken by Abhay Kumar at the D.N.C. office in Lucknow on 14.9.91. Suhel also denied the allegations, stating that no statement was taken from him and his signatures were obtained under duress.

11. The learned counsel for the appellant submitted that the trial court failed to properly consider the evidence adduced by the defense. The judgment and order were passed solely on the basis of the prosecution's evidence, which is not sustainable under the law. Thus, the conviction order is against the principles of justice.

12. The learned counsel further argued that the prosecution failed to produce any independent witnesses to corroborate their story. The explanation provided for not producing such witnesses is inadequate and not acceptable in the eyes of the law. This failure undermines the credibil