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2013 Supreme(UK) 26
UTTARAKHAND HIGH COURT
Hon’ble Mr. Chief Justice Barin Ghosh and Hon’ble Mr. Justice Alok Singh
SMT. PREMA SHAH – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
Criminal Appeal No. 70 of 2008
Decided on : 19.01.2013
For the Appellant :Mr. L.K. Tiwari, Advocate and Mr. Hari Mohan Bhatia, Amicus Curiae
For the Respondent:Mr. A.S. Gill, Government Advocate, assisted by Mr. V.P. Bahuguna, Brief Holder
Headnote:(A) Criminal Procedure Code, 1973, Sec. 46(4) — Provisions of — A woman can be arrested only by a woman police officer, by making a written report — Obtaining the prior permission of the Elaka Judicial Magistrate, where either the offence was committed or arrest was to be made — Held as appellant was arrested from the busy market without obtaining permission and warrant from the competent Magistrate — Though, Magistrates were residing within a kilometer from the spot — Therefore, arrest of the appellant in violation of Sec. 46(4), Criminal Code. (Paras 7, 8)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 41(2), 42, 43, 44 and 52(3)(4) — Provisions of — Held that every person arrested and article seized u/s 41 should be forwarded, without unnecessary delay, either to the officer-in-charge of the nearest Police Station or to the officer empowered u/s 53 — Thereafter, the officer-in-charge of the Police Station or the authority, to whom the person arrested or article is forwarded either u/Sub-sec (2) or Sub-Section (3) should take measures as may be necessary for the disposal, according to law, of such person or article. (Para 20)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 52A(1), (2) — Compliance of — The moment narcotic drugs or psychotropic substances, as notified by the Central Government u/s 52A(1), Act 1985 or commercial quantity of contraband is seized, the officer-in-charge of the Police Station or the officer empowered u/s 53, to whom accused or articles seized were forwarded u/sub-section (2) or sub-section (3) of Sec. 52, should immediately approach the Magistrate for certification of the inventory so prepared and to take photographs of the contraband — And samples thereof should only be drawn in the presence of the Magistrate under his certificate and steps must be taken for the destruction of such contraband to avoid vulnerability of theft, misuse, interpolation, substitution either in the samples or in the contraband so recovered — Soon after the charge-sheet was filed in the matter. (Para 26)
(D) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 20(b)(ii)(C) and Excise Act, Sec. 60 — Charge-sheet for an offence punishable under — Appellant arrested at 08.15 p.m. on 29th April, 2007 without any prior application and permission from the Magistrate — FIR lodged almost after three hours from the time of the arrest — No explanation to — Contraband was produced before the officer-in-charge in the morning next day and there was no explanation as to why the same was not produced soon after the seizure — Also, nothing on the record to suggest as to when the information about the seizure and the arrest of the appellant was forwarded to the superior officers — Therefore, arrest, seizure and entire prosecution story becomes highly doubtful — Judgment and order under appeal not upheld — Appeal allowed — Appellant, accordingly, acquitted.
(Paras 2, 16, 28)
¼v½ n.M izfØ;k lafagrk] 1973] /kkjk 46¼4½ & izko/kku & ,d efgyk dks ,d efgyk iqfyl vQlj }kjk fyf[kr fjiksVZ ij gh fxjrkj fd;k tk ldrk gS & bykdk U;kf;d eftLVªsV dh iwokZKk ls tc dksbZ vijk/k ?kVk gks ;k fdlh dks fxjrkj djuk gks & /kkfjr vihykFkhZ dks HkhM+ okys ckt+kj ls fgjklr esa fy;k x;k fcuk eftLVªsV dh vkKk ;k okjaV izkIr & tcfd eftLVªsV ogk¡ ls 1 fd-eh- dh nwjh ij jgrk Fkk & bl izdkj vihykFkhZ dh fxjrkjh /kkjk 46¼4½ n.M lafgrk dk mYya?kuA ¼izLrj 7] 8½
¼c½ Lokid vkS”kf/k ,oa euizHkkoh inkFkZ vf/kfu;e] 1985] /kkjk 41¼2½] 42] 43] 44 vkSj 52¼3½¼4½ & izko/kku & /kkfjr fd u/s 41 gj O;fDr ftls fxjrkj fd;k x;k gks ;k lkeku ftls vfHkxzghr fd;k x;k gks dks fcuk foyEc izsf”kr djuk pkfg, Hkkj lk/kd vf/kdkjh dks ;k fudVre iqfyl Fkkus esa ;k fQj u/s 53 l’kDr vf/kdkjh dks & rnksijkUr Hkkj lk/kd vf/kdkjh ;k izkf/kdkjh ftls fxjrkj O;fDr ;k vf/kx`ghr lkeku izsf”kr fd;k x;k gks dks mfpr mik; djus pkfg, fof/k vuqlkj ml O;fDr ;k lkeku ds O;;u ds fy,A ¼izLrj 20½
¼l½ Lokid vkS”kf/k ,oa euizHkkoh inkFkZ vf/kfu;e] 1985] /kkjk 52A(1), (2) & vuqlj.k & ftl le; Lokid vkS”kf/k ;k eu izHkkoh inkFkZ tks fd dsUæh; ljdkj }kjk u/s 52A(1), Act 1985 ;k fofuf”k) okf.kfT;d ek=k esa vfHkx`ghr fd;k x;k gks] iqfyl Fkkus ds Hkkj lk/kd vf/kdkjh ;k u/s 53 l’kDr vf/kdkjh ftls vfHk;qDr ;k vfHkx`ghr lkeku dk izs”k.k fd;k x;k gks u/s 52(2)(3) dks rqjUr mikxe djuk pkfg, eftLVªsV dks fooj.k lwph ds izek.khdj.k vkSj fofuf”k) ds QksVks ysus ds fy, & vkSj mu Samples dks fudkyuk pkfg, eftLVªsV dh mifLFkfr esa mlds izek.ku ds vUrxZr vkSj dfFkr fofuf”k) ds uk’k ds fy, mik; djus pkfg, pksjh dh laHkkouk xyr iz;ksx iz{ksika’k ;k fdlh Sample ;k fofuf”k) tks vfHkx`ghr fd;k x;k gks ds izfrLFkkiu ls cpus ds fy, & tSls gh ekeys esa vkjksi i= nk;j fd;k x;k gksA ¼izLrj 26½
¼n½ Lokid vkS”kf/k ,oa euizHkkoh inkFkZ vf/kfu;e] 1985] /kkjk 20(b)(ii)(C) vkSj mRiknu vf/kfu;e] /kkjk 60 & n.Muh; vijk/k ds fy, vkjksi i= & vihykFkhZ dks ‘kke 8-15 cts] 29 vizSy 2007 dks fxjrkj fd;k x;k cxSj eftLVªsV dks iwoZ vkosnu ;k iwokZKk & FIR fgjklr ds djhc rhu ?kaVs ckn ntZ & ftldk dksbZ fooj.k ugha & fofuf”k) Hkkj lk/kd vf/kdkjh ds le{k vxys fnu lqcg is’k] ftldh dksbZ O;k[;k ugha fd vfHkx`ghr ds rqjUr ckn gh D;ksa ugha is’k fd;k x;k & ;g Hkh vfHkfyf[kr ugha fd dc vfHkx`ghr ;k fgjklr dh lwpuk mPp vf/kdkfj;ksa dks nh xbZ & bl izdkj fxjrkjh] vfHkx`g.k vkSj iwjk vfHk;kstu okn lansgiw.kZ & vkns’k v{kq..k ugha & vihy LohÑr & rn~uqlkj vihykFkhZ nks”keqDrA ¼izLrj 2] 16] 28½
ALOK SINGH, J.
Appellant is assailing the judgment and order dated 27th February, 2008 passed by Sessions Judge, Bageshwar, in Sessions Trial No. 15 of 2007, whereby the learned Sessions Judge has found the appellant guilty for commission of an offence punishable under Section 20(b)(ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) as well as for commission of an offence punishable under Section 60 of the Excise Act, and has sentenced her to undergo rigorous imprisonment for a period of 20 years and to pay fine of ` 2,00,000/-, failing which, to further undergo additional simple imprisonment for six months, for the offence punishable under Section 20(b)(ii)(C) of the Act; and has sentenced the appellant to pay fine of Rs. 10,000/-, failing which, to undergo two months’ simple imprisonment for the offence punishable under Section 60 of the Excise Act.
2. Brief facts inter alia are that S.S.I. Diwan Singh Bisht (PW1), along with Constable Subhash Chandra (PW2) and other police personnel, left the Police Station on 29th April, 2007 at about 06:05 p.m. for patrolling purpose. The moment patrolling party reached near Jhulapul Tiraha, they saw the appellant coming from the other side carrying one bag on her head. Police party signaled her to stop, however, she turned towards the narrow lane and started walking fast. However, she was stopped and was asked that, as the police personnel have suspicion on her, they want to check the bag being carried by her and, therefore, if she wants, she may be checked in the presence of City Magistrate or any other gazetted officer. To this, she replied that she has no objection in being searched by the police personnel. Therefore, PW1 called lady constables from the Police Station by phone. Sunita Rani (PW6), a female constable, and another female constable, namely, Geeta Rawat, reached on the spot and the search was conducted. The bag, being carried by the appellant, was opened, wherefrom, 20 quarters of country-made liquor and about 6 kilograms of charas, contained in four different bags, were recovered. All the recovered items were kept in a sealed cover, after taking samples of 50-50 grams from each of the four bags containing the charas and, thereafter, appellant was taken to the Police Station and a chick First Information Report (Ex. Ka. 12) was registered. The contraband, so recovered, was kept in the Maal Khana after having obtained the counter-seal of the Station House Officer. Having investigated the matter, a charge-sheet was submitted against the appellant for an offence punishable under Section 8 / 20 of the NDPS Act and Section 60 of the Excise Act.
3. From the side of the prosecution, seven prosecution witnesses were examined and forensic examination report was submitted to say that the samples, taken from the contraband, were found to be charas. Having considered the entire material made available on the record, the learned Sessions Judge has passed the judgment and order under appeal.
4. We have heard Mr. L.K. Tiwari, learned counsel appearing for the appellant, as well as Mr. A.S. Gill, learned Senior Government Advocate assisted by Mr. V.P. Bahuguna, Brief Holder for the State, and have carefully perused the record as well as various provisions of the Act.
5. Having had perused the statements of PW1, PW2 and PW6, following facts have emerged, which are as under:
(i) Appellant was apprehended at about 08:15 p.m. of 29th April, 2007 in the Bageshwar market near Jhulapul. From the bag, being carried by her on her head, 20 quarters of country-made liquor as well as four bags containing 6 kilograms of charas were allegedly recovered.
(ii) While the chick report was registered in the Police Station on 29th April, 2007 at 11:10 p.m., it has also come on record, as per the statements of PW1 and PW2, that the Police Station is hardly 1 km away from the place, where the appellant was apprehended.
(iii) From Paper No.
