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UTTARAKHAND HIGH COURT
ALOK SINGH, J.
Sheru
Vs
State of Uttarakhand.
Criminal Jail Appeal No. 23 of 2011
Decided on : 02/07/2013
NDPS Act - Conviction under Section 8/20 - Section 8/20 of the NDPS Act - Summary of Acts and Sections: The court discussed the provisions of Section 42(1) and 42(2) of the NDPS Act, emphasizing the requirement of reducing secret information in writing and forwarding it to higher officers. The court also highlighted the importance of compliance with the provisions and the possibility of delayed compliance with sufficient explanation.
Fact of the Case:
The appellant was convicted under Section 8/20 of the NDPS Act based on the police party's search and seizure of charas from the appellant. However, the prosecution failed to prove the guilt of the appellant beyond reasonable doubt.
Finding of the Court:
The court found that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt, leading to the acquittal of the appellant.
Issues: The issues revolved around the compliance with the provisions of Section 42(1) and 42(2) of the NDPS Act, the sufficiency of evidence, and the failure of the prosecution to prove the guilt of the appellant beyond reasonable doubt.
Ratio Decidendi: The court emphasized the importance of compliance with the provisions of Section 42(1) and 42(2) of the NDPS Act and the possibility of delayed compliance with sufficient explanation. It held that non-compliance with Section 42 of the NDPS Act is fatal to the prosecution, but delayed compliance with sufficient explanation can be accepted.
Final Decision: The appeal was allowed, and the impugned judgment and order convicting the appellant under Section 8/20 of the NDPS Act were set aside. The appellant was acquitted from the charges and ordered to be released from jail forthwith, if not wanted in any other case.
Present appeal is directed against the judgment and order dated 04.04.2011 passed by Special Judge (NDPS Act)/ 6th Additional Sessions Judge, Haridwar in Special Sessions Trial No. 15 of 2010 whereby appellant was held guilty for the offence punishable under Section 8/20 of NDPS Act and was sentenced to undergo 10 years rigorous imprisonment and to pay fine of ` 1,00,000/- and in default of making payment of fine, to undergo 1 year additional simple imprisonment under Section 8/20 of the NDPS Act.
2. Brief facts of the present case, inter alia, are that PW2 Senior Sub Inspector Dinesh Kumar along with Constable Rajvardhan, Constable Uttam Ramola, Constable Shashi Kant (PW1) and Constable Sushil Kumar left the police station on 27.12.2009 at 05.00 p.m. vide report No. 45 for maintaining law and order duty in the area; when police party reached near Laltarav Bridge, police informer passed on secret information to police party that one person standing near Hanuman Temple on Bilkeshwar Temple Road was having charas; believing on the information passed on by the police informer, police party searched each other and having satisfied that none of them was having any illegal thing /contraband, police party proceeded towards Bilkeshwar Temple Road along with informer; informer pointed out towards a man standing near Hanuman Temple and left the place, thereafter, police party tried to have independent public witness, however, none could agree to become independent witness; whereafter, police party proceeded towards the person standing on Hanuman Temple; seeing the police party, that man tried to escape but he was apprehended by the police party and on being asked, he disclosed his identity as appellant; appellant was made to understand his legal right that he could be searched in presence of a Gazetted Officer or a Magistrate, however, appellant told the police party that since the police party had apprehended him, therefore, police party could search him; having received such consent, he was searched by the police party and on search, it was found that appellant was carrying a blue colour polythene bag containing charas and in order to weigh the charas, so recovered, from the possession of the appellant, weighing scale was taken from one Fruit Vendor namely Pappu, son of Ram Pal, resident of Bengali Basti, Brahmpuri, District Haridwar, who was passing through along with his Rehdi (go-cart); on being weighed, charas was found to be of 1 kg.; out of 1 kg., 100 gm of charas was taken out as sample; sample, so taken, contraband, so recovered, were kept in a seal cover under the seal and signature of PW2 and thereafter, contraband, sample, sample seal and appellant were taken to police station and FIR was got registered.
3. Investigation was handed over to PW4 Rajendra Singh Aswal, who having investigated the matter, submitted charge-sheet against the appellant for the offence punishable under Section 8/20 of the NDPS Act. After committal of the case, trial court was pleased to frame charge against appellant for the offence punishable under Section 8/20 of the NDPS Act. Appellant denied the charges and claimed trial.
4. To prove the prosecution story, PW1 Constable Shashi Kant, PW2 SSI Dinesh Kumar, PW3 Constable Umesh Singh, PW4 Investigating Officer Rajendra Singh Aswal, PW5 Head Constable Shankar Singh were examined and thereafter, statements of appellant were also recorded under Section 313, Cr.P.C. From the side of defence, DW1 Mahipal Sharma was examined.
5. Having perused the entire material made available on record, learned trial court was pleased to pass judgment and order under appeal.
6. I have heard Mr. Tapan Singh, Amicus Curiae for the appellant, Mr. S.K. Chaudhary, Additional GA with Mr. Asif Ali, Brief Holder for the State and have carefully perused the record.
7. As per statement of the Investigating Officer SI Rajendra Singh Aswal (PW4), sample was sent for chemical examination on 16.01.2010 through lady Constable Anita
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