Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(UK) 221

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
ALOK KUMAR VERMA, J.
Devendra Singh Malik - Appellant
Versus
State of Uttarakhand - Respondent
Criminal Appeal No. 01 of 2006
Decided on : 10-04-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Sandeep Adhikari
For the Respondent: Mr. S.T. Bhardwaj

Non-compliance with the mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regarding informing the suspect of their right to be searched before a Gazetted Officer or a Magistrate, can lead to the acquittal of the accused.

Headnote:
Narcotic Drugs and Psychotropic Substances Act - Non-compliance of Section 50 - [Narcotic Drugs and Psychotropic Substances Act] - [Section 50] - The court discussed the provisions of Section 50 of the Act, 1985, which requires the empowered officer to inform the suspect of his right to be searched in the presence of a Gazetted Officer or Magistrate. The court referred to the cases of Vijaysinh Chandubha Jadeja vs. State of Gujrat and Arif Khan vs. State of Uttarakhand, emphasizing the mandatory nature of the obligation on the officer to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. The court held that non-compliance of Section 50 of the Act, 1985 makes a sufficient case for acquittal, leading to the acquittal of the appellant-accused.
Fact of the Case:

The appellant was convicted and sentenced for the offence under Section 18 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing one kilogram of Charas. The appellant was apprehended by the police during patrolling duty, and the recovered Charas led to the filing of a charge-sheet.
Finding of the Court:

The court found that the appellant was not informed of his legal right to be searched in the presence of a Gazetted Officer or a Magistrate, as required by Section 50 of the Act, 1985. The non-compliance of this provision led to the acquittal of the appellant.
Issues: The key issue revolved around the non-compliance of Section 50 of the Act, 1985, and its impact on the appellant's conviction.
Ratio Decidendi: The court emphasized the mandatory nature of the obligation on the officer to inform the suspect of his right to be searched before a Gazetted Officer or a Magistrate, as established in previous judgments. Non-compliance with this provision rendered the recovery of the illicit article suspect and vitiated the conviction.
Final Decision: The court allowed the appeal, set aside the impugned judgment of conviction and sentence, and acquitted the appellant of the charge under Section 18 read with Section 20 of the Act, 1985. The appellant was directed to make compliance of Section 437 A of the Code of Criminal Procedure, 1973 within six weeks.

JUDGMENT :

ALOK KUMAR VERMA, J.

Present Criminal Appeal has been filed against the judgment dated 15.12.2005, passed by learned Special Sessions Judge, Champawat in Special Sessions Trial No. 03 of 2003, “State vs. Devendra Singh Malik”, by which, the appellant Devendra Singh Malilk has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of Rs. 1,00,000/- for the offence under Section 18 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act, 1985”).

2. Facts to the limited extent necessary, are that on 07.11.2003, Sub-Inspector K.P. Singh (PW1), Constable Ramesh Ram and Constable Mubarik Hassan Rizvi (PW3) were on patrolling duty. When they reached near the bridge, they saw the accused coming from Nepal. Seeing the police, he started going back. On suspicion, he was apprehended at 15:00 hrs. He was asked the reason for running away. He told that he had one kilogram Charas. On enquiry, he told his name and address. Sub-Inspector K.P. Singh told the accused that he has to be searched before a Magistrate or a Gazette Officer, so does he want to go to any of them for search. The accused said that he has full faith in him. He does not want to go to anyone. The accused asked him to search. His personal search was conducted. On search, Charas (Material Ext. 1) was recovered from his pajama he was wearing. On weighing, its weight was found to be one kilogram. He was arrested. In spite of an endeavour, no public witness could be secured. The recovered article was seized. The said recovered article was taken into possession vide recovery memo (Ext. Ka3). An FIR (Ext. Ka4) was lodged by Sub-Inspector K.P. Singh. Sample of recovered material was sent to Forensic Science Laboratory, Agra. On examination, the Chemical Examiner found the same to be “Charas”. Charge-sheet was filed after completion of investigation.

3. Charge under Section 18 read with Section 20 of the Act, 1985 was framed. Appellant-accused pleaded not guilty and claimed to be tried.

4. Prosecution in support of his case, examined five witnesses.

5. (PW1) Sub-Inspector K.P. Singh, informant, and (PW3) Constable Mubarik Hassan Rizvi were members of arresting party.

6. (PW2) Constable Laxman Chand is the scribe of the First Information Report.

7. (PW4) Station Officer B.C. Pant is the Investigating Officer. He proved the charge-sheet (Ext. ka 9).

8. (PW5) Head Constable Hansraj Singh produced 100 gram sample of the recovered material in sealed condition before the Special Court on 11.11.2003 and on 14.11.2003, he made the sample available to the Forensic Science Laboratory, Agra.

9. The Special Court examined Alok Shukla, Senior Scientist, (CW1) as a Court witness. He proved the report (Ext. Ka 7) of Forensic Science Laboratory, Agra.

10. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution.

11. Accused has not adduced any defence evidence.

12. Mr. Sandeep Adhikari, learned Amicus Curiae, contended that mandatory provision of Section 50 of the Act, 1985, was not followed by the searching party. Appellant was not informed of his legal right by the searching officer. Therefore, the impugned judgment is bad in the eyes of law.

13. On the other hand, Mr. S.T. Bhardwaj, learned Deputy Advocate General for the State, has supported the impugned judgment.

14. As per the Table prepared in terms of Section 2 (XXiiia) and Section 2 (Viia) of the Act, 1985, lesser than 100 grams of Charas is small quantity and greater than 1 kg is commercial quantity (Entry No. 23). Therefore, according to the prosecution, recovered contraband was noncommercial.

15. The provisions of Section 50 of the Act, 1985 are as under:-

“50. Conditions under which search of persons shall be conducted— (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Secti

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