Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(UK) 392

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
ALOK KUMAR VERMA, J.
Nukta Prasad – Appellant
Versus
State of Uttarakhand – Respondent
Criminal Appeal Nos. 255, 276 of 2008
Decided On : 28-04-2023

Advocates:
Advocate Appeared:
For the Appellants : D.K. Sharma, Nivesh Bahuguna, Vipul Sharma.
For the Respondents: S.S. Adhikari, B.S. Thind.

Strict compliance with the mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is imperative, and failure to comply can render the recovery suspect and vitiate the conviction based solely on the recovery of the illicit article.

Headnote:
Narcotic Drugs and Psychotropic Substances Act - Recovery of Charas - Section 8, Section 20 - Section 50 - Section 2 (xxiii-a) - Section 2 (vii-a) - Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609 - Arif Khan vs. State of Uttarakhand (2018) 18 SCC 380
Fact of the Case:

The appellants were convicted and sentenced for the offence under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 based on the recovery of Charas during a personal search. The prosecution's case relied on the recovery of about one kilogram of Charas from each appellant, but there were contradictions in the statements of the prosecution's witnesses.
Finding of the Court:

The court found that the appellants were not informed about their legal right to be searched before a Magistrate or Gazette Officer as mandated by Section 50 of the Act, 1985. Additionally, material contradictions in the statements of the prosecution's witnesses led the court to conclude that the evidence did not inspire confidence.
Issues: Non-compliance with the mandatory provision of Section 50 of the Act, 1985 and material contradictions in the statements of the prosecution's witnesses.
Ratio Decidendi: The court emphasized the mandatory nature of Section 50 of the Act, 1985, as established in the cases of Vijaysinh Chandubha Jadeja vs. State of Gujarat and Arif Khan vs. State of Uttarakhand. It held that failure to comply with this provision would render the recovery suspect and vitiate the conviction based solely on the recovery of the illicit article.
Final Decision: Both the appeals were allowed, and the appellants, Nukta Prasad and Manoj Kumar, were acquitted of the charge under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Their bail bonds were cancelled and the sureties discharged.

JUDGMENT :

ALOK KUMAR VERMA, J.

1. These Two Criminal Appeals have been filed against the judgment dated 04.09.2008, passed by learned Special Sessions Judge, Champawat in Special Sessions Trial No. 03 of 2004, State vs. Nukta Prasad and Special Sessions Trial No. 04 of 2004, State vs. Manoj Kumar.

2. Appellant-Nukta Prasad has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of Rs.1,00,000/- (Rupees One Lakh) for the offence under Section 8 read with section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘Act 1985’) and in default of which, he has been directed to undergo further imprisonment for a period of two years in Special Sessions Trial No. 03 of 2004.

3. Appellant-Manoj Kumar has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of Rs.1,00,000/- (Rupees One Lakh) for the offence under Section 8 read with section 20 of the Act, 1985, and, in default of payment of fine, he has been directed to undergo additional imprisonment for a period of two years in Special Sessions Trial No. 04 of 2004.

4. These two criminal appeals are connected appeals, therefore, these appeals are being decided by this common judgment. Criminal Appeal No. 255 of 2008 will be treated as a leading case.

5. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record is that on 02.12.2003, Station Officer C.S. Yadav (PW1), Constable Harbhajan Singh (PW2) along with other police personnel were on patrolling duty. They were going from Pilibhit road market to the main market. When they reached near the railway crossing on the east side of the roadways, they saw the accused persons coming from the south side. Seeing the police, they turned back and started walking towards the railway station. On suspicion, they were apprehended at 2:00 a.m. On enquiry, they told their names and addresses. They told that they had one kilogram Charas. (PW1) C.S. Yadav asked the accused persons to give their search before a Magistrate or a Gazette Officer. The accused persons said that they have full faith in him and they do not want to go to any Magistrate or any Gazette Officer for their search. They asked him to search. After preparing the consent letter of the accused persons by C.S. Yadav (PW1), they were searched by him. On personal search, Charas (Material Ext.1) were recovered from inside the shirts worn by them. They were arrested. In spite of an endeavour, no public witness could be secured. The recovered materials were seized. The said materials were taken into possession vide Recovery Memo (Ext. Ka.1). As per the Recovery Memo (Ext. Ka.1), about one kilogram of Charas was recovered from each accused. An FIR (Ext. Ka.4) was lodged by C.S. Yadav (PW1). A 100-100 grams samples, from the recovered materials, were taken before Special Judge, Champawat. The said samples were sent to the Forensic Science Laboratory, Agra. On examination, the Chemical Examiner found the same to be “Charas”. Charge-sheets were filed after completion of investigation.

6. Charges under Section 8 read with section 20 of the Act, 1985 were framed. Appellants – accused persons pleaded not guilty and claimed to be tried.

7. The prosecution, in order to establish the charges, examined five witnesses.

8. (PW1) C.S. Yadav and (PW2) Constable Harbhajan Singh were members of the arresting party.

9. According to (PW3) Constable Gaje Singh, on 18.12.2003, he took out the recovered sealed materials from the Malkhana of the police station and produced it before the Special Sessions Judge, Champawat. In front of Special Judge, 100-100 grams samples were taken out from each sealed packet and the sample packets were sealed. He deposited the said samples to the Forensic Science Laboratory, Agra on 20.12.2003.

10. (PW4) Station Officer, Bipin Chandra Pant is Investigating Officer.

11. (PW5) Head Constable Gopal Ram is the scriber of the First In