Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(UK) 385

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
ALOK KUMAR VERMA, J.
State of Uttarakhand – Appellant
Versus
Bishan Ram – Respondent
Government Appeal No. 417 of 2007
Decided On : 03-04-2023

Advocates:
Advocate Appeared:
For the Appellants : S.S. Adhikari, Balvinder Thind.
For the Respondent: Rajat Mittal,

The mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, requires the empowered officer to inform the suspect of his right to be searched in the presence of a Gazetted Officer or Magistrate, and failure to comply with this provision can render the recovery of illicit articles suspect and vitiate the conviction.

Headnote:
Narcotic Drugs and Psychotropic Substances Act - Acquittal - Section 20 (b) - Section 50
Fact of the Case:

The respondent-accused was acquitted of the charge under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution case involved the recovery of Charas from the accused during a search conducted by the police.
Finding of the Court:

The court upheld the view taken by the learned Trial Court and found that non-compliance of Section 50 of the Act, 1985 made a sufficient case for acquittal.
Issues: The main issue was the compliance with 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.
Ratio Decidendi: The court relied on the provisions of Section 50 of the Act, 1985 and the interpretations provided in the cases of Vijaysinh Chandubha Jadeja vs. State of Gujarat and Arif Khan vs. State of Uttarakhand to support the acquittal based on non-compliance with the mandatory provision.
Final Decision: The Government Appeal was dismissed, and the acquittal of the respondent-accused was upheld.

JUDGMENT :

ALOK KUMAR VERMA, J.

1. Present Government Appeal has been filed against the judgment dated 25.05.2004, passed by learned Sessions Judge, Bageshwar in Special Sessions Trial No. 8 of 2002, State vs. Bishan Ram, by which, the respondent-accused has been acquitted of the charge under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “Act, 1985”).

2. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record that on 21.02.2002, Inspector - Jagdish Pal (PW 2), SSI Harendra Singh (PW 3) along with other police personnel were on patrolling duty. When they reached the tri-junction leading to the Chandika temple, they saw the accused coming from the front. Seeing the police personnel, he ran away. On suspicion, he was apprehended at 17:30 hrs. He was asked the reason for running away. He told that he had 200 grams of Charas. On enquiry, he told his name and address. He was asked whether he wanted to be searched before a Magistrate or a Gazetted Officer. He replied that he did not want to be searched before the Magistrate or Gazetted Officer. He asked them to search him. His personal search was conducted. On search, Charas (Material Ext. 1) was recovered from the right pocket of the pants he was wearing. On weighing, its weight was found to be 200 grams. He was arrested. The recovered article was sealed. The said recovered material was taken into possession vide recovery memo (Ext Ka. 3). In spite of an endeavour, no public witness could be secured. An FIR (Ext Ka. 1) was lodged by Jagdish Pal (PW 2). Sample of recovered material was sent to Forensic Science Laboratory, Agra. Charge-sheet was filed after completion of investigation.

3. Charge under Section 20 (b) of the Act, 1985 was framed. Accused pleaded not guilty and claimed to be tried.

4. Prosecution, in order to establish the charge, examined four witnesses.

5. PW1 - Constable Amar Nath is the scribe of the First Information Report.

6. PW 2 - Jagdish Pal and PW 3-Harendra Singh Bisht were members of the arresting party.

7. PW 4 - Constable Pyare Lal has proved the charge-sheet (Ext. Ka-5) in the hand writing of the Investigating Officer.

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

9. Respondent-accused did not adduce any defence evidence.

10. Mr. S.S. Adhikari, learned Deputy Advocate General, contended that the impugned judgment is wholly based on conjectures and surmises. The judgment of the acquittal is not justified in law and as such the same is liable to be set aside.

11. Mr. Rajat Mittal, learned amicus curiae, argued that mandatory provision of Section 50 of the Act, 1985 had not been complied. It is mandatory for the searching party to inform the suspect of his right to be searched in the presence of the Magistrate or Gazetted Officer.

12. 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, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nea

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