Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(UK) 327

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Alok Kumar Verma, J.
Islam Ahmad - Appellant
Versus
State of Uttarakhand - Respondent
Criminal Appeal No.482 of 2007
Decided On : 28-02-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Rajat Mittal, Advocate.
For the Respondent:Mr. S.T. Bhardwaj, Deputy Advocate General assisted by Mrs. Shivangi Gangwar

Strict compliance with the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory, and failure to comply with this provision can render the recovery suspect and lead to the acquittal of the accused.

Headnote:
Narcotic Drugs and Psychotropic Substances Act - Non-compliance of Section 50 - [Islam Ahmad] - [Conviction under Section 20 read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985] - [Section 50 of the Act, 1985] - [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 Islam Ahmad.
Fact of the Case:

The appellant, Islam Ahmad, was convicted and sentenced for possession of charas under Section 20 read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution's case was based on the recovery of charas from the appellant during a raid conducted by the police.
Finding of the Court:

The court found that the appellant was not informed of his legal right under 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 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 validity of the recovery and the subsequent conviction of the appellant.
Ratio Decidendi: The court's decision was based on 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 as per Section 50 of the Act, 1985. The court emphasized the importance of strict compliance with this provision and held that non-compliance renders the recovery suspect and vitiates the conviction.
Final Decision: The appellant, Islam Ahmad, was acquitted of the charge under Section 20 read with Section 8 of the Act, 1985, and his bail bonds were ordered to be cancelled. He was directed to make compliance of Section 437 A of the Code of Criminal Procedure, 1973 within eight weeks.

JUDGMENT :

Alok Kumar Verma, J.

Present Criminal Appeal has been filed against the judgment dated 13.11.2007, passed by learned Sessions Judge, Pauri Garhwal, in Special Sessions Trial No.9 of 2006, “State of Uttarakhand vs. Islam Ahmad”, by which, the appellant-Islam Ahmad has been convicted and sentenced to undergo rigorous imprisonment for a period of two years along with a fine of Rs.10,000/- for the offence under Section 20 read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “the Act, 1985”).

2. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record is that on 25.02.2002, informant Kailash Panwar, Station House Officer (PW3) along with Sub-Inspector Jagdev Singh Malik (PW2) and other police personnel were on patrolling duty at the bus station. Hukum Singh Khati, Circle Officer of Police, (PW1) had also come there. While the informant was talking to Hukum Singh Khati, he got a secret information that Islam Ahmad (appellant herein), a truck driver, is sitting under a tree on Pauri Road and has a lot of Charas. The informant requested Hukum Singh Khati to accompany him and said that according to the NDPS Act, personal search has to be conducted in front of the Gazetted Officer. In spite of an endeavour, no public witness could be secured. Accordingly, a raid was conducted. Appellant was apprehended at 17.15 hrs. On enquiry, he disclosed his name and address. Informant told him that they had information that he was in possession of charas, so they would search him. After taking permission from Hukum Singh Khati, his personal search was conducted by the informant. In this personal search, charas (Material Ext. 6) was recovered from the right pocket of the jacket he was wearing. On weighing the charas, its weight was found to be 500 grams. Appellant was arrested. The recovered contraband was sealed. The said recovered contraband was taken into possession vide recovery memo (Ext. Ka2). An FIR (Ext. Ka5) was lodged by the informant. Sample was taken before the court concerned. The sample so taken was sent to the Chemical Examiner, who found the same to be “charas”. After completion of the investigation, charge- sheet was filed.

3. Charge under Section 20 read with Section 8 of the Act, 1985 was framed. Appellant pleaded not guilty and claimed to be tried.

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

5. (PW1) Hukum Singh Khati, Circle Officer of Police, (PW2) Jagdev Singh Malik, Sub-Inspector, and (PW3) Kailash Panwar, informant, were members of the raiding party. (PW4) H.C. Vijay Pal Singh is the scriber of the First Information Report. (PW5) D.P. Tyagi, Sub- Inspector, is the Investigating Officer.

6. Statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution against him.

7. Appellant did not adduce any defence evidence.

8. Learned Trial Court heard the arguments, appreciated the evidence and passed the impugned judgment, by which, the appellant has been convicted on the basis of recovery.

9. Heard Mr. Rajat Mittal, learned counsel for the appellant and Mr. S.T. Bhardwaj, learned Deputy Advocate General assisted by Mrs. Shivangi Gangwar, learned Brief Holder for the State.

10. Mr. Rajat Mittal, learned counsel for the appellant, argued that in the present matter provision of Section 50 of the Act, 1985 was not followed. It is mandatory for the raiding party to give the appellant the option of being searched before a Magistrate or a Gazetted Officer. This option was not given.

11. On the other hand, Mr. S.T. Bharadwaj, learned Deputy Advocate General, has supported the impugned judgment.

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 Sect

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