Ashim Adhikari vs State of U.P.

B.K. Sharma, J.—This is an appeal against the judgment and order dated 20.7.1989 passed by the Special Judge. (Additional Sessions Judge) Nainital in State v. Ashim Adhikari, S. T. No. 16 of 1989, whereby he convicted the accused appellant of the offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. one lac and in default of payment of fine to serve out further imprisonment for a period of 2 and half years.

Heard amicus curie for the accused-appellant and the learned A. G. A.

The prosecution story was that on 18.8.1988 at 8.30 p.m. Sri. P. K. Dixit S.I., P.S. Baazpurwas returning to the police station along with 3 constables after completing his petrol duty in Government Jeep in the area of outpost Banna Khera and came on the Rasta going from Chima Paper Mills near the Rasta coming from the side of the sugar factory, one person came on the road from the side of the sugar factory and on seeing the police Jeep started returning, that on developing suspicion, P. K. Dixit stopped the jeep and called upon that person to stop but he did not stop and started running towards the sugar factory, whereupon, P. K. Dixit and his police force arrested him at a distance of 30 paces from Pulliya towards the factory, that on being interrogated the person arrested disclosed his name as Ashim Adhikari and on search being taken, 3 kilo Illicit Charas kept in a polythene bag in a Thaila of ''Aata'' which, he was holding in his hand was recovered. The recovered Charas was sealed and recovery memo Ext. Ka-1 was prepared at the spot. This person was the accused-appellant in this case. He was taken to the police station along with the recovered Charas and lodged there at 10.00 p.m. The check report was prepared on the basis of the recovery memo and a case was registered against the accused-appellant u/s 17 of the Narcotic Drugs and Psychotropic Substances Act. During investigation a sample of the Charas was sent to the Forensic Laboratory for analysis. The report from the laboratory showed that it was Charas, hence the charge-sheet was submitted and the accused-appellant was tried before the Court of Sessions and convicted as aforesaid.

At the trial, the ocular testimony was given by P.W. 1 D. P. Mishra. H.C. and D.W. 2 Jaiwant Singh constable. The plea of the accused before the Court of Session was that he was arrested by the police but Charas was not recovered from him and that he was falsely implicated in this case. The learned Sessions Judge accepted the prosecution case and convicted and sentenced the accused-appellant as aforesaid.

The learned amicus curie for the accused-appellant has challenged the conviction of the accused-appellant on the ground that the police did not make any effort to take the public witness at the time of the arrest and recovery and also did not inform the accused-appellant that if he wished he could be searched before a gazetted officer or a Magistrate as required by Section 50 of the Narcotic Drugs and Psychotropic Substances Act. It was no doubt a mandatory provision but it was a case of sudden recovery. The learned A. G. A. has placed reliance in para 26 (1) of the judgment of the Apex Court in the authority State of Punjab Vs. Balbir Singh, , the Apex Court said :

"If a police officer without any prior Information as contemplated under the provisions of the Narcotic Drugs and Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any Narcotic Drug or Psychotropic Substance, then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs and Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs and Psychotropic Substances Act."

There is also a recent pronouncement of the Apex Court in the authority State of H. P. v. Pirthi Chand and another 1996 SCC 210. wherein it was said :

".....it is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of Illegal search property seized, on the basis of the said search, it still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner become immaterial.

It would thus be settled law that every deviation from the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.

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The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in the Panchnama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected, i.e., Panchnama etc. nonetheless would be admissible at the trial....."

In this case, there was no prior information to the police party that the accused-appellant is carrying a contraband material with him. Consequently, non-observation of Section 50 of the Narcotic Drugs and Psychotroplc Substances Act does not by itself vitiate the recovery. It is a question of fact in each case as to whether the evidence of recovery is trustworthy or not. In this case, the accused-appellant in his statement u/s 313. Cr. P.C. did not dispute the date, time and place of his arrest. He only disputed the factum of recovery. The prosecution evidence is that at that time, no public witnesses were present or available in the immediate vicinity of the place of recovery. It may be that there was a sugar mill and Baazpur Paper Factory in the locality but in view of the sudden meeting with the accused, there was no time for the police party to go to the said establishments and pick up public witnesses from there. Moreover, the quantity of Charas was so substantial that it was not likely to be planted. It is significant that the ace used-appellant has nowhere alleged any enmity with any members of the police party who made his arrest and the recovery. In these circumstances, there was no reason to discard the evidence about the arrest and recovery. The report of the Forensic Laboratory is positive that the recovered substance was Charas. Consequently, the conviction awarded by the learned Sessions Judge cannot be disturbed. On point of sentence also, there was no case for interference because it is the minimum sentence that can be awarded in such a case.

Consequently, the appeal merits dismissal. The appeal is dismissed. The conviction and sentence of the accused-appellant for the offence u/s 20 read with Section 8 of the Narcotic Drugs and Psychotroplc Substances Act is upheld. The accused-appellant is already in Jail. He will serve out the remaining part of the sentence according to law.

Let a copy of this judgment be sent to the Sessions Judge, concerned for information and necessary compliance. Compliance report be submitted to this Court within a month from today.