Lal Chand Yadav vs State of U.P.

Allah Raham, J.—This is an appeal against the judgment and order dated 18.12.2000, passed by learned Sessions Judge, Bahampur in Special Criminal Case No. 11 of 2000, whereby accused Lal Chand Yadav was found guilty under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act for short) and sentenced to ten years'' R.I. and a fine of Rs. 1,00,000/. In default of payment of fine, one year''s simple imprisonment was awarded.

The prosecution story, as it appears from the statement of Sri Chandra Shekhar Singh, S.O. P.S. Balrampur Dehat (P.W1) and the record, is that on 3.4.2000 at about 2 p.m. an informer informed him (P.W1) that constable Lal Chand Yadav, who was posted at P.S. Gainsri will deliver charas to someone at about 4 p.m. near Vijay Talkies. He (P.W1) apprised the Superintendent of Police about this information. As directed by Superintendent of Police, he also apprised the Circle Officer Sri K.F. Yadav and Inspector In Charge Sri S.P. Mishra. He took S.H.O. Sri S.F. Mishra, S.I. Sri Lal Ji Yadav, Constable Harish Chandra Yadav, Constable Riyaz Ahmad, Driver Ram Ashish and the informer and reached the scene of occurrence in Jeep No. U.P. 43A 1906. C.O. City Sri Kamla Prasad Yadav reached the scene of occurrence in a separate Jeep No. U.P. 43A 9446. They took mutual searches and satisfied themselves that nobody had any contraband. At about 4.10 P.M. the informer pointed towards a person coming from the side of Kotwali having a Khaki bag in his hand. The informer identified him and slipped away. The said person was stopped. On inquiry, he disclosed his name as Constable Lal Chand Yadav, P.S. Gainsri, District Balrampur. The said Lal Chand Yadav was told that as per information, there is charas in his bag. He has to be searched in the presence of C.O. Sri Kamla Prasad Yadav. After initial reluctance, the said Lal Chand Yadav was prepared to be searched in the presence of the C.O. His bag revealed six cakes of charas wrapped in pholios. The accused had no licence to possess this charas. The recovered charas was weighed on the spot. It weighed 2 Kg. and 800 gms. The accused was arrested and the contraband article was recovered. 100 grn. charas each was taken from every recovered cakes for forensic examination and the rest of recovered charas was kept in the pholios and it was sealed in the bag. The recovery memo (Ext. Ka1) was prepared on the spot. The accused, recovered charas and recovery memo were taken to the police station where a chik of FIR (Ext. Ka5) was prepared and a case was registered against the accused, vide G.D. (Ext. Ka6).

S.I. Sri Jagdish Singh Chauhan (P.W3) was entrusted with the investigation of this case. He recorded the statement of the accused. On 4.4.2001, he recorded the statement of S.I. Sri Chandra Shekhar Singh, S.I. Sri Lal Ji Yadav, Constable Harish Chandra Yadav, Constable Riyaz Ahmad, driver of the jeep, driver of C.O. City, S.H.O. Sri S.P. Mishra and Circle Officer Sri Kamla Prasad Yadav. He inspected the site of occurrence and prepared a site plan (Ext. Ka2). On conclusion of investigation, he submitted a chargesheet (Ext. Ka3) against the ace used.

Accused Lal Chand Yadav pleaded not guilty to a charge under section 8/20 of the N.D.P.S. Act and stated that nothing was recovered from his possession. He specifically denied the recovery of charas from his possession and stated that S.H.O. Sri S.P. Mishra was inimical to him. Due to this reason, he has been falsely implicated in this case.

In support of its case, prosecution examined Sri Chandra Shekhar Singh (P.W1), Circle Officer Sri K.P. Yadav (P.W2) and S.I. Sri Jagdish Singh Chauhan (P.W3).

Sri Salahuddin (D.W1) and Sri Aqeel (D.W2) have been examined in defence,

PWs. 1 and 2 are the witnesses of fact. P.W2 is the Circle Officer in whose presence the search of the accused was taken and charas in question was recovered from his possession. S.I. Sri Chandra Shekhar Singh is also the witness of fact. The information was received by him and thereafter the arrest and recovery was made by this witness (P.W1). He has stated that he had taken the necessary precautions and had complied with the provisions of section 50 of the ND.P.S Act before taking search of the accused. The Gazetted Officer namely, Sri K.P. Yadav (P.W2) was present on the spot and the search of the accused was taken in his presence.

Sri Salahuddin (D.W1) has appeared in the witness box and has stated that his motor mechanic shop is opposite the scene of occurrence. The police had asked him to be a witness in this case but he had refused because no arrest had taken place in his presence. Sri Aqeel (D.W2) has also stated that the I.O. had asked him to be a witness about the arrest of the accused but he had refused to do so because no arrest had been made before in his presence.

Learned Trial Court placed reliance upon the statements of P.Ws. 1 and 2 and the documents relied upon by the prosecution and held that there had been sufficient compliance of section 50 of the N.D.P.S. Act. The arrest of accused at the plate and the recovery of charas in question from the possession of the accused were found proved by the learned Trial Court. He, therefore, held the accusedappellant guilty of the charge under section 8/20 of the N.D.P.S. Act and having heard him on the question of sentence, awarded the sentence noted hereinabove.

Witnesses D.Ws.l and "2 were not found reliable by the Trial Court.

Aggrieved against the judgment and order of the learned Trial Court, the accusedappellant Lal Chand Yadav has preferred this appeal.

I have heard learned Counsel for the appellant and learned A.G.A. and have carefully perused the record.

Learned Counsel for the appellant has pressed this appeal solely on the ground that there is no compliance of the provisions of section 50 of the N.D.P.S. Act. His contention is that the conviction of the appellant is bad in the eye of law because the provisions of section 50 of the N.D.P.S. Act have not been complied with, In support, he has cited State of Punjab v. Balbir Singh(1994 (31) ACC 351 (SC)), Ali Mustuffa Abdul Rahman Moosa v. State of Kerala (1994 (31) ACC 865 (SC)), Mohinder Kumar v. State (1995 JIC 1025 (SC)), State of Punjab v. Baldev Singh (1999 (39) ACC 349 (SC)) and Babu v. State of Kerala (2000 (40) ACC 250 (SC)). The question is whether there was at all an occasion for compliance of the provisions of section 50 of the N.D.P.S. Act. A perusal of the recovery memo Ext. Ka 1 and the statements of Sri Chandra Shekhar Singh P.W.I and Sri K.P. Yadav P.W.2 shows that the Charas in question was being carried in a bag. In ''Ravindran @ John v. Superintendent of Customs''(AIR 2007 SC 2040),'''' it has been laid down that a plastic bag in which the drug in question is carried, is not the ''person'' of the accused; therefore, section 50 of the N.D.P.S. Act is not attracted. This view was made more explicit in ''State of Rajasthan v. Babu Ram (2007 (58) ACC 1066 (SC) = 2007 (56) AIC 229), wherein it has been laid down that a bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being It does not come within the definition of ''person''. Compliance of provisions of section 50 of the N.D.P.S. Act are not necessary when search is conducted of a bag carried by the accused. It would be beneficial to quote para 9 of the said judgment here:

"9. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are Identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In, common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in section 50 of the Act"

In view of the law laid down by the Apex Court as discussed above, the provisions of section 50 of the N.D.P.S. Act have no application in the present case.

It has also come on record that the Circle Officer (an officer of the rank of Superintendent of Police) Sri K.P. Yadav P.W, 2 was present on the spot. SJ. Sri Chandra Shekhar Singh P.W.I, who had organized the raid, had informed the accused that his search was to be taken in the presence of Circle Officer P.W.2. The search was taken in the presence of said Circle Officer P.W.2 and it revealed 2 kgs and 800 gms of Charas kept in a bag, which was being carried by the accusedappellant. The contention of learned appellant''s Counsel is that the appellant should have been taken to some gazetted officer or magistrate other than Sri K.P. Yadav P.W. 2, because he was with the raiding party. There seems to be no justification for this. The law on the point has been laid down in ''Krishna Kanwar (Smt.) Alias Jnakuraeen v. State of Rajasthan ((2004) 2 SCC 608 = 2004 (48) ACC 610 (SC) 2004 (15) A1C 708 (SC)) We may quota para 22 of the judgment here:

"22. Section 50 does not involve any selfincrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transparency in the process of search have been given primacy In Raghbir Singh v. State Haryana (1997 (35) ACC 140 (SC) = (1996) 2 SCC 201), the true essence of section 50 was highlighted in the following manlier. (SCC pp. 20405, paras 811)

"8. The very question that is referred to us came to be considered by a Bench of two learned Judges on 22.1.1996 in Manohar Lal v. State of Rajasthan (1995 (32) ACC 247 (SC)). One of us (Verma, J.), speaking for the Bench, held:

''It is clear from section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available gazetted officer or the nearest available Magistrate. The choice of the nearest gazetted officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused ''

(Emphasis added).

We concur with the view taken in Manohar Lal v. Stats of Rajasthan (1995 (32) ACC 247 (SC)).

10, Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment. It is, therefore, that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a gazetted officer or a Magistrate, depending upon who is conveniently available.

The option under section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a gazetted officer or of being searched in the presence of a Magistrate. The use of the word ''nearest'' in section 50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, gazetted officer or Magistrate.

In view of the law laid down in the case of Krishna Kanwar (supra), the Circle Officer Sri K.P. Yadav P.W.2 was the gazetted officer available on the spot and the search was taken in his presence after informing the accused that he was to be searched in the presence of Circle Officer. The presence of said gazetted officer on the spot thus fulfils the requirement of the compliance of the provisions of section 50 of the N.D.P.S. Act, if at all, it was to be complied with. A reasonable, fair and just procedure has been adopted while searching the appellant and no prejudice can be said to have been caused to him on this count,

No other point has been pressed before me.

The appeal is devoid of merit and the same is hereby dismissed. The judgment and order undei appeal is hereby confirmed.