Mohd. Mustafa (In Jail) vs State of U.P.

Vishnu Chandra Gupta, J.—This Criminal Appeal u/s 374(2) Code of Criminal Procedure has been preferred against the judgment and order dated 05.02.2013 passed by Additional District and Sessions Judge, Court No. 3, Lucknow in Criminal Case No. 185 of 2009 having Case Crime No. 219 of 2009, under Sections 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''NDPS Act''), Police Station Ghazipur, District Lucknow, whereby the present appellant Mohd. Mustafa was convicted and sentenced u/s 21(C), NDPS Act for 10 years rigorous imprisonment and a fine of Rs. 01 lac and in default thereof additional imprisonment for six months. The brief facts as set out in the first information report (Ext. Ka-2), based on recovery memo. (Ext. Ka-1), are that on 01.03.2009 when S.I. Ashish Kumar Singh (P.W. 1) was on patrol duty with Constable Kamlesh (P.W. 3) along with other police personnel, he got a secret information through an informer about a person coming with contraband articles on motorcycle. After believing the aforesaid information, S.I. Ashish Kumar contacted S.I. Shashi Kant Yadav, In-charge Police Outpost Munshi Pulia and S.I. Chandra Prakash Pandey, In-charge Police Outpost Khurram Nagar, Constable Wasihut Zama and Constable Ashok Singh through Mobile and asked them to join with his police force. They assembled and thereafter, made a search of each other to satisfy themselves that there is no incriminating article with any police personnel, they proceeded towards the Mazar of Bhullanshah at Lav-Kush Nagar Bandha and started waiting the person coming on motorcycle.

A person was seen coming on a red colour motorcycle from Nisatganj side by police party. The informant identified the person and left the place. The police party stopped the person coming on motorcycle. He tried to escape from the spot but the police personnel surrounded him and arrested on the spot at about 12.30 p.m. On the interrogation, he disclosed his name, parentage and address. Before making search of the person, he was asked about one Kg. contents of polythene bag kept inside upper inner garments (Baniyan), then he told that it is smack, which has been brought from Guddu of district Barabanki and he used to sale in different parts of the city. Thereafter, he also told that he was possessing psychotropic substance and his search may be made before the Magistrate or before the Gazetted Officer. Sub-Inspector Ashwani Kumar tried to contact the Circle Officer, Gomti Nagar on phone but due to congestion in network, he could not able to contact him. Thereafter, the accused himself stated to S.I. Aswani Kumar Singh that when you already arrested him, he has no objection if you take search. A consent memo. to this affect has been prepared on the spot and thereafter his search was made. During search a polythene bag containing about one kilogram smack/brown sugar was recovered. After making arrangement of the weight, the recovered article was found to be 1 kg. 25 grams on weight. A sample for chemical analysis has been taken of about 25 grams from the packet. After arrest, the appellant confessed his involvement in the other offences and recovery of some other articles relating to those offences was also made. Thereafter the contraband material and other articles were seized by the police and sealed in accordance with law in presence of the police personnel and appellant on failure to show any authority to keep it. The complainants of cases of theft and snatching was also called on spot and they identified the accused and confirmed the involvement of the accused appellant in other cases. After preparing the recovery memo, it was noted in the recovery memo. that an effort was made to procure the public witness but nobody is ready to produce himself as witness of the incident. On the basis of the recovery memo., a case has been registered against the accused appellant in the General Diary of the Police Station (Ext. Ka-3) at 15.15 hours on 01.03.2009 under Sections 8/18/21, NDPS Act.

During the course of investigation Sri. Parashu Ram (P.W. 4) recorded the statements of witnesses of fact and of the Head Constable who registered the case and lodged F.I.R., prepared site plan (Ext. Ka-4), sent the recovered sample of contraband to Forensic Science Laboratory and collected the chemical examination report dated 13.04.2009 (Ext. Ka-5), wherein the contraband is found to be Heroin having percentage of 30:4 in the substance. Thereafter charge-sheet (Ext. Ka-6) has been filed before the Court on 11.05.2009.

The court below took cognizance and framed charges on 28.08.2009 u/s 21(C), NDPS Act after complying the provisions of Section 209 of Code of Criminal Procedure. The appellant denied charge and claimed his trial.

During the course of trial prosecution examined S.I. Ashish Kumar Singh (P.W. 1) and Constable Kamlesh (P.W. 3) as a witness of arrest and recovery being the members of the police party who arrested the present appellant. Constable Prem Babu (P.W. 2) was examined to prove the registration of the case after lodging the F.I.R. against the accused appellant and making the entry in the General Diary at police station. Investigation Officer, Parshuram (P.W. 4) proved the papers prepared and the steps taken during investigation. He after completing the formalities filed charge-sheet against the appellant.

After close of prosecution evidence, the statement of the appellant u/s 313, Cr.P.C. was recorded wherein the accused denied the allegations and circumstances appearing against him in the evidence and stated that the police after putting the contraband in his hand shown a false recovery. He is innocent and has been falsely implicated. He did not adduce any defence evidence except the site plan prepared in the present case and in Case Crime No. 213 of 2009, under Sections 356, 411, I.P.C., to show that there is a difference between these two site plans though the arrest and recovery was made from the accused appellant on the same time, date and place.

After considering the evidence on record and hearing the counsel for the parties, the trial court passed the impugned judgment and order dated 05.02.2013 convicting and sentencing the appellant as stated above.

I have heard Sri. R.P. Mishra-II, learned counsel for the Appellant and Smt. Madhulika Yadav, learned A.G.A.-I for the State.

Learned counsel for the appellant submits that in this case provisions of Sections 50 of NDPS Act have not been complied with which are mandatory in nature and hence the appellant is entitled for acquittal against the charges levelled against him.

In support of his contention, the attention of this Court has been drawn towards the statement of P.W. 1 S.I. Ashish Kumar Singh who categorically stated in cross-examination at page 6 that consent memo. was prepared on the spot before making search of appellant but the same is not available in this file.

My attention has also been drawn towards the statement of P.W. 3 Constable Kamlesh at page 5 wherein this witness has stated that before informing the right to the accused his search was made.

On the basis of aforesaid evidence it has been contended that mandatory provisions of Section 50 of NDPS Act are not complied with. The principles of substantial compliance has been disapproved by the Constitution Bench of the Apex Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, . Therefore, the prosecution cannot take shelter that substantial compliance has been made in this case on the basis of oral evidence given by the witnesses before the court. Relying upon another judgment of Apex Court in Ashok Kumar Sharma Vs. State of Rajasthan, , it has been submitted that it is obligatory on the part of the arresting officer before making search of the person arrested, be apprised of his right of being searched by a Gazetted Officer or by a Magistrate. Mere intimation to the person arrested that his search would be made before Magistrate or before Gazetted Officer will not amount to compliance of Section 50 of NDPS Act because it does not amount to apprising the person arrested of his right to be searched by Gazetted Officer or by Magistrate. Therefore, in view of the aforesaid law propounded by Apex Court, the appellant is entitled to be acquitted.

It was further argued by learned counsel for the appellant that in this case, S.I. Ashish Kumar Singh stated that he sealed the sample with his own seal but the seal contained on the sample was of U.P.P. (Uttar Pradesh Police) which indicates that it was not the seal of S.I. Ashish Kumar Singh and, therefore, the possibility of tampering the sample cannot be ruled out.

Learned AGA for the State refuting the argument advanced by learned counsel for the appellant has submitted that compliance of Section 50, NDPS Act should be considered on the basis of peculiar facts and circumstances of each case available in evidence of that case as held by the Apex Court. The Supreme Court has held that it would neither be possible nor feasible to lay down any absolute formula for the compliance of Section 50 of NDPS Act.

It was further submitted by learned AGA that in this case, during examination of the accused appellant u/s 313, Cr PC he did not raise any plea of non-compliance of mandatory provisions of Sections 50 of NDPS Act nor any effective cross-examination had been made in this regard with the prosecution witnesses.

So far as compliance of Section 50, NDPS Act is concerned, it has been clearly mentioned in the recovery memo. that accused has been informed of his right to be searched by Gazetted Officer or by Magistrate and after knowing his right the accused appellant stated that he is ready to give search and will not insist to be searched before Gazetted Officer or before Magistrate, which in the instant case has not been challenged. No suggestion has been given to P.W. 1 or to P.W. 3 for not apprising the right of the accused to be searched as contained in Section 50, NDPS Act. So merely non-availability of the consent memo. executed by the accused and prepared by P.W. 1 will not cause any prejudice to the appellant and cannot said to be non compliance of Sec. 50 of NDPS Act.

There is no evidence or even the suggestion to any witness that the sample was tampered with. The evidence is otherwise. S.I. Ashish Kumar Singh categorically stated that he did not put his personal seal on the sample. This witness belongs to Utter Pradesh Police (U.P.P.). Hence there is no substance in the submissions of appellant.

After considering the submissions of learned counsel for the parties and perused of the lower Court record and record of appeal the following questions are necessary to be determined for deciding this appeal:

(i) Whether the sample was tampered with as alleged by the appellant?

(ii) Whether the compliance of Section 50 has been made? If not, what would be the effect?

Q. No. (i) Whether the sample was tampered with as alleged by the appellant?

The argument raised by learned counsel for the appellant that there is possibility of tampering of the sample is not sustainable in view of the specific statement given by P.W. 1 at page 5. He categorically stated that the seal was not of his name. No question has been put to this witness what was contained in his seal. The Forensic Science Laboratory found the seal of ''UPP''. Ashish Kumar Singh, who is the Sub Inspector of Uttar Pradesh Police is not denied. So it cannot be said that the seal used on the sample was not affixed by P.W. 1. The law cited by the counsel for appellant in Megh Raj Vs. State of U.P., does not extend any help, as the same is not applicable on fact. In case of Megh Raj (supra) the seal affixed on sample was of Munsif Magistrate, Naugarh, District Basti but the sample was sealed in the court of C.J.M. Sidharth Nagar and sent through covering letter of C.J.M. Sidharth Nagar.

In this case the Forensic Science Laboratory on the basis of chemical examination of the sample found that the contraband is Heroin. The place, time and date of alleged recovery has neither challenged by the accused appellant in the cross-examination nor u/s 313, Cr.P.C. In this case, the alleged recovery of contraband is not denied in view of the statement given by the accused u/s 313, Cr.P.C. The appellant has taken the defence that the contraband was placed in his hand and then he was falsely booked in this case so the availability of the contraband at the time of arrest is virtually not denied. Therefore, the recovery of contraband from the possession of the accused appellant is established.

Hence the question No. (i) is decided in negative and held that there is no reason to believe that the sample of contraband was tampered with in any manner.

Q. No. (ii) Whether the compliance of Section 50 has been made? If not, what would be the effect?

While dealing with the requirement of compliance of the provisions of Section 50 of the Act and keeping in mind its mandatory nature, a Constitution Bench of Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, , after taking into consideration the conflicting judgments of the Apex Court in regard to compliance of Section 50 of NDPS Act in Joseph Fernandez Vs. State of Goa, ; Prabha Shankar Dubey Vs. State of Madhya Pradesh, , on one hand and Smt. Krishna Kanwar @ Thakuraeen Vs. State of Rajasthan, on the other hand and also keeping in view the another judgment of Constitution Bench of the Apex Court in State of Punjab Vs. Baldev Singh, etc. etc., held in paras 31 and 32 at page 622 (para 22 P. 88 of AIR) as under:

We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez Vs. State of Goa, and Prabha Shankar Dubey Vs. State of Madhya Pradesh, is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in State of Punjab Vs. Baldev Singh, etc. etc., . Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.

We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.

The Apex Court once again considering the question of requirement of compliance of the provisions of Section 50 of the Act emphasised that there is need for exact compliance without any attribute to the element of prejudice where there is an admitted or apparent non-compliance. The Hon''ble Supreme Court in State of Delhi Vs. Ram Avtar @ Rama, as under

The High Court while relying upon the judgment of this Court in State of Punjab Vs. Baldev Singh, etc. etc., and rejecting the theory of substantial compliance, which had been suggested in Joseph Fernandez Vs. State of Goa, , found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression ''duly'' used in Section 50 of the Act connotes not ''substantial'' but ''exact and definite compliance''. Vide Ext. P.W. 6-A, the appellant was informed that a Gazetted Officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside.

It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, , the theory of ''substantial compliance'' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.

The Apex Court in Ashok Kumar Sharma Vs. State of Rajasthan, examined the requirement of compliance of section 50 of NDPS Act with another angle, i.e. on the basis of maxim" ignorantia juris non excusat" and held in para 8 at page 70 as under:

We may, in this connection, also examine the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Undisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various laws laid down in this country, leave aside the NDPS Act. We notice that this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorised officer acting u/s 50 of the NDPS Act to inform the suspect of his right u/s 50 to be searched in the presence of a gazetted officer or a Magistrate warranting strict compliance with that procedure.

When there is total and definite noncompliance with such statutory provisions, the question of prejudice losses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance.

The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance with these provisions in their entirety, the court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevance. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance with the provision.

Admittedly, in this case a consent memo. has been prepared on the spot before making the alleged search by P.W. 1 S.I. Ashish Kumar Singh. He not only stated about it on oath before the trial court but also the same is evident from the contents of recovery memo. as well. However that recovery memo. had not been placed in record of trial court. It is not the case of prosecution that the consent memo. was lost. If the same has not been lost, why the consent memo. has not been produced before the trial court? Even if it has actually been lost then why the secondary evidence of it was not produced with the permission of the court? The prosecution has not explained it. Consequently an adverse inference has been taken against the prosecution to this effect that if it was placed on record, it would not support the prosecution case, so far as compliance of section 50 of NDPS Act is concerned. This is an important document which ought to have been placed on record for inspection and to consider the compliance of Section 50, NDPS Act.

It is well settled principle of law that prosecution has to adduce the best evidence of fact. The primary evidence of fact is the consent memo. prepared on the spot. Unless it is shown to be lost and permission is sought to adduce secondary evidence the oral evidence to that effect cannot be accepted rather it will exclude the oral evidence of prosecution witness on this score.

It is also worth notice that in the statement on oath of P.W. 3 at page 5 he categorically stated that the search was made of the appellant before communicating the right of the accused to be searched before Magistrate or before Gazetted Officer. In the statement he also deposed that accused was informed about his right but he asked the police personnel that once he has been arrested he is willing to give his search to you. Thereafter a consent memo. had been prepared with his consent and then search was made. It is true that the statement given by the witness P.W. 3 depicts that at once place he stated that before informing the right of the accused to be searched before magistrate or before Gazetted Officer search was made, but on the other hand, he also stated that the search was made after preparation of the consent memo.

So far as recovery memo. is concerned. It has been mentioned therein that the accused after arrest and before search was asked about the contents of polythene bag kept in upper inner garments (Baniyan) then he disclosed that it was smack. It is strange that how the police personnel came to know before making search that there is polythene bag inside inner upper garment (Baniyan). It is not on record that informant has disclosed to the police that the contraband is kept by the accused in inner upper garment in a polythene bag. If in this light, the statement of P.W. 3 is taken into consideration, it will give sufficient reason to believe that search was made before communicating the right of the accused to be searched before Magistrate or a gazetted officer. The alleged compliance of Section 50, NDPS Act does not inspire confidence.

More over the contents contained in the memo. depicts that the police personnel told to the accused that he is possessing psychotropic substance and your search would be taken before Magistrate or before Gazetted Officer. It has not been informed to him that he has a right to be searched before the Magistrate or to the Gazetted Officer and if he is so desired, he will be produced before any of them as per his wishes and search will be made in his presence. Therefore, in view of law propounded in Vijaysinh Chandubha Jadeja case and in Ashok Kumar Sharma''s case (supra) and in view of the peculiar facts and feature of this case and also keeping in view that the consent memo. has not been brought on record I am of the firm view and opinion that the compliance of Section 50, NDPS Act as required under the law has not been made in this case. Hence, the appellant can not be convicted on the basis of such recovery as held in Vijaysinh Chandubha Jadeja case (supra). No other evidence is available on record to prove the recovery of contraband.

Hence the question No. (ii) is accordingly decided.

Having considered all the submissions made on behalf of learned counsel for the parties and the material and evidence on record, this court is of the firm view that due to non compliance of mandatory provisions of Section 50, NDPS Act, the accused appellant is entitled to be acquitted and his conviction and sentence awarded by the trial court deserves to be set aside and the appeal deserves to be allowed.

Consequently the appeal is allowed. The judgment and order dated 05.02.2013 passed by Additional District and Sessions Judge, Court No. 3, Lucknow is set aside. The accused appellant is acquitted of the charge levelled against him in this case. The accused appellant if not wanted in any other criminal cases be released forthwith from jail.

Let a copy of this judgment be sent to the trial court and also to Chief Judicial Magistrate, Lucknow for compliance of the order of this Court. The Senior Registrar of this Court shall ensure the compliance of this order forthwith.