Nauman Khan (in Jail) vs State of U.P.

Onkareshwar Bhatt, J.—This appeal has been preferred by the Appellant against the judgment and order dated 28.4.1994, passed by the then I Vth Additional Sessions Judge, Saharanpur in Special Case No. 1 of 1994. The Appellant has been convicted u/s 22 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ''the Act'') and sentenced to 10 years rigorous imprisonment and to a fine of Rs. 1,00,000 in default of payment of fine two years'' further simple imprisonment has been awarded.

Sri Raj Kumar Khanna, for the Appellant and Sri G. S. Bisaria, learned A.G.A. for the State have been heard.

According to the prosecution case on 24.11.1993, P.W. 1, Sub-Inspector, Atit Gahlot, was posted at police station G.R.P., Saharanpur. He was involved in checking duty. He received information that the Appellant was sitting on platform No. 4 on a bench near the railway goods shed. The Sub-Inspector took Sardar Singh, constable, P.W. 2, who was on platform duty along with constable Ravindra Singh. The police party proceeded near the bench of platform No. 4. The Appellant on seeing the police party got up and tried to walk away swiftly. However, at 3.15 p.m. when he could proceed only 10 paces from the bench, he was apprehended. The Sub-Inspector told him that his search can be made before a Gazetted Officer to which he declined. On his search 15 tablets of seripax and one puria containing some powder of pink colour was recovered from the right hand pocket of his paijama. The Appellant was arrested and the recovered articles were sealed. On analysis, the articles were found Oxazepam, which is one of the psychotropic substance.

The facts of the case show that the Sub-Inspector had prior information that the Appellant has in his possession psychotropic substances. This information was received by him from the informer. Section 42 of the Act provides that if the officer has reason to believe that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed, can detain and search such person. The provision requires that the information given by any person should be taken down in writing. In the evidence of P.W. 1. Sub-Inspector, Atit Gahlot, it has not come that the information, which he received, was taken down by him in writing. It has been held by the Supreme Court in the case of State of Punjab v. Balbir Singh 1994 ACR 170 (SC) : (31) 1994 ACC 351, that it is mandatory u/s 42(1) of the Act that the empowered officer, if he has a prior information given by any person, that should necessarily be taken down in writing.

It is also contended that there is partial compliance of Section 50 of the Act inasmuch as the arresting officer Atit Gahlot asked the Appellant whether he wants the search to be made before a Gazetted Officer. The arresting officer has not stated about the option to be searched before the Magistrate. Although in the statements before the Court Sub-Inspector, Atit Gahlot, and P.W. 2, Sardar Singh had stated that the Appellant was offered to be searched before a Gazetted Officer or a Magistrate to which he declined. However, in the recovery memo, Gazetted Officer alone finds place. The statements of the witnesses about the search being made before a Magistrate appears to be an improvement. In the case of Nishan Singh v. State of U.P. 1995 ACR 162 : (32) 1995 ACC 651, when only offer was made to get searched before a Gazetted Officer and there was no mention of Magistrate, it was not held that the right of the Appellant emanating from Section 50 of the Act is not protected. The provision of Section 50 requires that on prior information, the empowered officer or the authorized officer before the search of a person is made should inform such person that if he so requires he shall be produced before a Gazetted Officer or a Magistrate. Failure to inform would amount to non-compliance of Section 50 of the Act. The evidence on record shows that Section 50 of the Act has not been complied with.

The evidence on record does not show that the Arresting Officer, i.e., P.W. 1, Sub-Inspector, Atit Gahlot, after the arrest of the Appellant and seizure of the psychotropic substances from his possession, within 48 hours next after such arrest or seizure, made a full report of all the particulars of such arrest or seizure to his immediate official superior.

The recovery memo shows that the seized articles were sealed on the spot. The evidence on record does not show that the seized articles were given in the custody of officer in-charge of the police station, as is required u/s 55 of the Act. The G.D. entry of the case has not been proved. The seized articles are alleged to have been sent for chemical analysis with the seal of Sessions Judge, Saharanpur. From the evidence adduced in the case, it is not proved that as to who took the seized articles before the Sessions Judge and where the seized articles were lying prior to the production before the Sessions Judge.

In view of the aforesaid discussion, particularly when Section 50 of the Act has not been complied with, the recovery of the contraband becomes suspect and the conviction of the Appellant is rendered bad and unsustainable in law.

In view of the aforesaid discussion, the appeal succeeds and is allowed. The conviction and sentence of the Appellant is set aside. The Appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.