Shyam Kumar vs State of U.P.

Shiv Shanker, J.—This criminal appeal has been preferred against the judgment and order dated 12.8.1992 passed by I Vth Additional Sessions Judge, Aligarh in S.T. No. 71 of 1988, State v. Shyam Kumar, convicting the Appellant u/s 18 of N.D.P.S. Act and sentencing him to 10 years R.I. with a fine of Rs. one lakh and in default of payment of fine, the Appellant will suffer an additional sentence of 3 months R.I.

Brief facts arising out of appeal is that on 4.6.86, Station Officer of Police Station, Gangiri, District Aligarh alongwith P. K. Tyagi P.W. 3, S.I. Sheoraj Singh Malik, head constable Ramesh Chandra, constable Bhagwati Prasad, Homeguard Hemraj and Khemkaran through G.D. No. 32 of 8.05 p.m. had proceeded from the police station for searching the wanted accused in patrolling duty. They were coming towards Kasba of Gangiri through cycle. After giving pressure (dabis) on accused reaching at Gurukul where one person having one bag in his hand, was seen coming on foot from Gangiri, upon which, the Station Officer, P. K. Tyagi flashed torch and he was asked to stop. Thereafter he had tried to run away after turning. Thereafter, it was suspected by the police personnel that miscreant had run away from there. After fallen down from cycle, he was apprehended at 23.15 hours near tubewell of Gosai. After his arrest, he disclosed his name as Shyam Kumar. He was searched before the police personnel. One bag was found in his hand, wherein two plastic bags were found in which there was opium weighing 2.500 grams. Thereafter, recovered contraband opium was taken into custody and kept into plastic bags and the same was sealed. Recovery memo was prepared at place of incident in the torch light. All the witnesses have made signatures upon it including arresting accused. Copy of fard was also given to the accused. Thereafter recovered contraband and accused were taken to the concerned police station, where recovered contraband was deposited and accused Shyam Kumar was kept in hawalat. On the basis of recovery memo Ex. Ka-1, prepared chik F.I.R. vide Ex. Ka-3 and the case u/s 17 of N.D.P.S. Act, 1985 was registered against accused above and investigation of this case was entrusted to S.I. Sri S. S. Malik. During the course of investigation, recovered contraband article was sent for chemical examination and the report Ex. Ka-5 was received which reveals that recovered contraband article was found opium. After completing the investigation, the charge-sheet was filed against accused in the concerned Court.

The charge u/s 18 of N.D.P.S. Act, was framed against accused Shyam Kumar by the concerned Sessions Judge, Aligarh who pleaded not guilty and claimed to be tried.

Prosecution examined P.W. 1 Sheoraj Singh Malik, P.W. 2 Malkhan Singh Malik S.I., P.W. 3 S.I. Pramod Kumar Tyagi, P.W. 4 R. P. Nigam, P.W. 5 Ramesh Chand H.C., P.W. 6 Netrapal Singh employee of telephone exchange. Thereafter, the statement of accused was recorded u/s 313, Cr. P.C. who has denied all the questions put before him and he stated that he was taken by S.I. Vinay Kumar from his house in the night and false case has been planted against him. D.W. 1 Bal Kishan has been produced on behalf of accused in his defence.

After considering submissions made by learned Counsel for the both the parties and perusing the evidence on record, the accused was convicted for the charge u/s 18 of N.D.P.S. Act by the concerned Sessions Judge by awarding the sentences as above. Feeling aggrieved by it, the accused-Appellant has preferred the present criminal appeal.

Heard arguments of learned Counsel for the Appellant Sri D. S. Mishra and learned A.G.A. and perused the record.

Learned Counsel for Appellant contended that the alleged search and seizure was made from the possession of Appellant on 4.6.86. According to Section 42 of N.D.P.S. Act and Rule 77, not below the rank of Inspector of Police was authorised to take search and seizure u/s 42 of N.D.P.S. Act. P.W. 3 Pramod Kumar Tyagi was Sub-Inspector at the time of arrest of the Appellant. Therefore, he was not authorised to take search of the Appellant. Therefore, search and seizure made by the police personnel was illegal. In such circumstances, the Appellant could not be convicted by the trial court from the charge levellled against him.

It is further contended by learned Counsel for the Appellant that Investigating Officer was subordinate to the Arresting Officer. In such circumstances, it is not accepted that fair investigation has been made. On the other hand, it is liable to be deemed that it was made under the direction and supervision of his senior officer. It is further contended that there is no public witness in this incident. Therefore, no reliance can be placed only upon the testmony of police personnel in this case.

The alleged contraband article was taken from the possession of Appellant on 4.6.86 and sample was sent for chemical examination on 20.6.86, which was received in the office on 4.7.86 and chemical examination report was prepared on 8.7.86. Therefore, there is no linked evidence. Recovered contraband article was kept safely from 4.6.86 to 4.7.86 and in absence of any linked evidence it is not liable to be deemed that recovered contraband article was the same which was sent to the chemical examiner for getting the report. It is further contended that personal search was made firstly by the police personnel. Thereafter, the search was made from his bag containing the contraband article. Therefore, Section 50 of N.D.P.S. Act is attracted regarding search of person. In such circumstances, there is no compliance of Section 50 of N.D.P.S. Act. It is further contended that no any information regarding search and seizure was given to the higher authorities. Therefore, Section 57 of N.D.P.S. Act has also not been complied with. There is certain checks for considering value of the evidence, even Sections 42 and 57 of N.D.P.S. Act are not mandatory and directory but it should not have been ignored for the veracity of evidence given by the police personnel. It is further contended that there was sudden arrest of the Appellant and recovery was made from his bag. However, Section 50 of N.D.P.S. Act was applicable in the case. It is further contended that the charge-sheet has been filed by the Investigating Officer against the Appellant without receiving chemical examination report. It should not have been submitted without receiving the same. It is further contended that signature of Appellant was not obtained upon the sealed bundle. Therefore, recovery of contraband article is liable to be suspicious. On the above context, learned Counsel for the Appellant has placed reliance upon the following decisions:

(i) Mathura Prasad v. State of U.P. 2005 (1) UP CR 401 : 2005 (2) ACR 1137 ;

(ii) Delhi Administration Vs. Ram Singh,

State of Rajasthan v. Gopal 1998 SCC 1586 ;

Mohinder Kumar v. State, Panaji, Goa 1995 (2) UP CR 342 ;

Roshan v. State of U.P. (V. K. Chaturvedi, J.) 2004 (1) UP CR 97;

Roshan v. State of U.P. JT 2007 (2) 650 (All) : 2007 (3) ACR 2553 ;

Javed Iqbal and Ors. v. State of U.P. 2003 CBC 55 : 2003 (2) ACR 1695 ;

Smt. Valsala v. State of Kerala JT 1993 557 ;

Rajan Ali v. State (Delhi Administration) 2000 (1) 596 DHC; and 9. Dilip and Anr. v. State of M.P. 2007 (1) EFR 207 : 2007 (1) ACR 912 (SC).

However, the trial court has overlooked evidence on record and provisions of law and he has committed error in convicting the Appellant for the charge levelled against him. In such circumstances, the appeal is liable to be allowed and he deserves to be acquitted.

On the other hand, learned A.G.A., has submitted that the alleged recovered contraband article was recovered on 4.1.86 and the Rule 77 of N.D.P.S. Rules is applicable from 8.10.86. On that basis, Sub-Inspector has been authorised to make search and seizure u/s 42 of N.D.P.S. Act. Therefore, Sub-Inspector was authorised to take search regarding the alleged incident. It is a case of chance recovery and alleged contraband was found in his bag. Therefore, Section 50 of N.D.P.S. Act is not attracted. Sample of recovered contraband was sent to the chemical examiner. Section 57 of N.D.P.S. Act, is not mandatory but directory. Similarly Sections 41, 42, 52 and 55 were also not mandatory. Even in absence of linked evidence, recovery of contraband article cannot be liable to be suspicious from the possession of Appellant. This incident had taken place in the night in the jungle. In such circumstances, no any public person could be taken as witness due to sudden arrest of the accused. Evidence of witnesses which have been adduced by the prosecution is reliable and the trial court has rightly convicted the Appellant for the offence u/s 18 of N.D.P.S. Act. On the above context, learned A.G.A. has placed reliance upon the following decisions:

State of Himachal Pradesh v. Pawan Kumar (LIV) 2005 ACC 710 : 2005 (2) ACR 1291 (SC) ;

Babubhai Odhavji Patel and Ors. v. State of Gujarat 2005 (II) 649 : 2006 (1) ACR 506 (SC) ;

Jaswant Singh v. State of Haryana, Criminal Appeal No. 443 SB of 1987, decided on June 3, 1999 : 2000 (2) ACR 1120 (SC) ;

Abdul Sattar v. State 1989 Cri LJ 430.

Therefore, this appeal is liable to be dismissed.

Section 42 of N.D.P.S. Act, 1985 reads as under:

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government.

Rule 77 of U.P. Narcotic Drugs Rules, 1986 reads as under:

Any Officer of the Excise or Police Department not below the rank of Inspector or of the Drug Control Department not below the rank of Inspector of the Revenue Department not below the rank of Tahsildar may exercise the powers u/s 42 of the Act.

Therefore, only the rank of Inspector in police department was authorised to take search and seizure u/s 42 of N.D.P.S. Act, at the time of alleged incident. P.W. 3 S.O., who was arresting officer, was admittedly Sub-Inspector, his companions were also sub-inspector and head constable and home-guards etc., they were not authorised to take search of the Appellant at the time of alleged incident u/s 42 of N.D.P.S. Act. Therefore, such search and seizure was illegal. It was also held by Hon''ble Mr. Justice Kamleshwar Nath, Judge of this Court, Lucknow Bench in case of Kamlesh Pratap Singh v. Superintendent of District Jail, Lucknow and Ors. that "Sub-Inspector of Police, not competent to arrest for offences under Sections 8 and 20, whether covered by Sections 42 or 43, Cr. P.C., 197, Sections 4 (2) and 5 Constitution of India, Article 21." After delivering this decision, amendment was made in Rule 77 which was applicable since 8.10.86. It is not applicable with retrospective effect. Therefore, above decision in case of Kamlesh Pratap Singh v. Superintendent of District Jail, Lucknow and Ors. is fully applicable in the case and Sub-Inspector of Police was not competent to arrest for the offence as above and he was also not competent to make search and seizure regarding contraband article. Therefore, contention of learned Counsel for the Appellant has great force.

It is also worthwhile to mention here that the arresting officer P.W. 3 was S.O. of the concerned police station at the time of incident and P.W. 2 who is Investigating Officer was Sub-Inspector posted in the concerned police station under the control of P.W. 3. Therefore, it is not liable to be deemed that investigation was made fairly without any interruption. It has been observed by this Court in case Raghubir v. State of U.P. 1995 UP CR 57 : 1995 ACR 70 and in another case Ram Jatan v. State 1995 UP CR 349 : 1995 ACR 193 that if the investigation of the case has been entrusted to a subordinate officer by the station officer of the said police station, the investigation in such a case cannot be fair. Being a subordinate, he is not in a position to come to an independent finding and such an investigation can be treated as tainted and no reliance can be placed upon it. In the present case P.W. 3, who is arresting officer and Station Officer of the concerned police station and P.W. 2, who is the Investigating Officer, was admittedly in his subordination. Therefore, the above decisions are fully applicable in this case. Therefore, investigation of the present case is liable to be treated as tainted and no reliance can be placed upon it. However, it has been overlooked by the trial court.

So far as the contention of public witnesses is concerned, incident took place in the jungle in the night. It is a case of chance recovery. In such circumstances, no any person could be made witness by the concerned police.

It has been mentioned in the recovery memo Ex. Ka-1 as under:

Shyam Kumar uprokta kee jama talashee bakayada roobaroo hamrahi karamcharigan mujh S.O. dwara lee gayee to iske dahine hath se ak jhola va rangneela terikat taneedar fata purana istemalee ke andar safed kapare men tatpashchat plastic kee do pakiton men band kareeb 2 kilo 500 gram afeem baramad huee.

Therefore, this shows that personal search was also made of the Appellant and his bag was also searched which was found in his hand. Nothing was found from his personal search but the alleged contraband article was found in the said bag. In such circumstances, Section 50 of N.D.P.S. Act, was attracted which is mandatory provision. It has been observed in the decision of Apex Court of Dilip and Anr. v. State of M. P. 2007 (1) EFR 207 (SC). That Section 50 might not have been required to be complied with so far as search of scooter is concerned-But as person of Appellant were also searched. It was obligatory on the part of P.W. 1 to comply with the provision-It was not done-Requirements of law in this case had been given a complete go bye.

Therefore, there was no compliance of mandatory provision of Section 50 of N.D.P.S. Act. However, the trial court has also overlooked these legal aspects.

In view of discussions made above, I came to the conclusion that the trial court has committed error in convicting the accused-Appellant for the charge levelled against him by ignoring the above provisions of law. Therefore, the appeal deserves to be allowed and the accused-Appellant is entitled to be acquitted.

Therefore, the appeal is allowed and conviction of the Appellant for the charge levelled against him is hereby set aside and the accused-Appellant is hereby acquitted. His bail bonds are hereby cancelled and sureties are discharged. The amount of fine, if deposited by the Appellant shall be refunded to him. The recovered opium be confiscated.

Record of the court below be remitted back immediately alongwith copy of this judgment.