Smt. Dhanna Devi vs State of U.P.

Allah Raham, J.—This is an appeal against the judgment and order dated 6.2.2002, passed by Special Judge, N.D.P.S.Act, Lucknow in Criminal Case No. 351/98, whereby accused Dhanna Devi was found guilty u/s 8/21 of the Narcotic Drugs and Psychotropic Substances Act (for short, the N.D.P.S.Act) and sentenced to two years'' R.I. and a fine of Rs. 3000/-; in default of payment of fine, three months'' R.I. was awarded.

The prosecution story, as it appears from the record, is that on 22.5.1988, a police party comprising S.I. R.S. Verma, S.I.A.P.Verma, S.I. Vijendra Singh, Constable Anil Kumar Singh, Constable Hoob Lal, Constable Ram Prakash, lady home-guards Ladli Mishra and Sarla Devi was proceeding towards Baghsherjung. They saw a lady in the premises of Basu. The lady started running away. The police party grew suspicious and got her apprehended with the help of lady home-guards. When the lady was questioned regarding the reason of her running away, she disclosed that her husband was a drug-addict and she was in possession of smack. She had started running away fearing the police personnel. She disclosed her name as Dhanna Devi. S.I. R.S. Verma told her that since she has disclosed that she is in possession of smack, she should wait for a little so that a gazetted officer or a magistrate is called for her search. Smt. Dhanna Devi did not pay attention to this offer and took out a polythene from her blouse, which contained 10 Purias of brown powder. Smt. Dhanna Devi possessed no licence for these Purias. The recovered smack was sealed on the spot and a memo Ext.Ka 1 was prepared. The accused and the recovered article were taken to the police station, where a Chik of F.I.R Ext.Ka 2 was prepared and a case was registered against the accused.

S.I. Sri J.P.Pandey was entrusted with the investigation of this case. After observing the usual formalities of investigation, he submitted a charge-sheet Ext.Ka 4 against the accused.

Accused Dhanna Devi pleaded not guilty to a charge u/s 8C/21 of the N.D.P.S. Act and stated that she has been falsely implicated in this case. She has also stated that in her neighbourhood, there are houses of Nawabs and Netas. They wanted to evict her forcibly from her house. She was challaned under N.D.P.S.Act earlier also but she was acquitted. A false case of Marpit was also registered against her. She has denied the recovery of the smack in question from her possession.

In order to prove the charge against the accused, prosecution has examined Constable Hoob Lal P.W.1, S.I. Sri Vijendra Singh P.W.2, H.C.Shyam Bahadur Singh P.W.3, S.I. Sri J.P.Pandey P.W.4 and S.I. Sri Ram Swaroop Verma P.W.5.

Sri Mohammad Azim D.W.1 has been examined by the accused in defence.

P.Ws. 1, 2 and 5 are the witnesses of recovery. They have supported the prosecution version of the case on oath. The learned trial court placed reliance upon the statements of these witnesses. The learned trial court did not rely upon the statement of D.W.1, who had appeared in the witness-box to prove the defence version of the case. The accused was, therefore, held guilty u/s 8/21 N.D.P.S.Act and having heard her on the question of sentence, the learned trial court awarded her the sentence noted hereinabove.

Aggrieved against the said judgment and order, the accused appellant has preferred this appeal.

I have heard Sri M.L. Syal, learned Counsel for the appellant and learned A.G.A for the State and have carefully perused the record.

Learned Counsel for the appellant has submitted that there is no compliance of the provisions of Section 50 of the N.D.P.S.Act. He has referred to the recitals in the recovery memo Ext.Ka 1, which is as follows:

JAMA TALASHI KE LIYE DHANA DEVI SE POONCHA GAYA KI AAP APNE PAAS SMACK HONA BATATI HAIN, AAP THORA RUK JAIYE, TALASHI KE LIYE KOI RAJPATRIT ADHIKARI YA MAGISTRATE BULWA RAHA HUN, TO SMT. DHANA DEVI NE SWAYAM APNE BLOUSE MEIN SE SEENE KE PAAS SE EK POLYTHENE NIKALKAR DETE HUE BOLI KI KISI KO BULANE KI ZAROORAT NAHIN HAI.

The contention of learned appellant''s counsel is that this recital is not equivalent to an offer of being searched in presence of a gazetted officer or a magistrate. The appellant is no doubt an illiterate lady. The recital in the recovery memo does not give the impression that she was offered to be searched in the presence of a gazetted officer or a magistrate. Here, learned Counsel for the appellant has also placed reliance upon a case law of the Apex Court reported in State of Punjab Vs. Labh Singh, wherein it has been clearly laid down that if an offer of being searched by a gazetted officer or a magistrate has been given, the response of the accused should be taken in writing. In this case, there is no response of the appellant in writing and it has only been alleged that the appellant took out 10 Purias from her blouse and declined the offer to be searched in the presence of a gazetted officer or a magistrate.

In view of the law laid down in Labh Singh''s case (supra) and the recovery memo Ext.Ka 1, it is clear that the provisions of Section 50 of the N.D.P.S.Act have not been complied with in the present case. The learned trial court erred in holding that the said provisions have been complied with. In view of this lapse, the appellant is entitled to an acquittal. The appeal, therefore, deserves to be allowed.

Accordingly, the appeal is allowed. The judgment and order under appeal is set aside. Appellant Smt. Dhanna Devi is held not guilty of a charge u/s 8/21 N.D.P.S.Act and is acquitted.

The appellant is on bail. She need not surrender to her bail bonds, which are hereby cancelled and sureties are discharged.