Uttarakhand High Court
Sahib @ Manpreet @ Jasmati Singh vs State Of Uttarakhand on 19 June, 2020
Equivalent citations: AIRONLINE 2020 UTR 204
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 133 of 2020
Sahib @ Manpreet @ Jasmati Singh ..... Appellant
Versus
State of Uttarakhand ....Respondent
Ms. Sheetal Selwal and Mr. M.A. Khan Advocates for the appellant.
Mr. Pratiroop Pandey, A.G.A. for the State of Uttarakhand.
Hon'ble Ravindra Maithani, J. (Oral)
The present appeal is preferred against the judgment and order dated 30.01.2020, passed in Special Sessions Trial No. 37 of 2017, State Vs. Sahib @ Manpreet @ Jasmati by the Court of Special Judge (NDPS Act)/2nd Additional Sessions Judge, Nainital. By the impugned judgment and order, appellant has been convicted under section 8 read with 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and sentenced to undergo rigorous imprisonment for a period of three years and six months and a fine of Rs. 10,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of six months.
2. Facts necessary to resolve the controversy, briefly stated are as hereunder:-
On 24.12.2016, a Police party left Police Station Banphoolpura, district Nainital at 07:15 AM for service of non-bailable warrants and patrolling. This Police Party also comprised of PW1 S.I. Kishore Chandra Pant and PW2 Constable Ravi Sharma. During the course of patrolling, the Police Party received an information that some persons on a motorcycle were approaching towards Railway Station and they were carrying Charas with them. Relying on the information, the Police party intercepted the motorcycle. There were three persons on it. They assaulted the Police party. One of them ran away but two were apprehended. One of them is the appellant. In this case, the Court is not proposing to consider as to what was recovered from the co- accused, but, according to the case, when a search was made, 126 grams of Charas was recovered from the appellant. A recovery memo Ex.A-6 was prepared at the spot and based on it, chik FIR Ex.A-7 was recorded and a case was lodged against the appellant and another. Copy of the general diary entry is Ex.A-8. During investigation, recovered articles were sent for forensic examination and report was received. After investigation, chargesheet Ex. A-16 was submitted against the appellant under Sections 332, 353 IPC and Section 8 read with 20 of the Act. Cognizance was taken .
3. On 17.08.2017, charges under section 377, 353 IPC and section 8 read with 20 of the Act were framed against the appellant, to which, he denied and claimed trial.
4. The prosecution, in order to establish the case, examined as many as seven witnesses, namely, PW1 S.I. Kishore Chandra Pant, 2 PW2 Constable Ravi Sharma, PW3 Constable Pankaj Kumar, PW4 Head Constable Prayag Ram, PW5 Dr. Naresh Gulwani, PW6 Constable Mohd. Irfan and PW7 S.I. Mahesh Chandra.
5. Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). According to him , he was falsely implicated. Though, the appellant stated that he would lead evidence in his defence, but no evidence was adduced in defence.
6. After hearings the parties, based on the evidence, the learned Court below, by the impugned judgement and order, acquitted the appellant of the charge under Sections 332 and 353 IPC, but, convicted and sentenced him under section 8 and 20 of the Act, as stated hereinbefore. Aggrieved, the instant appeal.
7. Heard learned counsel for the parties through Video Conferencing and perused the record.
8. In the instant case, according to the prosecution alongwith appellant one more person Than Singh Adhikari was arrested and Charas was recovered from him also. He was simultaneously tried with the appellant and on 30.1.20 he has also been convicted in special session trial no. 36 of 2017.On being asked learned counsel for the appellant would inform that Than Singh Adhikari has been released by the government on Parole for six months. Than Singh Adhikari has not preferred any appeal. Had he filed any appeal both the appeals would have been decided simultaneously. There is no appeal filed by Than 3 Singh Adhikari and he is not in Jail at present therefore, now this Court proceeds to decide the instant appeal.
9. Learned counsel for the appellant would submit that the case is false. Appellant ought to have been acquitted of the charge under Section 8 read with 20 of the Act also. Following points have been raised in arguments on behalf of the appellant:-
(i) Appellant has been acquitted under Section 332 and 353 IPC. It reflects that the case is doubtful.
(ii) Mandatory provision of Section 50 of the Act has not been complied with at the time of recovery.
(iii) The place of occurrence is not established because according to the FIR, the place of occurrence is at the distance of 2 Kms from the Police Station, whereas, PW1 Kishore Chandra Pant states that it was at a distance of 500 meters from the Police Station.
(iv) The motorcycle which was allegedly taken by the Police was never produced before the Court and it was never taken to the Police Station, after alleged recovery.
(v) Prosecution case is also doubtful because there is no evidence as to which non-bailable warrants were taken by the police for service on the date of incident and, in fact, those non-bailable warrants were not entered in the general diary and witnesses have not stated about it. The consent letter of the appellant was also not entered in the General Diary of the Police Station, after Police party reached at the Police Station.
10. On behalf of the State, learned counsel would submit that it is a case of sudden recovery, therefore, there was no occasion to comply with the mandatory provisions of the Act; there are allegations of 4 assault on Police party also. Forensic Science Laboratory report confirms that the alleged material was Charas and there is no reason of false implication of the appellant.
11. In the instant case, PW1 Kishore Chandra Pant was the person who was in the Police party on the day when the alleged recovery was made. According to him on 24.12.2016, they left the Police Station at 07:15 AM for service of non-bailable warrants and for patrolling . During patrolling, they received an information that some persons on a motorcycle are carrying Charas . The motorcycle was intercepted, there were three persons on it. They assaulted the Police. One of them ran away, but two were apprehended. One of them was the appellant Sahib @ Manpreet Singh. According to this witness, he inquired from those persons as to why they tried to run away. They revealed that they were carrying Charas. They were told about the right to be searched before a Magistrate or a Gazetted Officer. They said that Police can search them. Therefore, a consent letter was prepared. According to PW1 S.I. Kishore Chandra Pant, 126 gram of Charas was recovered from the possession of the appellant. He also states about the recovery made from the co- accused, which as stated, is not being discussed in this case. This witness has proved the recovery memo and other documents prepared by the Police. PW2 Constable Ravi Sharma has also corroborated the statement of PW1 S.I. Kishore Chandra Pant. These two are the witnesses of recovery.
12. PW3 Constable Pankaj Kumar is the Chik FIR writer. He proved the Chik FIR which is Ex. A-7.
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13. PW4 Head Constable Prayag Ram is Maal Khana Mohrir where the alleged Charas was kept till it was sent for forensic examination. He proved the entry of the register.
14. PW5 Dr. Naresh Gulwani examined PW2 Ravi Sharma. He proved the injury report Ex. A10. In fact, it has also been stated by the witnesses that when intercepted, the appellant and o co-accused assaulted the police. But, as stated, appellant has already been acquitted of the charge under Sections 332 and 353 IPC.
15. PW6 Constable Mohd. Irfan is the person who took the alleged material to the Forensic Science Laboratory.
16. PW7 S I Mahesh Chandra is the Investigating Officer, who has stated as to what was done during the course of investigation and proved the charge sheet.
17. Provisions of the Act are very stringent. The offence, if proved is really very serious. It has wide social ramifications. Therefore, the law requires that the mandatory provisions of the Act should be meticulously followed while affecting any search under the Act.
18. It is true that according to the recovery memo a motorcycle, bearing Registration No. UK 04H-5028 was also taken into custody by the Police and it is also true that in the General Diary Entry No. 19 , Time 11:10 on 24.12.2016 of the Police Station, there is no entry of motorcycle. This entry was made when the police party returned after 6 the recovery of Charas from the appellant and others. It is also true that in this General Diary entry which is Ex. A8, there is no mention of those non bailable warrants, which the police party had taken for execution. Why it is so? It is not clear.
19. In the FIR, the place of occurrence is shown two Kms from the Police Station Banbhulpura but PW1 Kishore Chandra Pant, in Page 5 of his statements, at one place, stated that the place of occurrence is at a distance of about 500 meters from the Police Station. The question of distance in meters may not be relevant at some point of time. It depends on as to who is the witness and what is the distance being told. Here is a case of a Police Sub Inspector, who says that the distance of the place of occurrence is 500 meters from the Police Station. But, in the FIR, it is stated that the place of occurrence is 2 Km from the Police Station. This is a great variation. 500 meters and 2km, these two distances are really quite distinguishable, especially when a sub inspector police tells about the distance, who allegedly recovered Charas from the appellant. It somehow creates doubt about the place of occurrence also.
20. Most important question is with regard to mandatory compliance of Section 50 of the Act. Needless to say, the provisions of Section 50 of the Act are, in fact, a kind of safeguard from false prosecution on the one side and for securing justice in terms of bringing home the guilt of the accused on the other side. It helps both the accused as well as the prosecution. According to it, an arrestee is required to be informed of his right to be searched before a Gazetted Officer or a 7 Magistrate. It is a right of the arrestee and not a choice or option to the officer, who conducts search.
21. In the case of Vijay Singh Chandubhai Jadeja Vs. State of Gujarat, 2011 (1) SCC 609, Hon'ble Supreme Court interpreted the question of compliance of Section 50 of the Act and held as hereunder:-
"29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the flaw enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
22. There is another issue in the instant case. According to prosecution, two persons were arrested. Now the question is as to what would be the situation if two persons are arrested together, whether right to be searched before a Magistrate or a Gazetted officer would be informed to them jointly or separately. This question was discussed in the case of State of Rajasthan Vs. Parmanand and another (2014) 5SCC 345. Hon'ble Court in the case of Parmanand (supra) held that right should be 8 informed separately to each individual. Joint communication would frustrate the very essence of the right of an arrestee under Section 50 of the Act. Hon'ble Court held as hereunder:-
"17. In our opinion, joint communication of the right available under Section 50 (1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50 (1) of the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh 1 and the Bombay High Court in Dharmaveer Lekhram Sharma 2 meets without approval."
23. PW1 Kishore Chandra Pant has stated that when arrested, the appellant and the co-accused were informed of their legal rights that they may be searched either before a Gazetted Officer or before a Magistrate. PW2 Constable Ravi Sharma has also stated about it. Oral evidence may be taken into consideration where there are no other 1 Paramjit Singh v. State of Punjab, (1997) 1 Crimes 242 (P & H) 2 Dharamveer Lekhram Sharma v. State of Maharashtra, (2001) 1 Crimes 586 (Bom) 9 documents. In case documentary evidence is available, it would prevail over the oral evidence and if the person who deposes before the Court had prepared a document, in such case, the contents of the document become more heavier in comparison to Oral Evidence of its author.
24. In the instant case, the police party prepared the recovery memo at the time of arrest and this, recovery memo explicitly make it clear that when arrested, the police informed the appellant and others of their right to be searched before a Magistrate only. Now, here are two non compliance of Section 50 of the Act: -
(i) The Appellant and co-accussed were, according to the recovery memo, informed of their right to be searched before a Magistrate. They were not informed of their right to be searched before a Gazetted Officer and,
(ii) The appellant and co-accussed were not separately told of their right to be searched either before a Magistrate or a Gazetted Officer. It was a joint communication.
25. In view of the law laid down in the case of Parmanand (supra), joint communication frustrates the very purpose of Section 50 of the Act. The appellant was not given the option to be searched before a Gazetted Officer. The communication was jointly made to the appellant and to the co- accussed. Therefore, this Court is of the view that, in fact, in the instant case compliance of Section 50 of the Act has not been made and this alone vitiates the conviction.
26. In view of the foregoing discussion, this Court is of the view that prosecution has not been able to prove the charge under Section 10 8 read with 20 of the Act beyond reasonable doubt against the appellant. The appellant ought to have been acquitted of the charge. Therefore, the appeal deserves to be allowed.
27. The appeal is allowed.
28. The impugned judgment and order is set aside. Appellant is acquitted of the charge under section 8 read with 20 of the Act.
29. Appellant is in Jail. He be released forthwith, if not wanted in any other case, subject to his furnishing personal bonds and two sureties, each of the like amount to the satisfaction of Court concerned, under section 437A of the Code.
30. Let a copy of the judgment along with lower Court record be sent to the Court below for compliance.
(Ravindra Maithani, J.) 19.06.2020 Ujjwal 11