Section 50 NDPS Act; Raju Vs. State [Allahabad High Court, 08-07-2016]

Narcotic Drug Psychotropic Substances Act, 1985 – Section 21, 42, 43 & 50 – Power of entry, search, seizure and arrest without warrant or authorisation – Power of seizure and arrest in public place – Conditions under which search of persons shall be conducted – There is no provision regarding taking of sample at the time of seizure more particularly in the cases where recovered item is of small in quantity like 150 gm. Similarly, taking signature of the accused on the sealed item is also not mandatory and weighing by measurement is also not mandatory and if measurement is written on the basis of guess then it cannot be said that any irregularity or illegality has been committed.

Criminal Procedure Code, 1973 – Section 313 – Statement under – chemical laboratory report – accused not put question regarding chemical laboratory report but from the facts it is clear that all along the trial he was aware of this report. Questions regarding this report is also put to the witnesses – Therefore, this is to be seen as to how far accused appellant was affected by non putting this question or what prejudice is caused to him – Chemical laboratory report is one of the prime evidence against the accused in NDPS cases and without this report offences cannot be proved and if this report is lacking or report is against the prosecution then prosecution could not be allowed to prosecute – In the circumstances, it can be inferred that appellant was all along aware of this report and no prejudice or disadvantage has been caused to him by not putting this question to the appellant in the statement under Section 313 Cr.P.C.


HIGH COURT OF JUDICATURE AT ALLAHABAD

08.7.2016

JAIL APPEAL No. – 5780 of 2007

Appellant :- Raju (From Jail) Vs. Respondent :- State

Counsel for Appellant :- Amicus Curiae; Counsel for Respondent :- A.G.A.

Hon’ble Abhai Kumar,J.

This Jail Appeal has been preferred against the order dated 29.1.2007 passed by Special Judge (E.C. Act) Jalon, Orai, in Criminal Case No. 23 of 2006, convicting the appellant under

# Section 21 N.D.P.S. Act

Police Station G.R.P. Orai and sentencing him to undergo 10 years simple imprisonment and fine of Rs. 1,00,000/-. In default of fine, the accused/appellant shall further undergo for one year additional simple imprisonment.

Brief facts of the case are that on 1.1.2006 Sub Inspector N.K. Singh alongwith other police personnel was on patrol on Platform No. 1 of the Railway Station Orai in search of suspected persons when they reached near water tank, one person who was sitting at the bench, after seeing the police personnel stood and started walking. On suspicion he was apprehended near office of Junior Engineer at about 0.20 in the night. Apprehended person revealed his name as Raju of District Kanpur Dehat and on enquiry he also revealed that he is having psychotropic substance that is why he was running away. On being searched 150 gm of psychotropic substance as well as one strip Nitrazepam Tablets 100 mg were also recovered. Same was sealed on the spot and recovery memo was also prepared on the spot, and accused alongwith seized item was taken to police station where FIR was lodged and entry regarding that was made.

During investigation statement of witnesses were taken and seized item was sent for chemical examination. In the report psychotropic substance as well as Nitrazepam Tablets were found containing banned substance Nitrazepam. After completion of enquiry charge-sheet was submitted against the accused appellant.

On the basis of evidence produced by the prosecution and after taking the statement under Section 313 Cr.P.C. of the accused and hearing the parties, trial court convicted the appellant under Section 21 of the NDPS Act. Being aggrieved, this appeal has been filed.

Heard learned amicus curiae, Sri Ashutosh Yadav Advocate for the appellant, learned AGA for the State and perused the record. From the record it is clear that PW-1 Sri N.K. Singh, Sub-Inspector as well as PW-2 Sri Bharat Singh, A.C.P., have supported the version of recovery and seizure as has been observed by the learned trial court. There is no discrepancy between the statement of both the witnesses. The statements of both the witnesses are as per recovery memo and have also narrated the exact location of the incident as well as the recovery of 150 gm of psychotropic substance as well as one strip nitrazepam tablet from the possession of the accused.

During the course of argument, learned counsel for the appellant did agree that so far as arrest and recovery is concerned, nothing can be inferred otherwise from the statement of both the recovery witnesses, but learned counsel for the appellant insisted upon the various procedural latches that were made during the recovery of the psychotropic substance.

Learned counsel submitted that compliance of Section 50 of the N.D.P.S. Act is not made. He further argued that recovered item was not measured and that police personnel did not give their search prior to recovery. He next submitted that malkhana register was not produced, therefore, it cannot be ascertained as to the recovered article which was sent for chemical examination was kept in a regular way and there was no chance of it being tampered. It is also submitted by the learned counsel that no independent witness was taken prior to recovery and lastly submitted that learned trial court convicted the appellant on the basis of the report of chemical laboratory that is Exhibit – Ka-7 but this incriminating fact was not put to the appellant when the statement under Section 313 Cr.P.C. of the accused was recorded and thereby causing incurable defect. Besides some other points were also taken like sample was not taken and signature of appellant was not taken upon sealed recovered item.

Learned counsel for the appellant fortified his arguments regarding Section 50 of the NDPS Act as well as other submissions by producing various laws of Hon’ble Apex Court as well as High Court, reproduced hereinbelow:-

# 1. Ashok Kumar Sharma Vs. State of Rajasthan, (2013) 2 SCC 67

# 2. State of Delhi Vs.Ram Avtar alias Rama, (2011) 12 SCC 207

# 3. Myla Venkateswarlu Vs. State of Andhra Pradesh, (2012) 5 SCC 226

# 4. Vijaysinh Chandubha Jadeja Vs. State of Gujrat, (2011) 1 SCC 609

# 5. State of Orissa Vs. Sitansu Sekhar Kanungo, JT 2002 (8) SC 292

# 6. Kamlesh Rai Vs. State of U.P., 2001 (1) A.Cr.R. 21

# 7. Shyam Babu Vishwakarma @ Ram Babu @ Shyam Babu Vs. State of U.P., 2012 (1) ACR 620

# 8. Pandav Sarkar Vs. State of U.P., 2012 (1) ACR 1122

It is not necessary to go through all the judgments that are being produced in support of the submission regarding compliance of Section 50 of the N.D.P.S. Act by the learned counsel because it is settled principle that compliance of Section 50 of N.D.P.S. Act is mandatory and arresting officer is legally obliged to inform suspected of his rights under Section 50 of the N.D.P.S. Act to be searched before a Magistrate/Gazetted Officer and non compliance of said mandatory provision, vitiates all solemn proceeding initiated against accused and entitles him acquittal. Hon’ble Apex Court in the case of Ashok Kumar (supra) observed as follows:

“This Court in Vijaysinh Chandubha Jadeja (supra) answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate. This Court also held that it is mandatory on the part of the authorized officer to make the accused aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer concerned, an obligation is cast on him under Section 50 of the NDPS Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate.”

Learned AGA combated the argument of the learned counsel for the appellant on two counts, firstly that there was compliance of Section 50 of the N.D.P.S. Act because accused was given option to be searched before a Magistrate or Gazetted Officer and accused did not opt for that then his search was taken. The option given to the accused was written one and accused himself denied his right by saying that he would not go to Magistrate for search. This paper is Exhibit K-1 and secondly it is argued by learned AGA that Section 50 of the Act is not applicable in this case. For ready reference, Section 50 of the N.D.P.S. Act is reproduced below:-

# Section 50. Conditions under which search of persons shall be conducted

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974)

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]”

Under Section 50 of the Act a person can be taken to Magistrate/Gazetted Officer if conditions mentioned in Section 42 or Section 43 of the Act is fulfilled which runs as follows:-

# Section 42. Power of entry, search, seizure and arrest without warrant or authorisation

(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 intellegence or any other department of the Central Government including para-military forces or armed forces 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, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

# Section 43. Power of seizure and arrest in public place.

Any officer of any of the departments mentioned in section 42 may

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation. – For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.”

From the bare reading of Section 42, it can be said that this section only applicable when any police personnel or official is acting on the prior information either personal or given by any other person that psychotropic substance may be recovered from accused/suspected. In this case, there was no prior information with the police personnel that the accused was having any psychotropic substance rather they were patrolling on the platform and after suspecting accused, arrested him, therefore, Section 50 of the N.D.P.S. Act is not applicable in the case in hand. Secondly, accused was given option for being searched before a Magistrate or Gazetted Officer and this option was to him in writing but he did not avail that and when accused did not choose to exercise his right then he was searched by the officer and in that case it cannot be said that there was any violation of Section 50 of the N.D.P.S. Act.

The contention of the learned counsel that mere saying to the appellant that he can get himself searched before a Magistrate or a Gazetted Officer is not sufficient rather he should have been apprised the exact right as has been held by Apex Court in above referred laws but contention is having little force as witness PW-2 in very clear terms stated that accused was apprised that search might be done before a Magistrate/Gazetted Officer that too in writing but accused did not avail that. In the context, I am disinclined in accepting the contention of the learned counsel regarding non compliance of the Section 50 of the N.D.P.S. Act.

There is no provision regarding taking of sample at the time of seizure more particularly in the cases where recovered item is of small in quantity like 150 gm. Similarly, taking signature of the accused on the sealed item is also not mandatory and weighing by measurement is also not mandatory and if measurement is written on the basis of guess then it cannot be said that any irregularity or illegality has been committed although in the case of

# Suresh Vs. State of M.P., 1997 Cr.L.J. 4210

Madhya Pradesh High Court has laid down various measures that ought to be taken during the search and recovery of any contraband so as to rule out any false implication but those principles laid down by Madhya Pradesh High Court, more advisory in nature rather mandatory.

Hon’ble Apex Court in the case of State of Orissa Vs. Sitansu Sekhar Kanungo (supra) has observed that non-production of the malkhana register have given a fatality to the prosecution case but the facts of that case were different and in that case several defects were there regarding sending of seized item to the chemical laboratory and in that case witnesses did not state that recovered articles were deposited in the malkhana at the concerned police station and in that context Hon’ble Apex Court found that non-production of malkhana register was one of the vital missing links but a little difference in facts can make wide difference in the result and that is the case in hand. In this case witnesses in clear terms stated that recovered article was deposited in the police station as stated in clear term by PW-3 Narendra Singh. It is further stated by Investigating Officer PW-4 S.I. B.P. Rakesh that recovered article was sent to the chemical laboratory and as per laboratory report Exhibit K-7, sealed item was found intact and the sample seal was also received and seal was not tampered.

All the safeguards that are to be taken is regarding safe custody of seized item and it is to be seen whether there was any chance of tampering and it is also to be seen whether the same recovered and sealed item reached to the chemical laboratory and in this particular case, I do not find any such infirmity.

It is already stated above that incident is of midnight of 1st January, there was extreme cold and it was secluded place and at that time nobody was there to be taken as a witness and in the circumstances if no witnesses were found and taken then this fact cannot be taken as fatal for the prosecution.

So far as the fact that police personnel did not search each other prior to search of the accused/appellant and in this regard witnesses stated that arrest and recovery was spontaneous and there was no time for giving search of each other and in the circumstances I find that the observation of another bench of this court in the case of Kamlesh Rai Vs. State of U.P. (supra) cannot of any help to the appellant. Had have been prior information regarding suspected recovery and even then search of each other by personal not taken, it could have fatal.

Another bench of this court in case of Shyam Babu Vishwakarma (supra) and in the case of Pandav Sarkar (supra) has discussed the matter regarding the questions that are required to be put to the accused in his examination under Section 313 Cr.P.C. and held that if all the incriminating facts are not being put to the accused in that statement then it will be deemed that prosecution failed to anoint appellant’s surety successfully. Hon’ble Mr. Justice Vinod Prasad in the above cases based its decisions on various laws of Hon’ble Apex Court and few of them needs to be incorporated.

In

# State of Punjab versus Hari Singh, AIR 2010 SC 1966

it has been held by the apex court as under:-

“When the accused was examined under Section 313 Cr. P.C., the essence of accusation was not brought to his notice, more particularly, that possession aspect, as was observed by this Court in

# Avtar Singh and Ors. v. State of Punjab (2002 (7) SCC 419).

The effect of such omission vitally affects the prosecution case.”

In

# Ganesh Gogoi versus State of Asaam, AIR 2009 SC 2955

it has been held by the apex court as under:-

“It does not appear that any witness has deposed that the appellant is a member of ULFA. Therefore, it is a very unfair question. The Court has allegedly convicted the appellant under Section 3(2)(i) but the ingredients of the Section 3(2)(i) were not been put to him. Therefore, there has not been a fair examination under Section 313 of the Cr.P.C. at all. The provisions of Section 313 are for the benefit of the accused and are there to give the accused an opportunity to explain the “circumstances appearing in the evidence against him”.

In

# Basavaraj R. Patil and others v. State of Karnataka and others – (2000) 8 SCC 740

this Court held that those provisions are not meant to nail the accused to his disadvantage but are meant for his benefit. These provisions are based on the salutary principles of natural justice and the maxim ‘audi alteram partem’ has been enshrined in them. Therefore, the examination under Section 313 has to be of utmost fairness. But that has not been done here. This is also a factor vitiating the trial.”

On the basis of that Court observed as under:

“Another disturbing feature of prosecution case is that report by Forensic Science Laboratory was never put to the appellant in his examination U/S 313 Cr.P.C. This is a grave lapse on the part of the prosecution. Without putting contents of the report to the appellant, it could not have been used against him. Trial Judge had also not considered this important aspect of the case. It is trite law that incriminating evidence not put to the accused cannot be utilised against him to fasten the guilt. If trial Judge wanted to rely upon report by Forensic Science Laboratory, it should have afforded an opportunity to the appellant in statement under Section 313 Cr.P.C. to rebut. That having not been done, it is too late in the day to rectify that mistake. In this respect, I am of the view that prejudice certainly has been caused to the appellant has his defence is that of total denial. If report had been put to the appellant, he would have offered an explanation of sample not being of that article which the prosecution alleged to have recovered from his possession especially looking to the fact that quantity alleged to have been drawn as sample was added by twice when seal was opened in Forensic Science Laboratory. Trial Judge, therefore, wrongly relied upon Forensic Science Laboratory report. Since 313 Cr.P.C. statement is being considered, I may point out that other questions also framed by trial Judge were not in conformity with law. Regarding evidence of fact witnesses only this much was asked that accused-appellant had heard depositions of those witnesses and what he had to say about it. Besides this, there are mentions of various exhibits. Every question is lengthy and in fact is no questioning of the accused regarding incriminating circumstances. Every incriminating circumstances appearing against the accused in the statement of the prosecution witnesses has to be put separately one by one and accused has to be given an opportunity to accept or negate the same. That having not been done, statement of the accused under Section 313 Cr.P.C. is very unsatisfactory. Hon’ble Apex Court has time and again held that non-compliance with provisions of Section 313 Cr.P.C. in tune with its legislative intent will be sufficient to abjure conviction of the accused.”

In the statement under Section 313 Cr.P.C. accused not put question regarding chemical laboratory report but from the facts it is clear that all along the trial he was aware of this report. Questions regarding this report is also put to the witnesses and PW-1 in reply to question stated that seized articles were sent for chemical examination on 27.1.2006 and were received on 28.1.2006 and the Ex- 7 corroborates that seized item was received on 28.1.2006 for examination. Therefore, this is to be seen as to how far accused appellant was affected by non putting this question or what prejudice is caused to him. Chemical laboratory report is one of the prime evidence against the accused in NDPS cases and without this report offences cannot be proved and if this report is lacking or report is against the prosecution then prosecution could not be allowed to prosecute. In the circumstances, it can be inferred that appellant was all along aware of this report and no prejudice or disadvantage has been caused to him by not putting this question to the appellant in the statement under Section 313 Cr.P.C.

Hon’ble Apex Court in

# Sanichar Sahni Vs. The State of Bihar, 2009 (7) SCC 198

has observed that on the basis of mere technicalities conviction cannot be reversed while discussing the matter regarding the framing of the charges. It is observed by the apex court that it is to be seen whether that has caused real prejudice to the accused and that he was not informed as to what was the real case against him and that he could not defend himself properly no interference is required. Hon’ble Apex Court observed as follows:

“In the instant case learned counsel for the appellant, Mr. Sahay could not point out as to what prejudice has been caused to the appellant. Charge has been framed against the appellant under Section 120-B IPC. He never raised any grievance against the same at the time of framing of the charge or during the course of the trial or by filing any petition for quashing the charge. The issue was not agitated before the High Court also. On this very issue of conspiracy, the prosecution led evidence of impeccable character of two witnesses, namely, Ashok Paswan PW.2 and Ashok Kumar Verma PW.5. The appellant was given full opportunity to defend himself only on this very point of conspiracy as there was no other allegation against him. He was asked specific question by the trial court on the point of conspiracy while recording his statement under Section 313Cr.P.C. Therefore, it cannot be held even by any stretch of imagination that any prejudice has been caused to the appellant on this very issue.”

A similar view has been reiterated in

# Abdul Sayeed Vs. State of M.P., 2010 (10) SCC 259

As narrated above by not putting the above referred question to the appellant in the statement under Section 313 Cr.P.C., no prejudice is being caused and on mere technicality conviction made cannot be interfered.

Before parting it can be observed that during trial appellant failed to explain his presence on the railway station although one of the suggestions of the appellant to the witnesses was that he was vendor at the railway station and due to some money dispute he was falsely implicated but that fact has not been corroborated by any cogent evidence rather this fact was not at all narrated by the appellant in the statement under Section 313 Cr.P.C. There was no reason for false implication of the appellant. Learned trial court did not accept the explanation given by the accused. Incident took place in the district Orai whereas the appellant is resident of District Kanpur Dehat far away from the place of incident. Seeing the circumstances it was incumbent upon the appellant to explain his presence his false implication. Although this is not precondition for conviction of the appellant but once prosecution established its case against the appellant then certain explanations were required from the appellant.

The prosecution has successfully proved his case beyond reasonable doubt that psychotropic substance was recovered from the possession of the appellant.

The appeal lacks merit and is liable to be dismissed. It is accordingly dismissed.

Sri Ashutosh Yadav, learned Amicus Curiae shall be paid Rs. 10,000/- within a month for assisting the Court.

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