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
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:-