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2021 (1) TMI 1053
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....In-Charge of P.S. Zaidpur, District Barabanki, was returning from the office of Superintendent of Police, Barabanki and when he was on his way, received a secret information that a person carrying narcotic drugs, was likely to pass by bicycle from village Tikkra towards Lucknow. On the basis of such information, S.I. Narendra Singh Yadav (PW-4), S.I. Kripa Shankar Dixit (not examined) with S.I. Mukhram Yadav (PW-3) accompanied with Constable 194 Mahendra Prasad (not examined) and Constable 555 Kamlesh Mishra (PW-2), arrived near Chandauli culvert and took a position near the cycle shop of Mazhar. S.I. Mukhram Yadav (PW-3) was sent to village Chandauli to arrange the public witness but he returned after some time and informed that no public witness was ready to become witness against the smugglers on account of their terror. The police party waited for half an hour, meanwhile they noticed that one person was coming by cycle from village Tikkra. As the said person reached near police party at about 21:15 p.m., the police party surrounded him all of sudden and he started apologizing. When he (appellant) was asked, as to why, he was seeking apology, he disclosed that he was carrying on....
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....now, for chemical examination and after examination, a report (Ex.Ka.10) was submitted by FSL, Lucknow that said sample of contraband drug was found as heroin. P.W.5, Investigating Officer, during investigation visited the place of occurrence, prepared site plan (Ex.Ka.8), recorded the statement of witnesses and after investigation, submitted a charge-sheet (Ex.Ka.9) before the Sessions Judge, Barabanki. 5. Charges for offence Under Section 8 read with 21 of N.D.P.S. Act were framed by the trial Court and it was read over to the appellant which he denied and claimed for trial. 6. Prosecution, in order to prove its case, produced Constable Krishna Kumar Singh (PW-1), Constable Kamlesh Kumar Mishra (PW-2), S.I. Mukhram Yadav (PW-3), S.I. Narendra Singh Yadav (PW-4), S.I. Kamlesh Yadav (PW-5), wherein, PW-1 and PW-5 are witnesses of fact and rest are formal witnesses. 7. After conclusion of prosecution evidence, the statement of appellant was recorded under Section 313 of the Code, where he denied the prosecution story and stated that no recovery was made from his possession and all the documents were prepared fraudulently by police with a view to falsely implicate him. He further ....
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....Learned counsel further submitted that according to the prosecution case, the appellant was riding on bicycle, at the time of occurrence, but his bicycle was also not taken into custody by the police. Learned counsel further submitted that according to the prosecution, the morphine was recovered from his possession but in chemical examination, it was found as heroin. Learned counsel further submitted that the separation of representative sample is also defective and the statement of witnesses in this regard are not reliable. Learned counsel further submitted that neither any copy of the recovery memo was given to the appellant nor any information of his arrest was sent to his near relatives. Learned counsel further submitted that the whole prosecution story is false and concocted. The learned trial Court, without considering the evidence available on record, passed the impugned judgment and order which is against the mandatory provision of N.D.P.S. Act and is liable to be set aside. Learned counsel for the appellant has relied upon the judgment State of Rajasthan vs. Parmanand and Another (2014) 5 SCC 345. 13. Per-Contra, learned A.G.A. while vehemently opposing the submission mad....
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.... search be made. (4) No female shall be searched by anyone excepting a female. (5)................................. (6)................................ 16. The Hon'ble Supreme Court in a catena of decisions, has discussed the importance of Section 50 of NDPS Act. In State of Punjab vs. Baldev Singh AIR 1999 SC 2378, the Constitutional Bench of Supreme Court has elaborately discussed the importance and scope of mandatory provisions of Section 50 of NDPS Act as follows : "55. On the basis of the reasoning and discussion above, the following conclusions arise : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior ....
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....hat in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; ....................." (Emphasis supplied) 17. In Vijaysing Chandubha Jadeja vs. State of Gujarat, AIR 2011 SC 77 while discussing the scope of Section 50 of NDPS Act, the Constitutional Bench of Supreme Court while observing that mere informing the accused his willingn....
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.... to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well." (Emphasis supplied) 18. In Arif Khan @ Agha Khan vs. State of Uttarakhand AIR 2018 SC 2123, Hon'ble Supreme Court while discussing the importance of compliance of mandatory provision of Section 50 of N.D.P.S. Act, has held as below:- 21. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172: (AIR 1999 SC 2378) and Vijaysinh Chandubha Jade....
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.... and the appellant was personally searched, in the light of torch, by S.I. Narendra Singh Yadav (PW-4) and one kg morphine was recovered from his belly region which was concealed under lunghi-kurta, worn by him (appellant). The said contraband was kept in a milky white polythene (wax paper). S.I. Mukhram Yadav (PW-3) and S.I. Narendra Singh Yadav (PW-4), main witnesses, also stated that the said contraband was recovered from belly region of appellant, concealed by him under lunghi-kurta and before his search, the aforesaid three options were also given to him. 22. In Section 50 of the N.D.P.S. Act, only option, which is required from the accused, to be sought before the personal search of accused carrying the contraband narcotics, is as to whether, he requires his personal search to be made before any gazetted officer or before Magistrate and if such person so requires, it becomes the duty of concerned police officer to take such person without any unnecessary delay to the nearest gazetted officer or nearest Magistrate of concerned department. In this provision, the third option, as to whether, the accused wants to be personally searched before the concerned police officer himself....
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....ukhram Yadav (PW-3), Constable 194 Chandrika Prasad and Constable Kamlesh Mishra (PW-2) who have put their signatures on recovery memo (Ex.Ka.5) but the consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit does not show the signature either of S.I. Mukhram Yadav (PW-3) or Const. Chandrika Prasad or Const. Kamlesh Mishra (PW-2). 24. Mukhram Yadav (PW-3) has stated that the said consent memo (Ex.Ka.4) was prepared by S.I. Kripa Shankar Dixit which was read over to the appellant and thereafter the appellant put his thumb impression and S.I. Kripa Shankar Dixit had also put his signature. This witness has not stated that Narendra Singh Yadav (PW-4) had also put his signature on this consent memo (Ex.Ka.4), whereas, Narendra Singh Yadav has stated that on consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit, he had also put his signature. 25. Admittedly, S.I. Kripa Shankar Dixit, who was star witness of the prosecution, who prepared the consent memo (Ex.Ka.4) and recovery memo (Ex.Ka.5) and the said recovery was made in his presence has not been examined by the prosecution and the prosecution has also not given any explanation, as to why, this important witness was not....
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....se property (recovered contraband) and sample seal were produced before the C.J.M, who after separation of sample from recovered contraband got the remaining contraband material sealed; the sample seal and docket (Ex.Ka.3) were also prepared and signed by the concerned C.J.M. After preparation of docket, he deposited the sample seal along with docket to FSL, Lucknow on 2.7.1991. He further stated that the said contraband one kg morphine was recovered in his presence. Thus, according to this witness as well as PW-3 and PW-4, one kg morphine was recovered from the possession of appellant and according to PW-2, sample of said morphine was separated in presence of concerned C.J.M and also in presence of S.I. Narendra Singh Yadav (PW-4) but S.I. Narendra Singh Yadav (PW-4) has not stated in his examination that after the alleged recovery, on 1.7.1991 he had also gone with Kamlesh Kumar Mishra (PW-2) and the sample was separated before concerned C.J.M in his presence. 29. In addition to above, according to prosecution, the recovered contraband was morphine and the sample was separated therefrom. None of the witness had stated anything, anywhere regarding the quantity of sample, separate....
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....ry, the appellant was riding his cycle. In recovery memo (Ex.ka.5), it has not been mentioned whether the said cycle was also taken by the concerned police party in custody, or not. Mukhram Yadav (PW-3) has stated that at the time of occurrence, he, S.I. Kripa Shankar Dixit, Constable Chandrika Prasad and Constable Kamlesh Mishra (PW-2) were instructed by S.I. Narendra Singh Yadav (PW-4) to proceed near Majhar cycle shop situated near by Chandauli culvert and PW-4 also came there. This witness has not stated that the cycle which was ridden by the appellant, was taken into custody or whether it was brought to the concerned police station whereas Narendra Singh Yadav (PW-4) has stated that the said cycle was brought to the concerned police station. In cross-examination, he has admitted that all the police party, returned to the police station, riding on two motorcycle. Two police persons each came on one motorcycle but no police person was with this witness. He further stated that the appellant was sitting in middle of motorcycle, ridden by Kripa Shankar Dixit, and one constable was also sitting behind him (appellant). According to this witness, all the police personals including the....