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JAMIL versus STATE OF U.P.

High Court of Judicature at Allahabad

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Jamil v. State of U.P. - CRIMINAL APPEAL No. 2930 of 2001 [2005] RD-AH 1885 (10 August 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

This appeal arises out of the judgment and order of conviction dated 28.2.2004 passed by Special Judge, Allahabad, convicting the appellant for the offence punishable under Section 22 of the Narcotic Drugs and Psychotic Substance Act (hereinafter referred to as N.D.P.S. Act) and sentencing him to rigorous imprisonment for a term of ten years and also to pay a fine of Rs. One Lac.

2. The appellant is said to have been found in possession of  contraband, 950 tablets of Dizapam. The search party had received information while on patrol duty on 18.12.1997 through an informer that the accused was carrying contraband drug and if steps are taken quickly, recovery can be affected. C.W.  1 Padmakar Rai Incharge of Surajkund Police Outpost under Allahabad Kotwali along with other subordinate staff including P.W.1 constable Kamlesh Babu Mishra proceeded for the spot and on arrival the informer indicated towards the appellant who noticed the presence of the police party and tried to escape, but P.W.1 warned him to stop at which he started running away, but after a chase of 20-30 paces he was apprehended at 11 P.M. He disclosed his name as Jamil and when the suspicion of the raiding party was disclosed to him he admitted of carrying contraband tablets. He was given option for his search to be taken before a Gazetted Officer to which he declined and agreed for his search being taken by the Seizure Officer Padmakar Rai himself. On search being taken 950 tables of Dizapam in a plastic container on which its description of contraband was given. C.W.1 got the contraband sealed on the spot and prepared the recovery memo (Ext.Ka-1). The recovered contraband and the accused were brought to the police station where the case was registered under Section 22 of the N.D.P.S. Act.

3. The investigation was started and the sample of contraband was sent for chemical examination to the Laboratory at Lucknow. Vide the report of the Chemical Analyst (Ext. Ka-5) the seized article was found to be Dizapam. The Investigating Officer (C.W.2) recorded the statements of the witnesses and inspected the spot of recovery and prepared the site-plan and after obtaining the report of the Chemical Analyst (Ext. Ka-5) he submitted charge-sheet in this case.

4. The accused before the trial court was charged for the offence punishable under Section 22 of the N.D.P.S. Act to which he pleaded not guilty and claimed to be tried. The appellant further stated before the court under Section 313 Cr.P.C. that he was falsely roped in this case because of some dispute which had taken place between him and the police people at the Zero Road Bus Station, Allahabad.

5. The prosecution in the present case has examined constable Kamlesh Babu (P.W.1), who was a member of such police party. It appears that the evidence was closed and later on the court, at its instance, summoned the Recovery Officer, S.I. Padmakar Rai and examined him as C.W.1 and the Investigating Officer of this case Rajesh Srivastava as C.W.2. The prosecution has also proved the documents Exts. Ka-1 to Ka-6).

6. The defence in this case has not led any evidence oral or documentary.

7. The trial court after having considered the entire material and the evidence led before it and also on hearing the parties found that the prosecution had succeeded to prove the guilt  for the offence punishable under Section 22 of the N.D.P.S. Act against the appellant and passed the impugned judgment convicting the accused and imposing the aforesaid sentence upon him.

8. I have heard Sri B.S. Shrinet and also Sri Shishir Tandon, Amicus Curiae, appointed in this case for the accused-appellant and the learned A.G.A. and have gone through the paper book and entire record of this case.

9. The Amicus Curiae, Sri Tandon, while placing submissions on behalf of the appellant has submitted that from the very inception of recovery of contraband in this case material legal infirmities are noticed and this recovery cannot be taken to be such which could lead to record conviction of the appellant and sentence him to such severe punishment as awarded in this case. The recovery memo (Ext. Ka-1) states that after the arrest of appellant the Seizure Officer Padmakar Rai (C.W.1) did not care to make full compliance of the obligations imposed upon a Seizure Officer by Section 50 of the N.D.P.S. Act, rather he has made only partial compliance in that regard while placing the option before the accused for his search to be taken before a Magistrate. The option which was given to him as per the recovery memo was only that of the search might be taken before a Gazetted Officer and the option of search to be taken before a Magistrate was not given. Section 50 of the N.D.P.S. Act requires the Seizure Officer to appraise the person to be searched about exercise of his right for search being taken before a Gazetted Officer or a Magistrate. The mere option given for his search be taken before a Gazetted Officer will never be treated as a full compliance and in that view of the matter the recovery has become illegal and vitiated under law. The learned Amicus Curiae further argued that in the present case several link evidence required for proving the case are missing and there is no compliance of the provisions of Section 55 of the N.D.P.S. Act. He has submitted that the prosecution has not proved on record as to how and in what manner the sample of the recovered contraband was taken to the Chemical Analyst for analysis in the Laboratory at Lucknow. The report of the Analyst (Ext. Ka-5) shows that the sample which was received by him had a seal of D.J. (District Judge), Allahabad. This statement in the report indicates to the fact that some sample from out of the total stock of contraband, was prepared before the D.J., Allahabad, but how and when the sealed contraband was taken from the police station to the court of District Judge for such preparation of sample, is not proved at all.

10. The learned Amicus Curiae has further submitted that there is no compliance of the provisions of Section 57 of the Act. Good number of tablets of contraband drug (Dizapam) is claimed to have been recovered from the possession of the appellant, but the prosecution has not proved from the record that after this recovery of contraband, when Seizure Officer Padmakar Rai (C.W.1) came to the police station, he made a detailed report of this fact to his immediate official superior as provided under Section 57 of the N.D.P.S. Act. The learned counsel has relied on case law of  Ravi @ Nitu Vs. State of U.P., 2005 (52) ACC 667; State of Rajasthan Vs. Gurmail Singh, 2005 (2) ACR 1133 (SC) and Dev Prakash @ Jhallu Mali Vs. State of U.P., 2003 (46) ACC 832.

11. From out of the aforesaid points of arguments raised before me I shall take up one by one and in the first place I find that the recovery memo (Ext. Ka-1) states that after the arrest of appellant, he was  given option by C.W.1, the Seizure Officer, for his search which could be taken before a Gazetted officer. The requirement of Section 50 of the N.D.P.S. Act are obvious in the very words of that statutory provisions which is reproduced below:

"S. 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 41, section 42 or section 43, he shall if such person  so 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.

(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 a seventy-two hours send a copy thereof to his immediate official superior."

12. The learned Amicus Curiae, relying on the case law of State of Punjab Vs. Baldev Singh, 1999 (38) ACC 349 Supreme Court, has tried to stress that such incomplete compliance of the mandatory requirement of Section 50 renders the whole recovery as vitiated and illegal. The view is settled now that partial compliance of the aforesaid provision of statute is not going to help the prosecution at all and in such partial compliance of the legal mandate, the recovery and the whole subsequent procedure adopted in the matter stand vitiated. The consequent trial and conviction recorded by the court are also held as unsustainable in law. The Seizure Officer Padmakar Rai (C.W.1) in his examination-in-chief before the trial court has stated that before search of the appellant was taken he gave option to him for his search to be taken before a Gazetted Officer or a Magistrate, but this statement of the witness does not get corroboration from the recovery memo which he had himself prepared at the time of seizure. Therefore, this oral evidence is not going to be taken as correct and wholly reliable. In my recently delivered judgment dated 01.8.2005 in the case of Government Appeal No. 2180 of 1999, State Vs. Om Prakash I have already observed that non-compliance of this mandatory requirement as stipulated in Section 50 of the Act even to the least extent renders the whole recovery as illegal and vitiated under law. Such seizure cannot lead to the conviction of an accused to heavy punishable as have been provided under the N.D.P.S. Act. In the case of  State of Punjab Vs. Baldev Singh (Supra), the Apex Court has laid down guidelines for the courts in such cases where lapses of the mandatory provisions have been made by the Seizure Officer and this error on the part of said officer should not be treated lightly or as a procedural error only.  This is a serious lapse which is unpardonable in law.

13 As regards the link evidence required to be given in such cases and as enumerated in Section 55 of the N.D.P.S. Act the failure of prosecution to lead such evidence before the trial court renders its claim about the whole preservation of the alleged recovered contraband and its subsequent transmission from the place of preservation to the laboratory for chemical analysis as wholly doubtful. Seizure of the contraband is dated 18.12.1997 whereas the sample vide Ext. Ka-5 has been received in the laboratory at Lucknow on 5.2.1998. That shows that the sample of the contraband was sent for analysis after about one and  half months of the seizure. It is fairly long duration during which the contraband had been preserved by the police in Malkhana. It is further found from the aforesaid report of the Chemical Analyst (Ext. Ka-5) that the sample which was received there in the laboratory has a seal of D.J., Allahabad. That indicates to the fact that the sample was prepared in the court of the  District Judge. There is no specific reference of the preparation of the sample on the spot itself. The sample with seal of D.J., Allahabad was, thus, obviously prepared in the court of District Judge, Allahabad. There is no evidence on record as to how and at what time and date this contraband stock was taken to the court of District Judge for preparation of sample which was subsequently sent for chemical examination to the Laboratory of Lucknow. The whole stock in this case when was not sent for chemical analysis, it was incumbent upon the prosecution to lead evidence of the fact as to who and when took the contraband to the court of District Judge, Allahabad for preparation of sample. It was further necessary for the prosecution to lead evidence to the effect as to who and when took this sample from the District Judge's Court to the Laboratory at Lucknow for chemical analysis, but to my great surprise there is no such evidence made available on record by the prosecution. In absence of these link evidence, it cannot be safely held that after the recovery of the alleged contraband drug it was properly preserved and kept in safe custody till it was taken for preparation of sample to the District Judge's Court and also therefrom to the Laboratory of Chemical Analyst at Lucknow. It is not certain from the evidence as to which article was received for analysis in the Laboratory at Lucknow. The absence of such evidence is something very xerious lapse on thej part of prosecution, rather it fatally damages its case and it is not believable that the same article which was seized from the appellant-accused was chemically analysed  for the alalyst's report (Ext. Ka-5).

14. In the third place it is obvious that there is no evidence on record regarding the compliance of the provisions of Section 57 of the N.D.P.S. Act. For reference the provision is reproduced below:

"S. 57 - Report of arrest and seizure. - Whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest of seizure to his immediate official superior."

15. The aforesaid provision requires that the Seizure Officer after effecting the arrest and seizure of the contraband shall within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest and seizure to his immediate official superior. In this case the evidence of Seizure Officer Padmakar Rai (C.W.1) as given before the trial court is completely silent and he does not state that he made any report, whatsoever, about this seizure and arrest to any official superior to him. Such sort of procedural error on the part of the Seizure Officer has been held to be something which might also prejudice the accused and in that case it proves fatal to the frame of the prosecution case. In this context reliance is placed upon a recently pronounced judgment of mine in Criminal Jail Appeal        No. 3652 of 2002 dated 21.7.2005. The following paragraph of the judgment is extracted as below:

"Hon'ble Apex Court in the case of Thandi Ram Vs. State of Haryana, 2000 S.C.C. (Cri.) 189, relying upon the aforesaid case of State of Punjab (supra), has found that in view of non compliance of the aforesaid Section 57 of the Act, the conviction recorded is bad in law. The Bombay High Court in case of Gangaram Rama Gundkar and another Vs. State of Maharashtr, 2002 Cri. L.J. 2578, has held that in order to give the proof about sending of report, as required under Section 42 (2) of the Act, the prosecution has to produce that report before the trial court and prove it and it has also to produce the evidence to the effect that the said report had actually reached the immediate official superior. In relation to Section 57 of the Act in the aforesaid judgment of Gangaram Rama Gundkar (supra), the court has further observed that by not submitting the full report, the accused appellant was deprived of testing the truthfulness of the evidence of arresting officer with reference to the report contemplated under the aforesaid Section 57 of the Act and to that extent, the appellant accused was prejudiced in making his defence."

16. In the present case the Seizure Officer Padmakar Rai (C.W.1) is completely silent on the point with regard to a report which was required to be sent by him under Section 57 of the N.D.:P.S. Act. The prosecution has totally ignored the compliance to this procedural requirement as has to be adopted by it under the aforesaid provision of the statute. Actually Section 57 of the Act contemplates sending of a detailed report in writing by the Seizure Officer giving all particulars of arrest and seizure, to his immediate official superior. The objective of introduction of this provision of the statute is quite obvious. This N.D.P.S. Act provide severe punishment for the offences committed within its meaning. While providing severe punishment of a minimum ten years rigorous imprisonment in cases of recovery of commercial quantity of the contraband the legislature has formulated certain safeguards for testing veracity of such search and recovery. Had there been a report of the nature as contemplated under Section 57 of the N.D.P.S. Act on record, the defence would have been in a position to confront the Seizure Officer at the time of his evidence before the court from the facts as narrated in such report sent by him. In the case of State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299, the Hon'ble Apex Court has though held this procedural requirement of the Act as not mandatory and its non-compliance would create a defect which may be called a procedural irregularity yet it has been found in the said decision itself that such non-compliance may adversely affect the probative value of the evidence regarding arrest and seizure. It has also been held therein that some times it may invalidate such arrest or search and may also cause prejudice to the accused. The officers are not free to ignore  this procedural requirement which shall have adverse effect upon the prosecution case. It is in this view of the matter that the Hon'ble Supreme Court in the case of Thandi Ram Vs. State of Haryana, 2000 SCC (Crl.) 189 has found that the conviction recorded in that particular case was bad in law. The Bombay High Court in the case of  Gangaram Rama Gundkar and another Vs. State of Maharashtra, 2002 Cr.L.J. 2578 has also held that a report as required under Section 42 (2) of the N.D.P.S. Act is a necessary procedure which if not adopted meticulously it may deprive the accused of testing the truthfulness of the evidence of Arresting Officer and, thus, it may also prejudice the accused in making his defence. Therefore, in view of the aforesaid decisions when the Arresting Officer (C.W.1), in this case, has not at all cared to comply to this procedural requirement of the statute, it would not be safer to hold that the prosecution had actually succeeded to prove the guilt for the offence charged against the appellant-accused.

17. In the aforesaid view of the matter, it is more than obvious that the prosecution in this case has miserably failed to establish the guilt for the offence of recovery of contraband as against the appellant to the hilt and the trial court has materially erred in not appreciating the evidence on record in its right perspective. There is absolutely no occasion for recording this judgment of conviction and sentencing the appellant to such punishment. The judgment and order impugned, thus, cannot sustain in the eye of law and the appeal should be allowed.

18. The appeal is allowed.

19. The judgment and order of conviction and sentence dated 28.2.2004 passed by Special Judge, Allahabad are hereby set aside. The appellant-accused is acquitted for the offence punishable under Section 22 of N.D.P.S. Act. He is in jail. He shall be released forthwith, if not wanted in any other case.

20. Office is directed to send the original record along with a certified copy of this judgment to the court below for necessary compliance of this order.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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