ARIF KHAN @ AGHA KHAN versus STATE OF UTTARAKHAND on 27 April 2018

ARIF KHAN @ AGHA KHAN

v.

STATE OF UTTARAKHAND

(Criminal Appeal No. 273 of 2007)

APRIL 27, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –ss.20 and 50 – Non-compliance of s.50 – Prosecution case thatPolice raided appellant-accused and on search found contrabandarticle “Charas” weighing around 2.5 Kg in quantity from his body– Trial Court convicted u/s. 20 of the NDPS Act – Convictionconfirmed by the High Court – Appellant-accused contended thatthe prosecution failed to ensure mandatory compliance of s.50 ofthe NDPS Act – Held: In order to make the search and recovery ofthe contraband articles from the body of the suspect, the searchand recovery has to be in conformity with the mandatoryrequirements of s.50 of the Act – In instant case, appellant was notproduced before any Magistrate or Gazetted Officer as envisagedin s.50 – Thus, prosecution was not able to prove that search andrecovery of the contraband made from the appellant was inaccordance with the procedure prescribed u/s.50 of the NDPS Act– Therefore, the appellant entitled to claim its benefit to seek hisacquittal.

Allowing the appeal, the Court

HELD: 1. In order to make the search and recovery of thecontraband articles from the body of the suspect, the search andrecovery has to be in conformity with the requirements of Section50 of the Narcotic Drugs and Psychotropic Substances Act, 1985Act. It is, therefore, mandatory for the prosecution to prove thatthe search and recovery was made from the appellant in thepresence of a Magistrate or a Gazetted Officer. Though, theprosecution examined as many as five police officials (PW-1 toPW-5) of the raiding police party but none of them deposed thatthe search/recovery was made in presence of any Magistrate ora Gazetted Officer. [Paras 28 and 29] [793-E-F]

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A2. The prosecution was not able to prove that thesearch and recovery of the contraband (Charas) made from theappellant was in accordance with the procedure prescribed underSection 50 of the NDPS Act. Since the non-compliance of themandatory procedure prescribed under Section 50 of the NDPSAct is fatal to the prosecution case and, in instant case, theBprosecution has failed to prove the compliance as required inlaw, the appellant is entitled to claim its benefit to seek his acquittal.[Para 30] [793-G-H; 794-A]

Vijaysinh Chandubha Jadeja v. State of GujaratC(2011) 1 SCC 609 : [2010] 13 SCR 255 – relied on.

State of Punjab v. Baldev Singh (1999) 6 SCC 172 :[1999] 3 SCR 977 ; Ashok Kumar Sharma v. State ofRajasthan (2013) 2 SCC 67 : [2013] 1 SCR 236 ;Narcotics Control Bureau v. Sukh Dev Raj SodhiD(2011) 6 SCC 392 : [2011] 6 SCR 974 - referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealFNo. 273 of 2007.

From the Judgment and Order dated 26.06.2006 of the High Courtof Uttaranchal at Nainital in Criminal Appeal No. 368 of 2004.

J.C.Gupta, Sr. Adv., Anurag Tomar, Vikrant Singh Bais,GRameshwar Prasad Goyal, Advs. for the Appellant.

Ashutosh Kumar Sharma, Jatinder Kumar Bhatia, Advs. for theRespondent.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by theaccused against the final judgment and order dated 26.06.2006 passedby the High Court of Uttaranchal at Nainital in Criminal Appeal No.368of 2004 whereby the High Court confirmed the judgment and order dated09.11.2004 passed by the Additional Sessions Judge, Fast Track CourtII, Udham Singh Nagar in Special Sessions Trial No.20 of 2003 by whichthe appellant-accused was convicted for the offence punishable underSection 20 of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as “the NDPS Act”) and sentenced him toundergo rigorous imprisonment for 10 years and a fine of Rs.1,00,000/-.

2. In order to appreciate the issue involved in the appeal, fewfacts need to be mentioned hereinbelow.

3. In short, the case of the prosecution is as under:

4. On 23.11.2002, a secret information was received in P.S. Kichhafrom one unknown informant that one person is travelling in a roadwaysbus carrying with him some contraband articles. The secret informantalso gave information that the person concerned would get down nearthe railway crossing from the Bus and would approach towards a placecalled “Chowki Pul Bhatta” along with contraband article.

5. The raiding party headed by SHO-Harish Mehra, who was onduty at P.S. Kichha along with the police officials on duty accordinglyleft for the place informed by the informant.

6. On reaching the informed place, the raiding party waited forsometime and thereafter spotted the person concerned, who wasapproaching towards the place informed to them. The raiding partyintercepted the person concerned.

7. Thereafter, the accused was asked by the police personnel ofraiding party as to whether he is in possession of contraband “Charas”.The accused admitted that he is in possession of “Charas”. Onapprehending the accused, he was informed by the police personnel thathe has a legal right to be searched in the presence of a Gazetted Officeror a Magistrate to which the accused replied that he has a faith on theraiding police party and consented to be searched by them.

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A8. The raiding police party accordingly obtained his consent inwriting to be searched by the raiding police party. The raiding policeparty then searched the accused which resulted in seizure of “Charas”weighing around 2.5 K.G. in quantity from his body.

9. It is this incident, which gave rise to prosecution of the appellantB(accused) for commission of the offence punishable under Section 20 ofthe NDPS Act in Special Sessions Trial No.20/2003. After investigation,the prosecution filed the charge sheet (Ex- 11) against the appellant andexamined 5 witnesses to bring home the charge levelled against theappellant.

C10. By order dated 09.11.2004, the Additional Sessions Judge/Fast Track Court II, Udham Singh Nagar held that the prosecution wasable to prove the case beyond reasonable doubt against the appellantand accordingly convicted him for the offences punishable under Section20 of the NDPS Act and sentenced him to undergo rigorous imprisonmentfor 10 years and a fine of Rs.1,00,000/-.D

11. The accused felt aggrieved and filed appeal in the High Courtat Nainital. By impugned judgment, the High Court dismissed the appealand upheld the order of Additional Sessions Judge, which has given riseto filing of the present appeal by the accused by way of special leave inthis Court.E

12. Heard Mr. J.C. Gupta, learned senior counsel for the appellant(accused) and Mr. Ashutosh Kumar Sharma, learned counsel for therespondent-State.

13. Learned counsel for the appellant (accused) while assailingthe legality and correctness of the impugned judgment contended thatFboth the Courts below erred in holding the appellant guilty of commissionof the offence in question and thus erred in convicting him for the allegedoffence under the NDPS Act.

14. Learned counsel contended that the prosecution has failed toensure mandatory compliance of Section 50 of the NDPS Act inasmuchGas the alleged recovery/search of the contraband (Charas) made by theraiding police party from the appellant’s body was not done in accordancewith the procedure prescribed under Section 50 of the NDPS Act whichaccording to learned counsel is mandatory as held by this Court in thecase of Vijaysinh Chandubha Jadeja vs. State of Gujarat, 2011(1)HSCC 609.

15. Learned counsel urged that the search/recovery of the allegedcontraband from the appellant ought to have been made only in thepresence of either a Magistrate or a Gazetted Officer only.

16. It was urged that since admittedly the prosecution did notmake the search/recovery from the appellant in the presence of aMagistrate or a Gazetted Officer and, therefore, the alleged recovery ofthe contraband “Charas” from the appellant is rendered illegal being incontravention of requirements of Section 50 of the NDPS Act therebyentitling the appellant for an acquittal from the charges.

17. In reply, learned counsel appearing for the respondent (State)supported the reasoning and conclusion arrived at in the impugnedjudgment and, therefore, prayed for upholding of the impugned judgment.

18. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal and whilesetting aside of the impugned judgment acquit the appellant from thecharges in question.

19. The short question which arises for consideration in the appealis whether the search/recovery made by the police officials from theappellant (accused) of the alleged contraband (charas) can be held to bein accordance with the procedure prescribed under Section 50 of theNDPS Act.

20. In other words, the question that arises for consideration inthis appeal is whether the prosecution was able to prove that theprocedure prescribed under Section 50 of the NDPS Act was followedby the Police Officials in letter and spirit while making the search andrecovery of the contraband “Charas” from the appellant (accused).

21. What is the true scope and object of Section 50 of the NDPSAct, what are the duties, obligation and the powers conferred on theauthorities under Section 50 and whether the compliance of requirementsof Section 50 are mandatory or directory, remains no more res integraand are now settled by the two decisions of the Constitution Bench ofthis Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 andVijaysinh Chandubha Jadeja (supra).

22. Indeed, the latter Constitution Bench decision rendered in thecase of Vijaysinh Chandubha Jadeja (supra) has settled theaforementioned questions after taking into considerations all previouscase law on the subject.

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A23. Their Lordships have held in Vijaysinh Chandubha Jadeja(supra) that the requirements of Section 50 of the NDPS Act aremandatory and, therefore, the provisions of Section 50 must be strictlycomplied with. It is held that it is imperative on the part of the PoliceOfficer to apprise the person intended to be searched of his right underSection 50 to be searched only before a Gazetted officer or a Magistrate.BIt is held that it is equally mandatory on the part of the authorized officerto make the suspect aware of the existence of his right to be searchedbefore a Gazetted Officer or a Magistrate, if so required by him and thisrequires a strict compliance. It is ruled that the suspect person may ormay not choose to exercise the right provided to him under Section 50 ofCthe NDPS Act but so far as the officer is concerned, an obligation iscast upon him under Section 50 of the NDPS Act to apprise the suspectof his right to be searched before a Gazetted Officer or a Magistrate.(See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2)SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi,2011 (6) SCC 392)D

24. Keeping in view the aforementioned principle of law laid downby this Court, we have to examine the question arising in this case as towhether the prosecution followed the mandatory procedure prescribedunder Section 50 of the NDPS Act while making search and recoveryof the contraband “Charas” from the appellant and, if so, whether it wasEdone in the presence of a Magistrate or a Gazetted Officer so as tomake the search and recovery of contraband “Charas” from the appellantin conformity with the requirements of Section 50.

25. In our considered view, the evidence adduced by theprosecution neither suggested and nor proved that the search and theFrecovery was made from the appellant in the presence of either aMagistrate or a Gazetted Officer.

26. It is the case of the prosecution and which found acceptanceby the two Courts below that since the appellant (accused) was apprisedof his right to be searched in the presence of either a Magistrate or aGGazetted Officer but despite telling him about his legal right available tohim under Section 50 in relation to the search, the appellant (accused)gave his consent in writing to be searched by the police officials (raidingparty), the two Courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant wasliable to be convicted for the offence punishable under the NDPS Act.

27. We do not agree to this finding of the two Courts below as, inour opinion, a search and recovery made from the appellant of the allegedcontraband “Charas” does not satisfy the mandatory requirements ofSection 50 as held by this Court in the case of Vijaysinh ChandubhaJadeja (supra). This we say for the following reasons.

28. First, it is an admitted fact emerging from the record of thecase that the appellant was not produced before any Magistrate orGazetted Officer; Second, it is also an admitted fact that due to theaforementioned first reason, the search and recovery of the contraband“Charas” was not made from the appellant in the presence of anyMagistrate or Gazetted Officer; Third, it is also an admitted fact thatnone of the police officials of the raiding party, who recovered thecontraband “Charas” from him, was the Gazetted Officer and nor theycould be and, therefore, they were not empowered to make search andrecovery from the appellant of the contraband “Charas” as providedunder Section 50 of the NDPS Act except in the presence of either aMagistrate or a Gazetted Officer; Fourth, in order to make the searchand recovery of the contraband articles from the body of the suspect,the search and recovery has to be in conformity with the requirementsof Section 50 of the NDPS Act. It is, therefore, mandatory for theprosecution to prove that the search and recovery was made from theappellant in the presence of a Magistrate or a Gazetted Officer.

29. Though, the prosecution examined as many as five policeofficials (PW-1 to PW-5) of the raiding police party but none of themdeposed that the search/recovery was made in presence of anyMagistrate or a Gazetted Officer.

30. For the aforementioned reasons, we are of the consideredopinion that the prosecution was not able to prove that the search andrecovery of the contraband (Charas) made from the appellant was inaccordance with the procedure prescribed under Section 50 of the NDPSAct. Since the non-compliance of the mandatory procedure prescribedunder Section 50 of the NDPS Act is fatal to the prosecution case and,in this case, we have found that the prosecution has failed to prove the AB

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Acompliance as required in law, the appellant is entitled to claim its benefitto seek his acquittal.

31. In the light of the foregoing discussion, the appeal succeedsand is allowed. Impugned judgment is set aside. As a consequence thereof,the appellant’s conviction is set aside and he is acquitted of the chargesBin question.

Ankit Gyan

Appeal allowed.

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