State of U.P (now State of Uttarakhand) v. Noora

Heard learned counsel for the State/appellant, and learned counsel for the respondent, and perused the lower court record. (3) Prosecution story, in brief, is that on

23.03.1996, at about 10.00 a.m, Sub Inspector Rajendra Singh (PW2) alongwith other police personnel including PW1 Constable Praveen Kumar and Constables Mukesh Pachori, Naresh Kumar and Ravindra Rana was going on a jeep in connection with investigation of a case. When they reached near Pratikpur temple cause way, they saw a person carrying a plastic bag in his hand. Said person on seeing the jeep of police started running towards dry river bed. Suspecting fishy, the police personnel got down from the jeep and caught the person who disclosed his name as Noora, son of Bashir. They offered Noora to take their personal search and thereafter took search of the accused (Noora). The police men recovered 3 poppy straw (DODA) weighing 1.9 kg, from the bag which was being carried by the accused, and they also recovered Cannabis (CHARAS) weighing 200 gram, from the pocket of the accused. The policemen thereafter told the accused that if he wants his search may be made in the presence of the Gazetted Officer, in reply to which the accused (Noora) told the policemen that the same need not be done. Consequently, the recovery memo (Ex-A1) was prepared by Sub Inspector Rajendra Singh (PW2). On the basis of said report two separate crime numbers, Crime No. 191 of 1996 relating to offence punishable under section 8/18 of Narcotic Drugs and Psychotropic Substances Act (in respect of recovery of DODA), and Crime No. 192 of 1996 relating to offence punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances Act, (regarding recovery of CHARAS) were registered. Investigation was taken up by PW3 Sub Inspector Suresh Chandra, who interrogated the witnesses and submitted charge sheets Ex-A12 and Ex-A13 for trial of the accused Noora, in respect of offence punishable under section 8/18 and one in respect of offence punishable under section 8/20 4 of N.D.P.S. Act, respectively. Special Sessions Trial No. 18 of 1996 arose out of Crime No. 191 of 1996 and Special Sessions Trial No. 19 of 1996 arose out of Crime No. 192 of 1996. The trial court after hearing the parties framed charge of offences punishable under section 8/18 of N.D.P.S Act under section 8/20 of N.D.P.S. Act, separately against the accused to which he pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Constable 488 Praveen Kumar, PW2 Sub Inspector Rajendra Singh, PW3 Sub Inspector Suresh Chandra and PW4 O.P. Taneja (Joint Director of Forensic Laboratory). (4) The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which he alleged that evidence as false and pleaded that nothing was recovered from him. However, no evidence in defence was adduced. After recording the evidence of the parties, the trial court found that the prosecution has failed to prove compliance of section 50 of N.D.P.S. Act, as such, it was held that the accused Noora cannot be convicted either under section 8/18 or under section 8/20 of Narcotic Drugs and Psychotropic 5 Substances Act. Accordingly, the accused was acquitted of the charge. Aggrieved by said judgment and order dated 14.03.2000, passed by Learned Additional Sessions Judge (Uttarakhand cases), Dehradun, in Special Sessions Trial No. 18 of 1996, and Special Sessions Trial No. 19 of 1996, the State filed this appeal against acquittal before Allahabad High Court from where it is received by transfer under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. (5) Before further discussion, this Court thinks it just and proper to quote section 50 of Narcotic Drugs and Psychotropic Substances Act, which reads as under:- (i) “ 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. 6 (ii) 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). (iii) 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. (iv) No female shall be searched by anyone excepting a female. (v) 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). (vi) After a search is conducted under sub-section (5), the officer shall record the reasons 7 for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior ”. The language of section 50 provides that the officers authorised under section 42 of the Act to take search, shall take the person to be searched, without unnecessary delay to the nearest Gazetted Officer or detain him till the Gazetted Officer reaches to the person who is to be searched. As far as, sub-section (5) and sub-section (6) of section 50 quoted above are concerned, the same were inserted in the Act vide Act No. 9 of 2001 with effect from 02.10.2001. It is relevant to mention here that the recovery in question relates to the year 1996, i.e. much before sub-section (5) and sub-section (6) were inserted in the Act. As such, the requirement of taking the person to be searched to the Gazetted Officer or to wait for the Gazetted Officer to come to the person to be searched was mandatory in nature. (6) The trial court has quoted the statements of PW1 Constable Praveen Kumar and that of PW2 Sub Inspector Rajendra Singh, who was leader of 8 the team and both have stated that after they offered to be searched by the accused and there after they recovered the contraband item from the accused, and it appears that thereafter, they asked the accused if he wants he can be taken to the Magistrate for search. Naturally, this kind of offer made to the accused was putting cart before horse since the recovery had already been made and there was no sense in asking the accused to show an empty pocket to the Gazetted Officer. (7) In the above circumstances, this court is in agreement with the trial court that in the present case, there was no compliance of section 50 of N.D.P.S. Act, made by the officers who claim to have recovered contraband items. (8) On behalf of the State, it is argued that since the recovery of DODA was made from the plastic bag and as such, it cannot be said that it was a personal search of the respondent. However, the State has no answer as to the alleged recovery of Cannabis from the pocket of the respondent. It was necessary to comply section 50 of N.D.P.S. Act, as it existed in 1999. As the Cannabis is said 9 to have been recovered from the pocket of the accused which is nothing but the result of the personal search. After going through the principle of law laid down in T. Hamza vs. State of Kerala 2000 Supreme Court Cases (Criminal) 216, this Court agrees that said case squarely applied to the present case and the accused/respondent Noora was entitled to acquittal on the ground of non compliance of the provision of section 50 of N.D.P.S. Act, as it existed prior to 02.10.2001. (9) For the reasons as discussed above, this appeal has no force, therefore the same is dismissed. Lower court record be sent back. Dt.24.09.2012 N.P (Prafulla C. Pant, J.)