Hanif v. State of U.P (Now State of Uttarakhand)

Mr. Manoj Shah, Advocate/ Amicus Curiae present for the appellant. Mr. Suhail Ahmed Siddiqui, A.G.A., present for the State. Hon’ble Prafulla C. Pant, J. Both these appeals are directed against the judgment and order dated 31.01.2000/

01.02.2000, passed by Additional Sessions Judge (Uttarakhand cases) Dehradun, in Special Sessions Trial No. 01 of 1996 and Special Sessions Trial No. 02 of 1996 whereby said court has convicted the accused/appellants Hanif and Irshad under section 8/20 of Narcotic Drugs and Psychotropic Substances, 1985, (for short NDPS Act) and sentenced each one of them to rigorous imprisonment for a period of ten years and directed to pay fine of ` one lac. In default of payment of fine the defaulter is directed to undergo rigorous imprisonment for a period of further two years. 3 (2) Heard learned Amicus Curiae for the appellants, and Learned Additional Government Advocate, for the State, and perused the lower court record. (3) Prosecution story, in brief, is that

23.11.1995, at about 2.10 p.m., within the limits of Village Kunjagrant of Police Station Vikas Nagar PW1 Sub Inspector Yogendra Kumar Sharma alongwith PW2 Head Constable Shambhu Dutt Sharma and other police personnel found two persons hiding in bushes. Prosecution case is that the police got a tip off from the informant that above mentioned accused were carrying contraband item and due to that reason they had gone to Village Kunjagrant. The police personnel caught them and asked their names, one of the two disclosed his name as Hanif, and another told his name as Irshad. . After apprehending the two accused, the policemen gave option to the accused that their search may be made before some Gazetted Officer or the Magistrate, but the two accused pleaded that since they have been apprehended, 4 they did not need the search before the Magistrate, or the Gazetted Officer and asked the police to take their search. On taking personal search the police recovered 250 grams of SULAPHA from the possession of the accused/appellant Irshad and 1.5 kgs of SULAPHA the possession of accused/appellant Hanif. A recovery memo (Ex- A1) was prepared by the policemen and a case crime nos. 409 of 1995 and 408 of 1995 were registered against the accused/appellants Hanif and Irshad in respect of offence punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances Act, at Police Station Vikas Nagar. Both the crimes were investigated by Sub Inspector Tej Veer Singh (PW6). Investigating Officer got sent a sealed samples prepared by the policemen at the time of recovery to the Forensic Laboratory for analysis. As per the Forensic Laboratory Report Ex-A6 and Ex-A7, both the samples were found containing cannabis (CHARAS). After interrogating the witnesses, the Investigating Officer submitted separate charge sheets against the two accused for their 5 trial in respect of offence punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances Act. (4) The trial court on 19.04.1996, after hearing the parties framed charge of offence punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances Act, to which accused/appellants pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Sub Inspector Yogendra Kumar Sharma, PW2 Head Constable Shambhu Dutt Sharma, PW3 Dr. O.P. Taneja of Forensic Laboratory, PW4 Constable Brij Pal Singh, PW5 Constable Sudhar Singh and PW6 Sub Inspector Tej Veer Singh (Investigating Officer). The oral and documentary evidence was put to the accused persons under section 313 of Cr.P.C., in reply to which they pleaded that the evidence as against them was false. However, no evidence in defence was adduced. The trial court after hearing the parties found that the prosecution has successfully proved charge of offence punishable under section 8/20 of Narcotic Drugs and 6 Psychotropic Substances Act, against both the accused Hanif and Irshad and convicted them accordingly. After hearing on sentence each one the convicts is sentenced to rigorous imprisonment for a period of ten years and directed to pay fine of ` one lac. Aggrieved by judgment and order

31.01.2000/01.02.2000, passed by Additional Sessions Judge (Uttarakhand cases) Dehradun, in Special Sessions Trial No. 01 of 1996 and Special Sessions Trial No. 02 of 1996, these two appeals were preferred by the convicts 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 their disposal. (5) Learned Amicus Curiae on behalf of the appellants argued meaning of “ SULAPHA” as given in the Oxford Dictionary (Hindi to English) is wad of Tobacco smoked in Hukka and on its basis it is argued that the recovered item was simple tobacco and not Cannabis (CHARAS). Tobacco or SULAPHA are not the products mentioned in the schedule of 7 NDPS Act. (6) The next submission made on behalf of the appellants is that the compliance of section 50 of NDPS Act, as it existed in 1995, was mandatory in nature, and the same was not complied with. It is also relevant to mention here that section 50 of NDPS Act was amended vide Act No. 9 of 2001 with effect from 02.10.2001 by inserting sub section (5) and sub section (6) to it, but before that section 50 contained only sub sections (1) to (4) and there was no room for the police or the authorised officer to take search in respect of the contraband item without compliance the provision as existed in sub section (1) to (4) of section 50. In other words, in 1995, regarding recovery of contraband by means of personal search could have been made by the policemen either by taking the accused to Gazetted Officer/Magistrate or by calling Gazetted Officer/Magistrate to the place where the accused was to be searched. In the present case admittedly none of the two options were exercised by the policemen. They have simply 8 stated that accused allows them to take the personal search. In the present case there is no public witness of recovery and the quantity of contraband item said to have been recovered is not that large which could not have been planted. In the above circumstances, non compliance of mandatory provision of section 50 by the policemen in making recovery of the alleged contraband item is fatal to the present case. (7) For the reasons as discussed above, this Court is of the view that in the above facts and circumstances of the case, from the evidence on record it cannot be said that prosecution has proved the case beyond reasonable doubt, that Cannabis (CHARAS) was recovered from the accused/appellant Hanif and Irshad. (9) Therefore, both the appeals are allowed. The impugned judgment and order dated

31.01.2000/01.02.2000, passed by Additional Sessions Judge (Uttarakhand cases) Dehradun, in Special Sessions Trial No. 01 of 1996 and Special Sessions Trial No. 02 of 1996, recording 9 conviction of sentence of the accused/appellants Hanif son of Nanha, and Irshad son of Faiz Mohammad, is hereby set aside. They are acquitted of the charge giving benefit of reasonable doubt. They are on bail. They need not to surrender. Lower court record be sent back. Dt.04.10.2012 N.P (Prafulla C. Pant, J.)