2018 (1) TMI 123 - HC - Indian Laws

Offence punishable under Section 18/20 of N.D.P.S. Act - carry of psychotropic substance - poppy husk - non-compliance with section 50 and 57 of N.D.P.S. Act - Held that - A perusal of recovery memo would reveal that the police party told the accused that he is at liberty to get his search done before Gazetted Officer or Magistrate, however, the accused on finding himself caught by the policemen told that the police party may conduct his search. In my firm opinion, the appellant was not made aware about his legal right of getting searched before the Magistrate or the Gazetted Officer. Mere mentioning the words in the recovery memo that the accused was asked to give his search before Magistrate or Gazetted Officer, is not a sufficient compliance. There is non-compliance of Section 50 of NDPS Act, coupled with no document regarding compliance of Section 57 and nonjoining or non-procuring the public witness, creates reasonable doubt in the entire prosecution story. That being the position, impugned judgment and order is liable to be set aside and the appeal deserves to be allowed. Appeal allowed.

Summary

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Compliance with Section 57 of the NDPS Act.
3. Presence of independent witnesses during the recovery.

Detailed Analysis:

Compliance with Section 50 of the NDPS Act:
The primary issue raised was the alleged non-compliance with Section 50 of the NDPS Act. The appellant contended that he was not properly informed of his right to be searched before a Magistrate or a Gazetted Officer. The court noted that merely mentioning in the recovery memo that the accused was asked to give his search before a Magistrate or Gazetted Officer is not sufficient compliance. The court cited the Supreme Court's decision in Ashok Kumar Sharma vs. State of Rajasthan (2013) and Vijay Singh Chandubha Jadeja vs. State of Gujarat (2011), which emphasized the importance of informing the accused of their legal rights under Section 50. The court concluded that there was no proper compliance with Section 50, thus vitiating the trial.

Compliance with Section 57 of the NDPS Act:
The appellant argued that the mandatory provision of Section 57, which requires that a full report of the arrest and seizure be made to the immediate official superior within 48 hours, was not complied with. The court found merit in this argument, noting that there was no documentary evidence to support the claim that such a report was made. The testimonies of P.W.1 and P.W.2 were deemed insufficient without corroborating documentary evidence. The court referenced Beckodan Abdul Rahiman vs. State of Kerala (2002), which held that compliance with Sections 42 and 50 are mandatory, and non-compliance renders the case unestablished.

Presence of Independent Witnesses:
The appellant contended that there were no public or independent witnesses to the alleged recovery, which cast doubt on the prosecution's case. The court found contradictions in the prosecution's statements regarding the absence of public witnesses. While the recovery memo stated that no public witnesses were available due to the suddenness of the recovery, P.W.1's testimony suggested that efforts were made to procure public witnesses but were unsuccessful. These inconsistencies raised doubts about the veracity of the search and seizure proceedings.

Conclusion:
The court concluded that the non-compliance with Section 50 and the lack of documentary evidence for compliance with Section 57, along with the absence of independent witnesses, created reasonable doubt about the prosecution's case. Consequently, the court set aside the impugned judgment and order dated 10.06.2003, passed by the Additional Sessions Judge/F.T.C. Kashipur, District Udham Singh Nagar, in Special Sessions Trial No.61 of 2001. The criminal appeal was allowed, and the appellant's bail bonds were cancelled, with sureties discharged. The lower court record was ordered to be sent back.