Nathoo Lal vs State of U.P.

Bala Krishna Narayana, J.—Heard learned for the appellant and learned A. G. A. appearing for the State.

This appeal has been filed against the Judgment and order dated 22.10.1999 passed by Special Judge, Rampur convicting the appellant for an offence u/s 18/20 of N. D. P. S. Act and sentencing him to undergo ten years'' rigorous imprisonment and fine of Rs. 100000/- (One Lac Only) and in default of payment of fine to undergo further simple imprisonment of three years.

The prosecution case in short is that while the police patrolling party comprising of Sub-Inspector Ashok Kumar, Head Constable Iqbal Singh and Constable Sompal Singh were on checking duty on platform No. 1 at Rampur railway station, they saw a person sitting on a bench near the water tank on the eastern side of the railway station who upon seeing the police party, started walking and when despite being ordered to stop, he continued running, the police patrolling party chased him and caught him at about 8.30 P. M. Upon interrogation, he disclosed that his name was Nathoo Lal and upon being searched one kg. of opium was found in the belt which he was wearing along with Rs. 42/-. He was given an option for being searched before a Gazette Officer or a Magistrate which he declined. From the recovered contraband articles a sample weighing about 25 gms. was drawn and remaining contraband articles were sealed. Specimen seal and recovery memorandum was prepared on the spot. Thereafter on the basis of a report lodged at G. R. P. out post, Rampur at about 9.30 P. M. a case u/s 18/20 N. D. P. S. Act was registered against the appellant. The sample drawn from the recovered contraband article was sent for chemical examination and according to the report of chemical analyst, opium was found in the sample. Thereafter charge under Sections 18/20 of the N. D. P. S. Act was framed against the appellant who pleaded not guilty and claimed trial.

In order to prove the recovery of illicit opium from the possession of the appellant and his arrest on 23.2.1994 at about 8.30 P. M., the prosecution examined P. W. 1 Head Constable, Iqbal Singh, P. W. 2 Sub-Inspector Ashok Kumar, P. W. 3 Khalid Ikram and P. W. 4 Girish Chandra who proved the chemical analyst''s report of the sample. In his examination u/s 313 Cr. P. C. the appellant denied the incriminating circumstances against him and stated that he has been falsely implicated in the present case.

After careful marshalling of the facts and evidences on record, the Court below convicted the appellant, Nathoo Lal u/s 18/20 of the N. D. P. S. Act on account of having been found in possession of one kg. illicit opium and sentenced him to ten years'' R. I. and fine of Rs. 100000/- (One lac) and in default of payment of fine, further simple imprisonment of three years.

Learned Counsel for the appellant vehemently urged that the conviction of the appellant on the basis of the recovery of one kg. opium from him by the police party cannot be sustained in view of the fact that there was admittedly no compliance with the mandatory requirement of Section 50 of the N. D. P.S. Act. Substantiating his arguments further, he submitted that according to the prosecution case itself the contraband articles were recovered from the belt which the appellant was wearing and even according to the prosecution, the option for being searched in the presence of a Gazette Officer or a Magistrate had already been effected. It is apparent from the perusal of the recovery memo that the appellant was not informed by searching officer that he had a right to insist on being searched either in the presence of a Gazette Officer or a Magistrate. Thus, it is not at all safe to maintain the conviction of the appellant on the basis of the alleged recovery of contraband substance made from the appellant without complying with the mandatory requirements of Section 50 of N. D. P. S. Act.

Per contra, learned A. G. A. submitted that the provisions of Section 50 of the N. D. P. S. Act are not attracted to the facts of the present case in view of the fact that the police officer who had arrested and searched the appellant neither had any prior information that the appellant was carrying with him unauthorized opium, nor he was authorized u/s 42 to search the appellant. He further contended that the instant case was one where the recovery of contraband substance was made from the appellant on a chance search. No other ground was urged.

After having heard learned Counsel for the parties and perused the impugned Judgment as well as the record of Sessions Trial, I find that there is no force in the submissions made by counsel for the appellant that the conviction of the appellant on the basis of alleged recovery of opium from him, cannot be sustained on account of non-compliance with the mandatory requirement of Section 50 of the Act. There is nothing on record to show that before the appellant was arrested and searched, the arresting and searching officer had any prior information about the appellant being in possession of opium and that the officer was authorized to search the appellant u/s 42 of the Act.

This being the situation, I find that the argument advanced by learned A. G. A. has force and is liable to be accepted. Even otherwise, I have examined the findings recorded by the court below and I find that the same are based on cogent evidence and supported by valid reasons. Nothing has been brought to the notice of the Court which may indicate that the impugned Judgment suffers from any illegality, infirmity or perversity warranting any interference by this Court.

In this view of the matter, this appeal has no force and is dismissed.

However, one glaring fact which is brought to the notice of the Court is, that the appellant is in jail since 26.5.1994. The impugned Judgment shows that the appellant was awarded ten years'' rigorous imprisonment and fine of Rs. 100000/- (one lac only) and in default of payment of fine he was required to undergo further three years'' simple imprisonment. It is undisputed that the appellant is in jail since 26.5.1994, thus he has completed ten years'' R. I. on 25.5.2004 and on account of non-payment of fine, he was required to undergo further three years'' imprisonment. The said period of three years also came to end on 25.5.2007 and thus the appellant has already undergone imprisonment of more than sixteen years against the sentence of thirteen years.

Learned A. G. A. has not disputed the factual aspect of the matter.

In view of the above, it is directed that the Superintendent of District Jail, Rampur shall release the appellant, Nathoo Lal convicted in Special Case No. 72 of 1995 under Section-18/20 of N. D. P. S. Act, Police Station-G. R. P., District-Rampur forthwith. The Registrar General of this Court is directed to send a copy of the order to the Chief Judicial Magistrate, Rampur as well as to the Superintendent of District Jail, Rampur for necessary action and the Chief Judicial Magistrate, Rampur and Superintendent of District Jail, Rampur shall submit a compliance report to the Registrar General of this Court within a month.

Considering the fact that the appellant''s detention after 25.5.2007 was per se illegal and without any cause, I am of the considered view that the State Government shall consider about compensating the appellant for the period during which he was deprived of his liberty after 25.5.2007 for no fault of his and the amount of compensation shall be recovered from the officers who are responsible for the illegal detention of the appellant after 25.5.2007. Necessary exercise in this regard, shall be completed by the State Government within a period of one month from the date of receipt of certified copy of this order. State Government shall also take immediate steps to identify all such convicts who have undergone their full sentence awarded to them, but are still languishing in jail due to reasons beyond their control and to take immediate steps for their release.