Sadhu Das vs State of U.P.

N.S. Gupta, J.—Sadhu Das Appellant, who was convicted by Shri. Rajendra Nath the then IInd Additional Sessions Judge, Bareilly vide his judgment and order dated 5.12.1991 u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 60 of the Excise Act and was sentenced to undergo R.I. for a period of 10 years and to pay fine of Rs. 1 lac and in default of payment of fine to further undergo R.I. for a period of two years on the first count and 2 months R.I. on the second count, has come up in appeal before this Court.

The prosecution story briefly stated is as follows:

On 6.1.1990 at about 8.30 a.m. Shri. Rishi Kumar P.W.I, who was then working as SO., P.S. G.R.P. Bareilly Junction received information from the informant that a person wearing brown coat was having illicit liquor in his possession and was sitting under the ''Pakar'' tree near Baiteri room on platform No. 1 on Bareilly Junction. S.O. Rishi Kumar accompanied by Brij Raj Singh S.I. and other constables as also Dharam Pal, P.W.2, witness of the public, went to take personal search of the accused Appellant and thereupon a bottle of country made liquor as also 50 Kilo Gram of Dhondas of opium were recovered from the possession of the accused Appellant. The accused Appellant was accordingly prosecuted and convicted as aforesaid. Aggrieved by the judgment and order of the IInd Additional Sessions Judge, Bareilly, the accused Appellant has come up in appeal before this Court.

I have heard Sri. P.C Srivastava, Amicus Curiae for the accused Appellant and Shri. V.S. Misra, Additional Government Advocate, for the State considered their contentions and have gone through the facts and circumstances of the case.

The first point urged by the learned Amicus Curiae on behalf of the accused Appellant is that Dhonda which is said to have been recovered from the possession of the accused Appellant does not come in the definition of the Narcotic Drug and, therefore, no offence was made out against the accused. I am unable to agree with the learned Amicus Curiae for the reason that according to Modi Jurisprudence poppy capsules (Post-Ka Dhonda) when they are ripe and dry, contain a trace of opium and are used for their sedative and narcotic action. According to Section 2(XVIII) of the Narcotic Drugs and Psychotropic Substances Act, 1985, Poppy Straw has been defined as follows:

Poppy Straw'' means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.

It is clear from the report of the Chemical Examiner dated 30.7.1990 paper No. 30-Ka that the substance which was recovered from the accused was (Afim Ka Dhonda). It is, thus, clear that the substance which was recovered from the possession of the accused Appellant was Afim Ka Dhonda i.e. Poppy Capsules for which he had no licence or permit and therefore, the possession of the said substance was illegal.

I should state here that the factum of recovery of 50 K.G. from the possession of the accused Appellant was fully supported by the evidence of P.W. 1 Sri. Rishi Kumar, S.I. Sri. Brij Raj Singh P.W.4 as also Dharm Pal who was an independent witness. The accused Appellant is said to be resident of E. Dev Koli P.S. Tirtala district Cuttack, Orissa. According to his statement recorded by the learned Court below u/s 313, Code of Criminal Procedure, the accused Appellant was going to his home by Punjab Mail. He stated to have got down from the train for drinking water. He stated that he was apprehended by the police. His ticket and money was also snatched away by the police. The accused Appellant in this case being a resident of Orissa State, I am of the opinion that the S.O. Rishi Kumar, P.W.1 had no enmity with him, He therefore, had no fames to implicate the accused Appellant in a henious case of the kind of the present one.

I am, therefore, of the opinion that the learned Court below rightly believed the version of the prosecution and the substance which was recovered from the possession of the accused Appellant was 50 K.G. Afim Ka Dhonda and was narcotic drug as also a bottle of illicit liquor for which he held no licence.

It was next argued on behalf of the accused that the prosecution has failed to comply with the mandatory provisions of Section 50 of the N.D.P.S. Act and, therefore, his conviction and sentence cannot be sustained by this Court. Reliance was placed upon the proposition of law laid down by their lordships of the Supreme Court in the following cases.

Mohd. Saiyed Umar Saiyed and Ors. v. State of Gujarat reported in ACC 1995 at p. 512.

Ali Mustafa Abdul Rahman Moosa v. State of Kerala reported in SCC 1995 at page 32.

In both these rulings, the Sub Inspector of Police had received information to the effect that the Appellants were carrying business of Charas and Narcotic Drugs. In the instant case before this Court, the police sub inspector received information to the effect that the Appellant was having only illicit liquor and not Afim or Dhonda or narcotic substance. I am, therefore, of the opinion that the proposition of law laid down in these rulings regarding the noncompliance of Section 50 of the said Act, by the police officer is of no help to the Appellant.

The provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read as under:

Condition under which search of persons shall be conducted.-(1) when any officer duly authorised u/s 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 the nearest Magistrate,

(2) 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).

(3) 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 the search be made.

(4) No female shall be searched by anyone excepting a female.

It was argued on behalf of the State that in the instant case before this Court, the police Officer had received information to the effect that the accused Appellant was keeping illicit liquor. It was not a case where the police officer received information to the effect that the accused Appellant was carrying narcotic substance, therefore there was no occasion for the police officer to have asked the accused Appellant that if he wanted to give a search in the presence of a Gazetted Officer or a Magistrate. There appears to be force in the contention of the State.

It is clear from the statement of the S.O. Rishi Kumar P.W.I as also from the recovery memo that the police officer had received information about the keeping of illicit liquor by the accused Appellant and not any narcotic drugs. The Hon''ble Supreme Court in State of Punjab v. Balbir Singh was pleased to lay down the following proposition of law as per paragraph 23:

The question considered above arises frequently before the trial Courts. - Therefore we find it necessary to set out conclusions which are as follows:

(1) If a police officer without any prior information as contemplated under the provisions of the N.D.P.S. Act makes a search or arrest a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the N.D.P.S Act would not be attracted in any the question of complying with the requirements thereunder would not arise. If during such search or arrest there is any chance of recovery of any narcotic drug or psychotropic substance then the police officer who is not empowered should inform the empowered officer who should therefore proceed in accordance with the provisions of the N.D.P.S. Act, if he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the N.D.P.S Act.

Applying the aforesaid proposition of law to the facts and circumstances of the present case, I find that the police officer S.O. Rishi Kumar having received the information about the possession of illicit liquor only and to the narcotic drugs in question, i.e., Dhonda, the Dhonda in question having been recovered during search and arrest of the accused in connection with the search of the illicit liquor, there was no occasion for S.O. Sri. Rishi Kumar to comply with the requirement of Section 50 of the N.D.P.S. Act. I am, therefore, of the opinion that the provisions of Section 50 were not applicable to the facts and circumstances of the present case. Therefore the recovery in question cannot be regarded as vitiated by not complying with the Mandatory provisions of Section 50 of the N.D.P.S. Act. I am, accordingly of the view that the conclusion arrived at by the learned Sessions Judge, Bareilly was quite correct.

Coming to the point of sentence, I find that the learned Sessions Judge, Bareilly has inflicted minimum sentence against the accused provisions u/s 50 of the N.D.P.S. Act. The learned Sessions Judge, Bareilly sentenced the accused for 2 months R.I. u/s 60 of the Excise Act and both the sentences were ordered to run concurrently. The sentence passed by the learned Sessions Judge, Bareilly against the accused Appellant was proper and warrants no interference by this Court.

In the result, I find that the appeal has got no force. The appeal is hereby dismissed. It is directed that the Amicus Curiae Sri. P.C. Srivastava shall be paid a fee of Rs. 1100 for the assistance rendered by him to this Court.

Let a copy of this judgment be sent to the accused Appellant through the Superintendent Central Jail, Bareilly.