Suresh @ Daharey vs State of U.P.

Bhagwan Din, J.

This is an appeal from jail preferred by Suresh alias Daharey a convict in Special Trial No. 105 of 1993 under Section 18 of N.D.P.S. Act recorded by theVI Addl. Sessions Judge, Unnao sentencing him to Rigorous Imprisonment for a period of ten years'' and also to a fine of Rs. 1,00,000 (Rs. One Lac only) and in default to further undergo Rigorous Imprisonment for a period of five years.

Briefly stated the prosecution case is that in the night of 3 1292, S.I. Sri Nanak Chandra alongwith Head Constable Khanjan Lai, constable Mohan Prasad Tiwari and constable Ajay Kumar Singh was on patrol duty. When he reached at Shitalganj Mirri Road Crossing an informant informed him that one person having ''Charas'' in his possession is likely to reach the said road crossing. On such information, S.I. Nanak Chandra alongwith police force laid ambush behind the ''Gumti''. After a while one person reached there from Shitalganj side. On the pointing of the informant, he apprehended him and on interrogation, the later disclosed that his name as Suresh alias Daharey, resident of Mohalla Jotpur, Town Purwa, District Unnao. On the belief that the said person possesses ''charas'' asked him, if he desires may be searched in presence of a Gazetted Officer. The later denied to be searched before the Gazetted Officer. S.I. Sri Nanak Chandra himself therefore searched him and recovered 150 Gms. of ''charas'' from the right pocket of his pant for which he had no licence. He then informed him that he had committed an offence punishable under Section 18/22 of N.D.P.S. Act and arrested him at 3.15 a.m. Thereafter, he prepared the recovery memo Ext. Ka1, sealed the recovered ''charas'' and prepared specimen seal on spot. The recovery memo was read over to the witnesses and the arrested person. He also supplied a copy of the recovery memo to him and obtained hissignatureonit.

Thereafter, he brought Suresh alias Daharey in custody to the police station Purwa together with recovered ''charas'' where he lodged him in the lock '' up (mardana) and handed over the recovery memo to Constable Moharrir Om Prakash. On the basis of the recovery memo, Constable Moharrir prepared a chik F.I.R. Ext. Ka4 and registered a case under Section 18/22 N.D.P.S. Act vide Crime No. 317/92 against the accused vide G.D. Ext. Ka5. On the next day, the accused was produced with recovered ''charas'' before the Sessions Judge, Unnao. The recovered article was deposited in ''Malkhana'' and the accused was remanded to judicial custody. Then, under the orders of the Sessions Court the recovered Charas was sent to the Chemical Examiner, U.P. Lucknow on 19193 for analysis and report.

S.I. Sri P.K. Singh, P. W. 3 was present at the police station when the case was registered against the accused. He took the investigation of the case in hand. Before he could start the investigation, he was transferred from the police station, consequent upon which the investigation of the case was transferred to S.I. Sri Ram Gopal Singh, P. W. 4 who after completing the investigation submitted the chargesheet in the Court of Sessions Judge on 22293. By order dated 23293, the Sessions Judge, transferred the case to the Court of VI Addl. Sessions Judge, Unnao who framed the charge and directed the accused to be tried on the charge of having been found in possession of 150 Gms. of ''charas'' and thereby, committed an offence punishable under Section 18 N.D.P.S. Act.

The prosecution in order to bring the guilt of the accused at home examined S.I. Sri Nanak Chandra as P.W. 1, Head Constable Sri Khanjan Lai as P.W. 2, S.I. Sri P.K. Singh as P.W 3 and S.I. Sri Mangal Singh as P.W. 4 and produced the Chemical Examiner''s report in evidence.

The accused took the common plea of denial and stated in his statement recorded under Section 313, Cr. P.C. that in the night he was going to attend his duties at a hotel. In the way, the police arrested him and on the fake recovery of ''charas'' challaned him in this case.

None examined in defence.

The trial Court on considering the evidence led by the prosecution, was of the view that accused Suresh alias Daharey was arrested by S.I. Sri Nanak Chandra on 31292 at 3.15 a.m., at Shitalganj Mirri Road Crossing and recovered 150 Gms. of ''charas'' from his possession for which he had no valid licence and thereby, he has committed an offence punishable under Section 18 of N.D.P.S. Act. He accordantly, convicted and sentenced him to the imprisonment as stated above by order dated 4494.

Aggrieved of his conviction and sentence awarded to him, he preferred this jail appeal which is registered as Criminal Appeal No. 299 of 1994.

Since it is a jail appeal, the appellant has not engaged his Counsel to argue this appeal on his behalf, therefore, Sri R.K. Dwivedi has been appointed as Amicus Curiae to plead the case of the appellant in this Court.

The learned Amicus Curiae pleaded the case of the appellant sincerely with all his best ability on various aspects of the case. On the other hand, the learned Addl. Government Advocate has supported the order of the conviction and sentence awarded to the appellant. He relied on the material evidence brought on the record of the trial Court.

It is contended by the learned Amicus Curiae that there are certain infirmities in the evidence of the witnesses, which render the story of the recovery of ''charas'' from the possession of the accused false and concocted. He submitted that according to the prosecution story, the appellant was arrested at Shitalganj Mirri Road Crossing and after his arrest the recovery memo was prepared but it is not the fact. The appellant was brought at the police station Purwa where the recovery memo was prepared. A reference to the statements of S.I. Sri Nanak Chandra, P.W. 1 and Head Constable Sri Khanjan Lai has been made. S.I. Sri Nanak Chandra has stated that he prepared the recovery memo in the light of the torches whereas; the Head Constable Sri Khanjan Lai has stated that the recovery memo was prepared in the street light. According to the learned Amicus Curiae, this inconsistency in the version of the two witnesses is only because the recovery memo was not prepared on the spot. The incident of arrest and recovery took place on 31292. The evidence of the witnesses was recorded on 201093 i.e. after about more than ten months. The human memory is fallible. An impression of an event on the brain diminishes day by day. It is not disputed that the poles for street light were there on the spot. It may be that the Head Constable was under impression that the streetlight was available on the spot but in fact it was not so; therefore, in confusion, he has stated that the recovery memo was prepared in the streetlight. Besides that there is no other material to demonstrate that the recovery memo was not prepared on the spot.

The next infirmity pointed out by the learned Amicus Curiae is that in the recovery memo there is an over writing in the date ''31292''. According to him such overwriting indicates that his recovery memo relates to some incident which took place in the months of November, 1992. The submission of the learned Amicus Curiae in this regard seems to be misconceived in so far as all the material papers like chik, F.I.R. and G.D. were prepared on 31292. The recovery memo therefore, cannot be said to relate with some incident, which took place in the month of November, 1992.

The learned Amicus Curiae also urged that before search of the appellant, the members of the police party did not give and take searches among themselves, hence probability of the plantation of Charas on the appellant may not be ruled out. It being so the appellant is entitled to benefit of doubt. In this regard, I may say that giving and taking of the search among themselves by each member of the police party is a ceremonial performance and even if, it is said to have been performed, it is done so only to fulfill the requirement of the provision of the Police Act and therefore, the police officer at the time of preparation of the recovery memo invariably note down in bold letters in the memos that each member of the party was searched by the other. So that the sanctity to the instructions in this regard may be observed. None knows whether the personal search of the police party is ever given effect to or not? Even if, such ceremonial performance has not been observed, it will not be of any gainsake to the appellant. Unless, it is proved that the recovered ''charas ''was planted on him with a view to falsely prosecute him. In this case, as there is no material to demonstrate that S.I. Sri Nanak Chandra or any other member of the police party was at the inimical terms with the accused and have grudge to plant 150 Gms. of ''charas''on the appellant and get him prosecuted under Narcotic Drugs and Psychotropic Substances Act.

It is submitted by the learned amicus curiae that S.I. Sri Nanak Chandra was informed by an informant that the appellant was reaching Shitalaganj Mirri Road Crossing with the ''charas'' in his possession. Thus he had a prior information leading to a reasonable belief that an offence under Chapter IVof the N.D.P.S. Act has been committed. Subsection (1) of Section 42 of the Act requires the Officer to take down such information in writing or record a ground for his belief and send forthwith the copy thereof to his immediate superior officer so that it can be verified whether there were sufficient reasons for belief that the offence under the Act has been committed. It is urged that in the case in hand the mandatory provisions of subsections (1) and (2) of Section 42 of the Act have not been complied with.

From the record particularly the search and recovery memo Ext. Ka1, it appears that S.I. Sri Nanak Chandra alongwith the police party was on patrol duly. It were dead hours of the night. A little before say about four minutes before 3.15 a.m., he was informed by an informant that a person is likely to reach Shilalganj Mirri Road Crossing with ''Charas'' in his possession. He, therefore could not have time to reduce the information in writing and send the same to the immediate superior officer. However, it is indicated in the recovery memo that an oral information was received from the informant and on the belief that the person who is supposed to reach Shitalganj Mirri Road Crossing is in possession of the ''charas'' and thereby an offence under N.D.P.S. Act was committed. He immediately laid ambush beneath the ''Gumti'' and within four minutes thereafter the appellant reached therewith ihe charas in his possession. It is also mentioned in the recovery memo that there was no sufficient time to inform and call the Gazetted Officer on the spot to remain present at the time of search and recovery. Besides that the compliance of the provisions of Section 42(1) of the Act is required in view of the facts and circumstances of tne case in hand. Section 42(1) of the Act provides that "the empowered officer if, has a prior information given by any person, that should necessarily be taken down in writing but he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in many buildingetc."

In the instant case the search was not made in the building, vessel or conveyance etc. The search was made from the possession of.the appellant on an open place i.e. on road crossing. Therefore the compliance of the above mandatory provision in this case is not an essential as requirement.

In the end, it is submitted that the provisions of Section 50 of the Act have not been strictly complied with. It is a settled legal position that the accused has valuable right to be informed of his right to be searched in the presence of a Gazetted Officer. The search officer invariably would conduct the search subserving the salutary right given under Section 50. The Hon''ble Supreme Court, in a case of State of Punjab v. Labh Singh, reported in 1996 Crl. L.J. 39% (SC); 1996 (l)JIC 1010 (SC) in the light of the law laid down in the cases of Stale of Punjab v. Balbir Singh reported in 1994 Crl. LJ. 3702 of (SC); 1995 (1)JIC 382 (SC) and Stale of Punjab v. Jasvir Singh reported in 1996(1)SCC 288; 1996(1) JIC 262 (SC) held that each case should be considered in the light of the facts and circumstances in which the contraband was seized viz. lime when the search was conducted, the place where it was seized. Whether the police had prior information of the contraband being in transport or place of concealment, whether there was prosper opporiunity to the police to secure the presence of a Gazetted Officer; whether the delay in search and seizure would result in the escape of ihe accused from arresl or contraband would be destroyed or wisked away and host of all relevant attendant circumstances. Each case depends upon its owns factual scenario and no exhaustive or mathematical formula of universal application can be laid down. In the instant case the information was received about four minutes before the appellant reached on the spot, thus, there was no time to call the Gazetted Officer. The search was made at 3.15 a.m., the dead hoursof night. This was another reason that the presence of the Gazetted Officer could not be procured. In the search memo, the search officer has mentioned that the appellant was asked to exercise his valuable right for being searched in the presence of a Gazetted Officer. The appellant refused to exercise such valuable right. I, therefore, find that there was a strict compliance of provisions of Section 50 of the Act.

In view of the above discussion, I do not find substance in the submission of the learned Amicus Curiae. I also do not find any illegality in the order of conviction of the appellant Suresh alias Daharey under Section 18 of N.D.P.S. Act passed by the trial Court and also do not find error in awarding him sentence to the terms of ten years'' Rigorous Imprisonment and to a fine of Rs. 1,00,000 (Rs. One lac only). Hence the appeal is devoid of merits.

The appeal is accordingly dismissed.