Allowed

Shiva Gupta v. The State Of Bihar

Patna HC3 Dec 2014CR. APP (SJ)/525/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal in an NDPS conviction case, holding that the trial court's order was unsustainable due to mandatory violations of Section 50 on the right to be searched before a Magistrate and Section 42 regarding unauthorized search by a Chief Constable.

What did the court decide?

The appeal is allowed, conviction and sentence set aside, and the appellant set at liberty forthwith if detention is not required in any other case.

Shiva Gupta Vs The State Of Bihar — Narcotics (NDPS) | Patna HC (2014)

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Patna High Court CR. APP (SJ) No.525 of 2013 dt.03-12-2014

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.525 of 2013 Against the judgment of conviction and order of sentence dated 02.05.2013 and 09.05.2013 passed by Sri Atul Kumar Shrivastava, Additional District & Sessions Judge 3^rd West Champaran, Bettiah in T.R. No. 30 of 2011 (arising out of Bhagha P.S. Case No. 34 of 2010) (NDPS Case No. 104 of 2010) Arising Out of PS.Case No. -34 Year- 2010 Thana -BHAGHA DistrictWESTCHAMPARAN(BETTIAH) =========================================================== 1. Shiva Gupta S/O Vikram Gupta Resident Of Village- Bhudhawa, PostBhudharwa, P.S- Thakraha, District- West Champaran (Bhagalpur.

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.... .... Appellant. Versus 1. The State Of Bihar .... .... Respondent. =========================================================== Appearance : For the Appellant : Mr. Umesh Chandra Verma, Advocate. For the State : Mr. Abha Singh, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL JUDGMENT Date: 03-12-2014

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Gopal Prasad, J. Heard.

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The appeal is directed against the judgment of conviction and order of sentence dated 02.05. 2013 and 09. 05. 2013 passed by Shri Atul kumar Shrivastava, Additional District & Sessions Judge 3^rd West Champaran, Bettiah, in Trial No. 30 of 2011 (arising out of Bhagha P.S. Case No. 34 of 2010) N.D.P.S. Case No.; 104 of 2010

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Patna High Court CR. APP (SJ) No.525 of 2013 dt.03-12-2014

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whereby the appellant has been convicted for offence under Sections 22(C) and 23(C) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for ten years each and further fine of Rs. 1,00,000/- (one lac) and in default of payment of fine further sentenced to undergo simple imprisonment for two years.

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The prosecution case as alleged in the First Information Report by the informant (Chief Constable) Shri Lalit Chandra Borah, Ahir Sirsawa, that while he was patrolling in Pool No. 425/2010 Bhagha Bazar near the Indo-Nepal border at 8.30 A.M. one came person came from Nepal entered into Indian territory but seen the patrolling party he returned back towards Nepal on which informant along with Jawans caught hold the appellant and on search from the pocket of jacket of the appellant two plastic packets recovered. The person apprehended disclosed his name as Shiva Gupta and articled seized was Charas. After preparing seizure list the informant handed over the person arrested along with seized article that is 2 Kg. Charas to the Officer-in-Charge, Mangha police station (Bettiah).

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On the Fardbeyan, the investigation proceeded. Charge sheet submitted, cognizance taken and after framing of charge trial proceeded. During trial five witnesses were examined, P.W. 1, Lalit Chandra Borah, P.W. 2 Manish Kumar Pathak, P.W. 3 Bijukt Thakukdar, P.W. 4 Bipin Kumar Yadav and P.W. 5 Tej Narayan

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Patna High Court CR. APP (SJ) No.525 of 2013 dt.03-12-2014

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Tarun, who is I.O. in this case. However, documentary evidence adduced which are Exhibit-1 written report, Exhibit-2 seizure list, Exhibit 2/1 2/2 and 2/3 signature of witnesses on the seizure list, Exhibit- 3 is charge sheet, Exhibit-4 forwarding letter, Exhibit-5 is the endorsement, Exhibit- 6 Formal F.I.R, Exhibit- 7 F.S.L. report.

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The trial court taking into consideration the entire fact and circumstance of the case convicted the appellant. The trial court considered the fact that the appellant was apprehended by patrolling party and from his possession 2Kg. Charas was recovered from the jacket of his pocket and same was found to be Charas and hence prosecution has been able to establish the prosecution case.

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Learned counsel for the appellant however challenged the order of conviction and sentence recorded by the trial court on the ground that there is violation of Section 50 of N.D.P.S. Act as the appellant was not informed of his right to be search before the Gazetted officer or before the Magistrate. It has further been contended that informant who is Chief Constable is not empowered to conduct search and seizure under N.D.P.S. Act. It has further been contended that neither seized article were sealed nor sample was taken at the spot. It has further been contended that provision of Section 52 A sub section (1) of N.D.P.S. Act has not been complied, the officer referred to in sub-section (1) shall prepare an inventory of such

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Patna High Court CR. APP (SJ) No.525 of 2013 dt.03-12-2014

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narcotic drugs or psychotopic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed may consider relevant to the identify of the narcotic drugs or psychotropic substances in any proceedings under this Act make an application, to any Magistrate for the purpose of certifying the correctness or the inventory so prepared or taking in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true or allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

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However it is submitted that nor photograph of such drug was taken nor seal of the police station was affixed on the article seized nor sample was taken, nor did the authority before whom article produced intimate the immediate superior officer. Hence it is submitted that there is violation of Section 52A, 55 and 57 of the N.D.P.S. Act. Further in violation of Section 40 and 42 of N.D.P.S.Act as well as safeguard provided under the act having not been complied and so order of conviction and sentence recorded by the trial court is not sustainable.

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Patna High Court CR. APP (SJ) No.525 of 2013 dt.03-12-2014

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However, it is true in prosecution case that appellant was caught hold by coming from Nepal and on search two packets Charas was recovered from the jacket of pocket of the appellant for which seizure list prepared and was handed over to P.W. 5, I.O. Further witnesses in their evidences stated that one person was apprehended while coming from Nepal and entered into Indian territory and from the pocket of jacket of appellant about 2 Kg. Charas recovered. Further it is submitted that seized article was recovered from the pocket of the appellant, but there is no averment made in this regard. However, Section 50 of the N.D.P.S. Act provides that when any officer authorised to search any person, he is required to inform of his right to be search before the Magistrate or the Gazetted Officer and it is incumbent on the informant to inform or answer the right of the person to be searched before a Magistrate or Gazetted Officer before making out search so the safeguard provided under the act was not complied and hence the entire search and seizure of seized article is suffer from allegation. Moreover, there is nothing on the entire record to suggest that informant was informed of his right of being search to Gazetted Officer or the Magistrate. It is well settled that provision of Section 50 of N.D.P.S. is mandatory so any seizure in violation of Section 50 of N.D.P.S. Act becomes doubtful and hence there is complete violation of Section 50 of N.D.P.S. Act.

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Patna High Court CR. APP (SJ) No.525 of 2013 dt.03-12-2014

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However, Section 42 of the N.D.P.S. Act provides that only person who had been empowered to proceed for search and seizure. However, from the deposition it is apparent that informant, P.W.1 is Chief Constable and hence has no jurisdiction to make out search or seizure. Hence it is complete violation of Section 52A of N.D.P.S. Act.

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It is pertinent to mention that P.W. 1 to 4 are member of patrolling party before whom appellant was apprehended and search and seizure was made and two packets of Charas was recovered from the pocket of jacket of the appellant. However, nothing has been whisper about intimation given to the appellant of his right of being searched before the Magistrate. P.W. 5 is I.O., though, has proved seizure list and stated that he recorded the confessional statement that seized article was sent to Forensic Science Laboratory, Patna. This witness, though, stated that he received seized article and sample and sent to Forensic Science Laboratory. However, he has not mentioned where the seized article was kept or whether seized article sealed nor it has been stated whether sample was taken from both the packets or only one pocket, though, two packets recovered from the possession of the petitioner. It has not been mentioned from which packet sample was taken or whether same taken from each packet. There is neither any inventory made nor certification of the Magistrate was

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Patna High Court CR. APP (SJ) No.525 of 2013 dt.03-12-2014

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taken nor Magistrate has been examined nor there is any averment that senior officer was intimated after the occurrence nor it has been mentioned that article seized was sealed and sample taken was sealed with the seal of the Officer-in-Charge of the police station. Hence it is apparent that there complete violation of Sections 52A, 55 and 57 of the N.D.P.S. Act.

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Having regard to the fact that safeguard provide by the N.D.P.S. Act has not at all be complied and Sections 42 and 50 of the N.D.P.S. is mandatory in nature and non-compliance of Section 50 of N.D.P.S. Act, the seizure becomes doubtful. Sections 52A, 55 and 57 are not mandatory, but non-compliance of Sections 52A, 55 and 57 was great consequence on evidence and as non-compliance of the provision has caused prejudice by the appellant. The sample since has not been taken before the Magistrate nor any evidence that how sample was taken nor mention in evidence from which packet the sample was taken nor adduce in evidence nor the article seized was sealed nor there is any mention where the seized article was kept nor mentioned that where the sampling was done that apart there is violation of Section 50 of N.D.P.S. Act.

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Having regard to the facts and circumstances of the case, taking into consideration there is violation of Section 42 and 50 of the N.D.P.S. Act which is mandatory as well as violation of

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Patna High Court CR. APP (SJ) No.525 of 2013 dt.03-12-2014

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Sections 52, 55 and 57 of the N.D.P.S. Act, hence order of conviction
recorded by the trial court is not sustainable and is hereby set aside
and the appeal is allowed. The appellant is in custody, be set at
liberty forthwith, if not required to be detained in any other case.
(Gopal Prasad, J)
m.p.
NAFR
U T

Shiva Gupta v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

Shiva Gupta v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

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