Allowed

Ramakant Sah v. The State Of Bihar Through Nikhil Deo Awasthee

Patna HC11 Sept 2019CR. APP (SJ)/411/2016

Case brief

AI extract

What is this about?

In an NDPS appeal, the High Court examined divergent prosecution witness testimonies regarding the mandatory notice of search rights under Section 50 of the NDPS Act. Finding the enforcement agency failed to strictly comply with Section 50, rendering the recovery suspect, the Court set aside the conviction and released the appellant on bail.

What did the court decide?

Impugned judgment set aside; conviction quashed; appellant released forthwith as he is in custody.

Ramakant Sah Vs The State Of Bihar Through Nikhil Deo Awasthee — Narcotics (NDPS) | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.411 of 2016

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Arising Out of PS. Case No.-66 Year-2012 Thana- GOVERNMENT OFFICIAL COMP. District- East Champaran

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======================================================

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Ramakant Sah S/o Chaturi Sah Resident of Ward no. 9, SabaithwaPhajatwa P.S- Pokhariya District Parsa Nepal.

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... ... Appellant/s

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Versus

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The State of Bihar through Nikhil Deo Awasthee, Inspector Custom L.C.S. Raxaul, District East Champaran

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... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr.Shri Prakash Tiwari Mr. Anand Tiwari Mr. Mahesh Tiwari For the State : Mr.Sujeet Kr. Singh, APP ======================================================

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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

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ORAL JUDGMENT

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11-09-2019

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The sole appellant Ramakant Sah has been found guilty for the offence punishable under Section 20(b)(ii) (c) & 23 (c) of the NDPS Act and sentenced to undergo R.I. for ten years as well as to pay a fine appertaining to Rs. One lakh and in default thereof to undergo an additional period of imprisonment of six months, respectively with a further direction to run the sentences concurrently by the judgment of conviction dated 30.03.2016 and order of sentence dated 05.04.2016, passed by the 3^rd Additional Sessions Judge-cum-Special Judge NDPS, East Champaran at Motihari in NDPS Case No. 162/16/ 201215, arising out of LCS (Land Custom Station) Raxaul Unit Case No. 66 of 2012.

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The complainant, Nikhil Deo Awasthee, P.W.1, after

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Patna High Court CR. APP (SJ) No.411 of 2016 dt.11-09-2019 2/10

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due inquiry, filed a complaint petition putting an allegation that on 16.12.2012 at about 5.00 P.M. while he along with other custom officials during routine checking at land custom station, Raxaul, Nepal found a person coming from Nepal over a bicycle. The officials concerned perceived his activity suspicious whereupon, he was intercepted in presence of two independent witnesses, namely, Pradeep Kumar and Niraj Bharti. He was asked whether he intends to be searched out in presence of a gazetted office of the department or before a Magistrate, whereupon, he answered that he would like to be searched out before a gazetted officer of the concerned department. That being so, he was taken to in presence of Brijesh Kumar (P.W.5) and on search 3 kg of charas was found from his possession having wrapped with his body (over belly as well as chest). Seizure list was prepared, samples were prepared, after legal formalities were completed. Accused was taken into custody, remanded to judicial custody. Sample was forwarded for chemical examination. The same has been found to be Charas . Brijesh Kumar, Nikhil Deo Awasthee, Dharmendra Kumar Srivastava, Kumar Anshumali, Ritesh Kumar, Alok Ranjan, Syed Buniyad Hussain, Navin Kumar Sinha, Rakesh Kumar Singh and Keshav Prasad, along with

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two independent witnesses Pradeep Kumar and Niraj Bharti, have been cited as the witness. It has also been disclosed that the accused was interrogated wherein he has admitted his status as carrier of contraband article.

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Defence case, as is evident from the mode of crossexamination as well as the statement recorded under Section 313 of the Cr. P.C, there happens to be complete denial of the allegation. However, nothing has been adduced on behalf of the defence.

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Altogether 10 P.Ws have been examined on behalf of the prosecution, who are P.W.1 Nikhil Deo Awasthee, P.W.2 Dharmendra Kumar Srivastava, P.W.3 Kumar Anshumali, P.W.4 Ritesh Kumar, P.W.5 Brijesh Kumar, P.W.6 Alok Ranjan, P.W.7 Syed Buniyad Hussain, P.W.8 Navin Kumar Sinha, P.W.9 Rakesh Kumar Singh and P.W. 10 Keshav Prasad. Side by side has also exhibited, Ext.1-Weight measurement chart dated 16.12.2012 of seized contraband. Ext.2- “Panchnama” dated 16.12.2012 relating to instant case. Ext. 3-Chemical test report dated 15.2.2013 of seized contraband which has been found “Charas”. Ext.4-Voluntary statement dated 16.12.2012 of accused. Ext.5-Seizure memo dated 16.12.2012 of the instant case relating to recovery of 03 K.G. Charas and others from the

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body of accused. Ext.6-Arrest memo dated 16.12.2012 of accused Ramakant Sah. Ext.7-Official complaint dated 13.4.2013. Ext. 8-Interrogatory statement of accused dated 16.12.2012. Ext. 9-Satisfaction of the seized contraband on 3.11.2014 by Dwijendra Kumar, J.M.1st Class, Motihari in presence of other custom officials. Ext. 10- Photo copy of letter forwarded to LCS Custom Raxaul for information and needful vide memo no.663 dated 10.12.2014 by the Special Judge allowing prayer of destruction of seized contraband. Ext. 11“Data” dated 16./17-2-2015 bearing serial no.1 relating to destruction of seized contraband of the instant case. As stated above, nothing has been adduced on behalf of the defence.

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From perusal of the lower court records, it is evident that the complaint is the origin of the instant case and, on the basis thereof, vide order dated 29.04.2013, cognizance of the offence punishable under Sections 22, 23, 28 and 29 of the NDPS Act has been taken against the accused/appellant. It is further evident that before examination of the witnesses before charge, the charge has been framed on 13.05.2013. So far power of cognizance is concerned, it is needless to say that the same is vested to the Special Court, that means to say, there happens to be no scope of commitment, hence trial should have

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been in accordance with law. At the present moment, it looks pertinent to mention that no definite mode of prosecution has been prescribed under the NDPS Act, and even under Custom Act, it has got an exception as provided u/s 137 proviso (b). Be that as it may, when the complaint is there, cognizance on the basis of complaint case having original jurisdiction, then in that circumstance, the Court should have considered as, at the time of framing of charge, no material was available.

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Apart from this, though from the evidence available on record, it is apparent that the prosecution has succeeded in substantiating the recovery along with prosecution report as well as the relevant documents in accordance with Section 52A (2) of the NDPS Act has also been brought up on record through P.W.8 Navin Kumar Sinha, but there happens to be presence of inherent defect persisting on the record. According to the prosecution version, after apprehension of the appellant, he was asked for a choice in between a gazetted officer as well as a Magistrate, whereupon it has been disclosed at the end of the prosecution that he (appellant) opted to be searched out in presence of the gazetted officer of the department and so he was searched out in presence of P.W.5 Brijesh Kumar, Superintendent, a Gazetted Officer, who during course of his

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examination-in-chief, himself stated at paragraph 1 that “ Uske bad Rama Kant Sah ki talashi dono uparyukta gawahon ke samakchh li gai, talashi ke dauran Rama Kant Sah ke chhaati va pet par dori se bandha hua plastic cello tape se bandha hua teen packet baramad hua .” During course of cross-examination, at paragraph 6 he has stated that he had not searched out the accused nor recovered any contraband goods from his possession. In paragraph 9, he has further stated that the search was made by Nikhil Deo Awasthee. This part of evidence of P.W.5 is found inconsistent with the evidence of P.W.1, who during his examination-in-chief, has stated at paragraph 1; Ham logon ke alawe wahan do awar superintendents Brijesh Kumar ke samaksh talashi li gayee. Is talashi ke pahle main ne abhiyukt Ramakant Sah se puchha ki kya we kisi gazetted officer evam Magistrate ke samakchh apna talashi dena chahte hain to we rajpatrit adhikari ke samne talashi dene ko taiyar ho gaye. Hamare jo adikchak jo rajpatrit adhikari hain ne inki talashi ka aadesh diya. Talashi ke dauran inke pet aur sine se bandha hua teen packets baramad hua jo plstic se lipta hua tha.

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At paragraph 7, during course of cross-examination, he has clearly accepted that no notice under Section 50 was served upon the accused.

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P.W.2 has not corroborated the evidence of P.W.1 with regard to tendering option in accordance with Section 50, search and recovery in presence of Superintendent P.W.5, Brijesh Kumar.

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P.W.3 has corroborated P.W.1 by stating that after tendering option, as per disclosure made by the accused, search was made in presence of Superintendent P.W.5 Brijesh Kumar.

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P.W.4 has completely changed the sequence who, even during cross-examination, substantiated the same overruling giving option to be searched before an official as per Section 50 of the NDPS Act, and in the likewise manner ruled out presence of P.W.5, Brijesh Kumar at the spot.

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P.W.6 corroborated P.W.1, but at para 4, he has admitted that no notice was served upon accused under Section 50 of the Act. P.W.7, P.W.9 and P.W.10, completely smashed the version of P.W.1

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Although the activity to be taken up by the concerned officials in accordance with Section 50 of the NDPS Act has already been considered under the Constitution Bench Judgment in the case of State of Punjab Vs. Baldeo Singh, reported in (1999) 6 SCC 172 , but after having some deflection, during elapse of time, it has again came up for consideration before the

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Constitution Bench in the case of Vijaysingh Chandubha Jadeja Vs. State of Gujarat, reported in (2011) 1 SCC 609 , wherein after discussing all the relevant provisions, earlier pronouncement, it has been culled down under paragraphs 29, 30, 31 and 32 as follows:-

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“29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.

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concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.

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We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.

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Accordingly, we answer the reference in the manner aforesaid. The appeals shall, now, be placed before the appropriate Bench for disposal.”

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From the evidence available on record it is apparent

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that there happens to be divergent version disclosed on behalf of the prosecution with regard to proper compliance of Section 50

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of the NDPS Act and as it happens to be mandatory in nature to be complied with strictly before search and seizure is made, is found duly proselytized, whereupon the judgment impugned recorded by learned 3^rd Additional Sessions Judge-cum-Special Judge, Motihari in NDPS Case No. 162/16/2012-15, arising out of LCS (Land Custom Station) Laxaul Unit Case No. 66 of 2012 would not survive. Accordingly, the same is set aside.

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Consequent thereupon, the appeal is allowed.

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The appellant is in custody. Hence, he is directed to be released forthwith, if not wanted in any other case.

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(Aditya Kumar Trivedi, J)

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HR/-

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AFR/NAFR	NAFR
CAV DATE	Nil
Uploading Date	18. 09.2019
Transmission Date	18. 09.2019

Ramakant Sah v. The State Of Bihar Through Nikhil Deo Awasthee

Case brief

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Ramakant Sah v. The State Of Bihar Through Nikhil Deo Awasthee

Case brief

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