# Ashfaq v. State of U.P

- **Citation:** (2008) 1 ILRA 9
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-11
- **Case number:** Criminal Appeal No. 636 of 1995
- **Bench:** Shiv Shanker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashfaq-v-state-of-u-p-40998
- **Pages:** 7

## Headnote

N.D.P.S. Act Section 50-provision of
section
50-held
mandatory-non
compliance thereof vitiate whole trailtrail court committed great illegality by
convicting the appellant.

Held: Para 24 & 25

In the present case it was asked from
the appellant by P.W. 1 Veersain and
P.W. 2 Sultant Singh that " Jamatalashi
Rajpatrit Adhikari Ke Samaksh Chalkar
Lene Ke Liye Kaha To Kahane Laga Ki
Aap He Jamatalashi Le Len."

Therefore,
there
was
no
complete
compliance of section 50 of N.D.P:S. Act
and merely on that basis trial could be
vitiated.
However,
trial,court
has
committed
error
in
convicting
the
appellant for the said charge.
Case law discussed:
2005(3) SCC 59, 1998(8) SCC 449, 2007(58)
ACC 723, 1999(39) Supreme Court 349,
2007(1) SCC 433, 1996(6) SCC 172

## Text

1 All] Ashfaq V. State of U.P.
9
"As
a
model
employer
the
government must conduct itself with high
probity and candour with its employees"

19. In view of the above discussions,
the
writ
petition
is
allowed.
The
respondents are directed to revise and fix
family pension of the petitioner in the
light of the judgment of this Court in
Moti Lal Agarwal (supra) within a
period of four months and continue to pay
current the amount as determined above
as and when it falls due. The petitioner
shall also be entitled for interest on the
arrears of family pension at the rate of 8%
with effect from 22.9.2006, i.e., the date
of filing of the writ petition till the said
amount is paid. The petitioner shall also
be entitled to cost which is quantified to
Rupees
ten
thousand
payable
by
respondents no. 2 and 3.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2007

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Appeal No. 636 of 1995

Ashfaq

...Appellant
Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri Pt. Mohan Chandra
Sri. S.K. Tyagi
Sri. M.P. Rai
Sri. A.K. Rai
Sri. V.K. Jaiswal

Counsel for the Opp. Party:
A.G.A.

N.D.P.S. Act Section 50-provision of
section
50-held
mandatory-non
compliance thereof vitiate whole trailtrail court committed great illegality by
convicting the appellant.

Held: Para 24 & 25

In the present case it was asked from
the appellant by P.W. 1 Veersain and
P.W. 2 Sultant Singh that " Jamatalashi
Rajpatrit Adhikari Ke Samaksh Chalkar
Lene Ke Liye Kaha To Kahane Laga Ki
Aap He Jamatalashi Le Len."

Therefore,
there
was
no
complete
compliance of section 50 of N.D.P:S. Act
and merely on that basis trial could be
vitiated.
However,
trial,court
has
committed
error
in
convicting
the
appellant for the said charge.
Case law discussed:
2005(3) SCC 59, 1998(8) SCC 449, 2007(58)
ACC 723, 1999(39) Supreme Court 349,
2007(1) SCC 433, 1996(6) SCC 172

(Delivered by Hon'ble Shiv Shanker, J.)

1. This criminal appeal has been
preferred against the judgement and order
dated 31.3.1995 passed by VI Addl.
Sessions Judge, Ghaziabad in Sessions
Trial No. 29 of 1993 convicting and
sentencing the appellant to undergo 10
years R.I. and a fine of Rs. 1,00,000/-and
in default of payment of fine to further
undergo two and half years R.I. under
section 22 of N.D.P.S. Act.

2. Brief facts arising out of this
criminal appeal is that on 16.11.92, S.I.
Sultan Singh (P.W.2) was returning after
making enquiry of the application and
stopped at Loni crossing where informer
(Mukhbir) met with him and had given
information to him that one person is
likely to come from the side of railway
station Loni having illegal smack, upon
which he had tried to take the public
witnesses but none was prepared to
10 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
become a witness. Therefore, constable 2
C.P. Veersain and constable 1294 C. P.
Omprakash were taken with him who
were deputed on picket duty at Loni
crossing.
After
giving
information
regarding the informer (Mukhbir) to them,
search was taken amongst them. No
illegal article was found in possession of
any of them. Thereafter, all have
proceeded along with informer and
reached near the crossing situated at
Banthala railway gate, where one person
was seen at the crossing coming from
front of them. The informer pointed out
that he is the man who is having illegal
smack. Thereafter the informer (Mukhbir)
has returned. After seeing the police
personnel, above person had turned and
tried to run away fastly upon which he
was challenged and he was apprehended
at station road at about 8.30 P.M. at the
distance of 20 steps from the said Tiraha.
He has disclosed his name as Asfaq.
Thereafter
"Jamatalashi
Rajpatrit
Adhikari Ke Samaksh Chalkar Lene
Ke Liye Kaha To Kahane Laga Ki Aap
Hee Jamatalashi Le Len." Thereafter,
20 puriyas smack, wrapped in the packet
were found in the right side pocket of his
paint at his search. It was asked from him
,as to from where it has been received. He
did not give any satisfactory reply.
Thereafter, the recovered smacks were
kept in white clothes in polythin (panni)
and after sealing it, Fard Ext. Ka-1 was
prepared in the torch light and electric
light. Signature was obtained from the
police official upon the Fard and its copy
was given to the accused after obtaining
his signature upon it. After taking accused
and recovered contraband article, Fard
was submitted in the concerned police
station, where accused was put in the lock
up and chick F.I.R. Ext. Ka- 4 was
prepared and case under section 22/32 of
N.D.P.S. Act was registered. Investigation
of this case was entrusted to S.1. Sri Ram
Sewak Upadhyaya (P. W.3).

3.

During
the
course
of
investigation,
recovered
contraband
article was sent for chemical examination,
from where chemical report was received.
It reveals that heroin was found from the
said contraband article. After completion
of investigation, charge sheet Ext. Ka 3
was submitted against the accused above
in the concerned court. Accused Asfaq
above was charged for the offence under
section 22/32 of N.D.P.S. Act who
pleaded not guilty and claimed to be tried.

4. Prosecution examined three
witnesses namely P.W.1 Veersain. He is
fact witness who stated prosecution story
and proved recovery memo Ext. Ka-1 and
20 puriyas smack.

5. P.W.2 Sultan Singh is an arresting
officer, who stated about prosecution
story. P.W.3 S.I. Ram Sewak Upadhyaya
is Investigating Officer of this case. He
proved site plan Ext. Ka-2. The charge
sheet was filed against accused Ext. Ka-3,
Chick F.I.R. was registered Ext. Ka-4 and
the is copy of case Kayami G.D. Vide
Ext. Ka-5.

6. Statement of accused under
section 313 Cr.P.C. was recorded who
denied all the questions asked from him
and stated that he was arrested by the
police from the house of one Veer Singh
and implicated falsely in this case by
showing police activities.

7. After considering the submissions
of learned counsels for both the parties
and perusing the whole evidence on
record, the accused above was found
1 All] Ashfaq V. State of U.P.
11
guilty for the offence under section 22 of
N.D.P.S.
Act.
Therefore,
he
was
convicted and awarded sentence for 10
years R.I. and a fine of Rs. 1 lakh. Feeling
aggrieved by it accused appellant has
preferred the present appeal.

8. Heard learned counsel for the
appellant and learned A.G.A. and perused
the whole evidence on record as well as
impugned judgement and order passed by
the trial court.

9. Learned counsel for the appellant
has submitted that no sample was taken
from the alleged recovered contraband
article and the same was sent to the
chemical examiner for its examination.
Therefore, in absence of not taking
sample from the recovered contraband
article, it is not believable that the said
contraband article was only sent to the
chemical examiner for its examination. It
is further contended that section 50 of
N.DPS. Act was not complied in taking
personal search of the appellant which is
mandatory provision and non-compliance
of the said provision, the whole trial is
vitiated. It is further contended that
contraband article was not forwarded
according to rules. Therefore, it is not
certain that only recovered contraband
was sent to chemical examiner. It is
further contended that after search and
seizure, no report was sent by arresting
officer to his higher authorities regarding
it. He has also not complied with section
57
of
N.D.P.S.
Act.
In
such
circumstances,
the
trial
court
has
committed
error
in
convicting
the
appellant for the said charge and he is
liable to be acquitted by allowing his
appeal.

10. On the other hand, learned
A.G.A. has urged that section 50 of
N.D.P.S. Act has been complied with at
the time of taking search and seizure.
There
is
no
averment
regarding
noncompliance of section 50 of N.D.P.S.
Act. Compliance has been made by the
arresting officer regarding the above
section. Therefore, trial cannot be vitiated
and accused cannot be acquitted. It is
further
contended
that
the
whole
recovered contraband was sent to the
chemical examiner for its examination.
There is no illegality in not taking sample
from it. It was sent in the same manner
without any tampering to the chemical
examiner. Therefore, it is not liable to be
deemed that the seal of recovered
contraband was tampered. It is further
contended that section 42 and 57 of
N.D.P.S. Act are not mandatory but
directory. There will be no effect in not
complying these sections. It is further
contended that P.W. 1 Veersain and
P.W.2 Sultan Singh have supported the
prosecution case in their deposition and
case was fully proved against the
appellant. Therefore, the trial court has
rightly convicted the appellant according
to law and he is not liable to be acquitted
and this appeal is liable to be dismissed.

11. P.W.1 constable Veer Sain has
been challenged on behalf of appellant at
the time of his cross examination that he
was arrested by the police from the house
of one Veer Singh. In such circumstances,
the prosecution was bound to prove that
P.W.1 and P.W.2 had proceeded from the
concerned police station and reached at
the place of incident where he was
allegedly arrested. In this regard, nothing
has been mentioned in the recovery memo
Ext. Ka-1, by which G.D. P.W.1 Veersain
and P.W.2 Sultan Singh had proceeded.
12 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Similarly they have not stated in their
depositions regarding it. Case Kayami
G.D. Ext.Ka-5 also does not reveal that
G.D. Number of Ravanagi was mentioned
in it. In absence of not producing of
Rawanagi G.D, in evidence regarding
P.W.1 and P.W .2, presence of both the
witnesses at the place of incident have
become suspicious. When the presence of
both witnesses at the place of incident has
become
suspicious,
in
such
circumstances, search and seizure of
contraband article from the possession of
appellant is also liable to be suspicious.

12. It is worthwhile to mention here
that there is no public witness in this
incident. Only police personnel P.W.1 and
P.W.2 have been adduced in evidence. It
does not mean that evidence of police
personnel
only
cannot
be
believed
provided
their
evidence
inspired
confidence. The informer has already
given
information
regarding
accused/appellant at the crossing of Loni.
In such circumstances, some persons may
pass through the crossing and anyone
could be made witness as public witness
by P.W.1 and P.W.2. It has been stated by
P.W.1 Veersain and P.W.2 Sultan Singh
that they have tried to take public witness
but none was prepared for the same. This
shows that both the witnesses P.W.1
Veersain and P.W.2 Sultan Singh have
contacted some public persons but they
have not stated anywhere by disclosing
the name of such person who did not
prepare to become public witnesses and in
not disclosing the name of such person,
only inference can be drawn that they
have not tried to take any public witness
after receiving information from the
informer. If the public witness will be
taken by them regarding alleged search
and seizure, they could not support the
prosecution case. Therefore, no any
public witness was made in the case. In
such circumstances, in absence of public
witness, testimony of both the police
personnel is not liable to be believed.

13. It is also worthwhile to mention
here that the alleged contraband article
was recovered on 16.11 .92 It was kept in
Malkhana of the concerned police station,
from where P.W. 3 Ram Sewak Updhyay
who is Investigating Officer, took the said
bundle and sent it to the chemical
examiner for its examination on 24.11.92.
The same was received in the office of
chemical examiner on 26.11.92. Its report
dated 7.8.93 was received in the court,
where as the charge sheet dated 10.12.92
against the appellant was already filed in
the concerned court. Therefore, charge
sheet
was
filed
without
chemical
examination report in the court when the
recovered
contraband
was
kept
in
Malkhana of G.D. of police station after
recovery and sent to the chemical
examiner for its report but no evidence
has
been
adduced
on
behalf
of
prosecution by proving that recovered
bundle of contraband article was kept in
the lock up of police station intact till
giving to the Investigating officer and it
was the same intact received in the office
of the chemical examiner. It could be
proved by producing malkhana register or
G.D. of lock up and producing the
concerned police officials who took such
article in intact condition to the office of
chemical examiner. It is also worthwhile
to mention here that sample of seal has
not been produced in evidence on behalf
of prosecution.

14. It has been observed in decision
of Apex Court in case of State of
Rajasthan Vs. Gurmail Singh reported
1 All] Ashfaq V. State of U.P.
13
in (2005)3 Supreme Court Cases 59 that
"Infirmities in prosecution case-Though
the seized article claimed to have been
kept in malkhana on 20.5.1995 till it was
taken over on 5.6.1995, but malkhana
register not produced in support thereof-
No sample of seal sent along with the
sample
to
Excise
Laboratory
for
comparing with the seal appearing on
sample bottles and thus there was no
evidence to prove that the seals found
were the same as were put on the sample
bottles immediately after seizure of the
contraband-Held, link evidence adduced
by prosecution not satisfactory in view of
the loopholes in the prosecution case,
High Court rightly acquitted the accusedrespondent".

15. It has also been observed in
decision of Apex Court in case of State
of Rajasthan Vs. Gopal reported in
(1998) 8 Supreme Court Cases 449 that
"Seal on sample sent to the Analyst not
produced in court for verification- Article
seized on the railway platform and seal of
station master used but stationmaster not
examined to prove the seal-Accused not
given an option to exercise his discretion
for being searched in the presence of a
magistrate or gazetted police officer-Held,
in the circumstances order of acquittal
calls for no interference by the Supreme
Court.

16. Therefore, both the decision of
Apex Court are fully applicable in the
case. In such circumstances, no any link
evidence was produced on behalf of
prosecution.

17. It is also worthwhile to mention
here that there was no compliance of
sections 42, 43, 57 of N.D.P.S. Act. There
is no evidence on record that information
regarding search and seizure was sent to
the higher authorities within 48 hours for
complying provisions of section 57 of
N.D.P.S. Act, although sections 42 and 57
are not mandatory but directory. It is also
worthwhile to mention here that section
52 of N.D.P.S. Act was also not complied
as reasons of arrest was not shown to the
accused appellant. Section 52 of N.D.P.S.
Act is also directory.

18. It has been observed in decision
of this Court in case of Roshan Lal Vs.
State
of
U.P.
reported
in
(2007
(58)ACC 723) that "Sections 20(b) (ii),
57
and
50-Conviction-SustainabilityRecovery of 7 kgs of charas from the
appellant from a public place-Nothing
tangible to show that any endeavour was
made to joint independent witness of
search
and
seizure-Requirements
of
sections 52 and 57 not complied withAppellant arrested without informing him
of the ground of arrest- No evidence led
to show that soon after the arrest and
seizure the immediate superior officer
was made to know about the details of
such
search
and
seizure-Prosecution
unable to prove that the contraband was
recovered from appellant-possibility of
plantation of the contraband not ruled outConviction and sentence set aside."

19. Therefore, the trial cannot be
vitiated
merely
in
not
complying
provisions of sections 42, 52 and 57 of
N.D.P.S. Act. However, it does not mean
that it should be given a complete go by
as that will make section 57 otiose. It is a
cardinal principle of law that if a thing is
required to be done in a particular manner
then that thing should be done in that
manner or not at all. Nonobservance of
the section 57 of the N.D.P.S. Act does
not by itself diminishes the recorded
14 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
conviction but it certainly diminishes the
value of evidence led in the trial by the
prosecution".

20. It is also worthwhile to mention
here that section 50 of N.D.P.S. Act is
mandatory and in violation of it, trial can
be vitiated. In the present case, section 50
of N.D.P.S. Act was attracted as it was
not a chance recovery and the alleged
recovery was made from the pocket of
appellant, although P.W.1 and P.W.2 have
given evidence that section 50 of N.D.P.S.
Act was complied with at the time of
taking its search and seizure.

21. Learned counsel for the
appellant has attracted my \ attention
towards the decision of Apex Court in
case of State of Punjab Vs. Baldev
Singh reported in 1999(39) (Supreme
Court) page 349. consisting of five
Judges Bench including Chief Justice of
India, in which it has been observed at
para 23 of this judgement that "It would,
thus, be seen that none of the decisions of
the Supreme Court after Balbir Singh's
case have departed from that opinion. At
least none has been brought to our notice.
There is, thus, unanimity of judicial
pronouncements to the effect that it an
obligation of the empowered officer and
his duty before conducting the search of
the person of a suspect on the basis of
prior information, to inform the suspect
that he has the right to require his search
being conducted in the presence of a
gazetted Officer or a Magistrate and that
the failure to so inform the suspect of his
right, would render the search illegal
because the suspect would not be able to
avail of the protection which is inbuilt in
Section 50. Similarly, if the concerned
person requires, on being so informed by
the empowered office or otherwise, that
his search be conducted in the presence of
a Gazetted Officer or a Magistrate, the
empowered officer is obliged to do so and
failure on his part to do so would also
render
the
search
illegal
and
the
conviction and sentence of the accused
bad."

22. It has been observed in the
decision of Apex Court in case of
Vijaysinh Chandubha Jadeja Vs. State
of
Gujarat
reported
in
(2007)1
Supreme Court Cases 433 consisting of
three Judges Bench including Chief
Justice of India that "As per decision of
Constitution Bench in Baldev Singh,
(1999)6 SCC 172, it is not enough that the
accused be told that whether he would
prefer to be searched in the presence of a
gazetted officer or a Magistrate-He must
be told of his right to be searched in the
presence of a gazetted officer or a
Magistrate-However, in view of some
conflicting
decisions
rendered
by
Supreme Court in this regard, matter
requires some clarification by a larger
Bench-Hence, directed to be placed
before Chief Justice of India for further
action."

23.

Therefore,
the
above
pronouncement of Constitutional Bench
in case of Baldev Singh, (1999) 6 SCC
172 has not been overruled till now.
Therefore, it is to be followed.

24. In the present case it was asked
from the appellant by P.W. 1 Veersain
and P.W. 2 Sultant Singh that "
Jamatalashi Rajpatrit Adhikari Ke
Samaksh Chalkar Lene Ke Liye Kaha
To
Kahane
Laga
Ki
Aap
He
Jamatalashi Le Len."
1 All] Virendra Pal Singh V. State of U.P.
15

25. Therefore, there was no
complete compliance of section 50 of
N.D.P:S. Act and merely on that basis
trial could be vitiated. However, trial
court has committed error in convicting
the appellant for the said charge.

26. In view of above discussions,
there is no force in the submissions made
by learned A.G.A. and the trial court has
committed
error
in
convicting
the
appellant for the above charge and he is
liable to be acquitted by allowing this
appeal.

27. Therefore, the appeal succeeds
and is allowed. The conviction and
sentence of the appellant for the charge
levelled against him is hereby set aside.
The accused appellant is hereby acquitted.
He is on bail. His bail bonds are cancelled
and sureties are discharged. The amount
of fine, if deposited by the appellant, shall
be refunded to him. The recovered
contraband
article,
as
above,
be
confiscated.

28. Record of the court below be
remitted back immediately along with
copy of this judgement. Appeal Allowed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.11.2007

BEFORE
THE HON'BLE (MRS.) SAROJ BALA, J.

Criminal Revision No. 1626 of 2001

Virendra Pal Singh
...Revisionist
Versus
State of U.P.

...Opposite Party

Counsel for the Revisionist:
Sri V. Singh
Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section-457Power of Magistrate-release of vehicle
loaded with solvent-vehicle standing
open place for the last 6 years-only
reason disclosed for non release-only the
District Collector empowered in the
offence of E.C. Act-held-illegal-direction
issued for release after appropriate bond
with sureties.

Held: Para 11

The Criminal Courts have jurisdiction
under Section 451 of the Code of
Criminal Procedure to pass appropriate
orders with regard to the custody and
disposal of the property pending trial.
The vehicle loaded with so1vent is
standing in the open place at the police
station premises for the last about six
years. The vehicle will become junked
with passage of time.
Case law discussed:
2003 (Crl.) SCC-1943, 1977 (4) SCC-358, 1990
(2) ACC-480

(Delivered by Hon'ble (Mrs.) Saroi Bala. J.)

1. This Criminal revision. is directed
against the order dated 19.6.2001 passed
by
the
Additional
Chief
Judicial
Magistrate, Court No. 10, Azamgarh in
Case Crime No. 155 of 2001 under
Section 420 I.P.C. and Section 3/7 of the
Essential Commodities Act, Police station
Deo Gaon, District Azamgarh whereby
declining to release the Tanker and
solvent loaded therein.

2. Heard Sri V. Singh, learned
counsel for the revisionist, learned A.G.A.
and have perused the record.

The facts giving rise to this revision
put briefly are these: