# Darshan Singh Dhimar (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 520
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-04
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/darshan-singh-dhimar-in-jail-v-state-of-u-p-45851
- **Pages:** 11

## Headnote

prosecution in its evidence as to wherefrom the
weighing machine was brought and from whom
it was brought- It was a public duty cast upon
the concerned police official to disclose the
name of the shop keeper in the FIR as well as in
the charge sheet, but the name of shop keeper
has not been disclosed for the reasons best
known to the prosecution side and this lacuna is
sufficient to make the prosecution story
doubtful- Nowhere it has been mentioned by the
prosecution that the report of the seizure of the
contraband and arrest of the accused was given
to the Superior Officer as laid down by the
Section 42 of the NDPS Act- Nor, the
prosecution
has
adduced
any
evidence
regarding the sending of special report to the
Superior Officer, hence compliance of the
provisions of Section 42 has not been proved by
the prosecution- Compliance of Section 55 was
not made- No evidence by the prosecution has
been led that the recovered articles were given
in the charge of concerned officer of the police
station and the alleged recovered contraband
was kept in safe custody- No evidence has been
adduced by the prosecution that the matter was
produced before the Station House Officer and
he put his signature and seal over the alleged
recovered contraband and then, it was kept in
safe custody or it was given to the Maalkhana
Moharrir who could place it in the safe custody
because
no
Malkhana
register
was
ever
produced in evidence before the Trial Court and
no such oral evidence in this regard was ever
produced by the prosecution before the Trial
Judge - Non compliance of Section 57- No such
evidence is led by the prosecution in the present
case during the trial that any report was ever
submitted about the such arrest and seizure in
compliance of the Section 57 to the superior
officer- Section 50 of the NDPS Act was not
complied with and the non compliance of this
Section has vitiated the whole prosecution
story seriously which makes the conviction of
the appellant by the learned Trial Court
contrary to the law-The requirements of
Section 50 of the NDPS Act are mandatory
and, therefore, the provisions of Section 50
must be strictly complied with- It cannot be
ascertained that the provisions laid down in
Section 50 of the Act were complied with in
its entirety. In this context PW-3, Vidya Kant
Patel, has said only that the arrested person
was apprised of his right if he wished that his
search be conducted before any Gazetted
Officer or Magistrate, he was not agree for his
search before Magistrate and he consented
that search be made by the police party itself.

Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985-
Section 20 - Seizure of Ganja- No
disclosure
by
prosecution
about
the
person from whom the weighing machine
was obtained- Owner of weighing machine
not a witness in the Charge sheet- It was
a public duty cast upon the concerned
police official to disclose the name of the
shop keeper in the FIR as we

## Text

520 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A520
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.05.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. - 4537 of 2018

Darshan Singh Dhimar...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Lalit Kumar Srivastava, Sri Narendra
Kumar Sharma, Sri Sandeep Kumar, Sri
Sunil Kumar Kushwaha

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

Nowhere it has been mentioned by the
prosecution in its evidence as to wherefrom the
weighing machine was brought and from whom
it was brought- It was a public duty cast upon
the concerned police official to disclose the
name of the shop keeper in the FIR as well as in
the charge sheet, but the name of shop keeper
has not been disclosed for the reasons best
known to the prosecution side and this lacuna is
sufficient to make the prosecution story
doubtful- Nowhere it has been mentioned by the
prosecution that the report of the seizure of the
contraband and arrest of the accused was given
to the Superior Officer as laid down by the
Section 42 of the NDPS Act- Nor, the
prosecution
has
adduced
any
evidence
regarding the sending of special report to the
Superior Officer, hence compliance of the
provisions of Section 42 has not been proved by
the prosecution- Compliance of Section 55 was
not made- No evidence by the prosecution has
been led that the recovered articles were given
in the charge of concerned officer of the police
station and the alleged recovered contraband
was kept in safe custody- No evidence has been
adduced by the prosecution that the matter was
produced before the Station House Officer and
he put his signature and seal over the alleged
recovered contraband and then, it was kept in
safe custody or it was given to the Maalkhana
Moharrir who could place it in the safe custody
because
no
Malkhana
register
was
ever
produced in evidence before the Trial Court and
no such oral evidence in this regard was ever
produced by the prosecution before the Trial
Judge - Non compliance of Section 57- No such
evidence is led by the prosecution in the present
case during the trial that any report was ever
submitted about the such arrest and seizure in
compliance of the Section 57 to the superior
officer- Section 50 of the NDPS Act was not
complied with and the non compliance of this
Section has vitiated the whole prosecution
story seriously which makes the conviction of
the appellant by the learned Trial Court
contrary to the law-The requirements of
Section 50 of the NDPS Act are mandatory
and, therefore, the provisions of Section 50
must be strictly complied with- It cannot be
ascertained that the provisions laid down in
Section 50 of the Act were complied with in
its entirety. In this context PW-3, Vidya Kant
Patel, has said only that the arrested person
was apprised of his right if he wished that his
search be conducted before any Gazetted
Officer or Magistrate, he was not agree for his
search before Magistrate and he consented
that search be made by the police party itself.

Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985-
Section 20 - Seizure of Ganja- No
disclosure
by
prosecution
about
the
person from whom the weighing machine
was obtained- Owner of weighing machine
not a witness in the Charge sheet- It was
a public duty cast upon the concerned
police official to disclose the name of the
shop keeper in the FIR as well as in the
charge sheet, but the name of shop
keeper has not been disclosed for the
reasons best known to the prosecution
side and this lacuna is sufficient to make
the prosecution story doubtful.
In order to prove it's case it was incumbent
upon the prosecution to disclose the owner
of the weighing machine and make him a
witness in the police report / charge sheet,
in absence of which the case of the
prosecution becomes doubtful.
6 All. Darshan Singh Dhimar Vs. State of U.P.
521
Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985-
Section 42- Non- compliance of- No report of
seizure of contraband and arrest of the accused
sent to the superior officer- The prosecution has
not adduced any evidence regarding the
sending of special report to the Superior Officer,
hence compliance of the provisions of Section
42 has not been proved by the prosecution.

It is settled law that the total non-compliance
of the provisions of sub-Sections (1) and (2) of
Section 42 of the Act is impermissible but
delayed
compliance
with
a
satisfactory
explanation
for
delay
can,
however,
be
countenanced. In the present case there is total
non- compliance of the provisions of Section 42
which is impermissible.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985-
Section 55- Link Evidence- No Maalkhana
register produced by the prosecution- No oral
evidence evidence led before the trial court
regarding compliance of Section 55 of the ActNon compliance of Section 55 also casts a doubt
on the veracity of the prosecution case as there
is no evidence on file that the alleged seized
contraband was ever produced before the
officer in charge of the concerned police station.

Failure of the prosecution to bring on record the
Maalkhana register, which is an important link in
the case of the prosecution, and to lead oral
evidence pertaining to the compliance of the
provision of Section 55 of the Act casts a serious
doubt upon the recovery of the contraband from
the accused.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985-
Section 57- Report of search and seizure- Non-
compliance of-No such evidence is led by the
prosecution in the present case during the trial
that any report was ever submitted about the
such arrest and seizure in compliance of the
Section 57 to the superior officer.

Non- compliance of the provisions of Section 57
of the Act is bound to reflect on the credibility of
the case of the prosecution and render it
doubtful.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985-
Section 50- Requirement of strict complianceThe non compliance of Section 50 of the Act
has vitiated the whole prosecution story
seriously which makes the conviction of the
appellant by the learned Trial Court contrary to
the law .The requirements of Section 50 of the
NDPS Act are mandatory and, therefore, the
provisions of Section 50 must be strictly
complied with.
Law is settled that it is imperative on the part of
the Police Officer to apprise the person intended
to be searched of his right under Section 50 to
be searched only before a Gazetted officer or a
Magistrate and it is mandatory for the officer to
make the suspect aware of the existence of his
right to be searched before a Gazetted Officer
or a Magistrate. Non- compliance of the
provisions of Section 50 will vitiate the whole
trial. (Para 13, 16, 19, 20, 21, 23, 24, 26)

Criminal Appeal allowed. (E-3)

Case law relied upon/ discussed:-

1. Kishan Chand Vs St. of Har., LAWS (SC)
2012-12-55

2. Rajinder Singh Vs St. of Har. (2011) 8 SCC
130

3. Gurbax Singh Vs St. of Har., AIR (2001) SC
1002

4. Ashok Kumar Sharma Vs St. of Raj. (2013) 2
SCC 67

5. Vijaysinh Chandubha Jadeja Vs St. of Guj.,
(2011) 1 SCC 609

(Delivered by Hon'ble Ajit Singh, J.)

1.

Heard
learned
counsel
for
appellant, learned A.G.A. appearing for
State and perused the record of this case.

2. This criminal appeal has been filed
against the judgment and order dated
31.07.2018 passed by learned Sessions
Judge (F.T.C.), District Jalaun at Orai in
522 INDIAN LAW REPORTS ALLAHABAD SERIES
Special Session Trial No. 19 of 2014 (State
Vs. Darshan Singh Dhimar) arising out of
Case Crime No. 1175 of 2013, under
Section
20
of
Narcotic
Drugs
and
Psychotropic Substances Act (hereinafter
referred to as "the NDPS Act"), Police
Station Kotwali, Orai, District Jalaun. By
the impugned judgment and order the
appellant has been convicted and sentenced
to
undergo
five
years'
rigorous
imprisonment under Section 20 of the
N.D.P.S. Act with a fine of Rs. 10,000/-. It
has also been stipulated by the learned Trial
Court in the order impugned that in case of
failure to pay the fine, the appellant will
undergo an additional sentence of six
months' simple imprisonment.

3. The prosecution case in brief is that on
02.06.2013 SI G.P. Ojha along with Constable
Vidya Kant Patel were on patrolling duty at
Vinawar area in O.P. Deputyganj and were
going towards Ramleela Maidan. They saw a
person coming carrying with him a plastic bag
(sack) filled with some light weight substance.
All of a sudden seeing the police men, he
stopped, turned around and tried to run towards
Pani Ki Tanki Road. On suspicion, he was
asked to stop, but he did not stop. At about
11:00 P.M. in night with the help of companion
constable the accused appellant was caught
with plastic bag in his hand. It being a sudden
incident and happened in night, no public
witnesses could be found. The arrested person
told his name and address. He gave a written
consent (Ext. Ka. 7) and on his written consent,
the search was done and on search so made, it
was found that he was having contraband
namely Ganaj in the plastic bag (sack) and a
sum of Rs. 450/- was also recovered from his
pocket, about which it was told by accused to
have been obtained by sale of Ganja.

4. The aforesaid contraband substance
was seized and the accused was taken in police
custody. From a shop weight and balance were
brought by Constable Vidya Kant Patel and
weight of the seized item was done, which
weighed to be 9 Kgs. Recovery memo (Ext.
Ka.6) was prepared and the seized item along
with Rs. 450/- was packed and sealed in the
said plastic bag; a sample of 100 Gms. of the
said recovered Ganja was taken and was got
packed and sealed in a separate packet (Ext. Ka.
5) to be sent to Forensic Science Laboratory.
Thereafter, First Information Report (Ext. Ka.1)
was lodged on 03.06.2013 on the written
information of complainant SI Shri G.P. Ojha,
Police Station - Kotwali, Orai.

5. After lodging of the First Information
Report, investigation was done by SI Shri
Sudhakar Singh and charge sheet dated
19.07.2013 (Ext. Ka. 4) was submitted against
appellant under Section 20 of the NDPS Act.
The case against appellant was registered as
Special Session Trial No. 19 of 2014. On
03.12.2014 charge was framed against accused
appellant and trial proceedings commenced in
this case.

6. The Trial Court recorded the
prosecution evidence and also recorded the
statement of accused under Section 313
Cr.P.C. The defence evidence of DW-1
Ram Kisun was also recorded. After
considering the evidences available on
record, the learned Trial Court found him
guilty of the charges levelled upon him and
by impugned judgment and order, the Trial
Court
convicted
and
sentenced
the
appellant, who is languishing in jail since
the date of the judgment.

7. The learned counsel for the appellant
has submitted that the impugned judgment and
order is not correct in the eyes of law because
the learned Lower Court has not considered the
provisions of Sections 42, 43, 50, 55 and 57 of
the NDPS Act in their right perspective.
6 All. Darshan Singh Dhimar Vs. State of U.P.
523

8. The learned counsel has further
argued that there are various contradictions
and infirmities in the statement of the PW-3
who is the only witness of the alleged
recovery. The other argument raised by the
learned counsel for the appellant is that
there is no link evidence produced by the
prosecution to prove its case as per
mandate of Sections 42, 55 and Section 57
of the Act.

9. On the other hand, the learned
AGA has submitted that the accused has
been rightly convicted by the Trial Court
and because the incident has happened in
the night and no public witness could be
procured at that time, there is no infirmity
or illegality on the part of the prosecution
in conducting the case. The impugned
judgment deserves to be affirmed.

10. I have heard the arguments of the
learned counsel for the parties and perused
the record of the case.

11. This Court finds that nowhere it
has been mentioned by the prosecution in
its evidence as to wherefrom the weighing
machine was brought and from whom it
was brought. No statement regarding this
has been recorded by the Investigating
Officer, which casts a serious doubt on the
veracity of the prosecution case. The
statement of prosecution witness Vidya
Kant Patel, PW-3 as well as the version of
informant both read as under:-

"कांिा बााँि िरोगाजी एक िुकान से
लाये थे तकस िुकान से लेकर आये थे. यह भी
याि नहीं है तक िराजू इलेक्टरॉतनक था या बााँि
िाला था."

In the recovery memo dated
02.06.2013 (Ex. Ka-6) the following
version has been recorded:-

"हिराही Con. तिद्या कांि पिेल को
भेजकर िुकान से कांिा बााँि िंगा कर िजन
तकया गया िो कुल भर नौ केजी िौल िें आया।"

12.

From
the
above
quoted
statements, it is evident that nothing
specific has been said either by PW-3 in his
statement or by the informant in the FIR.
The informant has used word "Dukan" and
PW-3 has used words "Ek Dukan", which
appears to be vague. PW-3 says that
weighing machine was brought by Darogaji
and FIR version says that it was brought by
Vidya Kant Patel, PW-3, there being
serious contradiction, it cannot be said that
the prosecution had proved its case before
Trial Court beyond reasonable doubts.

13. This Court has gone through the
charge sheet as well as the lower court
record along with the impugned order and
finds that there is nowhere mention about
the details of the shop from where kantabaant
were
allegedly
brought.
The
Investigating Officer had not attempted to
record and identify the name of the shop or
shop keeper who had given kanta-baant in
night to weigh the contraband. It was a
public duty cast upon the concerned police
official to disclose the name of the shop
keeper in the FIR as well as in the charge
sheet, but the name of shop keeper has not
been disclosed for the reasons best known
to the prosecution side and this lacuna is
sufficient to make the prosecution story
doubtful. I find that the only witness of fact
Vidya Kant Patel examined by the
prosecution to prove its case has not
supported the prosecution case fully and
there
are
various
inconsistencies,
contradictions in his statement as noted
down above. This witness who was said to
be present at the place of occurrence along
with the informant when the alleged
524 INDIAN LAW REPORTS ALLAHABAD SERIES
contraband
seized
from
the
present
appellant, has deposed before the learned
Trial Court in his examination in chief that
he brought the weighing machine with
which the alleged contraband was weighed
but in his cross examination this witness
has said that the weighing machine was
brought by Daroga Ji from any shop. This
is a material fact which casts doubt about
the recovery of the contraband from the
accused appellant.

14. Although there was a serious
contradictions in the statement of the
prosecution witness on the question of who
brought the weighing scale for weighing
the alleged contraband as PW -3 has stated
that he does not remember as to who
brought the weighing machine and in the
recovery memo SI J.P. Ojha has noted
down that the police constable Vidya Kant
Patel was sent to get the weighing scale
from a shop, yet the learned Trial Court has
taken their statements to be reliable and
trustworthy only on the ground that the
evidence of police officials has to be taken
as valuable and qualitative without there
being any strait jacket formula in this
regard.

15. Moreover, the relevant provisions
of the NDPS Act which were mandatory to
be complied with, were not complied with
by the police officials since the very
inception, but this aspect of the matter has
not been dealt with by the learned Trial
Court in right perspective in its judgment
and order. That is why the impugned
judgment and order suffers from manifest
error of law and fact.

16. I have perused the entire evidence
to find out the compliance of Section 42 of
the NDPS Act and I find that nowhere it
has been mentioned by the prosecution that
the report of the seizure of the contraband
and arrest of the accused was given to the
Superior Officer as laid down by the
Section 42 of the NDPS Act. I have also
gone through the entries of the G.D.
regarding this argument and find that the
provisions of Section 42 of the NDPA Act
were
not
complied
with.
Nor,
the
prosecution has adduced any evidence
regarding the sending of special report to
the Superior Officer, hence compliance of
the provisions of Section 42 has not been
proved by the prosecution, which casts
serious doubt on the veracity of the
prosecution case.

17. In Kishan Chand Vs. State of
Haryana, LAWS (SC) 2012-12-55 the
Hon'ble Apex Court has held as under:-

"In our considered view, this
controversy is no more res integra and
stands answered by a Constitution Bench
judgment of this Court in the case of
Karnail Singh (supra). In that judgment,
the Court in the very opening paragraph
noticed that in the case of Abdul Rashid
Ibrahim Mansuri v. State of Gujarat
[(2000) 2 SCC 513], a three Judge Bench
of the Court had held that compliance of
Section 42 of the Act is mandatory and
failure to take down the information in
writing and sending the report forthwith to
the immediate officer superior may cause
prejudice to the accused. However, in the
case of Sajan Abraham (supra), again a
Bench of three Judges, held that this
provision is not mandatory and substantial
compliance was sufficient. The Court
noticed, if there is total non-compliance of
the provisions of Section 42 of the Act, it
would adversely affect the prosecution case
and to that extent, it is mandatory. But, if
there is delay, whether it was undue or
whether the same was explained or not,
6 All. Darshan Singh Dhimar Vs. State of U.P.
525
will be a question of fact in each case. The
Court in paragraph 35 of the judgment held
as under:-

35. In conclusion, what is to be
noticed is that Abdul Rashid did not require
literal compliance with the requirements of
Sections 42 (1) and 42(2) nor did Sajan
Abraham hold that the requirements of
Sections 42 (1) and 42(2) need not be
fulfilled at all. The effect of the two
decisions was as follows:

(a) The officer on receiving the
information [of the nature referred to in
sub-section (1) of Section 42] from any
person had to record it in writing in the
register concerned and forthwith send a
copy to his immediate official superior,
before proceeding to take action in terms of
clauses (a) to

(d) of Section 42 (1).

(b) But if the information was
received when the officer was not in the
police station, but while he was on the
move either on patrol duty or otherwise,
either by mobile phone, or other means,
and the information calls for immediate
action and any delay would have resulted
in the goods or evidence being removed or
destroyed, it would not be feasible or
practical to take down in writing the
information given to him, in such a
situation, he could take action as per
clauses (a) to (d) of Section 42 (1) and
thereafter, as soon as it is practical, record
the information in writing and forthwith
inform the same to the official superior.

(c)
In
other
words,
the
compliance with the requirements of
Sections 42 (1) and 42 (2) in regard to
writing down the information received and
sending a copy thereof to the superior
officer, should normally precede the entry,
search and seizure by the officer. But in
special circumstances involving emergent
situations, the recording of the information
in writing and sending a copy thereof to the
official superior may get postponed by a
reasonable period, that is, after the search,
entry and seizure. The question is one of
urgency and expediency.

(d) While total non-compliance
with requirements of sub- sections (1) and
(2) of Section 42 is impermissible, delayed
compliance with satisfactory explanation
about the delay will be acceptable
compliance with Section 42. To illustrate, if
any delay may result in the accused
escaping or the goods or evidence being
destroyed or removed, not recording in
writing the information received, before
initiating action, or non- sending of a copy
of such information to the official superior
forthwith, may not be treated as violation
of Section 42 . But if the information was
received when the police officer was in the
police station with sufficient time to take
action, and if the police officer fails to
record in writing the information received,
or fails to send a copy thereof, to the
official superior, then it will be a
suspicious circumstance being a clear
violation of Section 42 of the Act.
Similarly, where the police officer does
not record the information at all, and does
not inform the official superior at all, then
also it will be a clear violation of Section
42 of the Act. Whether there is adequate or
substantial compliance with Section 42 or
not is a question of fact to be decided in
each
case.
The
above
position
got
strengthened with the amendment to
Section 42 by Act 9 of 2001." (emphasis
supplied)

18. Following the above judgment, a
Bench of this Court in the case of Rajinder
Singh Vs. State of Haryana [(2011) 8 SCC
130 took the view that total noncompliance of the provisions of subSections (1) and (2) of Section 42 of the
526 INDIAN LAW REPORTS ALLAHABAD SERIES
Act
is
impermissible
but
delayed
compliance with a satisfactory explanation
for delay can, however, be countenanced.

19. As regards the submission of the
learned counsel for the appellant that
compliance of Section 55 was not made,
this Court finds that no evidence by the
prosecution has been led that the recovered
articles were given in the charge of
concerned officer of the police station and
the alleged recovered contraband was kept
in safe custody. Section 55 reads as under:-

Section 55 in The Narcotic
Drugs and Psychotropic Substances Act,
1985.

"55. Police to take charge of
articles seized and delivered.-An officerin-charge of a police station shall take
charge of and keep in safe custody, pending
the orders of the Magistrate, all articles
seized under this Act within the local area
of that police station and which may be
delivered to him, and shall allow any
officer who may accompany such articles
to the police station or who may be deputed
for the purpose, to affix his seal to such
articles or to take samples of and from
them and all samples so taken shall also be
sealed with a seal of the officer-in-charge
of the police station."

20. The prosecution has not led any
evidence in this regard and compliance of
Section 55 does not find any mention in the
papers produced by the prosecution during
the trial of this case. This Court finds that
non compliance of Section 55 also casts a
doubt on the veracity of the prosecution
case as there is no evidence on file that the
alleged
seized
contraband
was
ever
produced before the officer in charge of the
concerned police station. No evidence has
been adduced by the prosecution that the
matter was produced before the Station
House Officer and he put his signature and
seal over the alleged recovered contraband
and then, it was kept in safe custody or it
was given to the Maalkhana Moharrir
who could place it in the safe custody
because no Malkhana register was ever
produced in evidence before the Trial Court
and no such oral evidence in this regard
was ever produced by the prosecution
before the Trial Judge.

21. As regards the non compliance of
Section 57 of the NDPS Act which lays
down that whenever a person makes any
arrest or search under this Act, he shall,
within forty-eight hours next after such
arrest or seizure, make a full report of all
the particulars of such arrest or seizure to
his immediate official superior, this Court
finds that no such evidence is led by the
prosecution in the present case during the
trial that any report was ever submitted
about the such arrest and seizure in
compliance of the Section 57 to the
superior officer.

22. In Gurbax Singh Vs. State of
Haryana, AIR 2001 (SC) 1002 the
Hon'ble Apex Court has held in para 9
thus:-

".........In our view, there is much
substance in this submission. It is true that
provisions of Sections 52 and 57 are
directory. Violation of these provisions
would not ipso facto violate the trial or
conviction. However, I.O. cannot totally
ignore these provisions and such failure
will have a bearing on appreciation of
evidence regarding arrest of the accused
or seizure of the article. In the present
case, I.O. has admitted that the seal which
was affixed on the muddamal article was
handed over to the witness P.W.1 and was
kept with him for 10 days. He has also
6 All. Darshan Singh Dhimar Vs. State of U.P.
527
admitted that the muddamal parcels were
not sealed by the officer in charge of the
police station as required under Section 55
of the N.D.P.S. Act. The prosecution has
not led any evidence whether the Chemical
Analyser received the sample with proper
intact seals. It creates a doubt whether the
same sample was sent to the Chemical
Analyser. Further, it is apparent that the
I.O. has not followed the procedure
prescribed under Section 57 of the N.D.P.S.
Act of making full report of all particulars
of arrest and seizure to his immediate
superior officer. The conduct of panch
witness is unusual as he offered himself to
be a witness for search and seizure despite
being not asked by the I.O., particularly
when he did not know that the substance
was poppy husk., but came to know about it
only after being informed by the police.
Further, it is the say of the Panch witness
that Muddamal seal used by the PSI was a
wooden seal. As against this, it is the say of
PW2 SI/IO that it was a brass seal. On the
basis of the aforesaid evidence and faulty
investigation by the prosecution, in our
view, it would not be safe to convict the
appellant
for a
serious offence
of
possessingpoppy-husk."

 (emphasis supplied)

23. This Court finds that in the
present case Malkhana register was not
produced by the prosecution during trial
before the Court. Thus, there is non
compliance of the relevant Section of the
NDPS Act and the prosecution has failed to
prove its case against the accused appellant
in proper perspective.

24. Now, this Court is of the
considered opinion that Section 50 of the
NDPS Act was not complied with and the
non compliance of this Section has vitiated
the whole prosecution story seriously
which makes the conviction of the
appellant by the learned Trial Court
contrary to the law as the provisions of
Section 50 of the Act were not properly
followed. Section 50 of the Act is qouted
below:-

"50. Conditions under which
search of persons shall be conducted.--(1)
When any officer duly authorised under
Section 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 to 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 that
search be made.

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

(5)
When
an
officer
duly
authorised under Section 42 has reason to
believe that it is not possible to take the
person to be searched to the nearest
Gazetted Officer or Magistrate without the
possibility of the person to be searched
parting with possession of any narcotic
drug
or
psychotropic
substance,
or
controlled
substance
or
article
or
document, he may, instead of taking such
person to the nearest Gazetted Officer or
Magistrate, proceed to search the person
as provided under section 100 of the Code
of Criminal Procedure, 1973 (2 of 1974).
528 INDIAN LAW REPORTS ALLAHABAD SERIES

(6) After a search is conducted
under sub-section (5), the officer shall
record the reasons for such belief which
necessitated
such
search
and
within
seventy-two hours send a copy thereof to
his immediate official superior."

25. In Ashok Kumar Sharma Versus
State of Rajastha, 2013 (2) SCC 67 the
Hon'ble Apex Court has observed thus:-

"7. We are in this case concerned
only with the question whether PW1, the
officer who had conducted the search on
the person of the appellant had followed
the procedure laid down under Section 50
of the NDPS Act. On this question, there
were conflicts of views by different Benches
of this Court and the matter was referred to
a five Judge Bench. This Court in
Vijaysingh Chandubha Jadeja (supra)
answered the question, stating that it is
imperative on the part of the officer to
apprise the person intended to be searched
of his right under Section 50 of the NDPS
Act, to be searched before a Gazetted
Officer or a Magistrate. This Court also
held that it is mandatory on the part of the
authorized officer to make the accused
aware of the existence of his right to be
searched before a Gazetted Officer or a
Magistrate, if so required by him and this
mandatory
provision
requires
strict
compliance. The suspect may or may not
choose to exercise the right provided to him
under the said provision, but so far as the
officer concerned, an obligation is cast on
him under Section 50 of the NDPS Act to
apprise the person of his right to be
searched before a Gazetted Officer or a
Magistrate. The question, as to whether
this procedure has been complied with or
not, in this case the deposition of PW1
assumes importance, which reads as
follows:

"He was apprised while telling
the reason of being searched that he could
be searched before any Magistrate or any
Gazetted Officer if he wished. He gave his
consent in written and said that I have faith
on you, you can search me. Fard regarding
apprising and consent is Ex.P- 3 on which I
put my signature from A to B and the
accused put his signature from C to D. E to
F is the endorsement of the consent of the
accused and G to H is signature, which has
been written by the accused."

13. The above statement of PW1
would clearly indicate that he had only
informed the accused that he could be
searched before any Magistrate or a
Gazetted Officer if he so wished. The fact
that the accused person has a right under
Section 50 of the NDPS Act to be searched
before a Gazetted Officer or a Magistrate
was not made known to him. We are of the
view that there is an obligation on the part
of the empowered officer to inform the
accused or the suspect of the existence of
such a right to be searched before a
Gazetted Officer or a Magistrate, if so
required by him. Only if the suspect does
not choose to exercise the right in spite of
apprising him of his right, the empowered
officer could conduct the search on the
body of the person.

14. We may, in this connection,
also
examine
the
general
maxim
"ignorantia juris non excusat" and whether
in such a situation the accused could take a
defence that he was unaware of the
procedure laid down in Section 50 of the
NDPS Act. Ignorance does not normally
afford any defence under the criminal law,
since a person is presumed to know the
law. Indisputedly ignorance of law often in
reality
exists,
though
as
a
general
proposition, it is true, that knowledge of
law must be imputed to every person. But
it must be too much to impute knowledge in
6 All. Darshan Singh Dhimar Vs. State of U.P.
529
certain situations, for example, we cannot
expect a rustic villager, totally illiterate, a
poor man on the street, to be aware of the
various law laid down in this country i.e.
leave aside the NDPS Act. We notice this
fact is also within the knowledge of the
legislature, possibly for that reason the
legislature in its wisdom imposed an
obligation on the authorized officer acting
under Section 50 of the NDPS Act to
inform the suspect of his right under
Section 50 to be searched in the presence
of a Gazetted Officer or a Magistrate
warranting strict compliance of that
procedure.

15. We are of the view that noncompliance of this mandatory procedure
has
vitiated
the
entire
proceedings
initiated against the accused- appellant.
We are of the view that the Special Court
as well as the High Court has committed an
error in not properly appreciating the
scope of Section 50 of the NDPS Act. The
appeal is, therefore, allowed. Consequently
the conviction and sentence imposed by the
Sessions Court and affirmed by the High
Court are set aside. The accused-appellant,
who is in jail, to be released forthwith, if
not required in connection with any other
case."

 (emphasis supplied)

26. A Full Bench of the Hon'ble
Apex Court in the case of Vijaysinh
Chandubha
Jadeja
vs.
State
of
Gujarat, 2011(1) SCC 609 has held that
the requirements of Section 50 of the
NDPS
Act
are
mandatory
and,
therefore, the provisions of Section 50
must be strictly complied with. It is
held that it is imperative on the part of
the Police Officer to apprise the person
intended to be searched of his right
under Section 50 to be searched only
before
a
Gazetted
officer
or
a
Magistrate. It is held that it is equally
mandatory on the part of the authorized
officer to make the suspect aware of the
existence of his right to be searched
before
a
Gazetted
Officer
or
a
Magistrate, if so required by him and
this requires a strict compliance. It is
ruled that the suspect person may or
may not choose to exercise the right
provided to him under Section 50 of the
NDPS Act but so far as the officer is
concerned, an obligation is cast upon
him under Section 50 of the NDPS Act
to apprise the suspect of his right to be
searched before a Gazetted Officer or a
Magistrate. In the present case, from
perusal of the entire evidence available
on record it cannot be ascertained that
the provisions laid down in Section 50
of the Act were complied with in its
entirety. In this context PW-3, Vidya
Kant Patel, has said only that the
arrested person was apprised of his
right if he wished that his search be
conducted before any Gazetted Officer
or Magistrate, he was not agree for his
search
before
Magistrate
and
he
consented that search be made by the
police party itself.

27. From perusal of the entire record,
it is evident that the prosecution has not
adduced any evidence regarding that
recovered contraband was kept in a safe
custody after it was recovered and it was
sent from that safe custody to the Forensic
Science Laboratory. No such evidence
regarding this aspect of the matter is
available on record which also casts a
serious doubt on the veracity of the
prosecution story.

28.

Thus,
from
the
aforesaid
discussions and evidence on record, it is
evidence
that
the
recovery
of
the
contraband article from the possession of
530 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant appears to be doubtful and the
prosecution has not proved its case beyond
reasonable doubt against the appellant
proving the recovery against him in strict
compliance of the provisions of N.D.P.S.
Act, hence his conviction and sentence by
the trial court is not sustainable in the eyes
of law. Thus, the impugned judgment and
order passed by the trial court convicting
and sentencing the appellant is hereby set
aside. The appeal stands allowed.

29. The appellant shall be released
forthwith from the jail, if he is not wanted
in any other case. It is further directed that
the lower court record be sent to the Trial
Court.
----------
(2020)06ILR A530
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.04.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Criminal Appeal No. 5194 of 2013

Nishu @ Brijesh Dixit & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Apul Mishra, Sri Amit Tripathi, Sri Anees
Ahmad, Sri Arvendra Singh, Sri Pradeep
Saxena, Sri Pravin Kumar , Sri Rakesh
Kumar Rathore, Sri Sanjeev Kumar Rathore

Counsel for the Respondent:
A.G.A., Sri N.K. Maurya, Sri Vinay Saran, Sri
Pravendra Kumar Chauhan, Sri Pradeep
Kumar Mishra

Conduct of PW1 goes to show that he tried to
implicate co-accused Chandan Tiwari during the
course of investigation in the present case
falsely for conspiring the murder of the
deceased, but the said fact was not disclose by
him in the F.I.R. It is true that F.I.R. is not an
encyclopedia of the prosecution case but the
said conduct of PW1 definitely cast doubt about
his credibility and trustworthiness stating about
the
incident
raising
suspicion
about
his
testimony relating to the prosecution case- The
unnatural conduct of PW1 and PW2 soon after
the incident further reflects that their presence
at the place of occurrence is not established on
account of the fact that when the deceased was
dragged from the car by the appellants and was
shot with their respective firearms weapons,
they have stated that they were witnessing the
incident while they were sitting in the car and
did not come out immediately coupled with the
fact that after the incident when the deceased
Ambarish Kumar was lying in a seriously injured
condition, no effort was made by PW1 and PW2
to touch him or to help the other persons who
had picked the injured in the Opel Astra Car of
PW1 as no blood stains were found either on
the clothes of PW1 or PW2 nor, the same was
found in the Opel Astra Car- The recovery of
two weapons from the said accused after one
month of the incident has been disbelieved by
the trial Court when they were put to trial under
the Arms Act- The metallic bullet was recovered
from the occipital region of the deceased but
the same was not sent to the Forensic Science
Laboratory in order to ensure whether the same
was shot by the respective weapons which were
recovered from the two appellants - No doubt
that PW1 and PW2 are the parents of the
deceased and claimed themselves to be the eye
witness of the occurrence, but after going
through their testimony they can be put in
the category of neither wholly reliable nor
wholly unreliable witness as their evidence
does not conclusively prove the guilt of the
accused
appellants
beyond
reasonable
doubt though their evidence examined by
the Court for corroboration in material
particulars by direct and circumstantial
testimony- It is first duty of the prosecution
to establish its case beyond reasonable
doubt against the accused than to question
the accused for their false implication which
the prosecution has failed to prove its case
beyond
reasonable
doubt
against
the
appellants.