# Gurudeen & Anr v. State of U.P

- **Citation:** (2023) 10 ILRA 140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-01
- **Case number:** Criminal Appeal No. 1704 of 2007
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gurudeen-anr-v-state-of-u-p-49328
- **Pages:** 6

## Headnote

Law
-
Narcotic
Drugs
and
Psychotropic Substances Act, 1985 -
Sections 8/21, 50, 55 & 57 - Criminal
Procedure Code, 1973 - Section 374(2) -
Non-Compliance
with
Mandatory
Provisions
-
Lack
of
Independent
Witnesses - Acquittal - The appellants,
Gurudeen and Nanhkau Loniya, challenged the
conviction and sentencing dated 23.07.2007 by
the Additional Sessions Judge, Barabanki, in
Criminal Trial Nos. 71/2002 and 72/2002 for
offenses under Section 8/21 of the NDPS Act,
arising from Case Crime Nos. 17/2002 and
18/2002,
Police
Station
G.R.P.
Barabanki,
involving the recovery of 180 gm and 160 gm of
morphine, respectively, with one-year rigorous
imprisonment and a Rs.10,000 fine each
(default: three months' imprisonment).

Held: (1) The appeal was allowed, the
convictions and sentences were set aside, and
the
appellants
were
acquitted.
(2)
The
prosecution failed to prove the case beyond
reasonable doubt due to non-compliance with
the mandatory provisions of Section 50 of the
NDPS Act, which requires informing the accused
of their right to be searched before a Gazetted
Officer or Magistrate. (3) The prosecution relied
solely on the testimonies of police personnel
(PW-1 to PW-6), with no independent witnesses
produced despite the recovery occurring at a
public
place
(Barabanki
Railway
Station
platform), and no explanation was provided for
their absence, creating a serious lacuna. (4) No
written consent for the search was produced,
and no efforts were made to conduct the search
before a Gazetted Officer or Magistrate,
violating Vijaysinh Chandubha Jadeja Vs St. of
Gujarat and St. of Rajasthan Vs Parmanand. (5)
The prosecution's failure to adhere to Sections
55 (safe custody of seized contraband) and 57
(reporting to superior officer) further weakened
the case. (6) The trial court did not adequately
evaluate these procedural irregularities, and the
evidence, based solely on police testimonies,
was not wholly reliable. (7) The appellants'
personal and surety bonds were canceled, and
sureties were discharged.

Case Law Cited:

## Text

140 INDIAN LAW REPORTS ALLAHABAD SERIES
then to legal heir of the deceased and on
failure to pay fine, the accused appellant
No.1 shall undergo further rigorous
imprisonment for one year. Accordingly,
the conviction and sentence of the
accused appellant No.1 as provided in the
impugned judgement and order dated
22.05.1984 in Session Trial No.459 of 1981
passed by Vth Additional Session Judge,
Allahabad is altered. The appeal is partly
allowed.

53. The accused appellant No.1 is on
bail. His bail bond is hereby cancelled. He
shall be forthwith taken into custody by the
Chief Judicial Magistrate Prayagraj and
shall be sent to jail to complete the
sentence awarded to him as above. A copy
of this judgement shall be sent immediately
to the trial court for compliance. Original
record be returned to the trial court
forthwith.
----------
(2023) 10 ILRA 140
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.11.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1704 of 2007

Gurudeen & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Jagdish Mishra, Hemendra Misra, Syed
Malik E Ashatar Rizv

Counsel for the Respondent:
G.A.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic Substances Act, 1985 -
Sections 8/21, 50, 55 & 57 - Criminal
Procedure Code, 1973 - Section 374(2) -
Non-Compliance
with
Mandatory
Provisions
-
Lack
of
Independent
Witnesses - Acquittal - The appellants,
Gurudeen and Nanhkau Loniya, challenged the
conviction and sentencing dated 23.07.2007 by
the Additional Sessions Judge, Barabanki, in
Criminal Trial Nos. 71/2002 and 72/2002 for
offenses under Section 8/21 of the NDPS Act,
arising from Case Crime Nos. 17/2002 and
18/2002,
Police
Station
G.R.P.
Barabanki,
involving the recovery of 180 gm and 160 gm of
morphine, respectively, with one-year rigorous
imprisonment and a Rs.10,000 fine each
(default: three months' imprisonment).

Held: (1) The appeal was allowed, the
convictions and sentences were set aside, and
the
appellants
were
acquitted.
(2)
The
prosecution failed to prove the case beyond
reasonable doubt due to non-compliance with
the mandatory provisions of Section 50 of the
NDPS Act, which requires informing the accused
of their right to be searched before a Gazetted
Officer or Magistrate. (3) The prosecution relied
solely on the testimonies of police personnel
(PW-1 to PW-6), with no independent witnesses
produced despite the recovery occurring at a
public
place
(Barabanki
Railway
Station
platform), and no explanation was provided for
their absence, creating a serious lacuna. (4) No
written consent for the search was produced,
and no efforts were made to conduct the search
before a Gazetted Officer or Magistrate,
violating Vijaysinh Chandubha Jadeja Vs St. of
Gujarat and St. of Rajasthan Vs Parmanand. (5)
The prosecution's failure to adhere to Sections
55 (safe custody of seized contraband) and 57
(reporting to superior officer) further weakened
the case. (6) The trial court did not adequately
evaluate these procedural irregularities, and the
evidence, based solely on police testimonies,
was not wholly reliable. (7) The appellants'
personal and surety bonds were canceled, and
sureties were discharged.

Case Law Cited:

1. Vijaysinh Chandubha Jadeja Vs St. of Guj.,
2010 (2) EFR 755;
10 All. Gurudeen & Anr. Vs. State of U.P.
141
2. St. of Raj.Vs Parmanand, (2014) 2 SCC (Cri)
563.

(Delivered by Hon'ble Shamim Ahmed, J.)

1. List has been revised.

2. Heard learned Counsel for the
parties.

3. This appeal has been preferred
against the judgment and order dated
23.07.2007 of Additional Sessions Judge,
Barabanki Fast Track Court No.30 in Crl.
Trial No.71/2002 (Crime No.17/2002 under
Section 8/21 of N.D.P.S. Act); State vs.
Gurudeen and in Crl. Trial No.72 of 2002
(Crime No.18/2002 under Section 8/21
N.D.P.S. Act); State vs. Nanhkau Loniya
both sent from Police Station-G.R.P.
Barabanki and tried together as such with
conviction by one common judgment dated
23.07.2007 awarding one year rigorous
imprisonment & Rs.10,000/- fine to both
the appellants in default of payment of fine
rigorous imprisonment of three months
each.

4. The prosecution story, in brief, as
disclosed in the first information report, is
that S.O. G.R.P. Barabanki, Shri V.K. Singh
and his personnel found both the appellants
in suspicious circumstances during gasht on
platform No.3 Barabanki Railway Station
at 1:35 P.M. on 24.02.2002. They tried to
escape but were arrested and told the police
that they had morphine and were to entrain
the 3308 DN Kisaan Express for Durgapur
in West Bengal vide fard Ex-ka-6 180gm of
morphine and Rs.180/- from personal
search of Gurudeen and 160 gm of
morphine and Rs.85/- from Nanhkau
Loniya with no Railway ticket was the
resultant recovery as both had jointly
consented to be searched by police party.
When apprised of option under Section 50
of N.D.P.S. Hence, this case with the
conviction detailed above vide common
judgment and order dated 23.07.2007 in
C.T. No.71/2002 and 72/2002.

5. Investigation was handed over to
the Investigating Officer, who in turn got
the sample chemically examined and
received a report. He took the statements of
witnesses of recovery and prepared the site
plan and on finding sufficient evidence, he
filed charge sheet against the accused in the
Court.

6.
 The
accused-appellants
was
charged for offence u/s 8/21 N.D.P.S. Act;
to which they pleaded not guilty and
claimed for trial.

7. In support of the prosecution case,
the prosecution examined H.C.P. Ram
Sewak Mishra as P.W.-1, S.I. V.K. Singh as
P.W.-2, Constable Laxmi Narayan Mishra
as P.W.-3, Constable Salig Rai as P.W.-4,
S.I. Rajendra Bahadur Singh as P.W.-5 and
Constable Pawan Sut as P.W.-6.

8. Formal proof of prosecution papers
have been admitted by the accusedappellants.

9. The accused-appellants in order to
substantiate their case examined Mohley as
D.W.-1, Parshuram Sharma as D.W.-2 and
Sudharshan as D.W.-3.

10. Learned trial Court, after going
through the evidence available on record as
well as after due hearing the learned
counsel for both the parties, convicted that
appellants by one common judgment dated
23.07.2007 awarding one year rigorous
imprisonment & Rs.10,000/- fine to both
142 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellants in default of payment of fine
rigorous imprisonment of three months
each.

11. Aggrieved by the aforesaid
judgment and order, the appellants have
filed this appeal.

12. Learned counsel for the appellants
argued that Section 50 of the N.D.P.S. Act
is a mandatory provision. The arresting
officer
has
not
complied
with
that
provision. As such, the recovery is illegal
which vitiates the trial. Learned counsel
further submitted that the alleged place of
recovery is public place but no effort to
invite the public witness at the time of
recovery was made by the police party.
Learned
trial
Court
without
proper
appreciation of the evidence available on
record has illegally convicted the appellants
vide impugned judgment and order which
is liable to be set aside as the prosecution
has miserably failed to prove its case
beyond reasonable doubt. In support of his
argument learned counsel for the appellants
has placed reliance on law laid down by
Hon'ble Supreme Court in Vijaysinh
Chandubha Jadeja Vs. State of Gujarat,
2010 (2) EFR 755 and State of Rajasthan
Vs. Parmanand and another, (2014) 2
SCC (Cri) 563.

13. Learned A.G.A. vehemently
opposed the submission of learned counsel
for the appellants and submitted that there
is no illegality in the impugned judgment
and order as it is settled provision of law
that only on the solitary testimony of
witness, conviction can be maintained and
statement of police witness cannot be
rejected on the ground that he is a police
witness. Learned A.G.A. further submitted
that impugned judgment and order, passed
by trial Court, is well reasoned, well
discussed and appeal is liable to be
dismissed.

14. After considering the arguments
advanced by learned counsel for the parties
and after perusal of record, this Court finds
that the prosecution case is based on oral
testimony of police personnel. It is settled
principle of law that only on account of the
fact that prosecution case is based on
testimony of police witness, it cannot be
thrown out, if the evidence of such witness
is wholly reliable.

15. Severe punishment has been
provided in the N.D.P.S. Act to check the
misuse of this Act by the police personnel
or
officers
and
certain
safeguards
particularly Section 50 of N.D.P.S. Act has
been incorporated in this Act that search of
the suspected person must be done before
the
Magistrate
or
Gazetted
Officer.
Similarly Section 55 and 57 of N.D.P.S. Act
provides that seized contraband article be
kept by Station House Officer in safe
custody and report of arrest and seizure be
sent immediately to immediate Superior
Officer within 48 hours.

16. Hon'ble Supreme Court in
Vijaysinh Chandubha Jadeja Vs. State of
Gujarat, 2010 (2) EFR 755, while
discussing the importance and relevancy of
section 50 of N.D.P.S. Act, in para-22, has
opined as under:-

"22. 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
minimise the allegations of planting or
foisting of false cases by the law
10 All. Gurudeen & Anr. Vs. State of U.P.
143
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 authorised 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. As observed in Re Presidential
Poll (1974) 2 SCC 33, it is the duty of the
courts to get at the real intention of the
Legislature by carefully attending to the
whole scope of the provision to be
construed. "The key to the opening of every
law is the reason and spirit of the law, it is
the animus imponentis, the intention of the
law maker expressed in the law itself, taken
as a whole." We are of the opinion that the
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
(supra) and Prabha Shankar Dubey (supra)
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 (supra). 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. 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."

17. Hon'ble Supreme Court in State of
Rajasthan Vs. Parmanand and another,
(2014) 2 SCC (Cri) 563, again in
paragraph-17, has opined as under:-

"In
our
opinion,
a
joint
communication of the right available under
Section 50(1) of the NDPS Act to the
accused would frustrate the very purport of
Section 50. Communication of the said
right to the person who is about to be
searched is not an empty formality. It has a
purpose. Most of the offences under the
NDPS Act carry stringent punishment and,
therefore, the prescribed procedure has to
be
meticulously
followed.
These
are
minimum safeguards available to an
accused against the possibility of false
involvement. The communication of this
right has to be clear, unambiguous and
individual. The accused must be made
aware of the existence of such a right. This
right would be of little significance if the
beneficiary thereof is not able to exercise it
for want of knowledge about its existence.
A joint communication of the right may not
be clear or unequivocal. It may create
confusion. It may result in diluting the
right. We are, therefore, of the view that the
accused must be individually informed that
under Section 50(1) of the NDPS Act, he
has a right to be searched before a nearest
144 INDIAN LAW REPORTS ALLAHABAD SERIES
gazetted officer or before a nearest
Magistrate. Similar view taken by the
Punjab & Haryana High Court in Paramjit
Singh and the Bombay High Court in
Dharamveer Lekhram Sharma meets with
our approval."

18. Admittedly, the prosecution has
not produced other independent eyewitnesses of the alleged recovery and even
no explanation has been offered by the
prosecution for their non-production. All
the witnesses are police personnel. Nonproduction of independent eye witness is
serious lacuna which has made the
prosecution case very doubtful.

19. In addition to above, admittedly
the appellants, prior to his search, was not
produced before any Gazetted Officer or
Magistrate,
whereas
according
to
prosecution before his search the police
personnel were informed by the appellants
that he was carrying the ganja. Prosecution
has also not produced any written consent
of the appellants for his search. From
perusal
of
testimony
of
prosecution
witnesses, it does not transpire that any
efforts were made by them to produce the
appellants before any Gazetted Officer or
Magistrate, as required by Section 50 of
N.D.P.S. Act, in view of law laid down by
Apex Court in Vijaysinh Chandubha
Jadeja (Supra).

20. Further, it is also pertinent to note
at this juncture that not only the manner in
which the appellants were searched, is
doubtful, the prosecution has also not
prosecuted the case seriously, knowing that
severe punishment has been provided in
N.D.P.S. Act. It produced six witnesses i.e.
H.C.P. Ram Sewak Mishra as P.W.-1, S.I.
V.K. Singh as P.W.-2, Constable Laxmi
Narayan Mishra as P.W.-3, Constable Salig
Rai as P.W.-4, S.I. Rajendra Bahadur Singh
as P.W.-5 and Constable Pawan Sut as
P.W.-6 and withheld other witness without
any justification.

21. In the light of above discussion, it
is clear that the prosecution has failed to
prove the mandatory compliance of Section
50 N.D.P.S. Act. In absence of compliance
of mandatory provision of Section 50
N.D.P.S Act, the prosecution case, based on
testimony of police personnel i.e. H.C.P.
Ram Sewak Mishra as P.W.-1, S.I. V.K.
Singh as P.W.-2, Constable Laxmi Narayan
Mishra as P.W.-3, Constable Salig Rai as
P.W.-4, S.I. Rajendra Bahadur Singh as
P.W.-5 and Constable Pawan Sut as P.W.-6,
whose statements are not wholly reliable,
cannot
be
held
as
proved
beyond
reasonable doubt in view of the other
illegalities
and
material
irregularity
committed by the witnesses as discussed
above.

22. Thus this Court is of the view that
prosecution has miserably failed to prove
its case beyond reasonable doubt against
the appellants. The trial Court has not
properly discussed the evidence produced
by the prosecution and has passed the
impugned judgment and order against the
settled
principle
of
law
including
provisions of N.D.P.S. Act. This Court,
therefore, unable to uphold the conviction
and sentence of the appellants. The
appellants are entitled to be acquitted. The
impugned judgment and order is liable to
be set aside and accordingly, appeal is
liable to be allowed.

23. In view of the above, impugned
judgment and order dated dated 23.07.2007
of Additional Sessions Judge, Barabanki
Fast Track Court No.30 in Crl. Trial
No.71/2002 (Crime No.17/2002 under
10 All. Ravi Prakash @ Suraj & Anr. Vs. State of U.P.& Anr.
145
Section 8/21 of N.D.P.S. Act); State vs.
Gurudeen and in Crl. Trial No.72 of 2002
(Crime No.18/2002 under Section 8/21
N.D.P.S. Act); State vs. Nanhkau Loniya
both sent from Police Station-G.R.P.
Barabanki, is set aside and reversed and
accused/appellants, namely, Gurudeen and
Nanhkau Loniya are acquitted of the
charges
leveled
against
them.
Consequently, the appeal is allowed. their
personal bond and surety bonds are
canceled and sureties are discharged.

24. Let a copy of this judgment
alongwith the lower court record be sent
immediately to the Trial Court concerned
for necessary compliance.

25. No order as to the costs.
----------
(2023) 10 ILRA 145
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.09.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 2867 of 2022

Ravi Prakash @ Suraj & Anr. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Lalji Prasad Shukla, Kaushal Kishore Tewari

Counsel for the Respondents:
G.A., Rizwanul Haque Ansari

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504 & 506 - Scheduled
Castes and Scheduled Tribes (Prevention
of
Atrocities)
Act,
1989
-
Sections
3(1)(Da), 3(1)(Dha) - Criminal Procedure
Code, 1973 - Sections 14-A(1) & 156(3) -
Quashing of Summoning Order - False
Implication - No Public View - Abuse of
Process -The appellants, Ravi Prakash @ Suraj
and Rajesh Kumar @ Tori, challenged the
summoning order dated 05.09.2022 passed by
the Special Judge (SC/ST Act), Sitapur, in
Complaint Case No. 47 of 2022 under Sections
323, 504, 506 IPC and Sections 3(1)(Da),
3(1)(Dha) of the SC/ST Act, Police Station
Machrehata, Sitapur, along with the entire
proceedings.

Held: (1) The appeal was allowed, and the
summoning order and proceedings against the
appellants were quashed. (2) The complaint,
initiated via an application under Section 156(3)
Cr.P.C. by respondent no. 2 (Radhey Shyam),
was based on false and baseless allegations
driven by enmity, as supported by a Circle
Officer's report dated 03.01.2022, which found
no evidence of the alleged incident. (3) The
allegations
under
Sections
3(1)(Da)
and
3(1)(Dha) of the SC/ST Act were not applicable,
as the incident did not occur in public view, and
no intent to humiliate based on caste was
established, per Hitesh Verma Vs St. of
Uttarakhand. (4) The IPC offenses were also not
substantiated due to the lack of credible
evidence, as confirmed by the Circle Officer's
report.
(5)
The
appellants,
including
an
Assistant Manager in a multinational company,
were not present at the alleged scene, and
there was no criminal history or independent
evidence to support the prosecution's case. (6)
The trial court failed to appreciate the material
evidence, including the Circle Officer's report,
rendering the summoning order unsustainable.
(7) The High Court, exercising inherent powers
to prevent abuse of process and secure justice,
as guided by R.P. Kapoor Vs St. of Punj., St. of
Har. Vs Bhajanlal, St. of Bihar Vs P.P. Sharma,
Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq, and Neeharika Infrastructure Pvt.
Ltd. Vs St. of Mah., quashed the proceedings,
finding no prima facie case and bleak chances of
conviction. (8) The court directed verification of
the order's authenticity from the High Court's
website.

Case Law Cited:

1. Hitesh Verma Vs St. of Uttarakhand, (2020)
10 SCC 710;