# Manoj Kumar Seth (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-30
- **Case number:** Criminal Appeal No. 901 of 2017
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-seth-in-jail-v-state-of-u-p-46197
- **Pages:** 5

## Headnote

law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Section 8/21,
section 42 - power of entry , search ,
seizure and arrest without warrant or
authorisation , Section 50 - conditions
under which search of persons shall be
conducted - provision of Section 50 of the
Act stands attracted in case of personal
search and not in the case where the
search was given effect otherwise than
from the personal search of the accused.
(Para - 7,8)

Contraband (Heroin) recovered from a bag - in
day time at 2:50 p.m. - at a crowded place -
attached to the motor-cycle - on which the
accused - appellant was riding - trial court held -
compliance of section 50 not mandatory -
conviction - hence appeal.

HELD:- Section 50 of the Act patently has no
application in this case because the recovery of
Heroin was not from the person of the
appellant, but from the bag attached to the
motor-cycle. Trial Court rightly held in the
impugned judgment that Section 50 of the Act,
is not at all applicable in the present case.
Appellant has been rightly convicted and
sentenced by learned trial court.(Para - 8,9,15 )

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

## Text

10 All. Manoj Kumar Seth Vs. State of U.P.
105

25. Copy of this judgment be certified
to the court below for compliance. Lower
court record be transmitted to the District
Court, concerned.
----------
(2021)10ILR A105
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.07.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 901 of 2017

Manoj Kumar Seth ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Dinesh Mishra, Sri Satish Sharma, Sri
Ravish Kumar Mal

Counsel for the Respondent:
A.G.A.

(A)
Criminal
law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Section 8/21,
section 42 - power of entry , search ,
seizure and arrest without warrant or
authorisation , Section 50 - conditions
under which search of persons shall be
conducted - provision of Section 50 of the
Act stands attracted in case of personal
search and not in the case where the
search was given effect otherwise than
from the personal search of the accused.
(Para - 7,8)

Contraband (Heroin) recovered from a bag - in
day time at 2:50 p.m. - at a crowded place -
attached to the motor-cycle - on which the
accused - appellant was riding - trial court held -
compliance of section 50 not mandatory -
conviction - hence appeal.

HELD:- Section 50 of the Act patently has no
application in this case because the recovery of
Heroin was not from the person of the
appellant, but from the bag attached to the
motor-cycle. Trial Court rightly held in the
impugned judgment that Section 50 of the Act,
is not at all applicable in the present case.
Appellant has been rightly convicted and
sentenced by learned trial court.(Para - 8,9,15 )

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. St. of Punjab Vs Baldev Singh, (1999) 6 SCC
1721

2. Madan Lal & anr. Vs St. of H.P,, 2003 (47)
ACC 763

3. Megh Singh Vs St. of Punj., 2003 Cr.LJ 4329

4. St. of H.P. Vs Pawan Kumar, 2005 (52) ACC
710

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by
the appellant against the judgment and
order dated 4.11.2016, passed by learned
Additional Sessions Judge, Allahabad, in
Special Trial No.121 of 2009 (State vs.
Manoj Kumar) arose out of Case Crime
No.23 of 2009, under Section 8/21 Narcotic
Drugs and Psychotropic Substances Act,
1985 (herein after referred to as 'the Act,
1985'), Police Station-Mutthiganj, DistrictPrayagraj,
by
which
appellant
was
convicted
for
15
years
rigorous
imprisonment and fine of Rs.1,00,000/-
(one lakh).

2. The relevant facts necessary for
disposal of this appeal are as under:

(i) On 30.01.2009, Dhananjay
Mishra,
Sub-Inspector,
In-charge-SOG
along with other police-personnel reached
at Kotha-Parcha near Dot-ka-pul within
area of P.S.-Mutthiganj, where SHO, P.S.-
106 INDIAN LAW REPORTS ALLAHABAD SERIES
Muthiganj was already present with other
police-personnel. At that time, informer
told police-party that a person is coming
from the side of Arya Kanya Degree
College Crossing, Naini on stolen motorcycle
bearing
No.UP-70-Y-8695.
On
receiving this information, police-party led
by Incharge-SOG and SHO, Mutthiganj
went to Arya Kanya Degree College. Near
the above college, informer pointed out the
said motor-cycle. On trying to stop him by
police, the person on motor-cycle tried to
escape by turning the motor-cycle back, but
he was caught by the police at 2:50 p.m. On
inquiry, he told his name as Manoj Kumar
Seth s/o Late Bechan Lal Seth. A fake
registration certificate was recovered from
his pocket. While searching the accused
and motor-cycle, Heroin was recovered in a
packet from the bag attached with the
motor-cycle. Police gave option to the
accused for his search before a Gazetted
Officer or a Magistrate, but accused
declined the offer.

(ii) The recovered contraband
(Heroin) was weighted by the police and its
weight was found 1.110 kg. Police asked
the public to become witness on the
recovery memo, but no one was ready to
become witness. Out of recovered Heroin,
5 gm. was separated and it was sealed on
the spot as sample. This sample was sent to
Forensic Science Laboratory for chemical
examination.
Chemical
Examination
Report was received from the lab (Ex.ka-3)
and it was reported in aforesaid report that
the sample was Heroin. The accusedappellant
was
charged
with
the
contravention of Section 8 read with
section 21 of the Act and was put for trial.
The Additional Sessions Judge, Allahabad,
convicted him of the charges levelled
against him. The accused appellant carried
an appeal to this Court against his
conviction.

3. Heard learned counsel for the
accused-appellant, learned AGA for the
State and perused the record.

4. The very first question argued by
learned counsel for the appellant was that
there was contravention of Section 50 of
the Act inasmuch as the offer made to the
accused for searching in presence of a
Gazetted Officer or a Magistrate and he
declined the offer and the same was not
corroborated by any independent witness. It
was vehemently submitted by learned
counsel for the appellant that the place of
occurrence was a crowded place and
occurrence is said to have taken place in
the day-light at 2:50 p.m., but there was no
public witness of the occurrence.

5. As far as the compliance of Section
50 of the Act is concerned, it would
relevant to quote Section 50 of the Act for
ready reference:

50.
Conditions
under
which
search of persons shall be conducted.--

(1)
When
any
officer
duly
authorized 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
10 All. Manoj Kumar Seth Vs. State of U.P.
107
person but otherwise shall direct that
search be made.

(4) No female shall be searched
by anyone excepting a female. 1[(5) When
an officer duly authorized 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).

(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.]

6. The Hon'ble Apex Court in State
of Punjab vs. Baldev Singh (1999) 6 SCC
172, held as under:

"12. On its plain reading, Section
50 of the Act, would come into play only in
the case of a search of a person as
distinguished from search of any premises
etc. However, if the empowered officer
without
any
prior
information
as
contemplated by Section 42 of the Act
makes a search or causes arrest of a
person during the normal course of
investigation into an offence or suspected
offence and on completion of that search
contraband under the NDPS Act, is also
recovered, the requirements of Section 50
of the Act are not attracted."

7. Apart from this, it has also been held
by Hon'ble Apex Court that the provision of
Section 50 of the Act stands attracted in case
of personal search and not in the case where
the search was given effect otherwise than
from the personal search of the accused.
Following cases were relied:

1. Madan Lal and another vs.
State of Himachal Pradesh, 2003 (47) ACC
763;

2. Megh Singh vs. State of
Punjab, 2003 Cr.LJ 4329; and

3. State of Himachal Pradesh vs.
Pawan Kumar, 2005 (52) ACC 710.

8. In the aforesaid judgments, it has
been held by the Hon'ble Apex Court that
Section 50 of the Act, applies only in case of
personal search of a person. It does not
extend to search of a vehicle or container or a
bag or premises. In the present case, the
contraband (Heroin) was recovered from a
bag attached to the motor-cycle on which the
appellant was riding. Hence, it was not a case
of personal search.

9. Moreover, in the case of Pawan
Kumar (supra) wherein meaning of the word
'person' has been discussed, the word 'person'
would mean a human-being with appropriate
covering and clothing and also footwear. A
bag, briefcase or any such article or container
etc., can, under no circumstances, be treated
as a body of human-being. Hence, Section 50
of the Act patently has no application in this
case because the recovery of Heroin was not
from the person of the appellant, but from the
bag attached to the motor-cycle. Hence, the
compliance of Section 50 of the Act, was not
mandatory. Learned Trial Court rightly held
in the impugned judgment that Section 50 of
the Act, is not at all applicable in the present
case.

10. It is true that the recovery of
Heroin was made from the possession of
108 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellant in day time at 2:50 p.m.
at a crowded place, but there are no public
witnesses. It is an admitted fact that no
independent witness joined in this case.
Witnesses of fact examined in this case
PW1 to PW5 categorically stated in their
statements that they tried their best to join
independent witness from the public on the
spot, but all the persons refused to become
witnesses. Learned Trial Court opined in
this regard that accused appellant was
caught by the combined team of SOG,
Prayagraj and Police-personnel of P.S.-
Mutthiganj. Accused was arrested as per
rules. In his statement before trial court
under Section 313 Cr.P.C. Accusedappellant has stated that members of police
party used to make illegal demand of
money from him and due to not giving the
money, he was falsely implicated in the
case. It was a burden on accused-appellant
to prove the above statement, but there is
not even an iota of evidence in this regard.
Accused-appellant has not put forward any
sort of evidence, which could show that
police party was on enmity or he was
having hostile relations with the policepersonnel. Five witnesses of fact were
produced by the prosecution, but on their
cross-examination also, defence could not
extract any sort of evidence indicating any
hostility of police-party with the appellant.
Hence, there was no material on record to
show that the public witnesses were
withheld or suppressed by the prosecution
with an ulterior motive and it alone could
not extend any benefit in favour of
accused-appellant.

11. Learned counsel for the appellant
advanced argument on the point of Section
42 of the Act also. He has submitted that
there is no compliance of Section 42 of the
Act by the police at the time of alleged
search and arrest in the case. Before
making arrest of the accused, police did not
take down the information of informer in
writing and did not send a copy thereof to
his immediate superior officer within 72
hours of the arrest. But, in my opinion,
Section 42 of the Act has no applicability
in this case because the police party did not
get any information from the informer
regarding the accused having possession of
some contraband. But the police-party only
got information from the informer that
accused is coming from Naini towards
Arya Kanya Degree College crossing on a
stolen motor-cycle. Contraband Heroin was
recovered by the police at the time of
searching of motor-cycle from the bag
attached to it for which the police did not
get any prior information, therefore, in this
case, Section 42 of the Act has no
applicability and accused cannot be given
any benefit of that.

12. It is also argued by learned
counsel for the appellant that there was
delay in filing first information report in
this case. This Court is unable to agree with
this argument as the record shows that
occurrence took place at 2:50 p.m. and
chick FIR (Ex.ka5) shows that case was
registered against the appellant on the same
day at 4:30 p.m., i.e., after 1:40 hours after
the occurrence while the distance from the
place of occurrence to the police station is
shown one and a half km. It is quite natural
that police had taken some time on the
place of occurrence for preparing recovery
memo etc. Hence, there cannot be said any
delay in lodging the FIR by police after
arrest of the accused-appellant.

13. Lastly, it was argued by learned
counsel for the appellant that there was no
criminal history of accused, but I am
unable to agree with this argument as the
learned trial court has convicted the
10 All. Ram Shankar Vs. State of U.P.
109
accused-appellant after analyzing all the
evidence available on record. Hence, if
accused has no criminal history, it does not
make any difference on the merit of the
case.

14. No other argument was advanced
from the side of appellant.

15. In view of above, I reach on
definite conclusion that the appellant has
been rightly convicted and sentenced by
learned trial court.

16. The present appeal lacks merit
and is, accordingly, dismissed.
----------
(2021)10ILR A109
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.10.2021

BEFORE

THE HON'BLE PANKAJ BHATIA, J

Criminal Appeal No. 1822 of 2016

Ram Shankar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ram Bux Rawat, Amrendra Singh, Anjali
Dubey, Arif Khan, Awadhesh Kumar Tiwari,
Azmi Yousuf, Kuldeep Kumar Awasthi, Rajiv
Mishra, Soniya Mishra

Counsel for the Respondent:
G.A.

(A) Criminal Law
- Appeal against
conviction - The Indian Penal Code,
1860 - Section 272 - Adulteration of
food or drink intended for sale - U.P.
Excise Act ,1910 - Section 3(9) , 60(2) -
Denatured - rendered unfit for human
consumption , noxious - adding of a
substance with an intent to make it
poisonous or harmful .

500 gms of urea and 105 liter of country
liquor - recovered from the possession of the
appellant
-
sample
send
for
forensic
examination - based upon the evidence -
impugned
judgement
passed
-
holding
appellant guilty - under section 272 I.P.C. as
well as under section 60(2) of the Excise Act -
conviction - hence appeal.

HELD:-No material on record either before
this Court or before the Trial Court to come to
a conclusion that the liquor recovered was
'denatured'. In the absence of any material to
demonstrate that the country liquor so
recovered was rendered 'noxious'/'denatured'
and was intended for sale, the conviction of
the appellant under section 272 I.P.C. cannot
be justified. Conviction of the appellant under
section 60(2) of the U.P. Excise Act cannot be
faulted with.(Para - 11)

Criminal Appeal disposed off. (E-7)

List of Cases cited:-

1. Ashok Vs St. of U.P., Criminal Appeal No.5815
of 2019

2. St. Vs Asgar & anr. , Government Appeal
No.156 of 2019

(Delivered by Hon'ble Pankaj
Bhatia, J.)

1. Heard Ms. Soniya Mishra learned
counsel for the appellant and Sri Vivek
Gupta, learned AGA for the State.

2. The present criminal appeal has
been filed against the judgment and order
dated 16.11.2016 passed by the learned
Additional Sessions Judge, Court no.6
SC/ST Act, Lakhimpur Kheri in Sessions
Trial No.527 of 2013 whereby the appellant
has been convicted under section 60(2) of
the Excise Act and sentenced for a period
of one year along with fine of Rs.1000/-