# Satte @ Sattan (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 1095
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-18
- **Case number:** Criminal Appeal No. 1782 of 1998
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satte-sattan-in-jail-v-state-of-u-p-44632
- **Pages:** 7

## Headnote

Criminal Law-Narcotics and Psychotropic
Substances Act, 1985, Section 50 r/w
8/20 and 42. 'Charas' recovered from the
shirt pocket of the accused. Personal search of
accused - compliance of section 50 NDPS Act -
mandatory in nature and non-compliance
would entail an order of acquittal - In a crime
based on recovery of illegal drugs for which
stringent provision in terms of procedure and
punishment has been provided in the NDPS
Act, it is necessary to ensure free and fair
investigation
without
any
objectionable
features and infirmities - Presumption against
innocence based on possession of illegal drug
and shifting the burden of proof on accused
requires fair and untainted investigation
without any glimpse of malice, mischief,
doubt, falsity, fabrication and prejudice to the
accused - Fairness and purity in investigation
is
so
necessary
for
criminal
justice
administration that without it fair trial will
become a mockery and will result in
miscarriage of justice - Trial court has ignored
the shortcomings and lapse in the prosecution
version, recovery process and evidence -
finding of the trial court is perverse and illegal
-
Impugned
judgment
convicting
and
sentencing the accused - not sustainable
under law - liable to be set aside.(Para
14,16,17,18)
Appeal allowed. (E-7)

List of cases cited: -

## Text

3 All. Satte @ Sattan Vs. State of U.P.
1095

(i) Whether the attack was in
the heat of passion; and

(j) Whether the person inflicting
the injury took any undue advantage or
acted in the cruel or unusual manner.

20. It is not a case where appellant
had caused gunshot injury on non-vital
part of the body of the deceased but he
chose the vital part of the body, i.e. chest
of the deceased and, therefore, under no
stretch of imagination, his case would fall
under Section 304 of IPC.

21. Taking cumulative effect of the
evidence and after due appreciation
thereof, the trial Court has rightly
convicted the appellant and we find no
infirmity in the judgment impugned.

22. Resultantly, the appeal fails and
is hereby dismissed. The appellant is
reported to be on bail. His bail bond
stands cancelled and he be taken into
custody
immediately
to
serve
the
remaining sentence
----------

(2019)11ILR A1095

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 1782 of 1998

Satte @ Sattan ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Dileep Kumar, Sri Radhey Shyam
Yadav(A.C.), Sri Rajeev Gupta.
Counsel for the Opposite Party:
A.G.A.

Criminal Law-Narcotics and Psychotropic
Substances Act, 1985, Section 50 r/w
8/20 and 42. 'Charas' recovered from the
shirt pocket of the accused. Personal search of
accused - compliance of section 50 NDPS Act -
mandatory in nature and non-compliance
would entail an order of acquittal - In a crime
based on recovery of illegal drugs for which
stringent provision in terms of procedure and
punishment has been provided in the NDPS
Act, it is necessary to ensure free and fair
investigation
without
any
objectionable
features and infirmities - Presumption against
innocence based on possession of illegal drug
and shifting the burden of proof on accused
requires fair and untainted investigation
without any glimpse of malice, mischief,
doubt, falsity, fabrication and prejudice to the
accused - Fairness and purity in investigation
is
so
necessary
for
criminal
justice
administration that without it fair trial will
become a mockery and will result in
miscarriage of justice - Trial court has ignored
the shortcomings and lapse in the prosecution
version, recovery process and evidence -
finding of the trial court is perverse and illegal
-
Impugned
judgment
convicting
and
sentencing the accused - not sustainable
under law - liable to be set aside.(Para
14,16,17,18)
Appeal allowed. (E-7)

List of cases cited: -
1. Jarnail Singh Vs St. of Pun. (2011) CRLJ
1738(SC)

2. Ajmer Singh Vs St. of Har. (2010) 3 SCC
746

3. St. of Pun.Vs Baldev Singh, (1999) 6 SCC
172 (Five Judge Bench)

4. T. Hamza Vs St. of Ker. (2000) 1 SCC 300

5. Megh Singh Vs St. of Pun. (2003) 8 SCC 666

6. Ajmer Singh Vs St. of Har. (2010) 3 SCC
746
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Jarnail Singh Vs St. of Pun. (2011) CrLJ
1738(SC)1,

8. Kulwinder Singh Vs St. of Pun. (2015) 6
SCC 674

9. St. of Raj. Vs Ram Chandra (2005) 5 SCC
151

10. Vijaychand Chandubha Jadeja Vs St. of
Guj. (2011) 1 SCC 609

11. Suresh Vs St. of M.P. (2013)1 SCC 550

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. This Criminal Appeal has been
filed against the judgement and order
dated 10.08.1998 passed by Ist-Additional
Sessions Judge, Etawah in S.T No. 53 of
1994 (State Vs. Satte @ Sattan) has been
convicted and sentenced for the offence
under Section 8/20 NDPS Act, Police
Station Bharthana, District Etawah and
sentenced
for
10
years
rigorous
imprisonment and Rs. 1 lakh fine and, in
default of payment of fine, for additional
sentence of 3 years.

2. The brief facts of the case is that
in the night of 03/04.02.1993 SI D.P.
Awasthi of Police Station Bharthana was
on patrolling duty along with constable
Hari Shanker and Maharani Deen Mishra.
On information received from a informant
that Satte alias Sattan, accused of crime
no. 422 of 1992 under Section 392 IPC is
present along with looted tyre of bus with
rim near the southern railway bridge of
station and is about to carry the tyre by
train to Etawah. After receiving this
information, the police proceeded towards
the above mentioned place and on the
pointing of the informer, while the
accused was trying to run away, he was
arrested at about 2:30 AM at ten pace
away from the bridge after using necessary
force. He disclosed his name to be Satte @
Sattan and on his search 20 gm Charas was
recovered from the pocket of his shirt and
the tyre of Bus along-with rim and tube. He
was taken into custody after informing the
reason of his arrest. The recovered Charas
was sealed in a clothe and recovery memo
was prepared. A copy of recovery memo was
given to the accused and he was brought to
the Police Station Bharthana along with
sealed Charas, Tyre and rim. On the basis of
recovery memo, offence was registered
under Section 18/20 NDPS Act. During
investigation, statement of the witnesses
were taken, site-map prepared and recovered
Charas was sent for chemical examination
for analysis. After investigation, charge-sheet
was submitted against accused for the
offence under Section 18/20 NDPS Act.
Accused was summoned and charge was
framed under aforesaid Section. Accused
pleaded not guilty and claimed trial.

3. Prosecution examined only one
witness SI D.P. Awasthi as PW-1 who proved
recovery memo as Ex. Ka-1. Statement of
accused was recorded under Section 313
Cr.P.C, who denied the recovery of Charas
from his possession and stated that he has
been falsely implicated on account of enmity.
He also stated that he was arrested from his
house. He did not adduce any evidence in
defence.

4. After hearing the learned counsel
for the accused and learned ADGC
(Criminal) for State and perusing the
evidence on record, the learned trial court
by impugned judgement convicted and
sentenced the accused-appellant.

5. Aggrieved by the conviction and
sentence, this appeal has been filed and
the
impugned
judgement
has
been
3 All. Satte @ Sattan Vs. State of U.P.
1097
challenged to be illegal and without
jurisdiction as the offence was not proved
against the appellant. Evidence was
wrongly appreciated to hold the appellant
guilty. There was no compliance of the
mandatory provisions of Section 42, 50
and 57 of the N.D.P.S Act and for that
reason the whole proceeding is vitiated.
Therefore, the impugned judgement is
liable to be set aside and the accusedappellant is entitled for acquittal.

6. In his statement SI D.P.Awasthi
has stated on oath that at the time of
incident he was posted at Police Station
Bharthana. On 03.02.1993 and in the
night when he was on patrolling duty with
constables Harishanker and Maharani
Deen Mishra, he received information
regarding the accused who was wanted in
crime no. 422 of 1092 under Section 392
IPC reportedly sitting near the bridge of
Bharthana Railway Station along with
looted tyre and rim and he was likely to
escape with the looted articles by train.
He tried to procure public witnesses, but
nobody came forward to be witness. He
reached near Railway bridge at about 2:30
AM and on the pointing of the informant
when accused Satte @ Sattan tried to run
away from there, by using necessary force
he was arrested. When search was
conducted, 20 gm Charas was recovered
and tyre-tube and rim were also recovered
from his possession. Recovered Charas
was sealed on spot and the recovery
memo was prepared which is Ex. Ka-1,
on which the police official signed. The
recovery memo was prepared in the light
of torch, thereafter, the accused was taken
to Police Station and the case was
registered against him. In the crossexamination the witness has stated that he
did not remember by what time he went
from Police Station nor he has any GD
with him. At the time of patrolling he had
torch, revolver and other constables were
having gun with them. They were also
having various instruments. He has,
however, stated that weight of the
recovered Charas was not taken by him
and he wrote the weight of the recovered
Charas just by guessing. Electricity was
there on the Railway Station but they
used torch for the purpose of light. There
is no Police Chauki of GRP on the
Railway Station.

7. It has been argued from the side
of the appellant that mandatory provisions
of Section 50 NDPS Act was not
complied with nor there was any witness
nor corroborating evidence was given
from the side of prosecution. The police
papers like charge-sheet, FIR and GD
were not proved by any witness. The
prosecution failed to establish the guilt,
even though the learned trial court
convicted the appellant.

8. Learned AGA has, however,
submitted that on the basis of cogent
evidence on record, the learned trial court
has given logical finding and the accusedappellant has been rightly convicted and
sentenced him.

9. The report dated 28.02.1994 of
the chemical examination is on record
which shows that on analysis, the
recovered article was found to be Charas.

10. From the perusal of the recovery
memo, which has been proved as Ex. Ka1 by PW-1, it appears that on search
Charas was recovered from the pocket of
accused's shirt which was 20 gm. There is
no evidence on record that the recovered
Charas was measured by any weighing
machine whereas it was necessary that
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered
Charas
must
have
been
measured with all exactness on a
weighing machine and the sample which
was taken out for chemical examination,
should have been also measured with all
accuracy. It has been admitted by the PW1 that the quantity of the recovered charas
and the sample has been mentioned in the
recovery memo on basis of guess work
and the same was not measured. A crime
based on quantity of illegal contraband,
requires that the recovered contraband
should be weighed with all accuracy and
the same should be proved before the
court. Moreover, the recovered charas
was not produced and proved by
prosecution before the learned trial court
during trial. In order to prove the offence
against the accused, it was necessary and
this lapse and failure is fatal for the
prosecution.

11. With regards to the availability
of witnesses at the time of recovery of
Charas, the recovery memo contains
stipulation that nobody came forward to
be witness of recovery but the police
witnesses who were witness of recovery
have not been examined in support of the
single witness of the recovery. The
absence of independent public witness is
also very crucial in such kind of situation
where
the
police
had
the
early
information. It is true that it is not always
necessary to have a public witness during
recovery and it depends upon the facts
and circumstances of each case. It has
been held in Jarnail Singh vs. State of
Punjab, 2011 CRLJ 1738(SC) and
Ajmer Singh Vs. State of Haryana,
(2010) 3 SCC 746, it has been held by the
Supreme Court that the obligation to take
public witnesses(independent witness) is
not absolute. If after making efforts which
the court considers in the circumstances
of the case reasonable the police officer is
not able to get public witnesses to
associate with the raid or arrest of the
culprit, the arrest and the recovery made
would not be necessarily vitiated. The
court will have to appreciate the relevant
evidence and will have to determine
whether the evidence of the police officer
is believable after taking due care and
caution in evaluating their evidence.
Therefore, it was incumbent for the police
team to conduct search before public
witness as it was having prior information
and sufficient time to involve public
witness during search. But it appears that
serious effort was not made by police and
this further makes the whole search
seriously suspicious.

12. Another argument has been with
regard to compliance of mandatory
provision of section 50 of NDPS Act. The
learned Amicus Curiae Sri Radhey Shyam
Yadav for the appellant has argued that
the police did not comply with the
mandatory provision of section 50 of the
NDPS Act.

13. Section 50 of NDPS Act is as
follows:

"Section 50: Conditions under
which search of person shall be
conducted:-

(1) When any officer duly
authorized U/s. 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
Gazettted
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
3 All. Satte @ Sattan Vs. State of U.P.
1099
can bring him before the Gazetted Officer
or the Magistrate referred to in subsection (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
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."

14. Section 50 provides reasonable
safeguard to the accused before search of
his person is made by an officer
authorised under section 42 of the Act to
conduct search. In State of Punjab Vs.
Baldev Singh, (1999) 6 SCC 172 (Five
Judge Bench), it was settled by the
supreme court that search of person u/s 50
of the NDPS Act does not include search
& recovery from bag, briefcase and
container etc. Sec. 50 applies where
personal search of a person is involved. In
T. Hamza vs State of Kerala, (2000) 1
SCC 300, it has been clarified that section
50 has been incorporated to provide
statutory safeguard to lend credibility and
fairness and to avoid arbitrariness keeping
in view the severe punishment prescribed
in the statute. It has been further clarified
in Megh Singh vs State of Punjab,
(2003) 8 SCC 666, that section 50 applies
only in case of personal search of a
person and does not extend to search of a
vehicle, container, bag or premises. In
Ajmer Singh Vs. State of Haryana,
(2010) 3 SCC 746 and Jarnail Singh vs.
State of Punjab, 2011 CrLJ 1738(SC)1,
the above view was further affirmed.

15. In Kulwinder Singh Vs. State
of Punjab, (2015) 6 SCC 674 Where
bags containing poppy husk were seized
from truck in his the accused were sitting,
it has been held by the Supreme Court
that it was not a case of personal search of
the accused and Section 50 of the NDPS
Act, 1985 was not attracted as Section 50
only applies in case of personal search of
person and not applicable to search of
vehicle, container, bag or premises.

16. In this instant case, the
prosecution version is that the illegal
charas was recovered from the accused
from his pocket of shirt he was wearing at
the time of search. PW-1 has admitted it
and the same finds mention in the
recovery memo. Clearly, it was a personal
search
of
accused
and
therefore,
compliance of section 50 NDPS Act was
necessary. Neither in the recovery memo
nor in the testimony of PW-1 it has been
anywhere mentioned that the accused was
informed about his right of being
searched before a magistrate or gazetted
officer. It has been held in State of
Rajasthan vs Ram Chandra, (2005) 5
SCC 151 and Vijaychand Chandubha
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
Jadeja vs State of Gujarat, (2011) 1
SCC 609 that section 50 provides
additional safeguard and stress is on
adoption of just, fair and reasonable
procedure and the first requirement is to
inform the suspect about existence of
such right. None of the documents
prepared during search shows that the
police team communicated the accused of
his right to be searched before gazetted
officer. In Suresh vs State of MP, (2013)
1 SCC 550, it has been held that section
50 is mandatory in nature and noncompliance would entail an order of
acquittal.

17. In a crime based on recovery of
illegal drugs for which stringent provision
in terms of procedure and punishment has
been provided in the NDPS Act, it is
necessary
to
ensure
free
and
fair
investigation without any objectionable
features and infirmities. Presumption
against innocence based on possession of
illegal drug and shifting the burden of
proof on accused requires fair and
untainted
investigation
without
any
glimpse of malice, mischief, doubt,
falsity, fabrication and prejudice to the
accused.
Fairness
and
purity
in
investigation is so necessary for criminal
justice administration that without it fair
trial will become a mockery and will
result in miscarriage of justice.

18. From the above discussion, it is
clear that the police team did not inform
the accused of his right to be searched
before a gazetted officer or magistrate.
Despite
sufficient
time
and
prior
information, no serious effort was made
to involve public witness in the process of
search and recovery. It also appears that
no witness has been examined in order to
prove the site map, chick F.I.R or the
charge-sheet. Thus none of the police
papers which have been prepared during
the course of investigation has been
proved and in absence of any proof of
those papers they are not admissible in
evidence.
It
appears
that
proper
proceeding for conducting trial in terms
of adducing and proving the case by
producing formal witnesses has not been
followed. There is no reason in the whole
judgement which can explain why this
illegality took place and why the formal
papers were not proved by producing any
witness. I find the whole finding has been
reached without observing due procedure
and
the
findings
of
conviction
is
completely vitiated. The learned trial
court has ignored the shortcomings and
lapse in the prosecution version, recovery
process and evidence and the finding of
the learned trial court is perverse and
illegal.
The
impugned
judgment
convicting and sentencing the accused is
not sustainable under law and is liable to
be set aside.

19. The appeal is therefore allowed.
The
judgement
and
order
dated
10.08.1998
passed
by
Ist-Additional
Sessions Judge, Etawah in S.T No. 53 of
1994 convicting and sentencing accusedappellant Satte @ Sattan for the offence
under Section 8/20 NDPS Act, Police
Station Bhathana, District Etawah is set
aside and consequently, accused-appellant
Satte @ Sattan is acquitted.

20. The Amicus Curaie Sri Radhey
Shyam Yadav shall be paid Rs. Ten
Thousands only for the assistance and legal
service provided by him in conducting this
appeal for the accused-appellant.

21. Office is directed to transmit the
lower court record along with copy of this
3 All. Raja Singh & Anr. Vs. State of U.P.
1101
judgment to the learned court below for
information and necessary compliance.
----------

(2019)11ILR A1101

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No.- 1832 of 1979

Raja Singh & Anr. ...Appellants(In Jail)
Versus
State Of U.P ...Opposite Party

Counsel for the Appellants:
Sri A.K. Srivastava, Sri Anoop Trivedi, Sri
C.B. Singh, Sri S.N. Tewari, Sri Mahipal
Singh, Sri P.N. Saxena, Sri Prashant
Kumar Singh, Sri Vikrant Rana, Sri Guru
Prasad Mishra.

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

A. Evidence Law-Indian Evidence Act,
1872 - Murder trial - Minor contradictions
overlooked - some contradictions are
bound to occur when ocular evidence is
recorded after a long gap, as memory of
the witnesses is bound to fade due to
passage of time - P.W.1 and P.W.9 are the
eye-witnesses of the occurrence - support
has been found of the prosecution case
which is fully corroborated by the medical
evidence - trial court has given a cogent
finding regarding the discrepancies in the
police papers prepared during the inquest
proceeding - the trial court was perfectly
right in believing their evidence and
coming to the conclusion that it was the
accused-appellant who had shot dead the
deceased who died on account of fire-arm
injury - prosecution proved it's case
beyond reasonable doubt against the
accused-appellant.- the participation of
the accused-appellant is well established
by the prosecution evidence -the trial
court has rightly convicted the appellant
for the offences - no infirmity or illegality
in it's judgment - conviction and sentence
of the appellant by the trial court - upheld.
(Para 29,30)

Appeal dismissed (E-7)

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeal has been
preferred by the appellants against the
judgment and order dated 31.5.1979 passed
by Addl. Sessions Judge, Kanpur in S.T.
No.206 of 1977 convicting the appellant
Raghubhushan Singh u/s 302 IPC and
sentencing him to life imprisonment and to
pay fine of Rs.1000/- and in default of
payment whereof to undergo six months R.I
and further convicting the appellant Raja
Singh u/s 302 read with Section 109 IPC and
sentencing him to life imprisonment and to
pay fine of Rs.1000 and in default of payment
of fine, he shall undergo 6 months R.I.

2. The appellant Raja Singh has
died during the pendency of the present
appeal and the appeal on his behalf has
been ordered to be abated by coordinate
Bench of this Court vide order dated
28.1.2019. Hence, the present appeal now
survives
with
respect
to
appellant
Raghubhushan Singh for consideration by
this Court and we proceed to hear the
appeal on behalf of the said appellant.

3. The prosecution case as set-up in
the FIR by the informant Chandra Pal
stating that there was old enmity going on
between him and Raja Singh Thakur of
his village. On 25.2.1977, there was a
marriage ceremony of niece of one
Chotey Lal Baniya of his village where he
along with his father were invited. He