# Vinod Kumar Gupta v. State Of U.P. 1846 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 5 ILRA 1845
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-10
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-gupta-v-state-of-u-p-1846-indian-law-reports-allahabad-series-43863
- **Pages:** 19

## Headnote

Criminal Appeal- Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8/21 - Recovery of
5.00 gm Morphine - Chemical examination - Heroin - Sample seal prepared on the spot - Produced during
trial - Signature and seal of Chief Judicial Magistrate - Joint consent memo - Search before Magistrate or
Gazetted Officer - Consent to be searched by Sub-Inspector - Compliance of Section 50 - Signature of
accused not visible - Seals of court - Section 55 - Safe custody - Section 57 - Report to immediate
official superior within forty-eight hours - Forensic Sciences Laboratory - Sealed packet received in
accordance with sample seal - Statement under Section 313 Cr.P.C. - Specific question relating to whole
case - No independent witness - Police personnel - No enmity or personal ill-will - Conviction upheld -
Amendment Act, 2001 - Small quantity - Heroin - 5.00 gm - Punishment - Six months imprisonment -
Fine - Period already undergone - Set off.

The challenge in this appeal is the judgment and order dated 31.03.1994, passed by the IVth Additional
District Sessions Judge, Barabanki, in Criminal Trial No.104 of 1991 connected with Criminal Trial No.100 of
1991, by which, the appellant has been convicted and sentenced to ten years rigorous imprisonment
alongwith a fine of Rs.1.00 lac for the offence punishable under Section 8/21 of Narcotic Drug and
Psychotropic Substances Act (here-in-after referred to as 'N.D.P.S. Act')(Para 1)

The brief facts of the case are that on 23.04.1991 the complainant alongwith his companion Kamlesh Kumar
Mishra were on the school duty, at about 10:30 a.m. when they were returning back, they found the
appellant, who tried to hide himself and upon suspicion they were intercepted and search was conducted, in
which, about 5.00 gm Morphine was recovered from the possession of the appellant, regarding which, the
recovery memo was prepared on the spot and the case was registered against him alongwith co-accused
Vinod Kumar Singh. The appeal of Vinod Kumar Singh is separate and this judgment shall not apply to
him.(Para 2)

After investigation, the charge-sheet was filed. The appellant denied the charge and claimed trial. The
prosecution has examined Mukhram Yadav as PW-1 and constable Kamlesh Kumar Mishra as PW-2, who have
proved the recovery from the appellant and have also proved the formal papers of the prosecution. In the
statement under Section 313 Cr.P.C., the appellant denied the evidence and stated that he has been falsely
implicated in this case. (Para 3)

Held: (Paras -19,29,33,35,38)
1.In the present case, the consent memo Ext. Ka-4 has been prepared which contains the signature of the
appellant also and in that consent memo, it has been specifically mentioned whether they wanted their search
before any Magistrate or Gazetted Officer, upon which, the appellant replied in negative and when the
appellant was put a question as to whether he wants to be searched by the arresting Sub-Inspector, upon

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5 All. Vinod Kumar Gupta Vs State Of U.P.

1845
of the land or building/structure may not lead to an inference that the possession of the acquired
land has not been taken.

(iv) If the acquisition is of a large tract of land, it may not be possible for the
acquiring/designated authority to take physical possession of each and every parcel of the land and
it will be sufficient that symbolic possession is taken by preparing appropriate document in the
presence of independent witnesses and getting their signatures on such document.

(v) If beneficiary of the acquisition is an agency/instrumentality of the State and
80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of
the acquired land has been utilised in furtherance of the particular public purpose, then the Court
may reasonably presume that possession of the acquired land has been taken."

19. In Jagdish and others Vs. State of U.P. and others, 2008(5) ADJ 5, (a Division
Bench judgment of this Court) wherein one of us (Hon'ble Sudhir Agarwal, J.) was a member,
Court referred to an authority letter of Special Land Acquisition Officer containing endorsement of
Executive Engineer taking possession. It was held that possession was taken by revenue authorities.

20. In view of above discussion we are of the view that possession of surplus land
measuring 4733.37 sq. Maters, which was so declared vide order dated 14.09.1983 and notification
under Section 10(1) and 10(3) was also issued on 31.08.1985 and 21.12.1985 and notice under
Section 10(5) of Act, 1976 was given on 10.02.1987, has been taken on 19.10.1987 vide possession
memo (Annexure-2 to the counter affidavit), hence contention of petitioner that after promulgation
of Act, 1999 now the land is vacant and cannot be taken by State is thoroughly misconceived and
rejected.

21. No other argument has been advanced. In view of above discussion, the writ petition
lacks merit. Dismissed with cost, which we quantify to Rs. 10,000/-.

22. Interim order, if any, stands vacated.
-----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 153 Of 1994

Vinod Kumar Gupta ...Appellant
Versus
State Of U.P. ...Respondent
1846 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Arun Sinha, Abhishek Ranjan

Counsel for the Respondent:
Govt. Advocate

Criminal Appeal- Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8/21 - Recovery of
5.00 gm Morphine - Chemical examination - Heroin - Sample seal prepared on the spot - Produced during
trial - Signature and seal of Chief Judicial Magistrate - Joint consent memo - Search before Magistrate or
Gazetted Officer - Consent to be searched by Sub-Inspector - Compliance of Section 50 - Signature of
accused not visible - Seals of court - Section 55 - Safe custody - Section 57 - Report to immediate
official superior within forty-eight hours - Forensic Sciences Laboratory - Sealed packet received in
accordance with sample seal - Statement under Section 313 Cr.P.C. - Specific question relating to whole
case - No independent witness - Police personnel - No enmity or personal ill-will - Conviction upheld -
Amendment Act, 2001 - Small quantity - Heroin - 5.00 gm - Punishment - Six months imprisonment -
Fine - Period already undergone - Set off.

The challenge in this appeal is the judgment and order dated 31.03.1994, passed by the IVth Additional
District Sessions Judge, Barabanki, in Criminal Trial No.104 of 1991 connected with Criminal Trial No.100 of
1991, by which, the appellant has been convicted and sentenced to ten years rigorous imprisonment
alongwith a fine of Rs.1.00 lac for the offence punishable under Section 8/21 of Narcotic Drug and
Psychotropic Substances Act (here-in-after referred to as 'N.D.P.S. Act')(Para 1)

The brief facts of the case are that on 23.04.1991 the complainant alongwith his companion Kamlesh Kumar
Mishra were on the school duty, at about 10:30 a.m. when they were returning back, they found the
appellant, who tried to hide himself and upon suspicion they were intercepted and search was conducted, in
which, about 5.00 gm Morphine was recovered from the possession of the appellant, regarding which, the
recovery memo was prepared on the spot and the case was registered against him alongwith co-accused
Vinod Kumar Singh. The appeal of Vinod Kumar Singh is separate and this judgment shall not apply to
him.(Para 2)

After investigation, the charge-sheet was filed. The appellant denied the charge and claimed trial. The
prosecution has examined Mukhram Yadav as PW-1 and constable Kamlesh Kumar Mishra as PW-2, who have
proved the recovery from the appellant and have also proved the formal papers of the prosecution. In the
statement under Section 313 Cr.P.C., the appellant denied the evidence and stated that he has been falsely
implicated in this case. (Para 3)

Held: (Paras -19,29,33,35,38)
1.In the present case, the consent memo Ext. Ka-4 has been prepared which contains the signature of the
appellant also and in that consent memo, it has been specifically mentioned whether they wanted their search
before any Magistrate or Gazetted Officer, upon which, the appellant replied in negative and when the
appellant was put a question as to whether he wants to be searched by the arresting Sub-Inspector, upon
which, he gave his consent. Nothing adverse has come in the cross-examination of Mukhram Yadav PW-1 or
Kamlesh Kumar Mishra PW-2 that the said consent letter was got signed under some pressure or threat.
Therefore, there was sufficient compliance of provisions of Section 50 of N.D.P.S. Act. In this case, the
prosecution has been able to prove that the accused was made aware of this right but he did not choose to
be searched before a Gazetted Officer or a Magistrate. In this regard, the evidence of Mukhram Yadav PW-1
as well as of Kamlesh Kumar Misra PW-2 is sufficient to this effect and it cannot be assumed that the
appellant was not informed about his right to choose his search before a Gazetted Officer or a Magistrate. I
also do not find any illegality in preparation of the joint consent memo because both the accused persons
5 All. Vinod Kumar Gupta Vs State Of U.P.

1847
have been arrested and searched at the same time. In the present case, because the consent memo Ext. Ka-4
has been proved and in the statement of the prosecution witnesses it has come that the appellant was duly
informed about his right, therefore, it cannot be said to be a mere proforma of consent.

2.The statements of both the witnesses of fact are corroborated with each other and there is no material
contradiction in their statements. There is no enmity or personal ill-will with the appellant so as to believe
that he has been falsely implicated. There is sufficient evidence on record and in my opinion, the prosecution
has succeeded in proving the guilt of appellant beyond reasonable doubt, therefore, the conviction of the
appellant is upheld.

3.Under the rationalized sentence structure, the punishment would vary depending upon the quantity of
offending material and accordingly necessary amendments have been made in the said Act. Under the
definition of new Act, 5.00 gm Heroin has been defined as small quantity and now the punishment under new
Act is six months or with a fine of Rs.10,000/- or with both. The Delhi High Court in Anwar vs. State (supra)
relying upon the other decisions of Delhi High Court in Ginni Devi vs. State, Hari Om Vs. State and Tahseen
vs. State the view has been taken that benefit of amending provisions of N.D.P.S. Act should be extended to
the people who have been awarded harsher punishment as offence was committed when the old Act was in
force

4.In view of the above, the benefit of amended Act of 2001 is extended to the appellant and now amended
Act provides six months imprisonment or fine or both for contraband involving small quantity. In the present
case, undoubtedly, 5.00 gm has been defined as small quantity under the aforesaid definition of Central
Government notification, therefore, the appellant is sentenced to six months rigorous imprisonment alongwith
a fine of Rs.1000/-. The period already undergone shall be set off. In default of payment of fine, he shall
further undergo an imprisonment of one month.

5.With the above modifications, the appeal is party allowed.

Case Law discussed:
1.Ram Sagar Verma vs. State, 2002 (0) Supreme (All) 149 - (Para 7)
2.State of Rajasthan vs. Gopal, (1998) 8 SCC 449 - (Para 7)
3.Ramesh Chandra vs. State of U.P., 2014 (7) ADJ 184 - (Paras 8, 17)
4.State of Punjab vs. Balbir Singh, 1994 (3) SCC 299 - (Para 8)
5.Saiyad Mohd. Saiyad Umar Saiyad vs. State of Gujarat, (1995) 3 SCC 610 - (Para 8)
6.State of Punjab vs. Baldev Singh, (1999) 6 SCC 172 - (Para 8)
7.Vijay Singh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609 - (Para 8)
8.Union of India vs. Shah Alam, (2009) 16 SCC 644 - (Para 8)
9.Dilip vs. State of Madhya Pradesh, (2007) 1 SCC 450 - (Para 8)
10.State of Rajasthan vs. Parmanand, LAWS (SC) 2014 271 - (Para 8)
11.Jitendra Singh Rathore vs. State of U.P., 2002 (2) ADJ 424 - (Paras 9, 24)
12.Kuldeep Singh vs. State of Punjab, AIR 2011 SC (Supp.) 787 - (Para 9)
13.Mathura Prasad vs. State of U.P., 2005 (51) ACC 904 - (Para 9)
14.Beni Prasad vs. State of U.P., 2003 (46) ACC 701 - (Para 9)
15.Jamil vs. State of U.P., 2005 (3) ACR 3047 - (Paras 10, 26)
16.Ajay Singh vs. State of Maharashtra, 2007 (5) Supreme 1 - (Para 11)
17.Hate Singh Bhagat Singh vs. State of Madhya Pradesh, AIR 1953 SC 468 - (Para 11)
18.Rajender Kumar vs. State, Criminal Appeal No.436 of 2007 - (Para 12)
19.Anwar vs. State, 112 (2004) DLT 594 - (Para 13)
20.Gian Singh vs. State of Punjab, 1999 SCC (Cri) 1512 - (Para 13)
21.Pawan Kumar Sharma vs. State of U.P., Criminal Appeal No.876 of 2001 - (Para 14)
1848 INDIAN LAW REPORTS ALLAHABAD SERIES
22.E. Micheal Raj vs. Narcotic Control Bureau, (2008) 5 SCC 161 - (Para 15)
23.Harjit Singh vs. State of Punjab, (2011) 4 SCC 441 - (Paras 15, 30)

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. The challenge in this appeal is the judgment and order dated 31.03.1994, passed by the
IVth Additional District Sessions Judge, Barabanki, in Criminal Trial No.104 of 1991 connected
with Criminal Trial No.100 of 1991, by which, the appellant has been convicted and sentenced to
ten years rigorous imprisonment alongwith a fine of Rs.1.00 lac for the offence punishable under
Section 8/21 of Narcotic Drug and Psychotropic Substances Act (here-in-after referred to as
'N.D.P.S. Act').

2. The brief facts of the case are that on 23.04.1991 the complainant alongwith his
companion Kamlesh Kumar Mishra were on the school duty, at about 10:30 a.m. when they were
returning back, they found the appellant, who tried to hide himself and upon suspicion they were
intercepted and search was conducted, in which, about 5.00 gm Morphine was recovered from the
possession of the appellant, regarding which, the recovery memo was prepared on the spot and the
case was registered against him alongwith co-accused Vinod Kumar Singh. The appeal of Vinod
Kumar Singh is separate and this judgment shall not apply to him.

3. After investigation, the charge-sheet was filed. The appellant denied the charge and
claimed trial. The prosecution has examined Mukhram Yadav as PW-1 and constable Kamlesh
Kumar Mishra as PW-2, who have proved the recovery from the appellant and have also proved the
formal papers of the prosecution. In the statement under Section 313 Cr.P.C., the appellant denied
the evidence and stated that he has been falsely implicated in this case.

4. After appreciating the evidence on record, the appellant was found guilty for the offence
punishable under Section 8/21 N.D.P.S. Act and was sentenced to ten years rigorous imprisonment
along with a fine of Rs.1.00 lac.

5. Learned counsel for the appellant has submitted that it is the first case of his life and
there was no criminal history prior to this incident or after this incident. It has also been submitted
that very small quantity of 5.00 gm Heroin was recovered from possession of the appellant and a
false recovery has been shown. It has also been submitted that the prosecution has not produced the
sample seal in the trial and it has been brought by the complainant PW-1 at the time of statement in
the Court. Therefore, the alleged recovery becomes doubtful. It has also been submitted that there
was no compliance of provisions of Section 50 of N.D.P.S. Act and preparation of joint consent
memo was against the law. Any signature or thumb impression was not found on the alleged
sample, therefore, there was violation of provisions of Section 50 and 55 of N.D.P.S.Act. It has
further been submitted that the appellant was not put specific questions regarding the evidence
while recording the statement under Section 313 Cr.P.C., therefore, the trial has vitiated. In the last,
learned counsel for the appellant has submitted that now the N.D.P.S. Act, 1986 has been amended
in the year 2001, where for small quantity, the maximum sentence is six months and in case the
5 All. Vinod Kumar Gupta Vs State Of U.P.

1849
appellant is found guilty, the benefit of amended Act of 2001 may be extended to him. It has also
been submitted that the appellant has remained in Jail for about eleven months.

6. It has also been submitted that copy of recovery memo was not provided to the appellant
on the spot and in the recovery memo the recovered article has been described as Morphine, while
in the chemical examination, it has been found to be Heroin . It has also been submitted that PW-1
Mukhram Yadav has admitted in his cross-examination that he identifies the Morphine very well. It
has also been submitted that it is not clear from the evidence that how small quantity of 5.00 gm
was weighed because such quantity cannot be weighed by ormal weighing scale and can only be
possible by weighing scale available with Jewellers.

7. In relation to non-production of sample seal, learned counsel for the appellant has relied
upon the case Ram Sagar Verma vs. State, reported in 2002 0 Supreme (All) 149, in which, it has
been held as under :-

".......non-production of the sample of seal have created serious doubts about the
story of prosecution and about the recovery. In similar circumstances the Apex Court in the case of
State of Rajasthan v. Gopal, (1998) 8 SCC 449, found that in a case where seal of the sample sent
to the Analyst was not produced in the Court for verification, then the case was found one of
acquittal and the Apex Court held in the circumstances of that case that order of acquittal called
for no interference by the Supreme Court. In the present case also the two reports are
contradictory to each other. The sample of seal has not been proved to have been sent to the
Chemical Examiner or the Opium Inspector. One sample was taken but two reports were obtained.
The alleged sample of seal has not been produced before the Court for verification. This all creates
serious doubt about the guilt of the accused. Under these circumstances, the trial court should have
clearly acquitted the accused and should not have convicted and sentenced him. In the present
case, the prosecution failed to prove the charge framed against the accused under Section 21 of the
Act and he is not found guilty of the same and is entitled for acquittal. The appeal shall be allowed
accordingly."

8. With respect to joint signed memo and non-compliance of provisions of Section 50 of
N.D.P.S. Act is concerned, learned counsel for the appellant has relied upon the case Ramesh
Chandra vs. State of U.P. reported in 2014 7 ADJ 184, in which, it has been held as under:-

"13. Learned Counsel for the appellants has contended that it is the right of the
accused person to be informed that they can be searched before a Gazetted Officer or a Magistrate
and in this case the appellant was not informed about his right by the arresting officials and this
violated the mandatory provision of Section 50 of the NDPS Act.

14. To secure a conviction under the N.D.P.S. Act, the possession of the illicit article
is a sine qua non. Such contraband must be recovered in accordance with the provisions of Section
50 of the Act, otherwise, the recovery itself shall stand vitiated in law. Whether the provisions of
1850 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 50 of the Act were complied with or not, would be a matter to be determined on the basis of
the evidence produced by the prosecution.

15. In the case of State of Punjab Vs. Balbir Singh, 1994 (3) SCC 299, it has been
held by Hon'ble Apex Court while considering the provisions of Section 50 of the NDPS Act that it
is imperative and mandatory on the part of authorised officer to inform the accused about the right
of person to be searched in presence of Magistrate/Gazetted Officer.

16. The aforesaid case of Balbir Singh was followed by the Apex Court in the case of
Saiyad Mohd. Saiyad Umar Saiyad and others Vs. State of Gujrat, (1995) 3 SCC 610, wherein this
legal position was again reiterated and it was held that the requirement on the part of the officer
conducting the search to inform the accused of his right to choose to be searched in the presence of
a Gazetted Officer or a Magistrate is mandatory and the prosecution must prove that the accused
was made aware of this right but he did not choose to be searched before a Gazetted Officer or a
Magistrate. If no evidence to this effect is given, court must assume that the accused was not
informed of his right and the possession of the illicit articles was not established.

17. The Constitution Bench of the Hon'ble Apex Court again considered this point in
the case of State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 and held that it is not enough that
the accused be informed or intimated that he could be searched in presence of a Gazetted Officer
or a Magistrate but he should be informed of his "right" to be searched in presence of a Gazetted
Officer or a Magistrate and if there is any violation in this regard it will be violation of Section 50
of the NDPS Act.

18. Recently in the case of Vijay Singh Chandubha Jadeja Vs State of Gujrat,
reported in (2011) 1 SCC 609, it has been held by the Constitution Bench of Hon'ble Apex Court
that any conviction, based on the recovery of an illicit item in a search conducted without
informing the accused of his right would stand vitiated. The short question decided by the
Constitution Bench in this case was as to whether Section 50 of the NDPS Act casts a duty on the
empowered officer to "inform" the suspect of his right to be searched in the presence of a gazetted
officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether
the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be
said to be due compliance with the mandate of the said section. The issue so framed by the
Constitution Bench was answered in para 29 in the following terms:

"29. In view of the foregoing discussions, we are of the firm opinion that the object
with which the 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 minimize the allegations of planting or foisting of false cases by the law 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 insofar as the obligation of the authorized officer under sub- section (1)
of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure
5 All. Vinod Kumar Gupta Vs State Of U.P.

1851
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."

19. In Union of India v. Shah Alam, (2009) 16 SCC 644, heroin was first recovered
from the bags carried by the respondents therein. Thereafter, their personal search was taken but
nothing was recovered from their person. It was urged that since personal search did not lead to
any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act.
Following Dilip (Dilip & Anr. v. State of Madhya Pradesh, (2007) 1 SCC 450), it was held that
since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was
right in acquitting the respondents on that ground.

20. In view of the aforesaid decisions, the question required to be considered in this
case is as to whether mandatory provisions of Section 50 of the NDPS Act have been followed at
the time of arrest of appellant. In the instant case, perusal of the fard recovery (Ex-Ka-1) shows
that arresting officers had jointly asked the accused persons whether they desire to be searched
before a Magistrate or a Gazetted Officer and then both of them consented to be searched by
arresting officials. This shows that a mere offer was made to the appellant that in case if he so
desires, his search could be conducted in presence of a Gazetted Officer or a Magistrate. Thus,
from the decisions quoted above, it is clear that a mere proforma offer would not satisfy the
mandatory ingredients of section 50 of the NDPS Act. The court below has opined that since the
recovery was made from a bag carried by the appellant, therefore, Section 50 would not apply.
However, the Apex Court in the recent case of State of Rajasthan Vs Parmanand reported in LAWS
(SC) 2014 271 has held that Section 50 of NDPS Act would be applicable even in these cases if
personal search had also been conducted. The idea behind taking an accused to a nearest
Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched
in the presence of an independent officer/witness. In the instant case, what was actually said was
that he (accused) had an option to get him searched in presence of a Gazetted Officer or a
Magistrate. The intimation given to the accused could not be treated as communication to him that
he had a right under law to be searched before the aforesaid authorities. As it is, there was no
independent witness to the recovery. It is evident that there was no compliance of Section 50 of the
NDPS Act and the findings recorded by the learned Trial Court in this regard are not tenable."

9. Regarding the signature or thumb impression and non-compliance of Sections 55 and 57
of N.D.P.S. Act, learned counsel for the appellant has relied upon the case Jitendra Singh
Rathore vs. State of U.P. reported in 2002 2 ADJ 424, in which, in paras-22, 27 & 30 held as
under:-

"22. It was then argued that no sample was taken on the spot nor any signature or
thumb impression was taken on the sample recovered which also creates doubt about the recovery
of contraband article from the appellant as from the F.I.R. itself as well as from evidence on record
it is not clear whether any sample was taken on the spot. In support of his submission, he has
1852 INDIAN LAW REPORTS ALLAHABAD SERIES
placed reliance on the judgment of the Apex Court in the case of Kuldeep Singh vs. State of Punjab
reported in AIR 2011 SC (Supp.) 787 in which it has been held by the Apex Court that non
collection of samples at the initial stage of seizure was a defect, which could not have been cured in
the manner in which it was done by opening the bags which had been sealed by the I.O. and mixing
the contents thereof. In support of his submission he has also placed reliance on the judgment of
this Court in the case of Mathura Prasad vs. State of U.P. reported in [2005 (51) ACC 904] and
another judgment of this Court in the case of Beni Prasad vs. State of U.P. reported in [2003 (46)
ACC 701] wherein it was stated that the samples of charas, alleged to have been recovered/seized
from the possession of the appellant, is alleged to have taken and sealed on the place of occurrence
but surprisingly enough the sealed packets does not bear the signature of the accused appellant
which casts doubt about the alleged recovery.

27. The contention of learned counsel for the appellant that no sample of the
contraband article was taken at the spot nor any signature or thumb impression has taken on the
same also appears to be correct as it is apparent from the record that P.W.1 had recovered the
article and the arrested the appellant without taking out the sample of contraband article on the
spot and had deposited the same in the Malkhana of the concerned police station and entrusted the
same to the P.W.4, therefore, it is not proved in what manner the sample was drawn by the police
party. From the record it is further evident that the alleged sample did not bear any signature or
thumb impression of the appellant and the offence under the N.D.P.S. Act is a technical offence and
the safeguard in the enactment requires strict compliance. Failure, in the evidence by the
prosecution witnesses, to show that when the sample were taken from the same contraband article
creates doubt on the authenticity of the prosecution case. In this connection the absence of
signature of the accused on the sealed bag raises doubt about the recovery of contraband article
from the possession of the appellant.

30. Thus, from the aforesaid discussions and evidence on record, it is apparent that
the recovery of the contraband article from the possession of 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."

10. Regarding non-compliance of provisions of Section 55 of N.D.P.S. Act, learned
counsel for the appellant has further relied upon the case Jamil vs. State of U.P. reported in 2005 3
ACR 3047, in which, it has been held as under:-

........ The whole stock in this case when was ot sent for chemical analysis, it was
incumbent upon the prosecution to lead evidence of the fact as to who and when took the
contraband to the Court of District Judge, Allahabad for preparation of sample. It was further
necessary for the prosecution to lead evidence to the effect as to who and when took this sample
from the District Judges Court to the laboratory at Lucknow for chemical analysis, but to my great
5 All. Vinod Kumar Gupta Vs State Of U.P.

1853
surprise there is no such evidence made available on record by the prosecution. In absence of these
link evidence, it cannot be safely held that after the recovery of the alleged contraband drug it was
properly preserved and kept in safe custody till it was taken for preparation of sample to the
District Judge Court and also therefrom to the Laboratory of Chemical Analysist at Lucknow. It is
not certain from the evidence as to which article was received for analysis in the Laboratory at
Lucknow. The absence of such evidence is something very serious lapse on the part of prosecution,
rather it fatally damages its case and it is not believable that the same article which was seized
from the appellant-accused was chemically analysed for the analysist report."

11. Regarding the statement of Section 313 Cr.P.C., learned counsel for the appellant has
relied upon the case Ajay Singh vs. State of Maharashtra reported in 2007 (5) Supreme 1, in
which, it has been held as under:-

10. The purpose of Section 313 of the Code is set out in its opening words- 'for the
purpose of enabling the accused to explain any circumstances appearing in the evidence against
him.' In Hate Singh Bhagat Singh vs. State of Madhya Pradesh (AIR 1953 SC 468) it has been laid
down by Bose, J that the statements of accused persons recorded under Section 313 of the Code
'are among the most important matters to be considered at the trial'. It was pointed out that the
statements of the accused recorded by the committing magistrate and the Sessions Judge are
intended in India to take the place of what in England and in America he would be free to state in
his own way in the witness box and that they have to be received in evidence and treated as
evidence and be duly considered at the trial. This position remains unaltered even after the
insertion of Section 315 in the Code and any statement under Section 313 has to be considered in
the same way as if Section 315 is not there.

11. The object of examination under this Section is to give the accused an
opportunity to explain the case made against him. This statement can be taken into consideration in
judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on
the facts and circumstances of the case if such statement discharges the onus.

12. The word 'generally' in sub-section (1)(b) does not limit the nature of the
questioning to one or more questions of a general nature relating to the case, but it means that the
question should relate to the whole case generally and should also be limited to any particular part
or parts of it. The question must be framed in such a way as to enable the accused to know what he
is to explain, what are the circumstances which are against him and for which an explanation is
needed. The whole object of the section is to afford the accused a fair and proper opportunity of
explaining circumstances which appear against him and that the questions must be fair and must
be couched in a form which an ignorant or illiterate person will be able to appreciate and
understand. A conviction based on the accused's failure to explain what he was never asked to
explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention
of the accused should be drawn to the specific points in the charge and in the evidence on which
the prosecution claims that the case is made out against the accused so that he may be able to give
such explanation as he desires to give.
1854 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The importance of observing faithfully and fairly the provisions of Section 313 of
the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long
series of facts and ask the accused what he has to say about them. He must be questioned
separately about each material substance which is intended to be used against him. The
questionings must be fair and couched in a form which an ignorant or illiterate person will be able
to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be
perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material
circumstance should be put simply and separately in a way that an illiterate mind, or one which is
perturbed or confused, can readily appreciate and understand."

12. Regarding the extension of benefit of amended Act of 2001, learned counsel for the
appellant has relied upon the judgment rendered in Criminal Appeal No.436 of 2007; Rajender
Kumar vs. State, in which, it has been held as under:-

9. The Statement of Objects and Reasons concerning the Amending Act of 2001 is as
follows: Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most
of the offeences invite uniform punishment of minimum ten years rigorous imprisonment which may
extend upto twenty years. While the Act envisages severe punishment for drug traffickers, it
envisages reformative approach towards addicts. In view of the general delay in trial it has been
found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under
the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to
ensure that while drug traffickers who traffic in significant quantities of drugs are punished with
deterrent sentences, the addicts and those who commit less serious offences are sentences to less
severe punishment. This requires rationalisation of the sentence structure provided under the Act.
It is also proposed to restrict the application of strict bail provisions to those offenders who indulge
in serious offences.

10. The entry of the Notification under which the substance found in possession of
the appellant falls is Entry 56 or Entry 239. The relevant portion of the Notification dated
19.10.2001 issued by the Central Government reads as under: S.O. 1055(E), dated 19.10.2001.- In
exercise of the powers conferred by Clauses (viia) and (xxiiia) of Section 2 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance,
Department of Revenue Notification S.O.527(E) dated 16th July, 1996, except as respects things
done or omitted to be done before such supersession, the Central Government hereby specifies the
quantity mentioned in columns 5 and 6 of the Table below, in relation to the narcotic drug and
psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table,
as the small quantity and commercial quantity respectively for the purposes of the said clauses of
that section, 1, 2, 3, 4, 5,6 Sl. Name of Narcotic Other non-Chemical Small Commercial No. Drug
and Psychotropic proprietary Name quantity Quantity Substance name (in gm). In (gm./kg.)
[International non-proprietary name (INN)]56. Heroin Diacetylmorphine 5 5.0 gm. 239. Any
mixture or preparation that of with or without a neutral material, of any of the above drugs. Lesser
of the small quantity between the quantities given against the respective narcotic drugs or
5 All. Vinod Kumar Gupta Vs State Of U.P.

1855
psychotropic substances mentioned above forming part of the mixture. Lesser of the commercial
quantity between the quantities given against the respective narcotic drugs or psychotropic
substances mentioned above forming part of the mixture.

14. It appears from the Statement of Objects and Reasons of the Amending Act of
2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure
that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent
sentence, the addicts and those who commit less serious offences are sentenced to less severe
punishment. Under the rationalised sentence structure, the punishment would vary depending upon
the quantity of offending material."

13. Regarding the quantum of punishment of amended Act, learned counsel for the
appellant has relied upon the case Anwar vs. State reported in 112 (2004) DLT 594, in which, it
has been held as under:-

3. In appeal learned counsel for the appellant Mr. Sumeet Verma, Advocate, has not
challenged the conviction of the appellant. He has pleaded for leniency in the matter of sentence in
view of amended provision of Section 21 of NDPS Act. This amendment which came into force on
2nd October, 2001, reads as under:

21. Punishment for contravention in relation to manufactured drugs and
preparations. Whoever, in contravention of any provision of this Act or any rule or order made or
condition of license granted there under, manufacturers, possesses, sells, purchases, transport,
Imports inter-State, exports inter-State or uses any manufactured drug or any preparation
containing any manufactured drug shall be punishable.

a) where the contravention involves small quantity, with rigorous imprisonment for
a term which may extend to six months, or with fine which may extend to ten thousand rupees, or
with both:

b) where the contravention involves quantity, lesser than commercial quantity but
greater than small quantity, with rigorous imprisonment for a term which may extend to ten years,
and with fine which may extend to one lakh rupees:

c) where the contravention involves commercial quantity, with rigorous
imprisonment for a term which shall not be less than ten years but which may extend to twenty
years, and shall also be liable to fine which shall not be less than one lakh rupees but which may
extend to two lakh rupees.

4. The quantity of smack i.e. 30 gram does not fall in the category of small quantity
but is less than the commercial quantity so in view of the amended Section 21 (b) of NDPS Act
punishment may extend up to 10 years and fine which may extend to Rs. 1 lakh. In the amended
Act, the minimum sentence of 10 years RI and fine of Rs. 1 lakh is prescribed is only for offenders
1856 INDIAN LAW REPORTS ALLAHABAD SERIES
who are found in possession of commercial quantity of smack which is 250 gram. Learned counsel
for the appellant vehemently pressed for reduction of sentence in view of lesser punishment
prescribed by amending Act, 2001. In the case of Gian Singh v. State of Punjab, 1999 SCC (Cri.)
1512, Hon'ble Apex Court took into consideration the provisions of TADA Act, 1985 which diluted
the sentence for offence under Section 3(2) of TADA Act, 1985 from extreme penalty of death
sentence to life imprisonment. While commenting on the desirability of extending the benefit of
subsequent legislation which down grades the harshness of punishment, the Apex Court in para 32
observed as under:-

32. What is the jurisprudential philosophy involved in the second limb of Clause (1)
of Article 20 of the Constitution? No person shall be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of commission of the offence.

It is a fundamental right of every person that he should not be subjected to greater
penalty than what the law prescribes, and no ex post facto legislation is permissible for escalating
the severity of the punishment. But if any subsequent legislation would downgrade the harshness of
the sentence for the same office, it would be a salutary principle for administration of criminal
justice to suggest that the said legislative benevolence can be extended to the accused who awaits
judicial verdict regarding sentence.

5. Learned counsel for the appellant has brought to my notice other decisions of this
court namely Ginni Devi v. State, Criminal Appeal No. 713/2000 decided on 5th March 2002; Hari
Om v. State, 2002 VI AD (Delhi) 921 and Tahseen v. State, Cri. Appeal No. 234/1998 wherein
different benches of this Court have taken a consistent view that the benefit of amending provisions
of NDPS Act should be extended to the people who have been awarded harsher punishment as
offence was committed when the old Act was in force."

 14. Further learned counsel for the appellant has relied upon the judgment rendered in
Criminal Appeal No.876 of 2001, Pawan Kumar Sharma vs. State of U.P., regarding quantum of
punishment for the offence committed prior to amendment of the Act 2001. In this case, it has been
held as under:-