IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL JAIL APPEAL NO.69 OF 2007 Man Singh Bohra ……… Appellant Versus The State ……… Respondent (2) CRIMINAL JAIL APPEAL NO.71 OF 2007 Harak Bohra ……… Appellant Versus The State ……… Respondent (3) CRIMINAL JAIL APPEAL NO.72 OF 2007 Govind Bohra ……… Appellant Versus The State ……… Respondent Dated: March 30, 2010 Sri I.S. Mehra, learned amicus curiae for the appellant-Man Singh Bohra Km. Geeta Parihar, learned amicus curiae for the appellant-Harak Bohra Sri Rajesh Joshi, learned amicus curiae for the appellant-Govind Bohra Sri G.S. Sandhu, Government Advocate for the State HON. DHARAM VEER, J. All these have appeals have arisen out of a common judgment and order and the evidence in all the appeals is one and the same as well as the incident is also the same, hence all of them are being disposed of by this common judgment and order. 2. All these criminal jail appeals, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against 2 the judgment and order dated 16.10.2006 passed by the Special/Sessions Judge, Pithoragarh in Sessions Trial No.1/2006, State Vs. Govind Bohra, S.T. No.2/2006, State Vs. Harak Bohra and S.T. No.3/2006, State Vs. Man Singh Bohra, whereby the learned Special/Sessions Judge has convicted each of the appellants/accused u/s 20 of The Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act) and sentenced each of them to ten years’ rigorous imprisonment with fine of Rs.1.00 lacs each and in case of default of fine, two years’ further imprisonment was awarded. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that on 30.11.2005, PW1 S.I. Shyam Lal along with Constable Bhadar Ram (PW2), Constable Narendra Prasad, while on patrolling duty, was going towards Ranuwa from SSB Camp, D. Company, Sunkholi and as soon as they reached at 300 mts. ahead near culvert at Village Chakdwari, then three persons were seeing coming towards the Kali river having bags with each of them. On seeing the (Shastra Seema Bal) S.S.B. officials, they at once started to move quickly towards Ranuwa. The SSB officials suspecting on their activities, told them to stop, but they did not stop and started running quickly. However, they were caught by using necessary force at about 2:30 PM. Those three persons disclosed their names as Govind Bohra, Harak Bohra and Man Singh Bohra (appellants-accused). It was also stated that the appellants-accused were asked to be searched before a 3 Gazetted Officer but they told them that they had faith on them and they might search them. On the search of the appellant-accused Govind Bohra, about 2.550 kilograms of Charas in a polythene bag was recovered; from the possession of appellant-accused Harak Bohra, about 2.500 kilograms of Charas in a polythene bag was recovered while from the possession of appellant-accused Man Singh Bohra, about 2.050 kilograms of Charas in a polythene bag was recovered. The appellants-accused could not show any licence for having such quantity of Charas. About 200 grams of Charas from each of the polythene bags was kept in three separate boxes and rest of recovered Charas along with Polythene was sealed on the spot and Fard of recovery Ex.Ka-7 was prepared on the spot. Specimen of seal of recovery made from the appellant-accused Govind Bohra is Ex.Ka-17; specimen of seal of recovery made from the appellant-accused Harak Bohra is Ex.Ka-18 and specimen of seal of recovery made from the appellant-accused Man Singh Bohra is Ex.Ka-19. Ex.Ka-11, Ka-12 and Ka-13 are the Fards of information and arrest of the appellants-accused Govind Bohra, Harak Bohra and Man Singh Bohra respectively. Along with the recovered articles, the appellants-accused were taken to the Police Station, Askot where Chik FIR was prepared on the basis of recovery memo on 30.11.2005 at 6:30 P.M. by C/C Harish Chandra (PW6), that Chik FIR is Ex.Ka-27. The entry was also made by him in the G.D., carbon copy of which is Ex.Ka-28. Investigation of this case was entrusted to PW5 S.I. Ganesh Singh, who during the course of investigation inspected the place of occurrence and prepared the site plan of the place of occurrence, which is Ex.Ka-20. The Charas recovered from the 4 possession of appellant-accused Govind Bohra was sent for the chemical examination vide memo Ex.Ka-8. Similarly, Charas recovered from the possession of appellants-accused Harak Bohra and Man Singh Bora was also sent for chemical examination vide memos Ex.Ka-9 and Ka-10 respectively. Reports given by the Assistant Director, Scientific Laboratory, Agra are Ex.Ka- 21, Ka-22 and Ka-23 respectively, vide which it was reported that the contraband sent through all the three plastic bags, was found CHARAS. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, he filed the charge sheet against the appellants-accused Govind Bohra, Harak Bohra and Man Singh Bohra in the court, vide Ex.Ka-24, Ka-25 and Ka-26 respectively. 5. On 9.03.2006, learned Special Sessions Judge, Pithoragarh framed the charge for the offence punishable under Section 20/22 of the Act against all the appellants /accused. The charge was read over and explained to the appellants/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 S.I. Shyam Lal Verma, PW2 Constable Bhadar Ram, PW3 Constable Sunil Kumar, PW4 Pritam Singh, Assistant Commandant, PW5 S.I. Ganesh Singh Samant, IO of the case and PW6 Constable Harish Chandra, who prepared Chik FIR and made entry in the G.D. 7. After that the statements of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in 5 question form, who denied the allegations made against each of them and stated that they have been falsely implicated. No oral or documentary evidence was put in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Special/Sessions Judge, Pithoragarh vide judgment and order dated 16.10.2006 convicted and sentenced the appellants/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present jail appeals. 9. To prove its case, the prosecution has examined P.W.1 S.I. Shyam Lal and P.W.2 Constable Bhadar Ram, who have fully reiterated the version made in the recovery memo Ex.Ka-7 in their examination in chief. 10. P.W.3 is Constable Sunil Kumar, who took the recovered contraband from the appellants-accused for the purpose of chemical examination vide memos Ex.Ka- 8 of Govind Bohra, Ex.Ka-9 of Harak Bohra and Ex.Ka- 10 of Maan Singh Bohra. 11. P.W.4 Pritam Singh, Assistant Commandant who stated on 30.11.2003 he was posted as Assistant Commandant in S.S.B. At 2:30 PM, he received information that three NEPALIS have been arrested along with CHARAS and information to this effect he sent to higher officials. On the directions of S.O., he went on the spot where S.I. Shyam Lal informed him about the aforesaid incident. He also stated that S.I. Shyam Lal 6 had got the case registered against the appellants- accused at police station and also brought the accused along with recovered Charas. 12. P.W.5 S.I. Ganesh Singh Samant, IO of the case. He proved the Fards Ex.Ka-11, Ka-12 and Ka-13 of arrest and information of the appellants-accused Govind Bohra, Harak Singh Bohra and Man Singh Bohra respectively. Specimens of seal of recovered Charas from the appellants-accused were also been prepared, i.e. Ex.Ka-17, Ka-18 and Ka-19. He also inspected the place of occurrence and prepared site plan, i.e. Ex.Ka-20. As per the orders of Judicial Magistrate, Didihat, contraband taken on the spot for chemical examination was sent to the scientific laboratory and the report given by the Scientific Laboratory, Agra is Ex.Ka-21, Ka-22 and Ka-23 respectively, through which it was reported that the contraband article was found CHARAS. During the course of investigation, he recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet, i.e. Ex.Ka-24, Ka-25 and Ka-26 against the appellants-accused Govind Singh,, Harak Singh and Man Singh respectively. 13. P.W.6 is Constable Harish Chandra Singh, who prepared CHIK FIR of the case prepared by him, i.e. Ex.Ka-27. He also made entry in the G.D., carbon copy thereof is Ex.Ka-28. 14. After that the statements of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely 7 implicated. No oral or documentary evidence was put in defence. 15. It was vehemently argued by learned amicus for the accused/appellants, that the Shastra Seema Bal, who arrested the appellants-accused, had no power for search and seizure as per Section 42 of the Act on the relevant date and time. He referred to the Notification No. S.O. 822 (E), published in the Gazette of India, dated 14.11.1985 which is reproduced hereunder: - “In exercise of the powers conferred by sub-section (1) of Section-42 and Section 67 of the Narcotic Drugs and Psyshotropic Substances Act, 1985 (61 of 1985), the Central Government hereby empowers officers of and above the rank of Sub-Inspector in the department of Narcotics and of and above the rank of Inspector in the departments of Central excise, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorizes the said officers to exercise the powers conferred upon them under Section 67.” 16. Learned amicus curiae for the appellant-accused further submitted that The U.P. Narcotic Drugs Rules, 1986 came into force on 08.10.1986 and published in the U.P. Gazette, Extra., No. 3555-E-2/xiii-23/85 dated 8th October 1986. He referred Rule-77 of The U.P. Narcotic Drugs Rules, 1986, which is reproduced as under: - “77. Power of entry, search, seizure and arrest without warrant or authorization:- Any Officer of the Excise or Police Department not below the rank of Inspector or of the Drug Control Department not below the rank of Inspector or of the Revenue Department not below the rank of Tahsildar may exercise the powers under Section 42 of the Act.” 17. He also referred Section-42 of the Act, which is reproduced as under:- 8 “42. Power to entry, search, seizure and arrest without warrant or authorization.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset.- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance, and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith sent a copy thereof to his immediate official superior.” 18. On the basis of the aforesaid proviso provided under the Notification, Rules and Act, it is contended on behalf of the learned amicus curiae for the accused/appellants that on the relevant date of occurrence, as per the 9 Notification referred above, only officers of and above the rank of Sub-Inspector in the department of Narcotics and of and above the rank of Inspector in the departments of Central excise, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau are empowered to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorizes the said officers to exercise the powers conferred upon them under Section 67 of the Act. I have no hesitation in reaching the conclusion that for launching the prosecution or for initiating the proceedings the authority doing so must have a clear and unambiguous power. In criminal cases, while enacting such provision, the legislature puts a complete ban on the authorities beyond one mentioned in the Section to carry out the functions under the Act. In Section 42 of the Act, the legislature has clearly empowered the persons mentioned therein or who are authorized to do so by notification. However, on a thorough perusal of the aforesaid notifications, issued by the Central Government and the State Government, the Shastra Seema Bal was not authorized to arrest and seize the CHARAS from the accused/appellants on the relevant date and time, hence all the proceeding conducted by the Sub Inspector Shyam Lal alongwith two Constables is against the law prevailing at that time, therefore the entire proceeding i.e. the arrest and seizure made in the instant case by the Shastra Seema Bal headed by SI Shyam Lal (PW1) is entirely illegal and is not as per the law existed and the arrest of the accused/appellants and seizure of the CHARAS, which is shown to be recovered, is not as per the law. I am fortified in my view with the dictum of the Hon’ble Division Bench of the Allahabad High Court 10 reported in Allahabad Criminal Cases 1989 Vol. 26, page-32 Kamlesh Pratap Singh vs. Adhikshak Janpad Karagar, Lucknow and ors., and referred the second last paragraph which is reproduced as under:- “ fo}ku~ vij 'kkldh; vf/koDrk us ;g Hkh dgk fd vf/kfu;e dh /kkjk 42 dsoy mfYyf[kr LFkkuksa esa ryk”kh] fxjQ~rkjh bR;kfn ls lEcfU/kr gS rFkk lkoZtfud LFkku ls fxjQ~rkjh] tSlk bl ekeys esa gS] dk izkfo/kku /kkjk 43 esa gSA mudk rdZ gS fd iqfyl foHkkx ds vf/kdkfj;ksa ls lEcfU/kr vf/kdkjksa dk izfrcU/k dsoy /kkjk 42 dh dk;Zokgh ls lEcfU/kr gS] /kkjk 43 dh dk;Zokgh ls ugha] muds vuqlkj fu;e 77 dsoy /kkjk 42 dh dk;Zokgh ds lEcU/k esa gS] /kkjk 43 ls ughaA blesa lUnsg ugha fd /kkjk 43 esa lkoZtfud LFkku ls lEcfU/kr dk;Zokgh dk izkfo/kku gS] ijUrq blh /kkjk ds vuqlkj og dk;Zokgh dsoy ,sls vf/kdkjh dks djuh gS] ftls /kkjk 42 ds varxZr vf/kdkj fn;s x;s gSaA /kkjk 42 ds lEcfU/kr vf/kdkj fu;e 77 esa fn;s x;s gSa] vr% ogh vf/kdkj /kkjk 43 ds fy, Hkh ykxw gSaA fu;e esa /kkjk 43 ls lEcfU/kr vf/kdkfj;ksa dk izkfo/kku djus dh vko”;drk ugha FkhA bu ifjfLFkfr;ksa esa gekjk er gS fd vthZnkj deys”k izrki dh fxjQ~rkjh izkjEHk ls gh voS/k FkhA” 19. Learned amicus curiae for the accused/appellants have also referred the judgment of Rajasthan High Court (Jaipur Bench) reported in 1987 Vol. 3 CRIMES, page- 629 Nand Lal vs. The State of Rajasthan and relied on para-17 and 18 of the judgment, which is reproduced as under:- “17. I have carefully gone through the cases cited above and have no hesitation in reaching the conclusion that for launching the prosecution or for initiating the proceedings the authority doing so must have a clear and unambiguous power. In criminal cases while enacting such provision the legislature puts a complete ban on the authorities beyond one mentioned in the Section to carry out the functions under the Act. In Section 42 of the Act the legislature has clearly empowered the persons mentioned therein or who are authorized to do so by notification. The legislature intended that a peon, sepoy or constable should in no case be empowered to enter search or seize or arrest a person without warrant. It also did not empower in the Act even the police officers unless there was a notification in that behalf and as quoted by me above the officers of the police department had been empowered only by notification, dated October 16, 1986 and thereto the Government authorized the Inspectors of Police and Sub-Inspectors of Police who too were posted as Station House Officers a person accused of a crime particularly like the one where the legislature provides a minimum sentence of ten years and a fine of Rs. 1,00,000,00, it is essential that the intention of the legislature must be carried out in letter and spirit. The accused has a right to expect a fair investigation and a fair trial keeping in view the basic concept that justice should not only be done but it should appear to have been done, has facing a trial by itself as an ordial. A Head constable is also a constable and is certainly not a Sub-Inspector or Inspector of Police and in the 11 instant case PW-1 Amanulla Khan was admittedly not Station House Officer of G.R.P. Police Station, Ajmer. I have also quoted his statement in extenso where he has admitted that he had gone to the police station after ten minutes of the search of which he had no jurisdiction express or implied. Even the S.H.O. P.W. 6 Ram Chandra had no jurisdiction vested in him on November 21, 1985 and as such very foundation of the case is without proper authority of law. I need not go into other points raised as this alone is sufficient to dispose of this case. 18. For the discussions made above I accept this appeal and set aside the judgment dated February 17,1987, passed by Sessions Judge, Ajmer. He is acquitted of all the charges. He is in jail and shall be released forthwith.” 20. From the above discussions and the principle laid down in the judgments cited above, it is clear that on 30.11.2005 i.e. the date of incident, the Sub Inspector of the Shastra Seema Bal was not authorized to arrest of the accused/appellants and to seize the CHARAS u/s 42 of the Act, hence the arrest of the accused/appellants under the Act and recovery of the items, is not as per the law provided under Section 42 of the Act, therefore on the basis of this arrest/seizure, conviction and the sentence awarded by the trial court vide its impugned judgment and order is not justified as per the law, and the impugned conviction and sentence awarded by the Trial Court is liable to be set-aside. 21. On the facts and circumstances discussed above, this Court is of the view that the prosecution is failed to prove the case against the accused/appellants for the offence punishable u/s 20 of the Act beyond reasonable doubt. The impugned Judgment and order passed by the learned Special/Sessions Judge, Pithoragarh is not justified as per law and on the basis of the evidence, facts and circumstances discussed above, therefore the appeals are liable to be allowed. 12 22. Accordingly, all the appeals are allowed. The appellants/accused Harak Bora, Man Singh Bora and Govind Bora are accordingly acquitted from the charges levelled against them. The judgment and order dated 16.10.2006 passed by the Special/Sessions Judge, Pithoragarh, convicting and sentencing the appellants- accused, as above discussed, is hereby set aside. The appellants are in jail. Let they be released forthwith if not required in any other case. 23. Let the record of the court below be sent back to the Court concerned. (Dharam Veer, J.) March 30, 2010 Rajeev Dang