IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.1667 OF 2001 (OLD NO.1228 OF 1990) State of U.P. ……… Appellant Versus Shashi Kamal, S/o Anirudh Singh R/o Sevala Majra, P.S. Kotwali, Distt. Dehradun & three others ……… Respondents Dated: September 12, 2008 Sri Amit Bhatt, Additional Government Advocate for the State. Sri Rajesh Joshi, learned amicus curiae for respondent no.1. Sri Rajendra Tamta, Advocate holding brief of Sri Ashok Aggarwal, learned counsel for respondent nos.3 & 4. HON. DHARAM VEER, J. This appeal preferred u/s 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 5.3.1990 passed by IInd Additional Sessions Judge, Dehradun in Sessions Trial No.36/1989, State Vs. Shashi Kamal & three others, whereby the learned IInd Additional Sessions Judge has acquitted the respondents Shashi Kamal, Hamid @ Tidda, Subhash Chand and Zaheer Hussain u/s 8/20 of The Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act). 2. I have heard Sri Amit Bhatt, Additional Government Advocate for the State, Sri Rajesh Joshi, learned amicus curiae for respondent no.1 and Sri Rajendra Tamta, Advocate holding brief of Sri Ashok Aggarwal, learned counsel for respondent nos.3 & 4. 2 3. The Chief Judicial Magistrate, Dehradun has reported vide his letter dated 21.5.2004 that respondent no.2 Hamid @ Tidda has been died 11-12 years before. Hence, vide order dated 16.06.2008 passed by this Court, the appeal against Hamid @ Tidda stood abated. 4. In brief, the prosecution case is this that on 16.11.1986, police party headed by Sub Inspector Sri K.R. Arya, Station Officer, Police Station Vikasnagar were in search of accused of Crime No.110/86 u/s 394 I.P.C. of P.S. Vikasnagar, Dehradun. It is alleged by the prosecution that when police party reached Herbertpur an informant gave information to the S.I. K.R. Arya about the accused persons and informed that four persons are standing near Dhakrani Road, along with their motorcycle. Thereafter, the Station Officer, along with other police personnel, reached at the spot. The Station Officer also took public witnesses, namely, Ashok Kumar, Abdul Sattar and Hem Singh with him. At about 2:10 p.m. the police party along with the witnesses reached near Brigadier Juyal’s garden gate. There they found Motorcycle No. U.P.S. 7722 along with the four persons standing nearby. On pointing out of the informant the police party reached near to the four persons. Thereafter the four persons saw the police and tried to run away from the spot. With the help of the witnesses, the police party apprehended all the four persons at the spot and thereafter they disclosed their names as Shashi Kamal, Hamid @ Tidda, Subhash Chand and Zaheer. Thereafter the police party unloaded the luggage from the motorcycle carrier and recovered about 8 kilograms of CHARAS which was found without any license. Thereafter the Station Officer prepared recovery memo at the spot and sealed the seized articles there. That recovery memo is Ext.Ka.1. Thereafter the police brought 3 the accused persons along with the seized articles to the police station. Specimen of the Seal is Ext.Ka.2. On the basis of the recovery memo, Chik F.I.R., i.e. Ext.Ka.3 was prepared at 4:25 p.m. on 16.11.1986. The necessary entry was made in the G.D., copy of the G.D. is Ext.Ka.5. During the course of the investigation, the I.O. has prepared the site plan i.e. Ext.Ka.6. The CHARAS, shown to be recovered from the possession of the accused/respondent persons, was sent for chemical examination in the Forensic Lab at Agra and the Assistant Director of the Lab had submitted a report dated 22.01.1987. During the course of the investigation, the I.O. has also recorded the statement of the witnesses and after completion of the investigation, the I.O. filed a charge sheet against the four accused persons u/s 20(B) of the Act. 5. The Chief Judicial Magistrate, Dehradun has committed the case to Court of Sessions on 24.2.1989 after giving necessary copies to the accused/respondents as required u/s 207 Cr.P.C. 6. Learned IIIrd Additional Sessions Judge has framed the charge against the accused/respondent persons Shaski Kamal, Hamid @ Tidda, Subhash Chand and Zaheer u/s 8/20 of the Act on 10.4.1989. The charge was read over and explained to them, who pleaded not guilty and claimed to be tried. 7. It seems from the record that after framing of the charge, the case was transferred to the IInd Additional District and Sessions Judge, Dehradun for hearing and disposal as per law. 4 8. To prove its case, the prosecution has examined P.W.1 Ashok Kumar, P.W.2 Abdul Sattar and P.W.3 Rajendra Singh Tomar. 9. After that the statement of the accused/respondent persons was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused persons in question form, who have denied the allegations made against them. However, in defence, they did not produce any oral or documentary evidence. 10. After appreciating all the evidence available on record and hearing learned counsel for the parties, learned IInd Additional Sessions Judge, Dehradun vide his judgment and order dated 5.3.1990 has acquitted the accused/respondent persons Shashi Kamal, Hamid @ Tidda, Subhash Chand and Zaheer. Against the said judgment and order dated 5.3.1990, the State has preferred the present appeal. 11. To prove its case, the prosecution has examined P.W.1 Ashok Kumar who has not supported the prosecution case and declared hostile. 12. P.W.2 is Abdul Sattar, who has also not supported the prosecution case and declared hostile. 13. P.W.3 is Rajendra Singh Tomar, who has stated that on 16.11.1986, he was posted as Sub Inspector at Herbertpur Police Chowki. The S.O. has called him from the Police Chowki and the S.O. met him along with the other police constables and the informant (MUKHBIR). They have taken Ashok Kumar, Abdul Sattar and Hem Singh as witnesses with them. When they 5 reached near the Brigadier Juyal’s garden gate, then they saw four persons standing near the motorcycle U.P.S. 7722. The informant pointed out that these are the same persons and after that the informant went from there. On seeing the Police Party, all the four started to flee. But the Police Party after surrounding them caught all of them at 2:10 p.m. and about 8 kilograms of CHARAS was recovered from them by the police, for which they have got no license. The CHARAS Ext.1, blanket Ext.2, quilt Ext.3, bed sheet Ext.4 and bag Ext.5 were identified by him. The recovered items were sealed at the spot. The specimen seal was also prepared. Recovery memo i.e. Ext.Ka.1, was prepared by S.O. K.R. Arya. He has also signed on it. The four persons were taken to the police station along with the recovered items and the case was registered in the Police Station Vikasnagar. 14. After that the statement of the accused/respondent persons were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to them in question form, who have denied the allegations made against each of them. They have stated that no item was recovered from their possession. 15. Learned counsel for the appellant could not show any illegality, irregularity in the judgment and the evidence of the prosecution on which the respondents/ accused could be convicted. Learned IInd Additional Sessions Judge has acquitted the accused/respondents on the ground that the search was not made by a competent person, as the Sub Inspector is not entitled to take the search u/s 42 of the Act. The learned trial court has also held that the compliance of Section 50 of the Act was not made. 6 16. Learned counsel for the accused/respondents has submitted that as P.W.1 Ashok Kumar and P.W.2 Abdul Sattar, who were said to be the eye witnesses of the case have not supported the prosecution case which creates a reasonable doubt in the prosecution story. I find substance in the argument advanced by learned counsel for the accused/respondents that the independent public witnesses, which were taken by the police for the search, have not supported the prosecution case. Hence, it creates a reasonable doubt in the prosecution story. 17. Learned counsel for the accused/respondents has further submitted that the said search was made on 16.11.1986 and the U.P. Narcotic Drugs Rules, 1986 was came into force from 08.10.1986 and published in U.P. Gazette, Extra., No. 3555-E-2/xiii-23/85 dated 8th October 1986. These Rules were applicable on the date of arrest of the respondents and when the alleged recovery was shown. 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.” 18. He also referred Section-42 of the Act, which is reproduced as under:- “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 7 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; 8 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.” 19. On the basis of the above said Rule-77 of the U.P. Narcotic Drugs Rules, 1986, the Sub Inspector is not empowered to arrest the accused persons and to recover the above said CHARAS from the possession of the accused. The recovery made by the P.W.3 S.I. Rajendra Singh Tomar or S.I. K.R. Arya is not as per the rules. Hence, the IInd Additional Sessions Judge was justified in holding that the Sub Inspector is not entitled to recover and seize the CHARAS from the possession of any person. 20. Learned IInd Additional Sessions Judge has also held that the compliance of Section 50 of the Act was not made by the police as per the law. The finding of the learned IInd Addl. Sessions Judge is also right and justified as per the evidence available on record. 21. Learned counsel for the accused/respondents has further argued that when two views are possible then one of the view is also possible which was taken by the trial court then it should not be disturbed. I find substance in the arguments raised by learned counsel for the accused/respondents. 9 22. On the basis of the evidence discussed above, one of the view taken by the learned IInd Additional Sessions Judge, is also possible. Hence, the acquittal order passed by the IInd Additional Sessions Judge is correct and justified as per the evidence available on record and there is no need of interference in the impugned judgment and order. 23. For the reasons recorded above, the appeal is devoid of merits and is liable to be dismissed. 24. Accordingly, the appeal is hereby dismissed. 25. Let a copy of this judgment be sent to the trial court concerned along with the record of the trial court. (Dharam Veer, J.) 12.09.2008 RG