Criminal Appeal No. 96 of 2005 Against the judgment of conviction dated 23.12.2004 and order of sentence dated 24.12.2004
passed by Shri Prakash Rai, Special Judge ( N.D.P.S.Act), Hazaribagh
in G.R. Case No. 2042 of 1992; T.R. No. 1 of 2004 arising out of Sadar P.S.Case
No. 380 of 1992.
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Allauddin Ahmad ..... Appellant
-Versus-
The State of Jharkhand .... Respondent.
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For the Appellant : Mr. N.K.Sinha, R.K.Mehthe
For the Respondent : Mr. I. N. Gupta, APP.
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR
Reserved on. 11.1.2010 Pronounced on 10/ 03 /2010
Pradeep Kumar,J The appeal is directed against the judgment of
conviction dated 23.12.2004 and order of sentence dated 24.12.2004
passed by Shri Prakash Rai, Special Judge ( N.D.P.S.Act),
Hazaribagh in G.R. Case No. 2042 of 1992; T.R. No. 1 of 2004
arising out of Sadar P.S.Case No. 380 of 1992, by which judgment
he found the appellant, Allauddin Ahmad guilty under Section 21(b)
of the Narcotic Drugs and Psychotropic Act and sentenced him to
undergo R.I. for 10 year and also to pay a fine of Rs. one lakh and in
default of payment of fine he shall undergo further R.I. for 4 years
more. However, he acquitted the co-accused, Jawed Akhtar since the
provision of Section 50 of the N.D.P.S. Act was not complied.
2. It is submitted by the learned counsel for the appellant that the
appellant had raised two legal points before the Special Judge that
since seizure was made by the police officers, who were not
specially empowered to conduct the search and seizure, hence the
entire search and seizure is bad in law and fit to be set aside. It is
further submitted that the persons making search and seizure in the
house of the appellant, was not an authorized person to make search
and seizure under the N.D.P.S.Act and as such the search and seizure
itself is bad in law and hence the conviction of the appellant is only
fit to be set aside. It was also argued by the learned counsel for the
appellant before the trial court that the mandatory provisions of
Section 50 to get the seizure made in presence of gazetted officer or
a magistrate was also not done in the instant case and as such the
conviction of the appellant is also bad in law and fit to be set aside.
3. On the other hand, learned counsel for the State has supported
the prosecution case and stated that two persons were tried for the
offence under Sections 18 and 21 of the N.D.P.S.Act and since
contraband drug i.e. opium and brown sugar were recovered from
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the person of the accused-appellant, Allauddin Ahmad and he was
acquitted since neither any Magistrate was called nor they were
informed that they have got any right to search in presence of
Magistrate or gazetted officer, but from the house of this accused-
appellant 16 pouch of brown sugar was recovered in total 1 Kg.650
gms, in that view of the matter, his conviction is sufficient and does
not require any interference by this Court.
4. After hearing both the parties and going through the record, I
find that the prosecution case was started on the basis of First
Information Report lodged by Inspector of Police-P.W.10 stating
therein that on secret information on the direction of S.P. Hazaribagh
on 9.9.92 at 16:30 hrs. he along with police party all from Sadar
Thana, Hazaribagh raided the house of the accused-appellant,
Allauddin Ahmad in his double storied pucca house in presence of
independent witnesses, Mukesh Kumar and Satish Kumar Sinha and
from the possession of appelallant, Allauddin Ahmad 16 pouch
containing brown sugar kept in a container of pan parag. In the same
house co-accused Minhaj was also searched and from his pocket 2
larger polythene containing brown sugar and co-accused, Krishna
Kumar Singh was also found in the same house and from his pocket
a small pouch containing brown sugar kept in a polythene was also
recovered. Then, as per the statement of Allauddin Ahmad further
recovered katha biscuits from his house which was kept on the north
west corner.
5. On the basis of the said fardbeyan, the police registered a case
under Sections 8(c),17/20/21/22/27 of the N.D.P.S.Act and after
investigation submitted charge-sheet in this case and the case was
tried by the Special Judge (N.D.P.S.Act), Hazaribagh, who found the
appellant guilty as aforesaid.
6. In course of trial, the prosecution has examined 11 witnesses.
P.W.1, Rai Shekhar, P.W.2, Ram nandan Prasad, P.W.3, Anil Kumar
Jha, P.W.4, Vinod Kumar, P.W.5, Mukesh Kumar, P.W.6, Santosh
Kumar Sinha, P.W.7, Birendra Kumar Singh-Investigating Officer of
this case, P.W.8, Jai Narayan Ram, P.W.9, R.B.Nanhey, P.W.10,
Kumar Amar Singh, informant and P.W.11, Sula Boi Pai-I.O of the
Special Branch.
7. It is made clear that P.Ws 2 & 3 were tendered for cross-
examination and nothing was asked from them. P.Ws. 5 & 6 the
seizure witnesses have although accepted their signatures on the
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seizure-list, but turned hostile and stated nothing was recovered in
their presence.
8. Since, it has been alleged by the learned counsel for the
appellant that the seizure was not made by an authorized person
under Section 42(1) (2) of the N.D.P.S. Act and hence let us the first
discuss the evidence of the informant-P.W.10, Kumar Amar Singh
stated in Court on 9.9.92 he was posted at Hazaribagh Sadar Police
Station as Inspector of Police and on 9.9.1992 on the basis of the
secret information on the direction of S.P. Hazaribagh he along with
police party all from Sadar Thana, Hazaribagh raided the house of
the accused-appellant, Allauddin Ahmad at 16:30 hrs. situated at
Azad Rod and recovered brown sugar, Charas, opium etc. from his
house and prepared seizure-list in presence of independent
witnesses, Mukesh Kumar and Satish Kumar Sinha. He proved his
written report and also seizure-list, which are marked as Exts. 4 and
5.
At para 7, in his cross-examination, he admitted that he had
not obtained any search warrant. He also admitted that he does not
know chemical properties of brown sugar. He was also asked as to
whether he had called any Magistrate or gazetted officer and he said
that he had not obtained such requisition nor he had told the accused
that they have got any right to be searched in presence of a
Magistrate. At para 13, in his cross-examination, he also stated that
he had not asked the persons that they have got right to be searched
in presence of a Magistrate or a gazetted officer.
9. The seizure-list, which is as Ext. 5, shows that the narcotics
were recovered from the possession of the appellant, Allauddin
Ahmad and 16 pouches of opium was recovered from his possession
and there is no seizure from his house.
10. It appears that the learned Sessions Judge-cum-Special Judge,
Hazaribagh was conscious of the fact and as such he has very
elaborately discussed in para 15 of its judgment that if seizure was
made by unauthorized person in violation of Section 50 of the
N.D.P.S.Act then no conviction can be passed, but he admitted that
since some quantity was recovered from the possession of
Allauddin Ahmad, hence he was convicted, but I find that there is no
separate seizure from the house of the appellant. More so, from the
evidence of the informant, it is clear that the informant-Inspector of
Police, in his entire statement, failed to discuss that he was
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empowered under Section 41(1)(2) of the N.D.P.S.Act to make
search and seizure in the premises of appellant,Allauddin Ahma. The
prosecution has failed to produce any documentary evidence,
otherwise to prove that the seizure was made in presence of a
Magistrate or any other gazetted officer. The seizure witnesses-
P.Ws. 5 & 6 have also not supported the fact that any seizure was
made in their presence.
11. I, therefore, hold that the conviction of the appellant under
Section 22 of the N.D.P.S.Act is not sustainable in law and
accordingly the judgment of conviction dated 23.12.2004 and order
of sentence dated 24.12.2004 passed by Shri Prakash Rai, Special
Judge ( N.D.P.S.Act), Hazaribagh in G.R. Case No. 2042 of 1992;
T.R. No. 1 of 2004 arising out of Sadar P.S.Case No. 380 of 1992 is
set aside and the appellant, Allauddin Ahmad is acquitted from the
charges levelled against him. If he is in custody then the trial court
will verify the same and shall issue release order immediately for his
release.
(Pradeep Kumar, J)
Jharkhand High Court, Ranchi
The 10 /03 /2010.
JK/NAFR