Raja Sonkar Vs. State of Chhattisgarh - (High Court of Chhattisgarh) (08 Jun 2020)

If Investigating Officer conducts search, then, he must record the reason for doing so within seventy-two hours of the search

MANU/CG/0364/2020

Narcotics

The instant appeal has been preferred against the judgment passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 whereby the Appellant has been convicted and sentenced under Section 21(b) of the Act. Learned Counsel appearing for the Appellant submitted that without there being any clinching and reliable evidence on record against the Appellant, the Trial Court has wrongly convicted him. Relying upon the judgment of the Supreme Court in Arif Khan alias Agha Khan v. State of Uttarakhand, it was further submitted that in the case in hand provision of Section 50 of the Act has not been duly complied with.

In the instant case, it is not in dispute that, PW9 was posted as a Sub-Inspector in Police Station. He was not a gazetted officer. According to the prosecution story, contraband brown sugar was seized from the pocket of the pant of the Appellant. The notice under Section 50 of the Act which was given to the Appellant in which the Appellant has been informed that he could get his search done through a Magistrate or a Gazetted Officer or through the Investigating Officer himself. The Appellant consented to be searched by the Investigating Officer himself. Thereafter, his search was done. Looking to the provision of Section 50 of the Act and the observation made by the Supreme Court in Arif Khan case, in the instant case, the search of the Appellant could be done by a Magistrate or a Gazetted Officer only. But, the search was not conducted by a Magistrate or a Gazetted Officer and it was conducted by Investigating Officer PW9, who, at that time, was a Sub-Inspector.

As contained in sub-section (5) of Section 50 of the Act, if Investigating Officer having empowered under Section 100 of the Code of Criminal Procedure, 1973 (CrPC) conducted search of the Appellant then according to sub-section (6) of Section 50 of the Act, he must have recorded the reason for doing so and within seventy-two hours of the search, he must have sent a copy of the reason recorded by him to his immediate official superior. But, this has not been complied with by Investigating Officer Manish Shende (PW9). Thus, it is clear that in this case there is complete non-compliance of the provision contained in Section 50 of the Act.

With regard to the provision contained in Section 55 of the Act, there is no dispute that Investigating Officer Manish Shende (PW9) was a Sub-Inspector. He was not the Station House Officer of concerned Police Station Durg. He himself had prepared both the envelopes and affixed seal over those envelopes and according to the case of the prosecution both the envelopes were deposited in the Malkhana by PW9 himself. Before depositing the envelopes in the Malkhana, no seal of the Station House Officer of Police Station Durg was affixed over those envelopes. Thus, there is complete violation of the provision contained in Section 55 of the Act also and the Trial Court has also observed this.

On a minute examination of evidence, it is clear that in the instant case, the prosecution has not complied with the provisions contained in Sections 50 and 55 of the Act. There are material contradictions in the statements of PW5 and PW7. It is observed that there could be tampering in the envelopes. Thus, conviction of the Appellant is not sustainable. Finding of the Trial Court is not in accordance with law and the evidence on record. The Appellant is entitled to get benefit of doubt. Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charge framed against him.

Relevant : Arif Khan vs. State of Uttarakhand MANU/SC/0467/2018

Tags : CONVICTION EVIDENCE CREDIBILITY