Ramu Vs. State of U.P.  INSC 1419 (7 August 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.
_________OF 2009 [Arising out of Special Leave Petition (Criminal) No. 7722 of
2008] SARJU @ RAMU ... APPELLANT VERSUS
This appeal by special leave arises out of a judgment and order
dated 30th January 2008 passed by a learned single judge of the High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Appeal No. 491 of
1991 whereby and whereunder the judgment of conviction and sentence dated 4th
September 1991 passed by the V Additional Sessions 2 Judge, Barabanki in
Sessions Trial Nos. 393 of 1989 and 395 of 1989 convicting the appellant for
commission of an offence punishable under Section 8/21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short,
"NDPS Act") and sentencing him to undergo 10 years' rigorous
imprisonment as also the fine of Rs.1 lakh, and in default, to undergo one year's
rigorous imprisonment, was affirmed.
Shrikant Mishra was the Station House Officer (SHO) of Safdarganj
Police Station situate in the district of Barabanki. He and other members of
the police party were on a patrolling duty. They came out of the Police Station
in the night of 5th January 1989 with Constable No.56 Ram Shankar Srivastava
(P.W.3) and Constable No.277 - Vidya Prasad Pandey. They reached near a village
commonly known as "Baghaura" in the official jeep No. UHG 4682, which
was driven by one Satyadev Ojha.
An informer allegedly reported to the appellants as also one
Shobhalal of village Baghaura and Ramdutt @ Dutta of village Bariarpur
illegally selling morphine in packets to the truck drivers and the people of
to the said informer, they were said to have been sitting on the road side near
the mill of one Vishwanath Kashyap from 6 O'clock in the morning. Appellant
along with said Shobhalal and Ramdutt were said to 3 have been identified by
the said police party to be sitting on the road side at about 6.15 a.m. They
became a bit perplexed and frightened after seeing the police party.
"Being assured", Shrikant Mishra, Officer-in-charge, went to
Barabanki to obtain authority letter for the purpose of carrying out search and
seizure. He instructed the other constables to keep an eye on them. He upon
obtaining the authority letter allegedly came back from Barabanki after some
time. He requested some passer-by to become witness to the seizure.
Letters of consent were prepared in the names of accused to the
effect that they were ready and willing to be searched by the Officer-in-Charge
in stead and place of a Gazetted Officer. Persons of all the accused were
searched. From the right pocket of the sweater of the appellant 40 packets of
morphine and from his left pocket about 70 grams of morphine wrapped in a paper
were found. From the person of Shobhalal about 82 grams of morphine was found;
whereas from the person of Ram Dutt about 53 grams of morphine was recovered.
Appellant, however, has a different story to tell. According to
him, the SHO as also the constables had an evil eye on the appellant's wife.
They came to his house at about 9.00 p.m. in the night of 5/6.1.1989 while his
4 wife was serving the food to the children. He was not well. When the door of
his house was knocked by a constable, his wife who examined herself as D.W.1
came out of the house and saw the Constable and the SHO. The constable was used
to be called by local people as "Lala". They enquired about him. When
D.W. 1 wanted to call him, the said constable said that there was no work with
him but it was with her. He thereafter told the SHO that this was the same
woman who goes to Chakki for grinding. On hearing that, she started going back
to her house. The said constable advanced towards her. She shouted loudly. On
her shouting, Sohan Lal and the appellant came. D.W. 1 was slapped by the said
constable 2-3 times and thereafter the appellant was arrested. D.W.1 along with
Sohan Lal and her brother-in-law went to Barabanki to the house of the
Superintendent of Police by truck. The Superintendent of Police was described
as `Captain Sahib". They could not meet him at that time and on being
informed that he had been sleeping and the Superintendent of Police would meet
them only by 7.30 in the morning. They kept sitting in front of the gate; they
met the Superintendent of Police at about 8-9 O'clock in the morning. An
application was given to him. Admittedly, a telegram was also sent.
The learned trial judge, relying on or on the basis of the
evidence of Shrikant Mishra, SHO (P.W.1) and Rama Shankar Srivastava (P.W.3)
recorded a judgment of conviction. In regard to the sentence imposed to the
accused, it was ordered:
Sarju @ Ramu and Ramdutt @ Dutta under Section 8/21 of the N.D.P.S. Act, thus
10 years (10) rigorous punishment to each and Rs.1,00,000/-, Rs.1,00,000/-
(Rupees One One Lac only) each is imposed fine. On non-payment of fine
punishment of additional imprisonment shall have to be undergone.
benefit of Section 33 N.D.P.S. Act to accused Shobha Lal of Prohibition (sic
Probation) of Offenders Act of bond of good conduct of 2 years and 2 bails of
Rs.10,000/-, Rs.10,000/- (Rupees Ten Ten Thousand only) and on filing the
sureties of the same amount may be released, subject to the condition that he
may give written undertaking to this effect that during this period he shall
not do any act against law and shall remain of good conduct during this period
and shall maintain peace. Whenever he summoned by the Court he by being present
shall received the punishment, which the Court may give him."
The High Court by reason of the impugned judgment has affirmed the
said judgment while rejecting the appeals preferred by the appellant.
The prosecution case is shrouded in mystery. Although in the First
Information Report (`FIR'), it was stated that information was received from
the informer, but the P.W. 1 in his deposition before the learned trial judge
From the police station had gone in the night for the gasht. At
what time went, this I can intimate by looking to the Roznamcha. Informer had
met on the road. At what time he met, do not remember. That place also do not
remember as to where he met. But had met on the Lucknow, Faizabad Marg. At the
time had reached at Baghora Chhaki, that time do not remember. But it was
recorded in the Fard. That Fard was prepared by me. Was written on my
which I have got written from Constable Vidhya Prasad Pandey by speaking, in
the finger of my hand was injured. That is why I had not written it......
Faizabad Barabanki Road is sufficiently operation road. Every time
people keep on coming going. Kharkhara, truck, buses, and jeeps keep on coming
going. We people had gone in uniform.
meeting with the Informer the witnesses were not searched because after looking
to the situation, would have looked for the witnesses when we people reached at
the chhaki, then accused Ramu was standing in front of Chhaki. I recognized him
before hand. I had no specific acquaintance with him but these people usually
used to keep sitting at the chhaki of Vishwanath, that is why I knew. Those
days were sitting on the chhaki of Vishwanath. I knew and recognized him. I do
not remember at this time as to who else 7 used to sit at a distance of 5 - 7
steps from Ramu had stopped the jeep. By looking to us the accused went towards
the chaki, cannot intimate this that he went running. The constable by getting down
stopped him. The constable said stop, then he stopped. Behind the chhaki,
leaving to fields there is village. In front of the chhaki is road and field.
field crop was sown. After the stopping by the constable I immediately reached.
Whatever the informer had intimated me, in connection with that, enquiry from
the accused then he said that this matter is correct that I have Morphine.
was given to the employees that keep on watching them. I am going to get the
authority letter. For going to Barabanki and coming back, it took me how much
time I do not remember. As to at what time I reached on the spot by getting the
authority letter. When I reached back at the place of the incident, then mob
had not assembled there.
important to write in the recovery Fard, I know. Stopping of jeep, going
towards the chhaki of the accused, mention of stopping the accused by the
constable is not in the Fard, because it was not necessary to write this.
Whatever was considered necessary that was recorded. 2 - 4 people came on the
spot, I asked them to witness, but they did not get prepared. I do not remember
now as to which which constable were there along with. In those days at my
police station Ram Shankar Srivastava was posted at the police station who was
also with me at the time of the incident. His appointment was also in that very
Halka. I do not know that the wife of accused Ram on date 5.1.89 night gave one
application before Captain Sahib that to her husband, Daroga and contable Ram
Shankar by catching have taken him away. On the same night took him away in the
night by catching. I do not know that in this context his wife has sent telegram
to Captain Sahib and the Home Secretary also."
learned Trial Judge accepted that an application and telegram were brought to
his notice but he had not carried any investigation in relation thereto.
Vishwanath Kashyap near whose house the accused were said to have been sitting
was a Member of the Legislative Assembly. Why he could not be asked to be a
witness to the search has not been explained. The time when the information was
received was not mentioned in the General Diary.
distance of the place where such information is received from the police
station was not noticed. The names of the persons who refused to be a witness
had not been recorded. He accepted that in terms of the Code of Criminal
Procedure, the same should have been noted but the said provisions have not
been complied with. Shrikant Mishra did not state that the accused persons were
informed about their right to be searched by a Gazetted Officer and/or that the
purported consent letters marked as Exhibits A-3, A-4 and A- 5 were not written
P.W. 3 - Ram Shanker Srivastava, in his evidence, however, stated:
On date 6.1.89, I was posted in Police Station Safdarjung as Constable. On that
day, I 9 along with the Head Daroga Shri Kant Mishra by jeep were going on road
holder duty. Vidhya Prasad Pandey Constable and Driver Satyadev had come. When
we people at Ferozabad Barabanki road, then the Informer of Darogaji met. He
talked to Daroga Ji. Then Daroga Ji by taking we people reached at the Chakki of
Vishwanath Neta in village Baghora. At that time it was the time of 6.15 O'
clock in the morning. At the chakki, Ramu @ Sarju, Shobha Lal and Dutta @
Ramdutt were sitting. By looking to we people, got perplexed.
got assured that they have some illegal material, as was intimated by the
said that you people stop, I am going to Barabanki to obtain the authority
letter and he went away by jeep to obtain the authority letter.
Vidhya Prasad kept stopped those people. Daroga ji came back at 8.10 O'clock of
the day. Then Daroga ji asked the mob assembled there to give evidence. Then
those people denied to give evidence due to fear of Vishwanath Neta.
Daroga ji enquired about their names and addresses and said that you will give
the search to me, or to Gazetted Officer or the Magistrate. Then he said we
shall give the search to you. In this connection Daroga ji prepared 3 separate
separate consent Fards. It was read over and by hearing it we people consented.
The accused also had put their signatures and TI. The witnesses were shown. Ex.
3 and 5, by looking and reading to which, the witness is said that these are
the same Fards which were prepared by Daroga ji at the site and on this are my
furthermore informed that they have committed an offence punishable under
Section 8/18 of the NDPS Act and they have been taken in custody before the
Fard was read over to them and signatures and left thumb impression were
accepted that the patrolling duty starts at 6 - 8 O' clock in the evening and
finishes at 8 O'clock in the morning. The Baghaura village was about 5 to 6
furlongs before Barabanki. According to P.W.3, the informer had met them 3 - 4
hours prior to the raid. According to P.W. 3, they were sitting in the jeep
when the intimation was given by the informer. The intimation was said to have
been given at the Baghaura road but they did not go in the search of the
accused in the village wherefor no reason could be assigned.
The FIR disclosed that the information was given at about 6 O'
clock in the morning and the raid was conducted at about 6.15 a.m. A closer
look to the statement made in the FIR would show that in fact according to the
informer the accused had been sitting on the road side from before 6 O'clock in
the morning. It is, therefore, difficult to believe the prosecution story.
statement of D.W.1- Smt. Kusum Devi, wife of the appellant that they had been
sitting near the gate of the Superintendent of Police at Barabanki had not been
denied or disputed. The fact that an application as also a telegram had been
sent has not also been denied or disputed. In a case of this nature, at least,
for fair investigation, if not the prosecution, the learned Special Judge himself
should have exercised his jurisdiction under Section 311 of the Code of
Criminal Procedure. He should have called the Superintendent of Police and
recorded his statement; he could have also called for the original telegram
from the Superintendent of Police's office or even from the Post Office.
In a case under the NDPS Act, particularly where such serious
allegations are made against the police officials, recovery of contraband in
presence of the independent witness assumes significance. [See Ritesh Chakarvarti
vs. State of M.P. (2006) 12 SCC 321]
It is now also well settled that the provisions of the NDPS Act
being harsh in nature, the procedural safeguards contained therein must
scrupulously be complied therewith.
12 It was
so held by a Constitution Bench of this Court in State of Punjab vs. Baldev
Singh [1999) 6 SCC 172)] in the following terms:
On the basis of the reasoning and discussion above, the following conclusions
when an empowered officer or a duly authorized officer acting on prior
information is about to search a person, it is imperative for him to inform the
person concerned of his right under sub-section (1) of Section 50 of being
taken to the nearest gazetted officer or the nearest Magistrate for making the
search. However, such information may not necessarily be in writing.
failure to inform the person concerned about the existence of his right to be
searched before a gazetted officer or a Magistrate would cause prejudice to an
a search made by an empowered officer, on prior information, without informing
the person of his right that if he so requires, he shall be taken before a
gazetted officer or a Magistrate for search and in case he so opts, failure to
conduct his search before a gazetted officer or a Magistrate, may not vitiate
the trial but would render the recovery of the illicit article suspect and
vitiate the conviction and sentence of an accused, where the conviction has
been recorded only on the basis of the possession of the illicit article,
recovered from his person, during a search conducted in violation of the
provisions of Section 50 of the Act.
That there is indeed need to protect society from criminals. The societal
intent in safety will suffer if persons who commit crimes are let off because
the evidence against them is to be treated as if it does not exist. The answer,
therefore, is that the investigating agency must follow the procedure as
envisaged by the statute scrupulously and the failure to do so must be viewed
by the higher authorities seriously inviting action against the official
concerned so that the laxity on the part of the investigating authority is
curbed. In every case the end result is important but the means to achieve it
must remain above board. The remedy cannot be worse than the disease itself.
The legitimacy of the judicial process may come under a cloud if the court is
seen to condone acts of lawlessness conducted by the investigating agency
during search operations and may also undermine respect for the law and may
have the effect of unconscionably compromising the administration of justice.
That cannot be permitted. An accused is entitled to a fair trial.
conviction resulting from an unfair trial is contrary to our concept of justice.
The use of evidence collected in breach of the safeguards provided by Section
50 at the trial, would render the trial unfair.
whether or not the safeguards provided in Section 50 have been duly observed
would have to be determined by the court on the basis of the evidence led at
the trial. Finding on that issue, one way or the other, would be relevant for
recording an order of conviction or acquittal. Without giving an opportunity to
the prosecution to establish, at the trial, that the provisions of Section 50
and, particularly, the safeguards provided therein were duly 14 complied with,
it would not be permissible to cut short a criminal trial.
in the context in which the protection has been incorporated in Section 50 for
the benefit of the person intended to be searched, we do not express any
opinion whether the provisions of Section 50 are mandatory or directory, but
hold that failure to inform the person concerned of his right as emanating from
sub-section (1) of Section 50, may render the recovery of the contraband
suspect and the conviction and sentence of an accused bad and unsustainable in
an illicit article seized from the person of an accused during search conducted
in violation of the safeguards provided in Section 50 of the Act cannot be used
as evidence of proof of unlawful possession of the contraband on the accused
though any other material recovered during that search may be relied upon by
the prosecution, in other proceedings, against an accused, notwithstanding the
recovery of that material during an illegal search.
presumption under Section 54 of the Act can only be raised after the
prosecution has established that the accused was found to be in possession of
the contraband in a search conducted in accordance with the mandate of Section
50. An illegal search cannot entitle the prosecution to raise a presumption
under Section 54 of the Act."
Noor Aga v. State of Punjab & Anr. [2008 (9) SCALE 681] and Ranu Premji v.
Customs Ner Shillong Unit [2009 (7) SCALE 568]} 15 In Baldev Singh (supra),
this Court noticed Miranda v. Arizona [384 US 436] in the following terms:
In D.K. Basu case the Court also noticed the response of the Supreme Court of
the United States of America to such an argument in Miranda v.
wherein that Court had said: (SCC pp. 434-35, para 33) "The Latin maxim
salus populi suprema lex (the safety of the people is the supreme law) and
salus republicae suprema lex (safety of the State is the supreme law) coexist
and are not only important and relevant but lie at the heart of the doctrine
that the welfare of an individual must yield to that of the community. The
action of the State, however, must be `right, just and fair'.""
Appellant at no point of time was informed that he had a statutory
right of being searched by a Gazetted Officer. The combined reading of the
depositions of the prosecution witnesses are pointers to the fact that the so-
called consent letters were obtained only after they had been arrested. Even in
relation to preparation of consent letters, there is a glaring discrepancy.
to P.W. 3, it was SHO himself who wrote the said letters but Shrikant Mishra
has different story to tell, namely, that he himself had suffered an injury on
his finger and as such he had asked some other person to write the said consent
letters. It is also difficult to believe that Mishra, 16 leaving the accused in
the mercy of P.W. 2 and P.W.3, would go back to Barabanki to obtain letters of
approval. The nature of the statements made by him before the court clearly
shows that the same was manipulated.
place on record that in State of Punjab v. Balbir Singh [(1994) 3 SCC 299],
this Court observed as under:
It is thus clear that by a combined reading of Sections 41, 42, 43 and 51 of
the NDPS Act and Section 4 CrPC regarding arrest and search under Sections 41,
42 and 43, the provisions of CrPC namely Sections 100 and 165 would be
applicable to such arrest and search. Consequently the principles laid down by
various courts as discussed above regarding the irregularities and illegalities
in respect of arrest and search would equally be applicable to the arrest and
search under the NDPS Act also depending upon the facts and circumstances of
there are certain other embargoes envisaged under Sections 41 and 42 of the
NDPS Act. Only a Magistrate so empowered under Section 41 can issue a warrant
for arrest and search where he has reason to believe that an offence under
Chapter IV has been committed so on and so forth as mentioned therein. Under
sub-section (2) only a Gazetted Officer or other officers mentioned and
empowered therein can give an authorization to a subordinate to arrest and
search if such officer has reason to believe about the commission of an offence
and after reducing the information, if any, into writing. Under Section 42 only
officers mentioned therein and so empowered can make the arrest or search as
provided if they 17 have reason to believe from personal knowledge or
information. In both these provisions there are two important requirements. One
is that the Magistrate or the officers mentioned therein firstly be empowered
and they must have reason to believe that an offence under Chapter IV has been
committed or that such arrest or search was necessary for other purposes
mentioned in the provision. So far as the first requirement is concerned, it
can be seen that the Legislature intended that only certain Magistrates and
certain officers of higher rank and empowered can act to effect the arrest or
search. This is a safeguard provided having regard to the deterrent sentences
contemplated and with a view that innocent persons are not harassed. Therefore
if an arrest or search contemplated under these provisions of NDPS Act has to
be carried out, the same can be done only by competent and empowered
Magistrates or officers mentioned thereunder.
Lal v. State of Rajasthan is a case where a police head constable and a station
house officer were not empowered to carry out investigation and it was
contended that the whole investigation was illegal and consequently the trial
was vitiated. The Rajasthan High Court held that for launching the prosecution
or for initiating the proceedings under the Act, the authority doing so must
have a clear and unambiguous power. In Bhajan Singh v. State of Haryana it was
observed that only officers empowered under the Act can take steps regarding
entry, search, seizure and arrest and that the relevant provisions of the Act
are mandatory. In Umrao v. State of Rajasthan it was held that the search made
by a police constable without jurisdiction and investigation made by an officer
not empowered, vitiate the trial.
Lal v. State of Rajasthan it was similarly 18 held that search and arrest made
by SHO who was not authorised under the Act, were illegal."
We must, however, notice that recently a Constitution Bench of
this Court in Karnail Singh v. State of Haryana [2009 (10) SCALE 255] in view
of difference of opinion in Abdul Rashid Ibrahim Mansuri v. State of Gujarat
[(2000) 2 SCC 513] opining that compliance of Section 42 of NDPS Act is
mandatory in nature and in Sajan Abraham v. State of Kerala [(2001) 6 SCC 692]
holding the said principle to be directory, opined as under:
The officer on receiving the information (of the nature referred to in
Sub-section (1) of section 42) from any person had to record it in writing in
the concerned Register and forthwith send a copy to his immediate official
superior, before proceeding to take action in terms of clauses (a) to (d) of
(b) But if
the information was received when the officer was not in the police station,
but while he was on the move either on patrol duty or otherwise, either by
mobile phone, or other means, and the information calls for immediate action
and any delay would have resulted in the goods or evidence being removed or
destroyed, it would not be feasible or practical to take down in writing the
information given to him, in such a situation, he could take action as per
clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical,
record the information 19 in writing and forthwith inform the same to the
official superior .
other words, the compliance with the requirements of Sections 42 (1) and 42(2)
in regard to writing down the information received and sending a copy thereof
to the superior officer, should normally precede the entry, search and seizure
by the officer.
special circumstances involving emergent situations, the recording of the
information in writing and sending a copy thereof to the official superior may
get postponed by a reasonable period, that is after the search, entry and
seizure. The question is one of urgency and expediency.
total non-compliance of requirements of sub-sections (1) and (2) of section 42
is impermissible, delayed compliance with satisfactory explanation about the
delay will be acceptable compliance of section 42. To illustrate, if any delay
may result in the accused escaping or the goods or evidence being destroyed or
removed, not recording in writing the information received, before initiating
action, or non-sending a copy of such information to the official superior
forthwith, may not be treated as violation of section 42. But if the
information was received when the police officer was in the police station with
sufficient time to take action, and if the police officer fails to record in
writing the information received, or fails to send a copy thereof, to the
official superior, then it will be a suspicious circumstance being a clear
violation of section 42 of the Act. Similarly, where the police officer does
not record the information at all, and does not inform the 20 official superior
at all, then also it will be a clear violation of section 42 of the Act.
there is adequate or substantial compliance with section 42 or not is a
question of fact to be decided in each case.
position got strengthened with the amendment to section 42 by Act 9 of
admittedly, Shrikant Mishra had no authority to make search.
been brought on record to show that the provisions of Section 42 of the NDPS
Act were substantially complied with.
Before parting, however, we may notice a disturbing fact. The
learned Special Judge has let off accused No.3 Shobha Lal under the Probation
of Offenders Act. He referred to Section 33 of the NDPS Act.
33 of the NDPS Act reads as under:
Application of section 360 of the Code of Criminal Procedure, 1973 and of the
Probation of Offenders Act, 1958.- Nothing contained in section 360 of the Code
of Criminal Procedure, 1973 (2 of 1974) or in the Probation of Offenders Act,
1958 (20 of 1958) shall apply to a person convicted of an offence under this
Act unless such person is under eighteen years of age or that the offence for which
such person is convicted is punishable under Section 26 or Section 27."
therefore, misread the entire provision. We do not see any reason as to why
such a provision had to be resorted to in the case of one of the accused only.
The High Court, in our opinion, also should have drawn the attention of the
learned trial judge on the glaring mistake committed by him.
For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. The appellant is
in custody. He is directed to be set at liberty forthwith unless wanted in any
.....................................J. [S.B. Sinha]
.....................................J. [Deepak Verma]