State of U.P. Vs.
Subhash Kumar Singh Tomar [2009] INSC 768 (15 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 237 OF 2004 State
of U.P. ....
Appellant Versus
Subhash Kumar Singh Tomar ....Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of a learned Single Judge of the Allahabad
High Court allowing the appeal filed by the respondent.
On the accusation of
offence committed punishable under Section 20(b) of The Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short `Act') the accused faced trial.
Learned III Additional District & Sessions Judge, Kanpur, found the accused
guilty and sentenced him to 10 years rigorous imprisonment and to pay a fine of
Rs.1,00,000/- with default stipulation.
The case of the
prosecution is that on 3.1.1991, PWs. 1 and 2 checked the accused and his
personal search resulted in recovery and seizure of 500 grams of charas. Two
samples of 25 gms. each were separately taken and sent for chemical analysis.
On analysis the contraband was found to be charas by the Public Analyst. Before
the High Court the only stand taken by the accused was that there was
non-compliance with the requirement of Section 50 of the Act. The High Court
found on going through the evidence of PWs 1 and 2 that there is nothing to
suggest that the requirement of Section 50 was complied with. Accordingly, the
judgment of acquittal was passed. In support of the appeal, learned counsel for
the appellant-State submitted that there is nothing to doubt the statement of
public witnesses PWs. 1 and 2 that they had seized the contraband articles from
the accused persons.
2.
It
is an obligation of the Empowered Officer and his duty before conducting the
search of the person of a suspect on the basis of prior information to inform
the suspect that he has the right to require his search to be conducted in the
presence of a Gazetted Officer or a Magistrate. The failure to so inform the
suspect of his right would render the search illegal because the suspect would
not be able to avail of the protection which is in compliance with Section 50.
Similarly, if the person concerned required on being so informed by the
Empowered Officer or otherwise i.e. that search be conducted in the presence of
a Gazetted Officer or Magistrate the Empowered Officer is obliged to do so and
failure on his part to do so would cause prejudice to the accused and also
render the search illegal and the conviction and sentence to the accused based
solely on recovery may treat the search as bad.
3.
Above
being the position in law, the judgment of the High Court does not suffer from
any infirmity to warrant interference.
4.
The
appeal fails and is dismissed.
...................................................J.
(Dr. ARIJIT PASAYAT)
..................................................J.
(LOKESHWAR SINGH PANTA)
...................................................J.
(P. SATHASIVAM)
New
Delhi;
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