SURESH KUMAR GUPTA @ CHANDU Vs. UNION OF INDIA

JUDGEMENT

(1.) This application for bail has been moved by the accused appellant Suresh Kumar Gupta for being released on bail during pendency of appeal which has been filed against the judgment and order dated 2/7/2016 passed by Additional Sessions Judge, Court No. 9, Varanasi in a criminal case No. 39 of 2015, Union of India, Central Narcotics Bureau, Varanasi vs Suresh Kumar Gupta and one another whereby the accused appellant has been convicted under section 22 of NDPS Act and has been awarded punishment of 10 years rigorous imprisonment, fine of Rs. 1 lakh and in default of payment of fine 6 months additional rigorous imprisonment.

(2.) The facts in brief of this case as per the complaint are that Shri K K Srivastava, inspector/investigation officer, Central Narcotics Bureau, Ghazipur filed complaint before Court, who was appointed investigating officer under section 53 of the NDPS Act, 1985 by order dated 30/9/2014 of Deputy Commissioner, Narcotics, Lucknow. He had started investigation after being handed over this matter by the seizing officer/arresting officer, Inspector RS Ram. On 26/9/2014 Shri D K Singh, Office Superintendent, Ghazipur had received an information that Suresh Kumar Gupta alias Chandu, resident of Raj Mandir, PS Kotwali, Varansi was coming by Honda Sine motorcycle bearing registration No. U.P. - 65 BH 6186 who had with him 3000 - 4000 illegal narcotic injections which he would be selling to retail as well as wholesale sellers, if on 26/9/2014 between 14 hours and 16 hours an eye be kept on the route between Chauka Ghat to Nadesar, these injections could be recovered. After getting the secret information Shri D K Singh reduced the same into writing and held talks with Deputy Commissioner, Narcotics, Lucknow on phone and for acting upon the said information a team was constituted which comprised, apart from him, the complainant Shri K K Srivastava, Inspector, Shri RS Ram, Inspector, P N Ram, Vipin Kumar, Satendra Pathak, all Hawaldars who all went by an official vehicle being driven by driver Santosh Kumar Yadav to the place told by the informer. They also called two persons from the public namely Vaibhav Rai and Ravi Patel and were requested to remain present for the purpose, for which they gave their consent. While watch was being kept, around 14:30 hours a suspected person was seen coming from the side of bridge on a black motorcycle towards Ghausabad, who was pointed out by the informer to be the person having those injections and went away from there. The Inspector, RS Ram signalled the motorcyclist to stopped and asked his name. He disclosed his name as Suresh Kumar Gupta alias Chandu. The investigating party apprised him about a secret information having been received that he was carrying with him narcotic substance and hence search was required to be taken of the vehicle and his own and that he had a legal right under section 50 of the NDPS Act to be searched in presence of a Gazetted Officer officer or a Magistrate, if so desired. If the Magistrate or the said Gazetted Officer does not find enough ground to take a search, he could be released. At this, the accused gave his consent to be searched by any of the members of the raiding party in front of the departmental Gazetted Officer Shri D K Singh. After having taken his consent panchnama was prepared under section 50 in presence of the witnesses on the spot. Pursuant to the said consent Shri RS Ram, Inspector and all other members of the raiding party gave their search to the accused and to the witnesses who were present on the spot and when it was ensured that no member of the raiding party had any narcotic or psychotropic substance with them, the search of the accused was made by Shri R S Ram in front of the witnesses as well as the superintendent Shri D K Singh. In a plastic bag tied by a rubber rope by the rear seat of motorcycle, was found a carton, wherein Buprenorphine injection wrapped in a white paper were found. There were 340 wrappers. Each wrapper was opened. In 160 wrappers N - Norfin injection and in 180 wrappers Lupigesic injection were found. In each wrapper 10 ampoules were found. Thus there were found 160 -10 = 1600 injections of N- Norfin and 180 - 10 = 1800 injections of Lupigesic. On each ampoule (injection) the quantity was written as 2 ML. Thus the total recovered injections were 3400 - 2 ML = 6800 ML = 6.800 kg Buprenorphine Psychotropic substance. The accused could not show the valid papers to possess these injections. From out of the recovered Buprenorphine injections, as per their company, 2 injections each were taken out and were wrapped in cotton and thereafter were kept in a yellow coloured envelope and were sealed, which were marked as S - 1 and S - 2 for Norfin and S - 3 and S - 4 for Lupigesic and the remaining Buprenorphine injections were kept in wrappers of 10-10 each and were kept in the same carton and were sealed. The motorcycle which was recovered from the accused which was used in transportation of the contraband substance was also taken into custody. All this was done at 15:30 hours. All the proceedings of recovery were done in presence of witnesses, officers and accused. The seal which was used on all the panchnama and recovery memo and samples, the same seal was also affixed on each page of panchnama in the margin. The recovery memo was read out and signatures of all were obtained thereon. The statement of accused under section 67 of NDPS Act was taken by the Inspector, in which he stated voluntarily in his own handwriting that he had kept the recovered injections in the carton on the rear seat of his motorcycle and that he was involved in smuggling of psychotropic and narcotic substances. The accused was arrested at 18:30 hours under section 8 / 22 of NDPS Act by the Inspector Shri RS Ram after having told the accused the reasons thereof and all the papers along with recovered substances were also sent before an Additional District and Sessions Judge for remand and on the orders from the Court the accused was handed over to the District Jail, Varansi. The sealed contraband substances, seals and motorcycle were all deposited in departmental Malkhana in Ghazipur. The report under section 57 of the NDPS Act was sent by inspector Shri RS Ram to Shri D K Singh, Superintendent on 27/9/2014. The seal of sample S - 1 and S - 3 along with test memo were sent to Central Revenue Control Lab Hillside Road Poosa, New Delhi on 29/9/2014 by registered parcel. Thereafter vide letter dated 9/10/2014 the same was returned in sealed condition stating that their lab did not have the facility of testing Buprenorphine and it was advised that the same should be sent for being tested to Hyderabad Laboratory or some other Government Laboratory. Thereafter the said samples were sent to Director, Central Forensic Science Lab, Hyderabad, but even from there it was informed that they did not have the facility to test Buprenorphine. Thereafter, the said sample was sent to Director Central Indian Pharmacopoeia Laboratory Ghaziabad, from where also sample was returned because the said lab had been transferred somewhere else. Thereafter, the sealed sample was sent to Director, CFSL, Kolkata by special messenger, but even from there the same was returned on 27/11/14 stating that the same should be sent to them on prescribed proforma, whereafter, after taking permission from the Court of Additional Sessions Judge, the said samples were sent on 30/11/2014 to Kolkata Laboratory. On 29/4/2015 the report from the said lab was received and it was found to be Buprenorphine. The learned Court below after having found the charge proved against accused appellant convicted him under above-mentioned section and awarded the aforesaid punishment.

(3.) The learned counsel for the appellant has made following arguments. The compliance of section 42 of NDPS Act has not been done in this case which is a mandatory provision. In this regard he placed reliance upon the law laid down in State of Rajasthan vs Jag Raj Singh alias Hansa, (2016) 11 Supreme Court cases 687 and the paragraphs 13 to 18 were read out by the learned counsel word by word. It was hammered by him that in this case secret information recorded and the information sent to the circle officer were found to be different, as the same copy of secret information was not sent which was reduced into writing, rather a separate memo was found to have been sent and hence this was found to be a breach of section 42 (2) of the NDPS Act . The other breach in this case was found of non-compliance with proviso to section 42 (1). It was mentioned that section 42 (1) indicates that only authorised officer can carry out search between sunrise and sunset without warrant or authorisation. The scheme indicates that in the event the search has to be made between sunset and sunrise, the warrant would be necessary unless the officer has reason to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of the offender, which grounds of his belief have to be recorded. In this case there was no case that any ground for belief as contemplated by the proviso to sub section (1) of section 42 or sub-section (2) of section 42 was ever recorded by the Station house Officer who proceeded to carry out search. The Station house Officer had appeared in evidence and stated that he had not come with any case that it was required by the proviso to sub section (1), to record his grounds of belief anywhere. It was argued that not recording any reasons in regard to not obtaining the search warrant as was contemplated under section 42 (1) and not sending a report in this regard as contemplated under section 42 (2) to higher authority, constituted breach of the mandatory provisions of section 42 . Citing this ruling the learned counsel for the appellant stated that in the case at hand Shri D K Singh, who was a member of the raiding party as well, ought to have sent secret information, received by him to his higher authority and also should have recorded the reasons as to why search warrant could not be obtained before arresting the accused and the same ought to have been sent to senior officials.