LexSARJU@ RAMU versus STATE OF U.P.
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, \ I [2009] 12 S.C.R. 611 SARJU@ RAMU A ' v. . STATE OF U.P. (Criminal Appeal No. 1446 of 2009) AUGUST 7,. 2009 B [S.B. SINHA AND DEEPAK VERMA, JJ.) Narcotic Drugs and Psychotropic Substances Act, 1985 - SS. 8/21 and 42 - I/legal sale of morphine by appellants - · Search and seizure by SHO and others - Conviction and C . sentence u/s. 8121 by courts below - Sustainability of - Held: . Not sustainable -s. 42 not substantially complied with - Prosecution case cannot be believed - Discrepancies in FIR - No independent witness to the search .. -:- Accused not informed of their right to be searched by Gazetted Officer - D Discrepancy in the preparation of consent letter:. Statement · by SHO manipulated and had no authority to make search - Different case alleged by wife of accused - They filed··. application and sent telegram but no investigation carried out ~ Also Special Judge erred in letting off one of the accused E under the Probation of Offenders Act."'"'." Thus, order of courts below set aside. SHO and other members including a constable-PW- 3 were on patrolling duty. The informer reported to the police party that appellants were illegally selling F morphine. SHO obtained the authority letter to carry search and seizure and meanwhile the other constables kept eye on them. The search was carried out. 40 packets as also 70 gms. of morphine were recovered from the appellant, 82 gms from SB and 53 gms was recovered G from RD. Trial court convicted the appellant and RD uls. 8121 of Narcotic Drugs and Psychotropic Substances Act and sentenced them to 10 yea ts rigorous imprisonment. However, SB was given benefit of s. 33 and was let off 611 H 612 SUPREME COURT REPORTS [2009] 12 S.C.R. A under the Probation of Offenders Act. High Court upheld ' '" : the order. Hence the present appeal. Allowing the appeal, the Court HELD: 1. In a case under the Narcotic Drugs and B Psychotropic Substances Act, 1985, particularly where such serious allegations are made against the police officials, recovery of contraband in presence of the independent witness assumes significance. The provisions of the NDPS Act being harsh in nature, the C procedural safeguards contained therein must scrupulously be complied therewith. [Paras 14 and 15] [622-E-F] 2.1. The prosecution case is shrouded in mystery. 0 Although in the FIR, it was stated that information was received from the informer, but the PW 1 in his deposition before the trial judge stated differently. FIR disclosed that the information was given at about 6 0' clock in the morning and the raid was conducted at about 6.15 a.m. E 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. Thus, it is difficult to believe the prosecution story. [Paras 9 and 13] [618-D; 622-B] F 2.2. The accused were said to have been sitting near the house of a Member of the Legislative Assembly. There is no explanation as to why he could not be asked to be a witness to the search. The time when the information was received was not mentioned in the General Diary. G Even the 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 was not recorded. He accepted that in terms of Cr.P.C., the same should have been noted but the said provisions H were not complied with. [Paras 11) [620-C-D] SARJU.@ RAMU v. STATE OF U.P. 613 2.3. PW-3 informed that appellants had committed an A ·~ • offence punishable u/s. 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 obtained. It is accepted that the patrolling duty starts at 6-8 O' clock in the evening and finishes at 8 O'clock in B the morning. The village 'BH' was about 5 to 6 furlongs before place B. According to PW 3, informer had met them 3-4 hours prior to the raid and they were sitting in the jeep } when the intimation was given by the informer. The intimation was said to have been given at 'BH' road but c they did not go in the search of the accused in the village wherefor no reason could be assigned. [Para 12) [621-F- H; 622-A] 2.4. The statement of OW 1-wife of the appellant that they had been sitting near the gate of the Superintendent D \. of Police at place 'B' h
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