Allahabad High Court
Idrish Alias Khaura vs State Of U.P. on 22 December, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 13.12.2017 Judgement delivered on 22.12.2017 Court No. - 13 Case :- CRIMINAL APPEAL No. - 684 of 1997 Appellant :- Idrish Alias Khaura Respondent :- State Of U.P. Counsel for Appellant :- V.S.Chauhan,P.S. Tewari,V.B. Shukla Counsel for Respondent :- Govt. Advocate Hon'ble Dinesh Kumar Singh-I,J.
1. This Criminal appeal has been filed against the judgment and order dated 4.4.1997 passed the then Sessions Judge, Banda in Complaint Case No. 32 of 1994 (State Vs. Idrish @ Khaura arising out Case Crime No. 183 of 1993, P.S. Badausa, District-Banda, whereby accused-appellant has been convicted under Section 8/20 of NDPS Act and awarded punishment of two years rigorous imprisonment, fine of Rs. 10,000/- and in default of payment of fine six months rigorous imprisonment.
2. In brief, the case of the prosecution is that on 9.8.1993, S.H.O. Kamlesh Singh Yadav (PW-1) was busy in patrolling duty along with Constable Kamlesh Singh, Constable Ramdas, Constable Suraj and Constable Om Prakash and Constable Suraj Prasad. When they reached near turn of the village Barkatpur, an informer gave them news that one person was coming from the side of Barkatpur who had illegal Ganja in his bag, who would proceed towards Badausa. Believing this information, the police party tried to find an independent witness but due to it being dark, no one was available. After having taken search of each other and having ensured that they had no illegal article with them. They started waiting for that person to arrive concealing themselves behind the trees. After some time, a person was seen coming from the side of Barkatpur and when they reached near him, the informer pointed out towards him and stated that he was referring to the same person. Thereafter, the police party focused their torch on the said person and directed him to stop, but he turned in reverse direction and started running towards Barkatpur. He was caught using sufficient force at about 20:30 hours, 100 yards away from the road. When inquired, he disclosed his name as Idrish Khan @ Khaura. He was told that the police party had got information that he was having illegal Ganja in his bag, therefore, if he wanted to be searched in presence of any Magistrate or a Gazetted Officer, he could be taken there. But, the accused expressed full faith in the police party and stated that they could take his search. After this consent having obtained, PW-1 Kamlesh Singh Yadav (S.O) in front of companion police officials made search of the bag being carried by the accused in his right hand and 1/2 kg Ganja was recovered from the said bag, to possess which, he could not show any license. He was told that he had committed an offense under Section 18/20 of NDPS Act. The recovered Ganja was sealed in the same bag and the sample seal was prepared. The recovery memo (Ext.Ka-1) was prepared on the spot in the light of torch at the dictation of PW-1 by Constable Ramdas Suman. The same was read out to the accused and thereafter his signature and the signature of police companions were obtained thereon and a copy of the same was provided to him. The police party, thereafter, came to police station along with accused, the recovered contraband substance and recovery memo and a Case Crime No. 183 of 2003 under Section 8/20 of NDPS Act was registered and Chick F.I.R. (Ext. Ka-2) was prepared at P.S. Badausa on 9.8.2013 at 12:30 pm and its entry was made in G.D. dated 9.8.2013 (Ext. Ka-4) at report No. 26 at about 22:30 hours. The investigation was assigned to S.I. Varijalal (PW-2), who inspected the spot and at the instance of PW-1 prepared site plan (Ext. Ka-5). Ater having taken statements of all the relevant witnesses and taking into consideration the report of FSL (Ext. Ka-7), he submitted charge-sheet against the accused appellant. The charge against the accused-appellant was framed on 3.8.1985 under Section 20 of NDPS Act to which he pleaded not guilty.
3. In support of the prosecution version, Kamlesh Singh Yadav, S.O. was examined as PW-1, who was witness of recovery and arrest of the accused-appellant, Varijalal (I.O.), was examined as PW-2. No other witness of fact or formal witness has been examined and thereafter evidence of prosecution was closed.
4. The statements of accused is recorded under Section 313 Cr.P.C. on 5.3.1997, in which he stated that entire evidence which has been covered by the prosecution is false and fabricated. In defense, he stated that the S.O. had asked for his jeep once and because he had denied, he has been falsely implicated.
5. Apart from above, the prosecution has relied upon the following documentary evidence; recovery memo (Ext. Ka-1), Chick F.I.R. (Ext. Ka-2), G.D. (Ext. Ka-4), Site plan (Ext. Ka-5), Charge Sheet (Ext. ka-6) and Chemical Examination Report (Ext. Ka-7).
6. Perusal of the impugned judgment indicates that before the learned court below, it was argued that compliance of Section 50 of NDPS Act was not made because search was not made before a Magistrate, although, a Magistrate could be available. Learned court below did not find any weight in the said argument and held that sufficient compliance of the said section was made because the Arresting Officer had apprised accused of his right that he could prefer to be searched before a Magistrate or a Gazetted Officer, but the accused did not exercise his right to be searched before any of them. It was also argued before learned court below that no sample was taken of the contraband substance allegedly recovered from the accused on the spot. The learned court below found this to be factually incorrect on the ground that the sample had been taken and sent to the chemical examiner and report in that regard was obtained, which was found on record. The statement of PW-1 to the effect that he did not take sample, was discarded by the court below holding that the same was uttered by him inadvertently.
7. Next argument made before the court below was that there was a village called Barkatpur at a distance about 200 yards and yet no public witness was taken by police but this argument was also discarded because, it is recorded that there was sufficient explanation given from the side of prosecution that because of it being odd hours the witnesses from general public could not be available.
8. Lastly, it was also argued that the I.O. visited the spot and that he did not record that the pond in the village had no water. This argument was also repelled by holding that in the month of August, it could be possible that there would have been no water in the pond particularly in Banda District, which is one of the hottest Districts in the U.P.
9. It was held by learned court below that prosecution had succeeded in establishing the guilt of the accused by producing best possible evidence, most natural witnesses and the compliance of all the legal provisions which were mandatory under the NDPS Act, had been complied with and accordingly, it held the accused-appellant guilty under Section 8/20 of NDPS Act and awarded him aforementioned punishment.
10. Learned counsel for the appellant has made following submissions:-
11. The prosecution has produced sole police witness PW-1, although the other witnesses of fact namely Constable Ramdas Suman, Constable Om Prakash and Constable Suraj Prasad had also accompanied him at the time of recovery of contraband substance from the accused. No reason has been given, as to why, any of them had not been examined. Therefore, there is no corroboration made of the statement of PW-1 in support of prosecution's case. No weight was taken on the spot of the contraband substance allegedly recovered from the accused nor any mention is made in recovery memo that sample out of the said contraband substance was taken nor weight of the sample has been recorded, which is mandatory as per the Standing Instructions No. I/88 issued by Narcotics Control Bureau, New Delhi and which are upheld by the Hon'ble Supreme Court in the case of Khet Singh Vs. Union of India (2002) 45 ACC 41 in paragraph 10 of which the following is held:-
"10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody."
13. It is specified in clause 1.6 that in case of Ganja, the minimum quantity to be sent to FSL for being tested should be 24 grams. In the case at hand, it is not proved by the prosecution as to whether the requirement of taking sample of minimum 24 grams of Ganja was complied with in this case or not.
14. The prosecution has failed to prove seal of which officer was affixed on the contraband substance as well as on its sample on the spot and whether the sample of said seal was prepared; whether the contraband substance, its sample and seal were taken to the Malkhana for being kept in safe custody until the sample was transmitted to the FSL for being tested and the remainder contraband substance was produced before court for being exhibited. It was essential that the sample of seal ought to have been sent to the FSL along with sample of contraband substance so that the same could be matched by the FSL to ascertain that the said sample was the same, which was collected on the spot from out of the recovered contraband. Also the seal affixed on the spot should have been compared by the court at the time of exhibiting of the contraband substance recovered from the accused, after comparing the seal affixed on the contraband substance with the sample seal. All this has not been done in this case to establish beyond reasonable doubt that the contraband substance which has been recovered from the accused was Ganja and that, it was weighing 500 grams. There is no link evidence to establish all the above links to eliminate any chance of false planting of the said contraband substance. In this regard, attention was also drawn of this court towards the statement of PW-1 in cross-examination, in which, it is stated by him that the sample was not taken. Attention is also drawn towards the statement of PW-2, in which, it is stated by him that the same material was sent for being tested which was taken as a sample and was sealed. The attention is also drawn towards the report of FSL, which mentions that a bundle was received on 25.8.1993, which was sealed and was having seal written on it 'Emblem + Zila Nyayalay, Banda Uttar Pradesh'. It is further recorded that 50 grams suspected Ganja was received, which after having been analyzed, was found to be Ganja.
15. Referring to above statements and the evidence on record, it is argued by the learned counsel for the appellant that according to the PW-1, no sample was taken, which also gets substantiated from the fact that in recovery memo, it is not mentioned that any sample was taken, but in his statement PW-2 has stated that he had seen the same material, sample of which was taken on the spot and was sealed. It is evident that the seal which was used on the spot would have been of either the P.S. or of P.W.-1, but it has not been clarified. If the said sample which is alleged to have been taken by PW-2 on the spot, although he was not an eye-witness, how could it be possible that it would bear seal of 'Emblem + Zila Nyayalay, Banda Uttar Pradesh'. The finding of said seal on the sample suggests that the sample which is alleged to have been taken on the spot might have been placed before court, where the said seal might have been affixed, but there is no evidence brought on record to prove all this.
16. The next submission made by the learned counsel for the appellant is that the accused was not apprised of his legal right of being searched before a Magistrate of a Gazetted Officer, therefore, there was clear violation of provisions of Section 50 of NDPS Act.
17. Further, it is argued that no compliance of the provisions of Section 57 of NDPS Act has been made, which requires a complete report of arrest of accused and seizure of contraband to be sent to the Higher Authorities within 48 hours of the said arrest of the accused and seizure of the contraband substance.
18. In rebuttal, learned A.G.A. has admitted that only one police witness PW-1 has been examined but no evidence has been brought on record as to why other three police witnesses, or any one of them, who were accompanying PW-1, were/was not examined to corroborate the statement of PW-1.
19. As regards non weighing the contraband substance on the spot, it is submitted that the same was not required under unamended NDPS Act as there was no provision for awarding punishment proportionate to the amount to the recovery of contraband substance.
20. As regards, discrepancy in the statement of PW-1, PW-2 and the recovery memo with regard to sample not being taken on the spot, it is stated that, that was due to inadvertance, although it was argued that the sample was taken by PW-1 who has proved it by his statement.
21. As regards, the seal which was affixed on the spot and there being different seal being found on the sample sent to the FSL, it is submitted that the learned counsel for the appellant ought to have put questions in defense to clarify all this.
22. As regards the non-compliance of Section 50 of NDPS Act, it is submitted that the same was not required in this case because in the case at hand, there was no personal search made of the accused and the contraband which is recovered, was recovered from the bag which he was carrying.
23. As regards non-compliance of Section 57 of the NDPS Act, it is replied that the same was not mandatory.
24. Heard learned counsel for the appellant and learned A.G.A. and perused the original record as well as entire paper book.
25. First of all, non compliance of Section 50 of NDPS Act is being taken. In this regard, reliance may be placed upon the interpretation made of Section 50 of NDPS Act by Supreme Court in the case of State of Himachal Pradesh Vs. Pawan Kumar, (2005) 4 SCC 350.
"12. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free."
26. In this judgment, the Supreme Court has held that a bag, brief case or any such article, container etc. under no circumstances be treated as a body of human being. They are given a separate name and are identifiable as such. They cannot even remotedly be treated to be a part of the body of human being depending upon the physical capacity of a person. He may carry any number of items like a bag, a brief case, a suit case, a big box, a thaila, a jhola, a gathri, hold-all, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by hand or hung on the shoulder or back or placed on the head. In common parlance, it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, bag or head etc. Therefore, it is not possible to include these articles within the ambit of the word 'person' occurring in Section 50 of the Act.
27. In view of above finding, it is well settled law that unless personal search is made of the suspect, the compliance of Section 50 of NDPS Act would not be required.
28. Now in the case at hand, in the light of evidence, it has to be seen as to whether personal search of the accused was made. In the recovery memo, it is mentioned that when the accused was arrested, and was apprised that the police had information that he had illegal Ganja in his bag, he was given option as to whether he would like to be searched in presence of a Magistrate or a Gazetted Officer but he stated that he had full faith in police party and they could take his search. When 'Zamatalashi' (may amount to making personal search) was made from the bag which he was carrying in right hand, about 1/2 kg Ganja was recovered. PW-1 in this regard has stated in cross examination-in-chief that when he made search then from the bag, being carried by him in right hand, 1/2 kg Ganja was recovered.
29. From the above evidence, it is apparent that initially information received by police party was that the said accused was carrying Ganja in his bag. After search made of the accused, it has come in the statement of PW-1 that from the bag which he was carrying, Ganja was recovered. The recovery memo contains that when 'Zamatalashi' was taken 1/2 kg Ganja was recovered from his bag. It appears that here during search, person of the accused was not searched rather only the search was made of the bag which he was carrying, hence, in the light of law stated above, Section 50 of the NDPS Act shall not be applicable. Therefore, the argument made by learned counsel for the appellant that there was no compliance made of the provisions of Section 50 of NDPS Act does not hold water.
30. Next, this Court would like to take up the point as to whether the compliance of Section 57 of the NDPS Act has been made, which is as follows:-
"57. Report of arrest and seizure.- Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
31. In this regard, it would be pertinent to refer here to the position of law which has been made clear as regards Section 57 by the Supreme Court in State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299.
"24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non- compliance or failure to strictly comply by itself will not vitiate the prosecution.
25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."
32. In view of above, it is clear that though the non-compliance of Section 57 of the NDPS Act by itself may not be treated mandatory but if its non-compliance has resulted in prejudice to the accused, it will certainly have an adverse effect on the prosecution's case. Therefore, this Court would like to see whether there are other serious infirmities which may point to non-compliance of necessary provisions of law. It may also be pointed out here that the severer the punishment provided under law, stricter compliance of statutory provisions is required to be made & very meticulously.
33. This Court would like to take up next submission of learned counsel for the appellant with regard to sample of contraband substance not being taken on the spot and also there being no conclusive proof from the side of prosecution to the effect that the seal which was used for sealing the sample of contraband substance was sent to the FSL along with sample so as to ensure as to whether the sample was of the same contraband substance which was recovered from the accused on the spot and also whether the remainder of the contraband substance was sealed and the sample seal was produced before the court or not at the time of recording of statement of PW-1 to prove beyond doubt that the contraband substance which were produced before court was the same which had been recovered from the accused-appellant on the spot.
34. In this regard, the argument noted above of the learned counsel for the appellant has enormous force and substance. Record reveals that in the recovery memo no mention has been made of the sample of contraband substance having been taken which finds support from the statement of PW-1, who has also stated in cross-examination that no sample was taken. However, PW-2 (Investigating Officer) has given statement that the sample was taken and the same was sent to the FSL in sealed condition. His statement is in conflict with the statement of PW-1 as well as the contents of recovery memo. The learned court below has lightly explained away the statement of PW-1 saying it to be inadvertent error that he by mistake had stated about no sample being taken. But to this Court, that does not seems to be correct decision because statement of PW-1 finds support from the recovery memo, which also does not contain any reference that the sample was taken of the contraband substance recovered from the accused. It is also on record that the prosecution has failed to produce the seal by which the sample of the contraband substance as well as the remainder was sealed on the spot. The seal which has been found to have been affixed on the sample sent to the FSL is of 'Emblem + Zila Nyayalay Banda Uttar Pradesh' which obviously was not the seal which was affixed on the spot at the time of making recovery of contraband substance from the accused. The prosecution has absolutely failed to establish on record as to how the said seal of 'Emblem + Zila Nyayalay, Banda Uttar Pradesh' came to be affixed on the sample of contraband substance. No link evidence has been provided from the side of prosecution. In this regard, these infirmities may not be taken lightly. They go to the root of the matter. It was primary duty of the prosecution to establish that the contraband substance and its sample was sealed on the spot and were kept at safe place along with sample seal. No register of Malkhana has been produced to prove that when the said material was brought from the place of recovery the same was kept in the Malkhana. It could have been very easily proved by prosecution by placing register of Malkhana before Court and showing entry therein of these articles having been deposited there but all this has not been done, which also creates doubt in the mind as to whether the said articles were actually kept in safe condition or whether at all such kind of recovery had been made from the accused.
35. Most important point relates to the point as to whether, if the statement of PW-2 be believed as regards sending of sample of contraband substance to FSL and if the FSL's report be believed to be correct, as to whether the sample was taken from the contraband substance allegedly recovered from the accused in accordance with the guidelines issued in the form of Standing Instruction No. I/88, by Narcotic Control Bureau, New Delhi which provides as follows:-
"1.5.- Place and time of drawal of sample:- Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search(Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.
1.6.- Quantity of different drugs required in the sample:- The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicates sample also. The seized drugs in the packages/containers should be well mixed to make it homogenous and representative before the sample in duplicates is drawn.
1.7.- Number of samples to be drawn in each seizure case:- (a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container.
(b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hasish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.
(c) Whereafter making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.
(d) If it is 5 or more in case of other drugs and subsistances and 20 or more in case of Ganja and Hasish, one more sample in duplicate may be drawn for such remainder package/containers.
(e) While drawing one sample in duplicate from a particular, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
1.8.- Numbering of packages/containers:- Subject to the detailed procedure of identification of packaes/containers, as indicated in para 1.4 each package/container should be securely sealed and an identification slip pasted/attached on each one of them at such place and in such manner as will avoid easy obliteration of the marks and numbers on the slip. Where more than one sample is drawn, each sample should also be serially numbered and marked as S-1, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial number of the packages and marked as P-1, 2, 3, 4 an so on.
1.9.- It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, panchnama witness and seizing officer and all of them shall be required to put their signature on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the sample.
1.10.- Packing and sealing of samples:- The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the S.No. of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "secret-Drug sample/Test memo" to be sent to the concerned chemical laboratory."
36. In view of above, it is apparent that not only it is on record that the prosecution has failed to follow these guidelines in detail but even broadly the prosecution has failed to establish that any sample of contraband substance was taken and was sealed on the spot and the sample of the same was sent to the FSL for being tested.
37. In view of above, infirmities, it would not be safe to hold that the prosecution has proved beyond doubt that the contraband substance (500 grams, Ganja) was recovered from the accused and the sample of same was found to be Ganja as has been held by the court below.
38. These infirmities coupled with non-compliance of Section 57 of the NDPS Act would make a huge dent in the prosecution's case. It may be pertinent to mention here that till the recovery of contraband substance is proved beyond doubt from the accused-appellant, no burden can be shifted upon the accused to explain as to how he came in possession of the said contraband substance under Section 35 and 54 of the NDPS Act.
39. In the opinion of this Court, the prosecution has failed absolutely to prove beyond doubt that any recovery of contraband substance (Ganja) was made from him. The learned court below has not made proper appreciation of evidence at all. It is also to be noted that there is no public witness taken in this case to support the prosecution version and if the same was not available at least for corroboration of the statement of PW-1, the other police witnesses could have been examined but it is found that no such corroboration also has been made of the statement of PW-1.
40. In view of above infirmities, this Court comes to the conclusion that the prosecution has failed to prove the charge against accused-appellant. Appeal is allowed. The accused is held not guilty of offence under Section 20 of NDPS Act. If not detained in any other case, he be immediately released in this case after compliance of Section 437-A of Cr.P.C.
41. Lower court record be returned immediately with a copy of the judgment and order of this Court for immediate compliance.
42. The case property shall be destroyed after a period of appeal is over or if law permits otherwise.
Order Date :- 22.12.2017 A.P. Pandey