Jammu & Kashmir High Court
Nisar Ahmed Bhat vs Union Territory Of Jammu on 4 April, 2024
Bench: Sanjay Dhar, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 19.03.2024
Pronounced on 04.04.2024
Crl A(D) No. 32/2022
Nisar Ahmed Bhat, Age 37 years .....Appellant(s)/Petitioner(s)
S/o. Sh. Abdullah Bhat
R/o. Kandipora near
Masjid Sharief,
P/S Bijbehara, District
Anantnag, Kashmir
At present Central Jail
Kot Bhalwal, Jammu
Through: Mr. Iqbal Hussain Bhat, Adv. with
Mr. Akeel Wani, Adv
Q
Mr. G. Q. Bhat, Adv.
vs
Union Territory of Jammu ..... Respondent(s)
and Kashmir through NCB, Jammu
Through: Mr. Vishal Sharma, DSGI
Mr. Anishwar Chatterji Koul, CGSC
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGEMENT
Per Sanjay Dhar-J
1. Through the medium of present appeal, the appellant has challenged judgment dated 31.05.2022 passed by the learned Principal Sessions(Special Judge), Jammu(hereinafter to be referred as the trial court), whereby in a case arising out of NCB Crime No. 01/2017 for offences under Sections 8, 20 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act), the appellant has been convicted of offences under Sections 8/20 of the NDPS Act and by virtue of a separate order passed on the same date, he has been 2 Crl A(D) No. 32/2022 sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of rupees one lac.
2. The brief facts giving rise to filing of this appeal are that a complaint was lodged by respondent-NCB before the trial court alleging therein that on 17.03.2017 at about 0900 hours, complainant, Kaushal Kumar (PW-1) received a secret information from reliable sources that a Truck bearing registration No. JK03C 9491 was proceeding from Anantnag and its driver, the appellant herein would deliver a consignment of Charas to co-accused- Ghulam Nabi at Kunjwani Chowk on the said date. The information was reduced into writing by PW-1 and placed before the Superintendent, NCB, Jammu Sh. K. P. Tiwari(PW-2), who constituted a team of officers/officials for carrying out operations at Kunjwani Chowk, Jammu. Sh. Kaushal Kumar(PW-1) received the NCB seal from PW-7-Pawan Dev and he along with the team comprising Sh. C. S. Rathore, Intelligence Officer, Sh. Vijay Kumar, Sepoy, Sh. V. Bhardwaj, Sepoy, Sh. Rakesh Kumar, Sepoy, Sh. Harvinder Singh, Driver, Sh. Tilak Raj Driver, Sh. Ram Lal, Driver and Sh. Romesh Kumar OTC NCB Jammu under the supervision of Sh. K. P. Tiwari, Superintendent left from NCB Office, Jammu to Kunjwani Chowk, Jammu. The NCB team also carried with it the kit including weighing machine etc. A naka was laid on spot by the said team.
3. As per the complaint, at about 1130 hours, Truck bearing No. JK03C 9491 was spotted moving towards Kathua. The said team was intercepted by PW-1, who found two persons, Driver Nissar Ahmed Bhat (appellant herein) and Ghulam Nabi (co-accused) seated in the Truck. Notices under 3 Crl A(D) No. 32/2022 Section 50 of the NDPS Act were served upon the two accused before conducting their personal search. According to the complaint, the two accused expressed their willingness to be subjected to search in the presence of NCB Team Jammu and accordingly, they were subjected to personal search. However, no contraband substance was recovered from their personal search. Thereafter, PW-1 Kaushal Kumar conducted the search of the Truck and from the cabin of the said truck, one green coloured envelop was recovered, which upon opening was found to contain two more packets wrapped in brown cello tape. Both these packets were weighed with weighing machine and the recovered material was found to be weighing 4 kgs and the same was tested with Drug Detection Kit. It resulted positive for Charas.
4. According to the complainant, the recovered Charas, which was in the shape of balls, was broken and a homogeneous mixture was made. Its net weight was found to be 3.928 Kgs, whereafter, its two representative samples of 24 grams each were drawn and sealed on spot with the seal which the team was carrying with it. The samples were marked as A1 and A2. The remaining contraband weighing 3.880 Kgs was also sealed with five seals and it was marked as Lot-A. The recovery-cum-seizure memo as also the test memo were prepared on spot. Both the accused as well as PWs 1 and 2 put their signatures on the recovery-cum-seizure memo.
5. During the preliminary enquiry, the appellant/accused-Nissar Ahmed Bhat disclosed that the seized Charas was delivered to him by one Firdous Ahmed Bhat with a direction that the same was to be handed over to 4 Crl A(D) No. 32/2022 Ghulam Nabi, the co-accused for which he had been paid a sum of Rs. 10,000/-. The statement of accused/appellant under Section 67 of the NDPS Act was recorded by PW-1. Similarly, statement of co-accused-Ghulam Nabi under Section 67 of the NDPS Act was also recorded, whereafter, they were arrested on 18.03.2017.
6. After conducting the aforesaid proceedings, the seal was handed over back to Pawan Dev(PW-7) on 18.03.2017 and a receipt in respect thereof was obtained. The seized Charas, Lot-A, the wrapping Lot-P, samples A1 and A2 were deposited in Malkhana on 18.03.2017 for safe custody regarding which receipt was obtained from the Incharge Malkhana. Sample A1 along with two copies of test memo were sent to Central Revenue Control Laboratory(CRCL), New Delhi under covering letter dated 19.03.2017 for chemical analysis through special messenger Sh. Ram Lal, Driver(PW-3) on 19.03.2017 and the sample was received by Sh. Ravi Shanker Sharma, Assistant Chemical Examiner, CRCL on 20.03.2017.
7. Further investigation of the case was then handed over to Sh. C. S. Rathore(PW-6) who recorded the statement of one Nissar Ahmed Thokar, the attorney holder of the owner of the Truck in question. He also obtained the Test Analysis Report of the Charas from the Chemical Examiner, Dr. T. C. Tanwar(PW-5) which confirmed that the sample in question is Charas. Accordingly, the complaint was laid before the trial court. After filing of the complaint, co-accused-Firdous Ahmed Bhat was also arrested and his statement under Section 67 of the of the NDPS Act was recorded in which he admitted that he had handed over 4 Kgs of Charas to appellant-Nisar 5 Crl A(D) No. 32/2022 Ahmed Bhat for its delivery to co-accused-Ghulam Nabi. A supplementary complaint was filed against co-accused-Firdous Ahmed Bhat before the trial court on 22.03.2018.
8. Learned trial court in terms of its order dated 13.11.2017 read with order dated 08.05.2018 framed charges for offences under Sections 8, 20 and 60 of the NDPS Act against the accused. During trial of the complaint, the prosecution besides producing the documentary evidence, also produced six witnesses out of the eight witnesses listed in the complaint. Thereafter, statements of the accused under Section 342 J&K Cr.P.C. were recorded on 11.02.2019. The accused in their statements denied the recovery of contraband from their possession and pleaded innocence. They also termed the case of the prosecution and the statements of the prosecution witnesses as false. No evidence was led by the accused in defence.
9. The learned trial court by virtue of the impugned judgment, while holding that the prosecution has failed to bring home the guilt of accused Firdous Ahmed Bhat, held that the charges against accused Nisar Ahmed Bhat- appellant herein are proved beyond reasonable doubt. So far as accused- Ghulam Nabi is concerned, he passed away during the trial of the case and he was deleted from the array of accused in terms of order dated 05.12.2020 passed by the learned trial court.
10. While holding the appellant guilty of offences under Sections 8 and 20 of the NDPS Act, the learned trial court on the basis of evidence on record concluded that the contraband substance weighing 3.928 Kgs, has been recovered from the vehicle that was under the charge of appellant and that 6 Crl A(D) No. 32/2022 he has not given any explanation for possession of the recovered contraband in his statement under Section 342 J&K Cr.P.C. Learned trial court has also concluded that not only seizure but drawing of samples, its transmission to forensic laboratory in sealed condition stand established from the evidence on record. On this basis, the appellant/accused has been found guilty of offences under Sections 8 and 20 of the NDPS Act.
11. The appellant has challenged the impugned judgment of conviction and the sentence on the grounds that the conclusion arrived at by the trial court is illegal and unjustified as the prosecution has miserably failed to bring home the guilt of the appellant beyond reasonable doubt. The focus of attention of learned counsel appearing for the appellant was on following grounds:
(i) That the samples in the instant case were not drawn in presence of a Magistrate, therefore, seizure of the contraband and the samples drawn therefrom was not a valid piece of primary evidence.
(ii) That the person, who is stated to have given secret information, has not been named nor has he been examined as a witness in the case.
(iii) That no site plan of the site of seizure has been prepared by the Investigating Officer and this casts a doubt upon recovery of the contraband.
(iv) That the Scientific Officer, who has actually conducted the test analysis of the samples, has not been examined as witness by the prosecution, therefore, the report of the CRCL is not proved.7 Crl A(D) No. 32/2022
(v) That no civilian was associated with the proceedings relating to recovery of the contraband though they were available on spot which makes the recovery of the contraband doubtful.
(vi) That Form No. 95 (CFSL Form) was not filled up by the Investigating Officer while sending the samples to CRCL as such, it cannot be stated that the samples were sent to CRCL in a sealed condition.
(vii) That in the instant case, the complainant as well as the Investigating Officer is one and the same person, therefore, the investigation of the case is tainted with mala fides and bias.
12. We have heard learned counsel for the parties and perused the impugned judgment, grounds of challenge and the trial court record including the documentary as well as oral evidence led by the prosecution before the trial court.
13. The first ground that has been urged by the learned counsel for the appellant is that the samples of the recovered contraband were not drawn in presence of the Magistrate and even the contraband as well as the samples were not produced during the trial of the case. Therefore, in view of the provisions contained in Section 52A of the NDPS Act, there was no primary evidence before the trial court with regard to seizure and sampling of the contraband substance and in its absence no conviction could have been recorded against the appellant. Reliance in this regard has been placed by learned counsel for the appellant on the judgments delivered by the Supreme Court in the cases of Jitendra and others vs State of Madhya Pradesh, Mangilal v State of Madhya Pradesh, 2023 LiveLaw (SC) 8 Crl A(D) No. 32/2022 549, Yousuf @Asif v State, 2023 LiveLaw (SC) 890 and Simranjit Singh v State of Punjab, 2023 LiveLaw (SC) 570. In all these cases, the Supreme Court has held that the process of drawing of samples under Section 52 of the NDPS Act has to be in the presence of and under the supervision of the Magistrate and that the entire exercise of collecting the samples must be certified by the Magistrate. It has been further held that without taking recourse to sub section (2) of Section 52A of the NDPS Act, there would be no primary evidence and the same would vitiate the prosecution case.
14. In order to understand as to in what circumstances, the exercise relating to drawing of samples and their sealing in presence of the Magistrate becomes mandatory, it would be apt to refer to the provisions contained in Section 52A of the NDPS Act, which reads as under:
―52A. Disposal of seized narcotic drugs and psychotropic substances.- [(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any t[narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-incharge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic 9 Crl A(D) No. 32/2022 substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer "referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking in the presence of such Magistrte photographs of such drugs, substances or conveyances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act' 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 7974), every court trying an offence under this Act, shall treat the inventory, the photographs of ―[narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offences.‖
15. The aforesaid provisions, relate to disposal of seized narcotic drugs and psychotropic substances. Sub section (1) empowers the Government to prescribe the manner in which narcotic drugs and psychotropic substances are required to be disposed of after their seizure. Sub section (2) makes it mandatory for the officer who has seized narcotic drugs and psychotropic substances, controlled substances or conveyances to prepare an inventory of such material which should contain details relating to description, quality, quantity, mode of packing, marks etc. which are relevant for identification of the seized substance and thereafter make an application to the Magistrate for the purpose of certifying correctness of the inventory. It mandates that such officer should in presence of the Magistrate take photographs of the seized substances and draw representative samples of 10 Crl A(D) No. 32/2022 the seized drugs or substances in presence of the Magistrate, who has to certify the correctness of the list of samples so drawn. Sub section (3) castes a duty upon the Magistrate to allow an application made by the officer in terms of sub section (2). Sub section (4) provides that the inventory, the photographs and list of samples drawn and certified by the Magistrate would be treated as primary evidence in respect of such offence, meaning thereby that if samples are sealed and drawn in presence of the Magistrate and the contraband is photographed and inventorized in presence of the Magistrate, who issues a certificate about the correctness of the same, it would be treated as a primary evidence of the offence and there would be no need to produce the physical evidence before the court during trial of the case.
16. From a conjoint reading of the Sub Section (1) to Sub Section (4) of Section 52A of the NDPS Act, it comes to the fore that inventory, photographs and list of samples certified by the Magistrate in consonance with provisions of Section 52A of the NDPS Act are to be treated as primary evidence. This obviates the need to produce the physical evidence in the shape of seized contraband and sealed samples before the court. Ordinarily if actual seized contraband and the actual sealed samples are produced before the trial court during the trial of a case in a sealed form and the trial court is satisfied that no tampering has taken place, such physical evidence would be admissible in evidence. The admissibility of inventory, photographs and the list of samples certified by the Magistrate 11 Crl A(D) No. 32/2022 as primary evidence is a substitute to production of physical evidence in the shape of seized contraband and sealed samples.
17. The object of incorporating Section 52A of the NDPS Act is to ensure immediate disposal of the seized narcotic drugs and psychotropic substances due to their hazardous nature, vulnerability to theft, substitution, constraint of proper space. Having regard to hazardous nature of narcotic drugs and psychotropic substances, the legislature intended that such substances should be disposed of immediately by following the procedure under Section 52A of the NDPS Act and if the said procedure is adopted, the inventory, photographs and list of samples drawn in presence of the Magistrate and certified by the Magistrate would constitute as primary evidence, even if, the seized contraband and samples are not physically produced before the trial court for the reason that the same stand disposed of in the manner provided under Section 52 A of the Act. However, in a case where seized contraband and sealed samples are produced before the trial court in a physical form, the provisions contained in 52A of the NDPS Act would have no applicability. Therefore, in such a case, there would be no need to draw the samples in presence of Magistrate and to seal the contraband and samples in his presence. It would be for the trial court to conclude on the basis of the evidence on record in that particular case as to whether or not the possibility of the tampering of the sealed samples and the seized contraband substances can be ruled out.
18. So far as the judgments of the Supreme Court that have been referred to and relied upon by the learned counsel for the appellant are concerned, the 12 Crl A(D) No. 32/2022 same are based upon the ratio laid down by the Supreme Court in the case of Union of India vs Mohan Lal and another, (2016) 3 SCC 379. In the said case, the Supreme Court was concerned about the immediate disposal of the drugs in the manner as provided under Section 52 A of the NDPS Act. It is in those circumstances that the Supreme Court held that no sooner the seizure of any narcotic drugs and psychotropic substances is effected, the officer concerned has to approach the Magistrate and the sampling will have to be done in presence of the Magistrate in terms of the directions passed in the said judgment. The aforesaid direction was issued keeping in view the need for immediate disposal of drugs after its seizure but in a case where immediate disposal of the drugs has not been undertaken in the manner as provided by the Supreme Court in Mohan Lal's case(supra) and instead the seized drugs and sealed samples are produced as physical evidence before the court, the provisions of Section 52A of the NDPS Act on the basis of which directions have been issued by the Supreme Court in Mohan Lal's case (supra) would not become applicable. Although it would be a violation of directions of the Supreme Court rendered in Mohan Lal's case(supra) to keep the contraband and samples stored without actually disposing of the same, but nonetheless their evidentiary value in the form of physical evidence would not get vanished. The best evidence before the trial court would be production of the material objects during the trial of the case. The same cannot be brushed aside on the ground that the respondent-NCB has violated the directions of the Supreme 13 Crl A(D) No. 32/2022 Court rendered in Mohan Lal's case by not disposing of the seized contraband and sealed samples immediately after their seizure.
19. Having held that physical production of the contraband and sealed samples before the court will have to be taken into consideration, even if, the contraband and the samples have not been seized and sealed in accordance with the provisions contained in 52A(2) of the NDPS Act and as per the directions of the Supreme Court in Mohan Lal's case (supra), let us now advert to the facts of the present case.
20. Learned counsel for the appellant has vehemently contended that the sealed samples and the sealed contraband were not produced before the court during the trial of the case. The aforesaid argument of the learned counsel is contrary to the evidence on record. During the course of examination in chief of PW Kaushal Kumar, at the request of Special Public Prosecutor for the respondent-NCB, the seized contraband and the sealed samples were produced before the court. The same were opened in the court and the witness identified his signatures on the sealed contraband Lot-A and sealed samples A1 and A2 and further stated that the sample A1 was received back from the Laboratory. He has also stated that he had produced the case property before the court and with the permission of the court, he deposited the same in the Malkhana vide memo Ext-P2/1. We have also seen on record of trial court file a copy of order dated 18.03.2017 passed by the Chief Judicial Magistrate, Jammu, whereby Investigating Officer PW Kaushal Kumar has been permitted to keep the case property i.e. Lot-A (Charas) and Lot-P (packing material) and samples A1 and A2, which he 14 Crl A(D) No. 32/2022 had produced before the court, in safe custody of the Malkhana. There is nothing in the cross examination of any of the prosecution witnesses or even in the cross examination of PW Kaushal Kumar to discredit his statement on this aspect of the case. There is nothing in the cross examination of the abovenamed prosecution witness to show that there has been any tampering of seals in respect of Lot-A or samples A1 and A2. The deposition of seized contraband and sealed samples in the Malkhana is also established from the document Ext-P2/1.
21. Thus, the prosecution has been able to establish the production of seized contraband and sealed samples without any tampering to the seals before the trial court during trial of the case. Therefore, physical evidence with regard to seizure and sampling has been produced by the prosecution before the trial court as such, drawing of the samples and seizure of the contraband substance without the presence of Magistrate would have no effect upon the present case in these circumstances. The argument of learned counsel for the appellant is, therefore, without any merit.
22. Next it has been contended by learned counsel for the appellant that the person, who has given secret information to PW Kaushal Kumar has neither been nominated nor examined as a witness and this is a serious lacuna in the case of the prosecution. In this regard, learned counsel for the appellant has relied upon the judgment of the High Court of Delhi in the case of Karan Singh vs State(NCT of Delhi), 2006 (130) DLT 114.
23. In the aforesaid context, the provisions contained in Section 68 of the NDPS Act need to be noticed, which are reproduced as under: 15 Crl A(D) No. 32/2022
―68. Information as to commission of offences.--No officer acting in exercise of powers vested in him under any provision of this Act or any rule or order made thereunder shall be compelled to say whence he got any information as to the commission of any offence.‖
24. From a perusal of the aforesaid provision, it is clear that an officer vested with powers under the NDPS Act cannot be compelled to disclose his source of information with regard to commission of any offence. Thus, there is a statutory bar to the disclosure of source of information as regards commission of offence under the NDPS Act. The judgment relied upon by the learned counsel for the appellant is not applicable to the facts of the instant case. The ratio laid down by the Delhi High Court in Karan Singh's case (supra) is that secret information would become inadmissible in evidence unless provider of such information is examined in court. It was in those circumstances that the Delhi High Court held that the identity of the person giving secret information has to be disclosed and the said person has to be examined in court. In the present case, respondent-NCB has not placed reliance upon the statement of the person who had given information to PW-1 Kaushal Kumar as such, there was no question of disclosing his identity or examining him in court during the trial of the case. The argument raised by the learned counsel for the appellant is without any merit.
25. Another ground which has been urged by learned counsel for the appellant is that in the instant case, site map of place of recovery has not been prepared by the Investigating Officer. On this basis, it has been contended that recovery of the contraband from the possession of the appellant 16 Crl A(D) No. 32/2022 becomes doubtful. In this regard, the learned counsel has relied upon the judgment of a Single Bench of this Court in the case of Mohd. Maqbool Raina vs Intelligence Officer, NCB Jammu, 2019(1) JKJ 216.
26. It is true that the site plan of the place of recovery has not been prepared by the Investigating Officer in the instant case. The question would be whether non preparation of site map of the site of recovery has cast a doubt upon the recovery of the contraband from the possession of the appellant. If we have a look at the seizure memo (Extp-KK/V) and panchnama, it is witnessed by PW Kaushal Kumar, PW K. P. Tiwari and PW C. S. Rathore. PW Kaushal Kumar has stated that upon recovery of the Charas from the cabin of the Truck that was being driven by the appellant, it was weighed wherefter, recovery-cum-seizure memo (ExtP-KK/V) was prepared. Two samples of 24 grams each were prepared and the same were given marks A1 and A2. The remaining contraband was sealed as Lot-A and the packing was sealed as Lot-P. He identified his signatures on the test memo, the panchnama (Extp-KK/VI) as well as the recovery-cum-seizure memo (ExtP-KK/V). He also stated that PW K. P. Tiwari and PW C. S. Rathore signed both these documents viz., Extp-KK/V and Extp-KK/VI in his presence and he identified their signatures. Although the witness has been cross examined at length by the defence, yet no doubt has been raised about the site of recovery by the defence during cross examination of the witness.
27. In his examination in chief, PW Kaushal Kumar has stated that the Truck in question was intercepted in between Narwal and Kunjwani Chowk and the driver was asked to park it on the side of the road, yet no question was 17 Crl A(D) No. 32/2022 asked of the witness in his cross examination on this aspect of the matter so as to discredit the statement of the witness as regards the site of recovery. Similar is the fate of statements of other witnesses to the recovery, namely, C. S. Rathore and K. P. Tiwari.
28. In the absence of any cross examination that could have created a doubt about the site of recovery, the non-preparation of site map relating to the site of recovery in the instant case would not cause any dent to the case of the prosecution. The argument of the learned counsel for the appellant in this regard is, therefore, without any merit.
29. It has been contended by the learned counsel for the appellant that the Scientific Officer, Ravi Shankar Sharma has conducted the test analysis of the sample but he has not been examined as a witness, therefore, the Test Analysis Report Extp-2/2 is not admissible in evidence.
30. If we have a look at the report of the Test Analysis Report (Extp-5), the same is signed by Dr. T. C. Tanwar, Chemical Examiner, Grade-I. The said witness has been examined by the prosecution. He has clearly stated that the sample was tested by Sh. Ravi Shankar Sharma under his supervision, whereafter, the report was prepared. He admitted his signatures on Test Analysis Report (Extp-5) and he also identified his signatures on the residue sample (Mark 5/1) that was shown to him in the court. Having regard to the fact that PW Dr. T. C. Tanwar is the author of the report (Extp-5) and having regard to his statement that the test analysis of the sample was conducted by Sh. Ravi Shankar Sharma under his supervision, it cannot be stated that his statement in proof of Test Analysis Report 18 Crl A(D) No. 32/2022 (Extp-5) is inadmissible in evidence. The contention raised by the learned counsel for the appellant is without any merit.
31. It has been contended by the learned counsel for the appellant that all the witnesses to the seizure of the contraband substance are the officers/officials of the NCB and as per the case of the respondent-NCB, recovery has taken place on a highway. Thus, it was incumbent upon the respondent to associate civil witnesses in the entire process. Reliance in this regard has been placed upon the judgment of this Court in the case of Mohd. Ashiqeen vs State of J&K, 2007(3) JKJ 362 in which it has been held that conviction cannot be sustained in view of the non production of independent witnesses.
32. A perusal of the complaint that became the basis of the prosecution against the appellant, would show that in the said complaint it is recorded that two persons, namely, Rajiv Kumar and Pinka, who were standing at the Kunjwani Chowk, were requested to be independent witnesses for the panchnama proceedings, but they denied to do so. PW Kaushal Kumar, when cross examined on this aspect of the case, stated that two persons, whom he wanted to associate during the proceedings did not disclose their complete address. PW K. P. Tiwari has stated that he himself did not make any effort to associate civil witnesses but he asked PW Kaushal Kumar to do so.
33. From the above, it is clear that two civilians were present on spot. Their names have been mentioned in the complaint but according to PW Kaushal Kumar, they refused to disclose their full address, as a result of which, they 19 Crl A(D) No. 32/2022 were not cited as witnesses to the proceedings. In the face of this situation, the respondent-NCB could not associate civil persons as witnesses to the entire proceedings. Thus, there is sufficient explanation tendered by the respondent for not associating the civil witnesses during the search and seizure proceedings.
34. The Supreme Court in the case of Karamjeet Singh v State (NCT of Delhi), 2003, 5 SCC 291 has held that the testimony of police personnel will be treated in the same manner as the testimony of other witness and there is no principle of law that without corroboration of independent witness, his testimony cannot be relied upon. Again in the case of Davinder Pal Singh v State (NCT of Delhi) (2002) 5 SCC 235, the Supreme Court has held that the presumption that a person acts honestly applies as much in favour of a Police Officer as of other persons and it is not judicial approach to distrust and suspect him without good grounds therefor.
35. In view of the above position of law, the mere fact that independent witnesses were not associated with the proceedings relating to seizure of the contraband and its sealing would not render the case of prosecution nugatory, particularly when it has been shown from the evidence on record that PW Kaushal Kumar did try to associate civilians in the entire process, but due to their reluctance, he was unable to do so. In the instant case, from the statements of PW K. P. Tiwari, PW C. S. Rathore and PW Kaushal Kumar, it has been proved beyond doubt that contraband-Charas was seized from the Truck that was under the charge of the appellant. It has 20 Crl A(D) No. 32/2022 also been established from their statements that two samples A1 and A2 were drawn from the seized contraband and the same were sealed whereas the remaining contraband as well as its wrapping were also sealed on spot vide Lot-A and Lot-P. It has further been established that the seal was obtained by PW Kaushal Kumar from PW Pawan Dev on 17.03.2017 vide memo Extp-KK/II and after conducting the proceedings, he deposited the seal with PW Pawan Dev on 18.03.2017 vide receipt Extp-07. It has been further established from the statements of prosecution witnesses that sealed samples and remaining contraband (Charas) sealed vide Lot-A was deposited in the godown vide memo Extp2/1 after obtaining the orders from the Chief Judicial Magistrate, Jammu. In the face the reliable testimony of NCB officials/officers on the aforesaid aspects of the case just because of non-association of civil witnesses during the proceedings would not render their testimony unworthy of credit. The argument of learned counsel for the appellant is therefore, without any merit.
36. It has been vehemently contended by the learned counsel for the appellant that CFSL form was not filled up in this case and that the same has been admitted by Dr. T. C. Tanwar in his statement. According to the learned counsel for the appellant, this raises a genuine doubt about the prosecution case, inasmuch as there was no material before the Chemical Examiner to tally the impression of seals on the sealed samples with the specimen seal. In this regard, the learned counsel for the appellant has relied upon the judgment of the High Court of Madras in the case of Selvam v State, 2003 CrLJ 4656.
21Crl A(D) No. 32/2022
37. In the above context, a perusal of the documents produced on record along with the complaint reveals that one of these documents is the ‗Test Memo'. PW Kaushal Kumar has stated that after sealing the samples A1, A2 and the remaining samples Lot-A as also the wrapping of the contraband Lot-P, which were signed by him as well as by the accused, ‗Test Memo' was also prepared, which bears his signatures. The Test Memo has affixed on it the facsimile of the seal that was used in sealing of the objects on spot. A perusal of letter dated 19.03.2017 (Extp-2/2) that was addressed by Superintendent NCB, PW K. P. Tiwari to the Chemical Examiner provides that the sample Mark A1 and the Test Memo(Extp-KK/VII) in duplicate are being sent through PW Ram Lal. The document receipt dated 20.03.2017 of CRCL, New Delhi (Mark 5) records that number of seals on each packet were four and these seals were intact.
38. Now coming to report of the CRCL (Extp-V), it is recorded therein that one sample packet Mark A1 was received with its seals intact. It is further recorded therein that impression of each seal affixed on the sample tallied with the facsimile of the seal as given on the Test Memo, meaning thereby that the Test Memo (Extp-KK/VII) was sent by the respondent-NCB to the CRCL along with the sample as is clear from the covering letter (Extp-2/2). Therefore, the facsimile of seal used by the respondent-NCB in sealing of the samples of the contraband was available before the CRCL for tallying it with the seals appended on the sealed sample. Therefore, it is not a case where it was not possible for the CRCL to tally the seals present on the sample with facsimile of the seal in the absence of CFSL form, but it is a 22 Crl A(D) No. 32/2022 case where facsimile of the seal was available before the CRCL in form of ‗Test Memo' (Extp-KK/VII) for the purpose of tallying the seals. In these circumstances, the Test Memo (Extp-KK/VII) has served the purpose for which CFSL form is required to be filled up. Thus, the contention of the learned counsel for the appellant is without any merit.
39. Lastly it has been argued by the learned counsel for the appellant in the instant case the initial investigation has been conducted by PW Kaushal Kumar, who is the person, who received the secret information on the basis of which, the vehicle of the appellant was intercepted and subjected to search. It has been submitted that having regard to the fact that the investigator and the complaint in the instant case happen to be the same person, as such, the investigation has not been conducted fairly in this case and the same vitiates the whole trial. In this regard, learned counsel for the appellant has relied upon the judgment of the Supreme Court in Union of India vs Mohan Lal (supra).
40. So far as the provisions contained in NDPS Act, particularly provisions governing the investigation of the offences under the said Act viz., Sections 41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 57 and 57-A are concerned, there is nothing in these provisions that would create a bar to a complainant Police Officer or an officer of NCB to take up the investigation of the case, unless it is shown that such Police Officer or Officer of the NCB has acted unfairly and in a mala fide manner, while undertaking investigation of the case, neither trial nor investigation would stand vitiated. A constitution bench of the Supreme Court in the case of Mukesh Singh v State 23 Crl A(D) No. 32/2022 (Narcotic Branch of Delhi), (2020)10 SCC 120 has overruled the ratio laid down in Mohan Lal's case(supra) on the aforesaid aspect of the case. The Supreme Court, after noticing the various provisions contained in the NDPS Act, and its various judgments on the issue, came to the conclusion that the decision in Mohan Lal's case(supra) and any other decision taking a view that the informant cannot be investigator and that in such a case, the accused is entitled to acquittal, is not good law and accordingly, these judgments have been specifically overruled.
41. The Supreme Court in the aforesaid case, while dealing with the argument that in NDPS cases, a reverse burden of proof under Sections 35 and 54 is cast on the accused as such, informant, while acting as investigator, may not resort to fair investigation has gone on to observe as under:
―11. Now so far as the submission on behalf of the accused that so far as the NDPS Act is concerned, it carries a reverse burden of proof under Sections 35 and 54 and therefore if the informant who himself has seized the offending material from the accused and he himself thereafter investigates the case, there shall be all possibilities of apprehension in the mind of he accused that there shall not be fair investigation and that the concerned officer shall try to prove his own version/seizure and therefore there shall be denial of the ―fair investigation‖ enshrined under Article 21 of the Constitution of India is concerned, it is required to be noted that whether the investigation conducted by the concerned informant was fair investigation or not is always to be decided at the time of trial. The concerned informant/investigator will be cited as a witness and he is always subject to cross-examination. There may be cases in which even the case of the prosecution is not solely based upon the deposition of the informant/informant-cum-investigator but there may be some independent witnesses and/or even the other police witnesses. As held by this Court in catena of decisions, the testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration by independent witnesses his testimony cannot be relied upon. [See Karamjit Singh v. State (Delhi Administration) (2003) 5 SCC 291]. As observed and held by this Court in the case of Devender Pal Singh v. State (NCT of Delhi) (2002) 5 SCC 234, the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor.24 Crl A(D) No. 32/2022
11.1 At this stage, reference may be made to illustration (e) to Section 114 of the Indian Evidence Act. As per the said provision, in law if an official act has been proved to have been done, it shall be presumed to be regularly done. Credit has to be given to public officers in the absence of any proof to the contrary of their not acting with honesty or within limits of their authority. Therefore, merely because the complainant conducted the investigation that would not be sufficient to cast doubt on the entire prosecution version and to hold that the same makes the prosecution version vulnerable. The matter has to be left to be decided on a case to case basis without any universal generalisation.
11.2 At this stage, it is required to be noted that in cases where any person empowered under Sections 42, 43 or 44 of the NDPS Act acts vexatiously or maliciously, the statute itself has provided the punishment as per section 58 and it is an offence under section 58 which is a cognizable offence and such an offence is required to be investigated by the ―officer in charge of a police station‖ other than the officer who exercised the power of entry, search, seizure or arrest under Sections 42, 43, or 44 as naturally in such a case he would be a proposed accused and therefore he cannot be permitted to investigate and to be a judge in his own cause. However, so far as the investigation against the accused for the offence under the NDPS Act is concerned, the same analogy may not apply for the reasons stated hereinabove.
11.3 Now so far as the observations made by this Court in para 13 in Mohan Lal (supra) that in the nature of reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstance that may raise doubt about its veracity, it is to be noted that the presumption under the Act is against the accused as per Sections 35 and 54 of the NDPS Act. Thus, in the cases of reverse burden of proof, the presumption can operate only after the initial burden which exists on the prosecution is satisfied. At this stage, it is required to be noted that the reverse burden does not merely exist in special enactments like the NDPS Act and the Prevention of Corruption Act, but is also a part of the IPC - Section 304B and all such offences under the Penal Code are to be investigated in accordance with the provisions of the Cr.P.C. and consequently the informant can himself investigate the said offences under Section 157 Cr.P.C.
12. Therefore, as such, there is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case. Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightway acquitted unless and until the accused is able to establish and prove the bias and the prejudice. As held by this Court in the case of Ram Chandra (supra) the question of prejudice or bias has to be established and not inferred. The question of bias will have to be decided on the facts of each case [See Vipan Kumar Jain (supra)]. 12.1 At this stage, it is required to be noted and as observed hereinabove, NDPS Act is a Special Act with the special purpose and with special provisions including Section 68 which provides that no officer acting in exercise of powers vested in him under any provision of the NDPS Act or any rule or order made thereunder shall be compelled to say from where he got any information as to 25 Crl A(D) No. 32/2022 the commission of any offence. Therefore, considering the NDPS Act being a special Act with special procedure to be followed under Chapter V, and as observed hereinabove, there is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, we are of the opinion that there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated and the accused is entitled to acquittal.
12.2 Similarly, even with respect to offences under the IPC, as observed hereinabove, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum- investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation.
12.3 As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal.‖
42. In view of what has been held by the constitution bench of the Supreme Court as has been quoted above, merely because the informant happens to be the investigator of the case does not vitiate the investigation and the trial and entitle the accused to acquittal. Unless and until it is shown that investigator has acted with bias or has conducted investigation in an unfair manner, presumption would arise in favour of due discharge of official functions by the investigator. In the instant case, the appellant has not been able to show as to in what manner the investigator PW Kaushal Kumar has acted unfairly or in a biased manner, while conducting the investigation of 26 Crl A(D) No. 32/2022 the case. In fact nothing has been brought on record by the appellant during the cross examination of the said witness that would even remotely suggest that he had any axe to grind in falsely implicating the appellant. In these circumstances, the mere fact PW Kaushal Kumar happens to be the informant as well as investigator of the case, cannot entitle the appellant to acquittal.
43. For the foregoing discussion, we are of the view that there is no ground to interfere with well reasoned and lucid judgment passed by the learned trial court. The evidence on record clearly establishes charges for offences under Sections 8 and 20 of the NDPS Act against the appellant, who has been proved to be in possession of the commercial quantity of contraband substance (Charas). Accordingly his conviction for the aforesaid offences is upheld.
44. Now coming to the question regarding quantum of punishment, the learned trial court has awarded punishment of rigours imprisonment of 12 years and a fine of rupees one lac upon the appellant in proof of offences under Sections 8 and 20 of the NDPS Act. In default of payment of fine, the appellant has been asked to undergo further simple imprisonment for a period of six months.
45. Section 20(C) of the NDPS Act prescribes punishment of not less than 10 years of rigorous imprisonment, which may extend to 20 years with fine, which shall not be less than one lac rupees but may extend to rupees two lacs in a case involving commercial quantity of contraband. In the instant case, there is nothing on record to show that the appellant has any previous 27 Crl A(D) No. 32/2022 history of committing similar offences or for that matter any criminal background. It has come in evidence on record that the appellant was only a carrier of the contraband who had done so for a small amount of Rs. 10,000/-. It can be safely stated that the appellant is not the kingpin of the crime that has taken place but he is merely a pawn. In these circumstances, he deserves to be imposed a lesser punishment equivalent to the minimum punishment prescribed under Section 20(C) of the NDPS Act.
46. Apart from the above, the learned trial court has erred in awarding simple imprisonment for default in payment of fine, while awarding rigorous imprisonment to the appellant. This is contrary to Section 66 of the RPC, which provides that imprisonment imposed in default of payment of fine, may be of the description of which the offender might have been sentenced for the offence.
47. In view of the above, we modify the order of sentence passed by the learned trial court and impose sentence of rigorous imprisonment of 10 years with a fine of Rs. one lac upon the appellant. In default of payment of fine, the appellant shall undergo further rigorous imprisonment for a period of six months.
48. The appeal stands disposed of.
(PUNEET GUPTA) (SANJAY DHAR)
JUDGE JUDGE
JAMMU:
04.04.2024
Rakesh PS
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Rakesh Kumar
2024.04.04 06:23
I attest to the accuracy and
integrity of this document