Allahabad High Court
Jai Pal & Another vs State Of U.P. on 23 January, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 7.12.2017
Delivered on 23.01.2018
Court No. - 17
Case :- CRIMINAL APPEAL No. - 1821 of 1998
Appellant :- Jai Pal & Another
Respondent :- State Of U.P.
Counsel for Appellant :- Shailendra Singh Rathore,Manvendra Singh,Rks Rajput,Sri Prakash Dwivedi
Counsel for Respondent :- Govt. Advocate
Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal appeal has been filed against judgment and order dated 17/8/1998 and 18/8/1998 passed by the then First Additional Sessions Judge, Mainpuri in Sessions Trial Number 328 of 1991 convicting and sentencing the appellants Jaipal and Surendra under section 18 of NDPS Act for 10 years rigorous imprisonment each, fine of Rs. 1 lakh each and in default of payment of fine 2 ½ years additional rigorous imprisonment each.
2. In brief the prosecution's case is that on 27/1/1988 S I Sateesh Chand Tyagi along with constable Satyadev and constable Bahora Singh were busy in patrolling duty and were going towards Bewar. Right then two persons came to the Tri- section from the side of GT Road, Kasva Bewar Bazar, who having seen the police, started their movement briskly. Having become suspicious, both of them were directed to stop, but they did not stop. Thereafter the police party arrested them both near PHC Bewar on GT Road at about 18.15 hours. The shopkeepers of the vicinity were requested to be witness but none was ready, therefore feeling helpless, in the presence of members of the police party, after having made personal searches each other and ensuring that no objectionable article was with them, they enquired the name of these persons and their personal search was made on the spot. One of them introduced himself as Jaipal and from his search, from the right pocket of his pant wrapped in one Pudia of paper and Panni 75 gram opium was recovered. The other person introduced himself as Surendra and from his personal search also, 75 gram opium wrapped in pudia and panni was recovered, to possess which they did not have licence. The recovery memo (Exhibit Ka 1) was prepared on the spot in the light of torch. The recovered opium was sealed back in the same panni and pudia in which they were recovered accused- wise and sample seal was also prepared. The case against the accused persons was found made out under section 17/30 of the NDPS Act. A copy each of the recovery memo was given to the accused persons.
3. The police party, along with the accused persons, recovered contraband substance and its sample, reached the Police Station Bewar, Distt. Mainpuri and lodged F.I.R. registered as case crime no. 27 of 1988 under Section 17/30 N.D.P.S. Act (to be referred in short as ''the Act') against accused appellant Jaipal and case crime no. 22 of 1988 under Section 17/30 of the Act against the other accused appellant Surendra. Chick F.I.R. paper No.49 (a) was prepared and the entry of the case was made in the G.D. dated 27.1.1988 at report no.49, time 19:30 hours (paper No. 77A/7). The investigation of the case was assigned to S.H.O. P.N. Nigam of both the crime numbers, who made inspection of the spot and prepared site-plan at the instance of the complainant of the case, which is paper No.77A/8. The F.S.L. report is Exhibit Ka 2 relating to appellant Surendra and Exhibit Ka 3 relating to Jaipal. After collecting the evidence the I.O. found the case proved against both the appellants and filed separate charge-sheets dated 30.4.1992 against both of them.
4. On the basis of evidence collected, charges were framed separately against appellant Jaipal and Surendra on 30.4.1992 under Section 18 of the Act, to which they pleaded to not guilty.
5. From the side of prosecution, in support of their case, Sri Satish Chandra Tyagi (retired S.I.) was examined as P.W.1 and Constable Sri Bahora Singh was examined as P.W.2.
6. Thereafter the evidence of the prosecution was closed and the statement of accused were recorded under Section 313 Cr.P.C. in which both of them denied recovery of the alleged contraband substance from them and stated that they were falsely implicated due to party-bandi of village. Police had picked them up from their houses.
7. The learned Court below after having considered the entire evidence led by the prosecution found the case proved against them and awarded punishment which has been mentioned above.
8. A perusal of the Court below would indicate that the plea of non compliance of the provisions of Section 50 of the Act was raised before the Court below but finding it to be a case of sudden recovery, in the light of law laid down in State of Punjab Vs. Jasbir Singh and others 1996 SCC (Crl.) 1 and State of Punjab Vs. Labh Singh 1996 SCC (Crl.) 1036. It has been held by the Court below that the provision of Section 50 of the Act would not be applicable in this case. It was argued before it that copy of recovery memo was not supplied to both the accused appellants because P.W.1 Satish Chandra Tyagi, S.I. had stated on page 3 in his cross examination that two copies of recovery memo were prepared. This argument also did not find favour with the Court because it was held that the said statement meant that two copies did not include the original recovery memo, rather it was interpreted that two copies of the recovery memo were separately prepared, hence two separately prepared copies were held to have been given to the accused persons and discrepancy in the statement in this regard was not found fatal for the case. It was simultaneously also recorded that since the recovery memo contained signatures of both the accused, that was sufficient proof of the accused having been given copies of the same. Another argument made before Court below was that no public witness was taken to prove the recovery but it was also found not having any force because it was held that the police witnesses had discharged their duties in pursuance of their official duty, hence the value of their statement would be no less than that of any member of public. Moreover, it is on record that an effort was made to take public witness as well but none was ready to be a witness. The reliance was place on the F.S.L. report because the sample sent to them was found sealed and after breaking the seal open, the test was conducted and both the samples were found to be opium, the percentage of Morphine being 1.1 and 0.8 respectively. Thus, on the basis of statement of P.W.1 and P.W. 2, believing them to be trust worthy, the Court below convicted the accused as above.
9. Heard the arguments of learned counsel for the appellants, Sri Kamleshwar Kundan Singh and learned A.G.A. and perused the record.
10. The learned counsel for the appellants has made detailed arguments and has taken the following grounds for acquittal of the accused appellants. It is stated that the appellants were lifted from their home. It is unbelievable that in peak weather of winter in January, the accused would be carrying the allegedly recovered opium in their ''tahmad'. No weight was taken by prosecution of the alleged recovered contraband. No public witness was taken at the time of recovery. To establish recovery from the accused persons, three important ingredients required to be proved are motive, character and magnitude. The recovery of equal quantity of opium is alleged from both the accused which would suggest that they might have purchased it from the market hence why the seller of the said contraband substance was not arrested. The evidence is there on record that public witnesses were available but none of them was called to witness the recovery. The compliance under 160 of Cr.P.C. has not been made which provides that any police officer making an investigation under this chapter may, by order in writing, require the attendance before himself of any person being within limits of his own or adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case. The compliance of the Section 57 of the Act has not been made. Further, it is argued that sample is alleged to have taken on the spot on the date of alleged recovery i.e. on 27.1.1988 while the letter to F.S.L. was sent to 29.2.1988 which was received there on 28.3.1988 but the prosecution has failed to explain this delay at each level and also has failed to account for as to whether during this period the sample was kept at safe place in sealed condition not likely to be tampered, which would diminish the sanctity of the said report. As per the provisions, a Form is sent to F.S.L. along with specimen seal, which has not been exhibited in the present case. The sample of the contraband substance was required to contain 24 gms. of opium as per Standing Order 1/89 issued by the Government of India, Ministry of Finance on 13.6.1989 (relevant para 2.3). Therefore, it is not ascertainable as to whether the quantity sent to the F.S.L. met the said standard or not, as the same has not been recorded by the F.S.L. in its report, which would make the integrity of the report suspect. The Malkhana register has not been produced to prove safe keeping of the contraband and its sample and sample seal till they were placed before the Court for being exhibited and sent to the F.S.L. for being tested, respectively. The sample seal was not produced in Court which was mandatory as is interpreted by Supreme Court in State of Rajasthan Vs. Gurmail Singh (2005) 3 SCC 59. It is further argued that the sample which is required to be sent to the F.S.L. must accompany letter of invoice. Only two witnesses have been examined of fact but I.O. has not been examined which was necessary despite the fact that genuineness of the challani documents had been admitted. Admission of genuineness would mean only execution of documents and not of its content. The contraband substance was not produced before Court which is a big loophole in the prosecution's case for which reliance has been placed on Vijay Jain Vs. State of M.P (2013) 14 SCC 527; Ashok @ Dangra Jaiswal Vs. State of M.P, 2011(5)SCC 123 ; Noor Aga Vs. State of Punjab and another, (2008) 16 SCC 417 ; Jitendra and another Vs. State of M.P., SCC (2004) 10 562 ; State through C.B.I. Vs. Gyan Singh 1999 9 SCC 312. Next, it is argued that seal with which the contraband was sealed and the I.O. of the case were not produced before Court hence, under Section 114 (g) of the evidence Act, an adverse inference would be drawn against the prosecution. It was also argued that in site plan (Ex. Ka 6), the shops of beetle, tea and grains are shown near the place of occurrence but despite that no effort was made of procuring the weighing machine from these shops to weigh the contraband substance, while the timings of recovery is being alleged to be 6.15 p.m. The opium is defined under Section 2(XV) of the Act which provides that morphine should not be more than 0.2 %. In the present case, the percentage of morphine was found to be 0.8% and for this he has placed reliance upon (1980) 3 SCC 303 State of Rajasthan Vs. Daulat Ram.
11. From the side of the learned A.G.A., in rebuttal, it is argued that P.W.1 and P.W.2 have proved the recovery of the contraband substance from the appellants. No cross-examination has been made on the point of non procuring the independent witnesses nor regarding the contraband substance not being recovered from the accused on the spot. It is admitted that the prosecution has not brought on record the quantity of sample collected which was sent to F.S.L. It is also admitted that no evidence has come on record regarding compliance made of Section 57 of the Act. The I.O. has sought permission from Court for sending the samples and seals on the sample were found intact. As regards non production of I.O., to prove challani documents, it is replied that the defence admitted the genuineness of the documents hence that would be treated to be as admission of the contents of these documents as well, and lastly it was stated that if on any point, there was any doubt, the cross examination ought to have been made by the defence, to elicit the correct position. The prosecution has proved its case beyond doubt.
12. From the arguments of the learned counsel for the appellants, it transpires that the main ground for acquittal is being made that there are missing links in evidence to prove that the alleged contraband substance was recovered from the accused and for this, all the deficiencies which have been pointed out need to be considered in the light on the evidence on record.
13. Firstly, it has to be seen whether it was necessary for prosecution to take weight of the recovered contraband substance and its sample or not. In this regard, learned counsel for the appellant has relied upon the Standing Order No. 1/89 para 2.3 of which provides as follows:
"2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the case of opium, ganja and charas (hashish) where quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn."
14. In rebuttal, learned A.G.A. has hammered the point that this case belongs to 27.1.1988 when the occurrence happened and at that time un-amended N.D.P.S. Act was in force which did not provide for graded punishment proportionate to the recovery of the contraband, hence even if the weight was not taken of the recovered contraband substance that would not prove fatal for prosecution's case.
15. This Court is of the opinion that the view of the learned A.G.A. is not tenable because under the Standing Instructions 1/88 issued by the Narcotics Drugs Bureau on 15.3.1988 , though after the recovery made in the present case, provided for the mode to be adopted to take sample of the contraband, which prescribed the certain quantity to be taken out of the contraband. The Standing Order 1 of 89 dated 13.6.1989 issued by Government of India (supra) also prescribes that in case of opium not less than 24 Grams would be taken as sample from the recovered contraband. These Standing Orders and Instructions do indicate that from out of the recovered substance, the sample which was required to be taken must be weighed and the same is required to be collected on the spot as early as possible unless there were such circumstances when it was not possible to collect the sample on the spot. It may also be taken into consideration that under the Old Act, Section 27 of the Act provided lesser punishment for illegal possession of small quantity of any Narcotic Drugs and Psychotropic Substance for personal consumption which would require weighing of the contraband substance. Under the provisions of the old Act the small quantity of opium was prescribed to be 5 grams. as per notification No. S.O. 827 (E) dated 4.11.1985 published in the Gazetted of India (Extra), Part 2 Section 3 (ii) dated 14.11.1985, pp. 2-3 issued by Ministry of Finance, Department of Revenue. Hence it will be supposed that the prosecution was duty bound to weigh the contraband substance allegedly recovered from the accused to know whether the recovered substance was small quantity or above that for determining whether he would be entitled for the benefit of small quantity for personal consumption. The record reveals that in recovery memo 75 grams. opium is alleged to have been found from the accused but no mention is made as to how the same was assessed to be 75 grams. as no weighing machine is recorded to have been called for, for its weighing nor the quantity of its sample is recorded therein. In this regard, P.W.1 has stated the same facts which have been mentioned in the recovery memo. In cross-examination this witness admitted that the weight of opium was recorded to be 75 gram on the basis of conjecture. Similarly P.W.2 has also repeated the same statement as is mentioned in the recovery memo, in examination-in-chief but even he has not disclosed as to how the same was weighed to be 75 grams. Both these witnesses have also not stated about weighing of the sample of the contraband also. It would also be pertinent to mention here that in the F.S.L. report also the quantity received of opium for being tested has not been recorded, hence, it cannot be held that the required minimum quantity of 24 gram was sent to them for being analysed which would also make the correctness of the said report to be doubtful.
16. The next point which requires to be taken into consideration is whether prosecution has been able to prove that the contraband allegedly recovered from the accused persons were sealed on the spot and its sample were separately sealed and the sample seals were prepared and all these articles were taken to the police station where it was deposited in Malkhana in safe custody till production of the recovered contraband before Court for being exhibited and for sending of samples to FSL for being tested, or not. In recovery memo it is mentioned that from both the accused 75 gram opium each was recovered which was kept in ''panni' and ''pudia' of paper, which were kept back in the same ''panni' and ''pudia' from which they were recovered and were sealed separately, and sample seals were prepared. It is clear that from the contents of the recovery memo, it does not reflect that any sample was taken out of the recovered contraband substance, rather the entire recovered contraband substance was kept in separate ''panni' and ''pudia' and was sealed. PW 1 in this regard has stated exactly the same which has been recorded the recovery memo. Whose seal was fixed on the said substance has not been stated by him. Similarly PW 2 has also supported the version as mentioned in the recovery memo but has not clarified as to whose seal was used in sealing the said contraband. Both these witnesses have also not stated that the recovered contraband substance and the seal were deposited in Malkhana to be kept there in safe custody, nor Malkhana register has been produced to prove the same. In the FSL's report relating to both the accused it is recorded separately that one bundle of cloth which was sealed with seal of "S.C.T. S I U.P. Police" was received on 28.3.1988 which was sealed according to the said seal and the reports were sent by the Forensic Science Lab on 12 July 1988, while the occurrence took place on 27/1/1988. It is not made clear by prosecution as to where the contraband substance remained from 27/1/1988 to 28/3/1988 and whether the place where the same was kept was such where no tampering could have been made. PW 1 has not stated in examination in chief that the contraband substance was deposited in Malkhana at police station nor this witness has proved the case property because the contraband substance recovered was not produced before Court in presence of PW 1 for being exhibited. In cross-examination he has made it clear that the recovered contraband substance was not before him in Court. Similarly PW 2 has also not stated in examination in chief about contraband substance being produced before Court in his presence for being exhibited. Therefore link evidence is found missing to eliminate doubt that the contraband substance which is being alleged to have been recovered from the accused was the same which was produced in Court and was sent to the FSL for being tested, which would make the recovery suspect. The learned counsel for the appellant has relied upon several rulings which are being cited below in this regard, benefit of which would certainly go to the accused appellant.
17. The learned counsel for the appellant has relied upon Jitendra and another vs the State of MP , (2004) 10 Supreme Court Cases 562 and attention is drawn to the contents of paragraph 5 of the judgment which are as follows:
"5 . The evidence to prove that charas and ganja were recovered from possession of the accused consisted of the evidence of the police officers and the panch witnesses. The Panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and sub inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial Court, so as to connect them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from interested testimony of police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the Court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, "non-production of these commodities before the Court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced". The High Court relied on section 465 Cr.P.C. to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused.
6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched."
18. The learned counsel for the appellant has relied upon State of Rajasthan vs Gurmail Singh, (2005) 3 Supreme Court Cases 59, in which following is held in paragraph 3:
"3 . We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though seized articles are said to have been kept in the Malkhana on 20/5/1995, the Malkhana register was not produced to prove that it was so kept in Malkhana till it was taken over by PW 6 on 5/6/1995. We further find that no sample seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after the seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent."
19. The other citation relied upon by the learned counsel for the appellant is State of Rajasthan vs Daulat Ram, (1980) 3 Supreme Court Cases 303, in which the prosecution failed to prove beyond reasonable doubt all the links, starting from seizure of opium till the handing over of samples to public analyst. The possibility of samples being changed or tampered with during the period it changed several hands till its reaching the public analyst could not be ruled out. Onus was upon the prosecution to prove the entire case and if gaps or lacunae were left at the trial, prosecution could not be allowed at the appellate or revisional stage to fill up the same.
20. Further, the learned counsel for the appellant has placed reliance on Vijay Jain's case (supra), in which, in paragraph 10 following is recorded: -
"10 . On the other hand, on a reading of this Court's judgment in Jitendra case, we find that this Court has taken the view that in the trial for an offence under the NDPS Act, it was necessary for prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok this Court found that the alleged Narcotic powder seized from the possession of the accused was not produced before the trial Court as material Exhibit and there was no explanation for its non- production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.
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12 . We are thus of the view that as the prosecution has not produced brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial Court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable."
21. The other case law relied upon by the learned counsel for the appellant is Ashok alias Dangra Jaiswal vs State of MP (supra) in which in paragraph 12 following is recorded: -
"12 . Last but not the least, the alleged Narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial Court as material Exhibit and once again there is no explanation for its non- production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused."
22. Further, reliance is placed upon Noor Aga's case (supra) and attention is drawn to following paragraphs of the said judgment: -
"100 . Physical evidence of a case of this nature being the property of Court should have been treated to be sacrosanct. Non-production thereof should warrant drawing of a negative inference within the meaning of section 114 (g) of the evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis of the permissive inference would be that serious doubts are created with respect to the prosecution's endeavour to prove the fact of possession of contraband by the appellant. This aspect of the matter has been considered by this Court in Jitendra vs State of MP, in following terms: (SCC p . 565, para 6) "6 . ... In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from possession of the accused. The best evidence would have been the seized materials which ought to have been produced during trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act."
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102 . The High Court, however, opined that physical evidence was in safe custody. Such an inference was drawn on the basis that the seals were intact but what was not noticed by High Court is that there are gaping flaws in the treatment, disposal and production of the physical evidence and the conclusion that the same was in safe custody required thorough evidence on the part of the prosecution which suggests that the sanctity of physical evidence was not faulted. It was not done in the present case.
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107. The seal was not even deposited in Malkhana. As no explanation whatsoever has been offered in this behalf, it is difficult to hold that sanctity of the recovery was ensured. Even the Malkhana register was not produced.
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110 . It is accepted that when the appellant allegedly opted for being searched by a Magistrate or a Gazetted Officer, Kuldeep Singh called K . K . Gupta, Superintendent, Customs (PW 2) and independent witnesses Mahinder Singh and Yusaf. Whereas K K Gupta was examined as PW 2, said Mahinder Singh and Yusaf were not examined by the prosecution. There is nothing on record to show why they could not be produced. Their status and life or location had also not been stated. It is also not known as to why only the said two witnesses were sent for. The fact remains that they had not been examined. Although examination of independent witnesses in all situations may not be imperative, if they were material, in terms of section 114 (e) of the Evidence Act, an adverse inference could be drawn.
111 . in a case of this nature, where there are large number of discrepancies, appellant has been gravely prejudiced by the non-examination. It is true that what matters is the quality of evidence and not the quantity thereof but in a case of this nature were procedural safeguards were required to be strictly complied with, it is for the prosecution to explain why the material witnesses had not been examined. The matter might have been different if the evidence of the investigating officer who recovered the material objects was found to be convincing. The statement of the investigating officer is wholly unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure of which we may not take note.
Discrepancies in the statements of Official witnesses 112 . Section 50 of the Act provides for an option to be given. This Court in Baldev Singh quoted with approval the decision of Supreme Court of United States in Miranda vs Arizona in following terms: (Baldev Singh case, SCC p . 200, Para 30) "30 . ... ''33 . ... The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair". (emphasis in original)"
23. Therefore, it is clear from the above position of law that if the prosecution fails to produce the contraband substance alleged to have been recovered from the accused before Court nor does it provide any justification for its non- production, the recovery of contraband substance would be treated to be doubtful. In the case at hand it is admitted to the prosecution that the opium allegedly recovered from the accused was not presented before Court for being exhibited hence its recovery from the accused persons cannot be held to have been proved by the prosecution.
24. Relying upon Sukhdev Singh vs State of Haryana, (2013) 2 SCC 212, it is argued by the learned counsel for the appellant that even in case of sudden arrest and recovery of contraband substance were provisions of section 50 of the Act would not be applicable, the provision of section 57 of the Act was required to be complied with to ensure fairness in the process of recovery and investigation. He has relied upon para 26 of the judgment which is as follows:
"26 . Once the contraband is recovered, then there are other provisions like section 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimise the purpose and effectiveness of section 42 of the NDPS Act. It is to provide fairness to the process of recovery and investigation which is one of the basic features of our criminal jurisprudence. It is a kind of prevention of false implication of innocent persons. The legislature in its wisdom had made the provisions of section 42 of the NDPS Act mandatory and not optional as stated by this Court in Karnail Singh."
25. The prosecution's case has been narrated in the recovery memo that the police party all of his sudden has made recovery of opium from both the accused persons as there was no prior information. Therefore, it is evident that it was a chance recovery of contraband from accused, because of which the provisions of Section 50 of NDPS Act were not applicable in the light of law laid down by Supreme Court in State of Himachal Pradesh Vs. Sunil Kumar, (2014) 4 SCC 780, the relevant paragraph 11 of which is quoted herein below:
"11. The relevant extract of paragraph 25 of Balbir Singh reads 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."
26. From above citation it is apparent that the position of law is that if during search and arrest in normal course of investigation into a suspected offence the police comes across recovery of a narcotic drug or psychotropic substance, the police officer, who is not empowered, should inform the empowered officer, who should thereafter proceed in accordance with provisions of NDPS Act. If he himself happens to be empowered officer, then from that stage when recovery has already been made, he should carry out the investigation in accordance with the other provisions of NDPS Act. In the case at hand, the recovery of contraband substance is allegedly made by PW-1, who is a sub inspector and hence is covered under the category of empowered officer as provided under Section 42 of NDPS Act being an officer superior in rank to a 'peon' 'sepoy' or 'constable'. But once he had made the recovery of alleged opium from the accused he was supposed to follow all the relevant provisions, chiefly among them would be the provision given under Section 57 of NDPS Act, which required him to send a full report of all particulars of such arrest and seizure to his immediate official superior. For the sake of convenience Section 57 of NDPS Act is quoted herein below:
"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."
27. Section 57 of NDPS Act has been interpreted succinctly in State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299, in paragraphs 24 & 25 of which following is held:
"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."
28. In view of above law, it is apparent that although the compliance of provisions of Section 57 of NDPS Act is not mandatory but directory. The compliance may be made even with delay with sufficient explanation therefor. The court conducting trial of an accused under the provisions of NDPS Act has to take into consideration whether non-compliance of this provision has resulted in causing prejudice to the accused. If yes, then certainly the benefit may be given to the accused. From the record it is apparent that the prosecution has not made compliance of Section 57 of NDPS Act as nothing has come on record indicating that any such arrest and seizure report was prepared in respect of opium having been recovered from the accused persons which might have been sent to the higher authority within 48 hours or with delay with any explanation therefor. Hence, this Court is of the view that this certainly would cause prejudice to the accused.
29. Next argument made by the learned counsel for the appellant relates to the giving of benefit of doubt to the accused. For this he has relied upon Upendra Pradhan vs State of Orissa, (2015) 11 Supreme Court Cases 124, by drawing attention to paragraph 14 and 15 which are as below:
" 14. taking the first question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognised as a human right by this Court. In Narendra Singh vs State of MP, this Court has recognised presumption of innocence as a human right and has gone on to say that: (SCC PP . 708 and 709, Paras 30 - 31 and 33)
"30 . It is now settled law that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of proof. It is equally well settled that there is a long distance between ''may be' and ''must be'.
31 . It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when the judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a higher Court (see Dhanna vs State of MP, Mahavir Singh vs State of Haryana and Shailendra Pratap vs State of U.P., which had not been adhered to by the High Court * * * 33 . We, thus, having regard to the post-mortem report, are of the opinion that the cause of death of Bimlabai although is shrouded in mystery but benefit thereof must go to the appellant as in the event of there being two possible views, the one supporting the accused should be upheld." (emphasis supplied) 15 . The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan vs Raja Ram, wherein this Court observed thus: (SCC pp . 186 - 87, Paras 7) "7 . ... Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence was ignored, duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh vs State of MP) The principle to be followed by the appellant Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference." (emphasis supplied)
30. There is no disputing the fact that in case there are two views possible, one in favour of the accused and the other against him, the well established principle of law is that view favouring the accused should be followed. In the case at hand shorn of number of clinching pieces of evidence on number of points, the needle of suspicion is pointing towards acquittal of the accused instead of conviction, however the learned Court below has ignored these vital pieces of evidence and has formed opinion against accused resulting in his conviction. The said Court could easily have given benefit of doubt to the accused.
31. The learned counsel for the appellant has relied upon the State through CBI, Delhi vs Gian Singh, (1999) 9 Supreme Court Cases 312, in which following is held in paragraph 32 and it is argued that in case the accused is held guilty by the Court, he should be given benefit of the Act as it exists post-amendment because under the amended Act the small quantity of opium is 5 grams and the commercial quantity of it begins from 250 grams, therefore the alleged recovered 75 grams each of opium from both the accused would fall in the category of below commercial which would entail punishment under section 20 of the Act of up to 10 years imprisonment and fine which may extend upto Rs. 1 lakh. Therefore instead of awarding the maximum punishment it may be reduced in proportion to the quantity, despite the fact that at the time of occurrence, the punishment provided was higher:
"32 . What is the jurisprudential philosophy involved in the second limb of clause (1) of article 20 of the Constitution?
No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence.
It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes, and no ex post facto legislation is permissible for escalating the security of the punishment. But if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence."
32. The learned counsel for the appellant has also pressed the point that the arresting police party did not try to take public witnesses at the time of recovery from the accused appellants, because they have only made a mention in the recovery memo that the shopkeepers who were in the vicinity were requested to come forward as a witness, but they avoided due to fear of incurring enmity. No doubt it is not easy to get a public witness vouchsafe such kind of activities of police to avoid harassment which it entails at subsequent stage when evidence is recorded by Court besides incurring enmity, but the police ought to have recorded the name of those persons who were requested to be a witness in this case but refused. The learned counsel for the appellant has drawn attention in this regard of this Court to the provision given in section 160 of Cr. P.C., which mandates that a police officer making investigation, by order in writing, may require the attendance before him of any person if he appears to be acquainted with the facts and circumstances of the case and such person shall attend, as so required. This provision has also been ignored in the present case by the police. This Court is of the view in this regard that the police ought to have mentioned in the recovery memo the names of the persons who were approached by it to be witnesses of the present recovery. Non-mentioning their names impels this Court to take a view that it could be doubted whether actually police asked anyone to be a witness, which was very much required to prove the recovery, even though the law is that if the police makes arrest of accused in their ordinary course of official duty, their evidence to that effect would carry the same weight as that of an independent witness, particularly when there is no enmity shown by the defence with them.
33. It would be pertinent to mention here that the prosecution has miserably failed to prove the recovery of opium from the accused appellants, because the arresting police party did not take care to measure the quantity of the contraband substance allegedly recovered from the accused nor took its sample as was the procedure prescribed under law, rather sent the entire quantity to Forensic Science Laboratory. It did not prove whose seal was affixed on the spot, which would stand in violation to the provisions under section 55 of the Act which mandated that an officer in charge of police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of the police station and which will be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with the seal of the officer in charge of the police station. No link evidence has been given as to where the contraband substance and its seal was kept in safe custody from the time it was allegedly recovered till it was sent to Forensic Science Lab and till it was to be presented before Court, nor Malkhana register has been produced to prove that it was kept in there during this period. No evidence is on record that sample seal was sent to the Forensic Science Lab for being compared with the seal which was affixed on the sample. The quantity is very small which could be planted also. Merely because the genuineness of the challani documents had been admitted by the defence counsel, that was no ground not to examine investigating officer of this case and provide opportunity to the defence to cross-examine him in regard to the statements of witnesses i.e. PW 1 and PW 2 particularly when even case property was not produced before Court. The above cited law clearly shows that it was very much required for prosecution to produce case property before Court for being exhibited, merely proving the recovery memo, which is a document prepared by police was not sufficient to hold the accused persons guilty. Till the prosecution proves beyond reasonable doubt the recovery of the contraband substance from the accused persons, no burden may be shifted on the accused to prove as to how they came in possession of the contraband substance. The finding of lower Court seems erroneous as the sole basis of it is that the Forensic Science Laboratory had found the recovered contraband to be opium. In view of so many loopholes, the compliance of section 57 of the Act became all the more important to dispel any doubt about recovery, but even that has not been made which certainly has caused prejudice to the accused persons. In this backdrop, this Court finds that the judgment of the Court below needs to be set aside and is accordingly set aside.
34. This appeal is allowed. The impugned judgment is set aside. Both the accused appellants are held not guilty of charges under section 18 of NDPS Act. Both the appellants shall be released forthwith in the present case, if not wanted in any other case. The case property shall be destroyed after period of appeal is over or if the law permits otherwise.
35. The office is directed to transmit back the record of the lower Court forthwith with a copy of judgment and order of this Court for immediate compliance.
Order Date:- 23.1.2018 AU/h