Himachal Pradesh High Court
Khekh Ram vs Narcotics Central Bureau & Anr on 29 December, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 450 of 2016 a/w Cr. Appeal No. 38 of 2017 .
Reserved on : 16.11.2017 Decided on: 29th December, 2017.
Cr. Appeal No. 450 of 2016
Khekh Ram ...Appellant.
Versus
Narcotics Central Bureau & Anr. ...Respondents.
Cr. Appeal No. 38 of 2017
Nilmani ...Appellant.
Versus
Narcotics Central Bureau& Anr. ...Respondents.
_________________________________________________________________ Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1 Yes.
For the Appellant(s) : Mr.Sanjeev Kuthiala, Advocate, for the appellant in Cr. Appeal No. 450 of 2016.
Mr. Ajay Kochhar & Mr. Vivek Sharma, Advocates, for the appellant in Cr. Appeal No. 38 of 2017.
For the Respondent(s) : Mr. Ashwani Pathak, Sr. Advocate, with Mr. Sandeep Sharma, Advocate, for respondent No. 1 in Cr. Appeal No. 450 of 2016.
Mr. V.S. Chauhan, Addl. A.G. with Mr. J.S. Guleria, Asstt. A.G. for the respondent/State in Cr. Appeal No.38 of 2017.
1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 2 Justice Tarlok Singh Chauhan, Judge The appellants being aggrieved by the judgment and .
conviction passed by the learned Special Judge, Kullu, whereby they have been convicted and sentenced to undergo rigorous imprisonment for the terms of 15 years each alongwith fine of Rs.1,50,000/- each, in default to undergo further simple imprisonment for the period of 18 months each for the commission of offence punishable under Sections 20 & 29 of the Narcotic Drugs & Psychotropic Substances (for short the 'NDPS Act') have filed the instant appeal.
2. The parties do not dispute that the case as set-out by the Narcotics Control Bureau (for short the 'NCB') has correctly been enumerated by the learned Special Judge, therefore, the same is extracted as such from the judgment.
3. The facts of the case as set-out by the NCB are that on 20.10.2014, a NCB team, consisting of A.C. Malla (PW9), Virender Singh, R.L. Negi, (PW10) Vinay Singh, all Intelligence Officers of NCB, Sub Zone Unit, Mandi, alongwith Sepoy, Surjit and Maheshwar as well as driver, Vijay Kumar were on surveillance duty in Kullu area.
At about 6.30 p.m., a secret information was received by PW9, Shri A.C. Malla, who was posted as the Intelligence Officer in NCB Office Mandi, to the effect that on that day at about 8.30 p.m., accused Nilmani was likely to appear near a span owned by one ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 3 Davinder Nath (PW5), installed at about one kilometer ahead of village Shat, towards Manikaran side. The said information was also .
to the effect that accused would signal three times with torch light towards other side of span and then, the persons from other side would sent contraband through span in trolley which will be received by accused Nilmani. PW9 Sh. A.C. Malla (I.O.) supplied the aforesaid information to Shri Nirbhay Singh (PW7), Superintendent (NCB), Zonal office, Chandigarh, on mobile phone, who directed him (A.C. Malla) on mobile to organize a surveillance operation and constitute a team consisting of above named officers and officials of NCB, for intercepting the accused, by placing 'NAKKA' in the said area. Thereafter, PW9 Shri A.C. Malla reduced the said information into writing, which is Ex.PW7/A, and it was supplied by him, on 22.10.2014, to Nirbhay Singh, Superintendent, NCB Zone Officer, Chandigarh, who made his endorsement on it.
4. On the directions of Nirbhay Singh (PW7), NCB officials' team went near to the said span and cordoned the spot. The place was isolated one, no local witness was available nearby the spot. At about 8.30 p.m. accused Nilmani was found coming on foot from Shat village side nearer to the span. When he (accused Nilmani) reached near the span, he gave signal three times, with the help of torch, towards other side of the span. After 5-7 minutes ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 4 of his signal, some material was sent through span trolley from other side of the span, which was received by him and lifted from the .
trolley. After taking the said material from the trolley, when accused Nilmani started running I.O. A.C. Malla and other officials of the team, who had cordoned the spot, came near to him and I.O.
asked his name and address. On asking by the I.O., he disclosed his name as Nilmani son of Shri Atma Ram, resident of Jamot, P.O. Khokhan, Tehsil Bhunter, District Kullu, H.P. Then, I.O. A.C. Malla introduced himself as well as the members of the NCB team to accused Nilmani and apprised the accused about secret information received by him. Thereafter I.O. A.C. Malla asked accused Nilmani about the bag and 'BORU' and about the contents therein, but he kept mum. Upon this, a notice Ex.PW9/A was issued to accused Nilmani under Section 50 of the NDPS Act by the I.O. Through the said notice, Ex.PW9/A, accused Nilmani was apprised about his legal right to give his search either in presence of a Magistrate or a Gazetted Officer. Accused Nilmani consented to be searched by the NCB officials/team present at the spot and put his signatures on the notice Ex.PW9/A. I.O. waited for the presence of some local witnesses for about 5-7 minutes, but due to darkness and later hours, no one came at the spot. As such, I.O.
associated R.L. Negi (PW10), Intelligence Officer and Surjit Singh (Sepoy) as witnesses, by issuing notice, Ex.PW9/B & Ex.PW9/C, to ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 5 them, respectively. Both the aforesaid witnesses put their signatures on the respective notices and offered themselves to become .
witnesses to search and seizure. It was pitch dark at the spot and due to security reason, it was not possible to carry out proceedings at the spot. As such, accused Nilmani alongwith material and members of the NCB team were taken to NCB Zonal office, Mandi.
5. On reaching NCB office at Mandi, further proceedings were carried out by the I.O. I.O. first opened the bag, in which, dark brown colour substance, in the shape of biscuits and flat shaped was found. Thereafter 'BORU' was opened, in which, dark brown colour substance, in the shape of flat and biscuit was also found.
The substance, in both bag and 'BORU' was wrapped with polythene wrappers. After that, I.O. first took some material from the bag for testing, and on testing, it was found positive of Charas.
Likewise, some material was taken from the 'BORU', which, on testing was also found positive for Charas. I.O. thereafter took half material from the handbag by removing packing material and then the same was put in a polythene pack. It was weighed on electronic weighting scale and its weight was found to be 5.050 kilograms of Charas. Then, remaining half substance/Charas of the bag was also weighed on same electronic weighing scale and weight was also found 5.050 kilograms of Charas. Half of the Charas was taken from the 'BORU' and then put in a polythene pack by ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 6 removing packing material and on weighting the same on electronic weighing scale, it was found 5.050 kilograms. Thereafter, .
remaining Charas of 'BORU' was also weighed in electronic weighting scale and found to be 4.630 kilograms. Thus, total Charas recovered from bag and 'BORU' was 19.780 kilograms. It was taken into possession in presence of aforesaid witnesses vide seizure memo Ex.PW9/D which was signed by accused Nilmani as well as witnesses and verified by the I.O.
6. Thereafter, I.O took 25-25 grams from each packet as representative samples and marked them in lots, like - A1, A2, B1, B2, C1, C2 and D1, D2. The remaining contraband (Charas), left in four packets was first heat sealed, then, put in a markin cloth bags, which were stitched in the office. Those bags were marked as Lot-
A, Lot-B, Lot-C and Lot-D. The bag and packing material were separately put in polythene and then put in markin cloth and stitched and was marked as Lot-P. I.O. took seal 'Narcotic Control Bureau CHD-4' from Shri R.L. Negi (PW10) and put its impressions on sample packets by affixing four-four seals on each packet. Three-
three impressions of same seal were put on Lot-A to Lot-D as well as on Lot-P. I.O. prepared test memo Ex.PW9/E on which seal impression of above seal was embossed. Impression of seal was also taken on 'panchnama' Ex.PW9/F, prepared by the I.O., which was signed by both witnesses and accused Nilmani on all pages.
::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 7The seal, after use, was given back to Shri R.L. Negi. On Charas lots A to D, parcel marked as lot-P, as well as on sample packets, .
accused Nilmani as well as aforesaid witnesses put their signatures.
The proceedings in the office were completed by the I.O. at about 2.00 a.m. After completion of proceedings in the office, statement of accused Nilmani under Section 67 of the NDPS Act, Ex.PW9/G, was recorded by the I.O., on which, he put his signatures.
7. Thereafter, accused Nilmani was apprised about the offence committed and grounds of arrest vide memo. Ex.PW9/N, and then, arrested and intimation qua his arrest was given to his wife vide memo, Ex.PW9/K and 'jamatalashi' of accused Nilmani was taken vide memo Ex.PW9/J. The Investigation Officer moved an application, Ex.PW9/L, for medical examination of accused Nilmani and his OPD slip is, Ex.PW9/M. After medical examination, MLC Ex.PW9/N, was obtained. I.O. also prepared inventory, Ex.PW9/P. I.O. issued notice, Ex.Pw9/P, to witness R.L. Negi, who gave his statement, Ex.PW9/P1, which was also verified by the Investigating Officer. Notice, Ex.PW9/O, was given to witness, Surjit Singh, who gave his statement Ex.PW9/A1, to the I.O. in his own hand, which was signed by him and verified by the I.O.
8. Thereafter, case property was taken by the I.O. Shri A.C. Malla to Zonal unit, NCB, Chandigarh, on 21.10.2014, and it was deposited there with Superintendent/In-charge of NCB ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 8 Godown, Shri Nirbhay Singh (PW7), vide receipt Ex.PW7/C dated 22.10.2014. Before taking case property to Zonal Unit Chandigarh, .
I.O. gave information qua the arrest of accused Nilmani to PW7 Nirbhay Singh, vide memo Ex.PW7/B. Thereafter, on the directions of Zonal Director, case file was handed over to Karambir Singh (PW8), Intelligence Officer, for further investigation, who on receipt of file, issued summons/notice Ex.PW8/A, to Mohar Singh through registered letter, postal receipt of which is Ex.PW8/B. But he did not join the investigation. Thereafter, second notice Ex.PW8/C was issued by the I.O. to Mohar Singh, but he failed to join the investigation. Subsequent notices, Ex.PW8/D, Ex.PW8/E and Ex.PW8/F, were also issued to him. Notice, Ex.PW8/G and Ex.PW8/H, were also issued to Amri Lal. On receipt of notice, Amar Nath gave his statement Ex.PW6/A, in his own hand to the I.O. Amar Nath gave statement to the effect that on 21.10.2014, when he was going to his field at place Kasladi, 4-5 persons met him there, who told him that Charas was recovered from one person at Chinjra and that Charas was belonging to one Lalu, who is also known with name Ram Lal alias Lal Chand. PW6 Amar Nath also told that he had not seen said Lalu in the village since the time when Charas was recovered, as he (Lalu) also belongs to the same village of PW-
6. During the course of investigation, notice Ex.PW5/A, was issued by the I.O. to Davender Nath (PW5), who revealed to the police ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 9 that on 20.10.2014, said Lalu came to him alongwith one bag and one 'BORU' and requested him to sent the same through his span .
to Chhinjra. PW5 sent the said bag and 'BORU' through his span to Chinjra and, thereafter, Lalu went away from the spot. Statement, Ex.PW5/B was given by PW-5 to the I.O. The statement given under Section 67 of the NDPS Act by PW-5 revealed about two mobile numbers, out of which, one was in the name of co accused Khekh Ram and second was in the name of one Ram Singh. Then PW-8 I.O. Karambir Singh got verification about said mobile numbers from Air-tel Company. One was found in the name of co accused Khekh Ram, SIM of which was issued by Davinder Singh (PW4), who runs a shop of recharge and activation, at Jari, Customer application form is Ex.PW3/K.
9. During investigation, IOs. PW8 and PW9 gave notices, Ex.PW4/A and Ex. PW4/B to PW4, who gave statement, Ex.Pw4/C, stating that he had activated SIM of mobile number 98168-25031, which was issued by him, in the name of co accused Khekh Ram.
PW4 also gave statement, Ex.PW4/D, to the I.O. A.C. Malla, which was recorded during the investigation and recovery of Charas, stating that he runs a shop of SIM cards at Jari. I.O. (PW8) Karambir Singh collected call details of mobile phone numbers 98167-11354, Ex.PW3/B, 98168-25031, Ex.PW3/D, 98059-49470, Ex.PW3/A and 98165-59297, Ex.PW3/C from Ist October to 31 October, 2014 from ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 10 PW-3 Davender Verma, Nodal Officer, Bharti Airtel, Kusumpti, Shimla. After supplying aforesaid call details, PW3 Davender Verma .
(Nodal Officer), also issued certificate, Ex.PW3/E, to the I.O. under Section 65-B of NDPS Act. PW3 Davender Verma also supplied customer application form of mobile No. 98059-49470 with ID proof.
He also supplied customer application form, Ex.PW3/F, of mobile No. 98167-11354, having stamp of distributor, M/s Negi Studio and Communication, Sainj, as well as stamp of retailer, Budhi Singh prop. M/s Babloo Communication with ID proof, Ex.PW3/G. PW3 also supplied customer application form, Ex.PW3/H, having stamp of distributor M/ Niraj Enterprises, Gandhinagar, Kullu, and also stamp of retailer Ansuya Store, and ID proof, Ex.PW3/J, of mobile phone No. 98165-59297. He also supplied customer application form, Ex.PW3/K, having stamp of distributor, M/.s Sharma Communication Main Bazar Jari, and also stamp of retailer M/s Davender Thakur Communication, Jari and ID proof, Ex.PW3/L of mobile No. 98168-25031.
10. During investigation, one Dola Singh gave his statement Ex.PW8/K to the I.O. Karambir Singh. Thereafter, I.O.
issued summons to co accused Khekh Ram and one Ram Singh.
Summons issued to Ram Singh were received un-served by the I.O.
due to incorrect address. Notices issued to co accused Khekh Ram are Ex.PW8/K-1 to Ex.PW8/K-3. Thereafter I.O. Karambir Singh raided ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 11 house of co accused Khekh Ram in presence of witness Moti Ram and memo Ex.PW8/L was prepared in this regard. Notice Ex.PW8/M .
was issued to witness, Moti Ram to become witness in the case.
Proceedings under Section 81 and 82 of Cr.P.C. were initiated against co accused Khekh Ram, however, he surrendered before the court on 02.06.2015. The police custody of co accused Khekh Ram was obtained and his statement, Ex.PW8/N, was recorded by the I.O. Karambir Singh. 'Jamatalashi' of co accused Khekh Ram was done vide memo. Ex.PW8/O. As per statement. Ex.PW9/N. recorded by I.O. Karambir Singh, of co accused Khekh Ram, He (co accused) disclosed that mobile No. 98168-25031 was belonging to him and he had also supplied 2.2 kg of Charas to Mohar Singh and Amari Lal @ Rs.50,000/- per kg., and co accused Khekh Ram was knowing said Mohar Singh.
11. Co accused Khekh Ram was arrested vide memo, Ex.PW8/P, and intimation of his arrest was given to his wife on mobile phone vide memo Ex.PW8/Q. He was got medically examined by moving application Ex.PW8/R and after his medical examination MLC Ex.PW8/S was obtained. PW8 Karambir Singh, I.O.
also gave information qua arrest of co accused Khekh Ram to Zonal Director, NCB, Chandigarh, namely, Sh. Postu Sharma, vide letter Ex.PW8/T. Photograph Ex.PW8/U of co accused Khekh Ram was taken by the I.O. and, thereafter, as per orders of Zonal ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 12 Director, the case file was handed over by Shri Karambir Singh (I.O.) to another I.O., namely Shri A.C. Malla.
.
12. PW9 Shri A.C. Malla carried out further investigation in the case with respect to co accused Khekh Ram. Notices u/s 67 of the NDPS Act were also issued to suspect Amri Lal and Pradhan, Mohar Singh, but no incriminating evidence was found against them. During investigation, ID of co accused Khekh Ram with respect to mobile No. 98168-25031, was found genuine which was verified from M/s Sharma Communication, Jari whose proprietor was Davinder Singh (PW4), who disclosed that he had issued this mobile number to co accused Khekh Ram. Statement of Davinder Singh, Ex.PW4/D was recorded. During investigation, it came to the notice of PW-9 that main supplier was Ram Lal alias Lalu, who had sent the contraband through span of Davender Nath (PW5). As such, notice Ex.PW9/R alongwith receipt Ex.R1 and notice Ex.PW9/R-1 alongwith receipt Ex.R3 were issued to Ram Lal. Third notice Ex.PW9/R04, alongwith the receipt was also issued to him by I.O. A.C. Malla.
13. On 22.10.2014, four samples i.e. A2, B1, C1 and D1 were handed over to C. Sumit (PW2) by Superintendent, Nirbhay Singh (PW7) alongwith two test memos and covering letter, for taking the same to CRCL Delhi. In the morning of 24.10.2014, C. Sumit (PW2) deposited the aforesaid case property with CRCL, Delhi alongwith ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 13 covering letter, Ex.PW2/A and obtained receipt of CRCL, Delhi, which was issued by Sh. Gyander Sexena (PW1), who received the .
case property in CRCL. The receipt was then handed over to Superintendent, Nirbhay Singh by PW2 Sumit, on his return. Shri Gyander Sexena (PW1) on receipt of samples, immediately allotted the same to Ajay Sharma and on the same day, he (PW1) kept the samples in strong room. On 4.12.2014, the samples were taken from the strong room for analysis by Shri Ajay Sharma under supervision of PW1 Sh. Gyander Sexena. Thereafter samples were analyzed and after analysis, PW1 issued report. Ex.PW1/A, on 9.12.2014. Shri Ajay Sharma also conducted analysis under the supervision of PW1.
Case property i.e. sample parcels A1, B1, C1 and D1 right from its receipt in CRCL, upto analysis, remained in safe custody and not had been tampered with in the hands of PW1 Sh. Gyander Sexena and PW2 C. Sumit. As per report of CRCL Ex.PW1/A, issued by Shri Gyander Sexena on the reverse of Test memo Ex.PW9/E sent alongwith sample parcels, A1, B1, C1 and D1 all four samples were found positive for Charas. Charas lot-A, Ex.P1, Charas Ex.P2, Lot-B Ex.P3, Charas Ex.P4, Lot-C, Ex.P5 and Charas Ex.P6 and Lot-D Ex.P7 and Charas, Ex.P8 are the same recovered from accused persons.
Lot-P Ex.P9 and packing material, Ex.P10 are also the same.
Samples A1, A2, Ex.P11 and P12, samples B1, B1, Ex.P13 and P14, ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 14 samples C1, C2, Ex.P15 and P16 and samples D1, D2, Ex.P17 and P18 are also the same.
.
14. As per call details Ex.PW3/A to Ex.PW3/D accused Nilmani was in constant contact with co accused Khekh Ram and absconding accused Lalu. During investigation, it transpired before commission of offence under Section 20 of NDPS Act, accused Nilmani conspired with co accused Khekh Ram, who abetted the commission of offence by accused Nilmani and Charas was supplied by Khekh Ram to Nilmani.
15. After the completion of the investigation, the complaint was initially filed in the Court against accused Nilmani and then supplementary complaint was filed against accused Khekh Ram for disposal in accordance with law.
16. The accused were supplied with the copies of complaint and other record as required under the law. Upon consideration, accused Nilmani was charged for the commission of offence punishable under Section 20 of the NDPS Act while co accused Khekh Ram was charged for the commission of offence punishable under Section 29 read with Section 20 of the NDPS Act.
Charges were read over and explained to them, to which they pleaded not guilty and claimed trial.
17. The complainant, in support of its case examined ten witnesses.
::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 1518. Statements of accused under Section 313 of Code of Criminal Procedure were recorded. They denied the case of the .
complainant and stated that false case had been made against them and the witnesses had also deposed falsely. One witness was examined in defence by co accused Khekh Ram.
19. The learned Special Judge after evaluating the records convicted the accused as aforesaid, constraining the convicts/appellants to file the instant appeal.
We have heard learned counsel for the parties and have gone through the records of the case.
20. The first and foremost issue which comes to the front is whether there is any provision to file a supplementary complaint and if so can the same be filed without obtaining leave of the Court, as admittedly accused Khekh Ram has been convicted only on the basis of the supplementary complaint.
21. Indisputably, the complaint in this case was initially filed only against the accused Nilmani whereas supplementary complaint came to be filed thereafter against accused Khekh Ram. It is also not in dispute that since complaint was filed by a public servant acting in discharge of his official duties, therefore, the recording of preliminary evidence under Section 200 of the Criminal Procedure Code (for short the 'Code') was dispensed with and after perusing the complaint and the documents, the learned ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 16 Special Judge took cognizance only against Nilmani as he was sole accused.
.
22. Now adverting to the legal position as to whether a supplementary complaint that too without the leave of the Court could have been filed against the accused Khekh Ram. We notice that there is no unanimity of judicial opinion on the subject as would be evident from the further decisions.
23. However, before adverting to those decisions, it would be necessary to make note of certain provisions of the Code.
'Complaint' is defined under Section 2(d) in the following terms:-
"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
Chapter 14 provides:
"190. Cognizance of offences by Magistrate.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c)upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 17 of such offences as are within his competence to inquire into or try."
24. At this stage, it would be apposite to take note of .
Sections 36C and 51 of the NDPS Act, which read thus:-
"36C. Application of Code to proceedings before a Special Court.
Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.
51. Provisions of the code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act."
25. Indubitably, the provisions of the Code of Criminal Procedure, 1973 have been made applicable to the proceedings before the Special Court under the NDPS Act and similar provisions are contained in certain other statute like Central Excise and Salt Act, 1944, Food Adulteration Act, 1954 and Prevention of Money Laundering Act, 2002 etc.
26. In Hemant P. Vissanji and others vs. Mulshankar Shivram Rawal and another, 1991 Cri.L.J 3144, while dealing with the case where the Magistrate has taken cognizance of the ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 18 complaint for the second time the Hon'ble Bombay High Court held that the same was impermissible in law as the only course .
open to the Magistrate was to exercise powers under Section 319 of the Code and if satisfied of a prima facie case against the accused, issue process in the said complaint. It was observed as under:-
"[5] Mr. Vashi then pointed out that in the instant case, not only did the first complaint filed by the complainant against Mahadu Gopal and others vide criminal Case No. 745 of 1984 not disclose the fact that there were other unknown accused whose particulars were not available to the complainant at the time when the complaint was lodged, but that what is material is that the offence alleged in both the complaints i.e. Criminal Case No. 745 of 1984 against Mahadu Gopal and others and the complaint filed against the petitioners in Criminal Case No. 1004 of 1986 are identical. The Counsel contends that by permitting the Magistrate to take cognizance of the complaint a second time, there is serious prejudice to the petitioners. He points out that the complainant may very well lead evidence before the trying Magistrate in his earlier complaint No. 745 of 1984 and satisfy the Magistrate that the offences alleged against the petitioners were committed by the petitioners. It is open then to the Magistrate to exercise powers under section 319 of the Code and if satisfied of a prima facie case against them, to issue process in the said complaint against the petitioners. While this course would require an examination of the evidence in support of the allegations against the petitioners, in the second Complaint No. 1004 of 1986, without any further ado the learned Magistrate has issued process against the petitioners. This, in the submission of the learned Counsel, would be an ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 19 abuse of the process of law which is capable of being cured by invoking the inherent powers of the High Court saved under section 482 of the Code of Criminal Procedure. This contention .
is valid and needs to be accepted. Mr. Vashi drew my attention to the judgment of the Division Bench of our High Court in (Krishna Parasharam Karekar v. The State of Maharashtra)2, 80 Bombay Law Reporter 167, wherein our High Court pointed out that in order to exercise powers under section 319(1) of the Code what has to be considered is the evidence of witnesses recorded in the trial and not merely the police papers which are made available to the Court in the trial. This judgment, in my view, supports broadly the contention being advanced by Mr. Vashi.
27. In Ajit Narayan Huskar and others vs. Assistant Commissioner, 2002(4) KarLJ 107, learned Single Judge of the Karnataka High Court while dealing with a similar issue under the Central Excise and Salt Act, 1944 with respect to filing of supplementary complaint observed that there was no provision in the Court for filing supplementary complaint and if any more accused were to be brought in, the only procedure known to law is by taking recourse to Section 319 of the Code by invoking the said provision at the appropriate stage. It is relevant to produce observations as contained in para-5, which reads thus:-
"5.At the outset, the procedure adopted by the learned Magistrate in permitting the additional accused to be brought in by way of what the complainant calls 'supplementary complaint' is to be found fault with. Here was the original complaint against two accused filed under Section 200 of the Criminal Procedure Code by the respondent. Learned ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 20 Magistrate took cognizance. Complaint being from a public servant acting in discharge of his official duties, in view of Clause (a) of the proviso to Section 200 of the Criminal .
Procedure Code, complainant was not examined. On perusal of the complaint and the documents produced, learned Magistrate found sufficient ground to proceed and a direction issued to issue process against two accused, namely, ITC and Ashok Bhatia for offences under Sections 9 and 9-AA of the Act. Thereafter, if any more accused were to be brought in, the only procedure known to law in a proceeding like the one that was there before the learned Magistrate, was by taking recourse to Section 319 of the Criminal Procedure Code and by invoking the said provision at the appropriate stage. There was no scope under any of the provisions of the Criminal Procedure Code for the complainant to go on filing supplementary complaint(s) to bring in some accused at one point of time, and by the other supplementary complaint to bring in some other accused at another point of time, etc. Once the learned Magistrate has taken cognizance under Section 190(1)(a) of the Criminal Procedure Code upon a complaint presented under Section 200 of the Criminal Procedure Code and has directed issuance of process, the further course of action shall have to be governed by Chapter XIX or XX of the Criminal Procedure Code as the case may be.
It is not legally permissible for the complainant to file what he calls 'supplementary complaint' and then bring in any other person as accused. In a case like the one that was there before the learned Magistrate initiated under Section 200 of the Criminal Procedure Code, the only course known to law to bring in as accused someone not there at the initial stage, would be by invoking Section 319 of the Criminal Procedure Code at the appropriate stage. Entertaining, by the learned Magistrate, of the supplementary complaint, therefore, is not legally sustainable."::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 21
28. In S. Nagrajan vs. State in Crl. Revision Petition No. 321 of 2004, learned Single Judge of Hon'ble Delhi High Court while .
dealing with case under Food Adulteration Act, 1954 was confronted with the situation whether a second complaint in respect of the same incident could be maintained. Negating the said contention, it was held that cognizance of the offence can only be taken in terms of Section 190 of the Code and such mode is on the basis of the complaint. Such cognizance of an offence can only be taken once, therefore, once the complaint is filed then second complaint was totally barred and accordingly the cognizance in the second complaint against the new accused persons could not have been taken. The relevant observations as contained in paragraphs 9, 14 and 15, reads thus:-
"9. Mr. Mathur, the learned senior counsel for the petitioner has raised three contentions. The first contention which has been raised by the learned senior counsel is that the cognizance of an offence can be taken only once. In the instant case, the complaint under Section 7 read with Section 16(1) (1A) of the Act was filed, of which cognizance was taken by the learned Magistrate and notice was issued to the three respondents, namely, Madan Lal of M/s.Popular Store, vendor-cum- proprietor or M/s.P.K.Agency supplier and National Diary Development Board, manufacturer. It was further contended that it was not open to the learned Magistrate to entertain the second complaint in respect of the same incident and issue notices to the accused persons afresh.::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 22
14. I find myself in agreement with the contentions raised by the learned counsel for the petitioner. The cognizance of an offence can be taken only in terms of Section 190 of Cr.P.C.
.
One of the modes for taking cognizance is on the basis of a complaint. It may be also pertinent here to mention that a cognizance of an offence can be taken only once, therefore, once the complaint is filed under the Act, in the instant case, being the first complaint against the three accused, namely, Madan Lal of M/s.Popular Store, vendor-cum-proprietor or M/s.P.K.Agency supplier and National Diary Development Board, manufacturer, the second complaint was totally barred and accordingly the cognizance of the second complaint or the second offence in the second complaint against the new accused persons could not have been taken. The cognizance of the offence against the new accused persons in such an eventuality could be taken only during the course of trial in pursuance to Section 319 Cr.P.C. in case the evidence would have come up against them.
15. The petitioner in the instant case had rightly agitated before the learned Magistrate that the second complaint could not have been filed, and therefore, they ought to have been discharged in respect of the second complaint, but this request was rejected by the learned Magistrate on 26.9.2003. Curiously enough, the revision was also dismissed by the learned Sessions Judge by giving an erroneous interpretation to the provisions of law. The learned Additional Sessions Judge relied upon Section 173(8) Cr.P.C., which permits the filing of a supplementary charge-sheet in a police case. There is a distinct procedure prescribed under the Code of Criminal Procedure for a police case and a complaint case. The Magistrate or much less a court of Sessions cannot follow two different procedures and try an accused person by amalgamating two different procedures. So far as Section 173 (8) of Cr.P.C. is concerned, it appears under the Chapter XII of ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 23 the Cr.P.C. under the heading „investigation", it comes into operation in a situation when an offence which is cognizable is registered by the police and an FIR is registered that the law .
envisages filing of a charge sheet and a supplementary charge sheet. When the cognizance is taken on the basis of a complaint, the Magistrate has to follow a procedure prescribed under Section 200, 202 and 204 and not under Section 173 Cr.P.C.This kind of amalgamation of two different kinds of procedures by the learned Sessions Judge has caused serious prejudice to the accused. The first complaint which was filed in the instant case was held by the learned Additional Sessions Judge to be permitted as a complaint against the vendor and the supplier, while as the second complaint can be treated against the manufacturer and the distributor. With utmost respect to the reasoning of the learned Sessions Judge, such an interpretation is erroneous. It is not open to the Judge to contend that the first complaint is against the vendor and the supplier specifically when the manufacturer was made a party in the first complaint itself. Moreover, under the Prevention of Food Adulteration Act only one complaint is filed by the Department against all the accused persons whether they are vendors, suppliers, distributors or manufacturers. There is no provision in Cr.P.C. for filing of a second complaint which may be akin to the filing of a supplementary charge-sheet in a police case. Therefore, I feel the reasoning given by the learned Magistrate as well as the learned Sessions Judge in this regard was totally erroneous. I am of the view that only the first complaint against the petitioner was sustainable."
29. In Vinod Gupta vs. Haryana State Pollution Control Board, 2016(1) RCR (Cri) 206, the learned Single Judge of Hon'ble Punjab & Haryana High Court chose to follow the view taken by the ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 24 Hon'ble Karnataka and Delhi High Courts, as would be evident from the following observations which reads thus:-
.
"12. Coming to the impugned summoning order (Annexure P-
3), it has been found that the learned Magistrate failed to appreciate the abovesaid material aspect of the matter, about the non-maintainability of the additional complaint (Annexure P-1). The learned Magistrate fell in serious error of law, while exceeding his jurisdiction taking cognizance of the same offence for the second time, which was not permissible in law, because the cognizance of any offence can be taken only once, in terms of Section 190 Cr.P.C. Once the filing of additional complaint itself was not permissible, the impugned summoning order was an order without jurisdiction and the same cannot be sustained.
13. However, as fairly conceded by the learned senior counsel for the petitioners, the complainant-Board will be at liberty to move an appropriate application under Section 319 Cr.P.C., at the appropriate stage of criminal trial of the original complaint (Annexure P-5), for the purpose of summoning of other accused persons, including the petitioners, to face criminal trial as additional accused. In fact, it goes without saying that the prosecuting agency or the complainant in a complaint case, as in the instant matter, would always be at liberty to move the application under Section 319 Cr.P.C., however, at an appropriate stage of the criminal trial.
14. In the present case, the complainant-Board, instead of waiting for the appropriate stage of the criminal trial of its original complaint (Annexure P-5) and moving an application under Section 319 Cr.P.C., filed the impugned additional complaint (Annexure P-1), for which the complainant-Board ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 25 was not entitled in law, such an additional complaint being not maintainable.
15. The above-said view taken by this Court also finds support .
from the above-said judgments relied upon by the learned senior counsel for the petitioners. The relevant observations made in para 14 of its judgment by Delhi High Court in S.Nagrajan's case , which can be gainfully followed in the present case, read as under:-
"I find myself in agreement with the contentions raised by the learned counsel for the petitioner. The cognizance of an offence can be taken only in terms of Section 190 of Cr.P.C. One of the modes for taking cognizance is on the basis of a complaint. It may be also pertinent here to mention that a cognizance of an offence can be taken only once, therefore, once the r complainant is filed under the Act, in the instant case, being the first complaint against the three accused, namely Madan Lal f M/s Popular Store, vender-cum- proprietor or M/s P.K.Agency Supplier and National Diary Development Board, manufacturer, the second complaint was totally barred and accordingly the cognizance of the second complaint or the second offence in the second complaint against the new accused persons could not have been taken. The cognizance of the offence against the new accused persons in such an eventuality could be taken only during the course of trial in pursuance to Section 319 Cr.P.C. in case the evidence would have come up against them."
30. However, the Hon'ble Jharkhand High Court in Narendra Mohan Singh & Anr. vs. Directorate of Enforcement, Cr.MP No. 2686 of 2013, decided on 22.03.2014, while dealing with the case under the Prevention of Money Laundering Act, 2002, where the Magistrate had taken cognizance of the offence upon supplementary complaint held that the complaint referred to under ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 26 Sections 44(1)(b) and 45 of the PML Act, it never prevents of filing of supplementary complaint as the reference of a complaint has .
been made in those provisions in the context that whenever a complaint filed by an authority authorized, court may take cognizance over it.
31. It was further held that in such situation it can be said that the supplementary complaint can be lodged in the same manner in which a supplementary chargesheet is submitted in a police case and in case a restricted meaning is given then result would be that even after filing of the complaint culpability of any person is found during investigation, he will not be prosecuted and this could never be the intention of the legislature. The relevant observations read thus:
"4. Incidentally, it was also submitted that the provisions as contained in Section 44 (1)(b) of the PML Act, 2002 does empower a Special Court to take cognizance of the offence under Section 3 upon a complaint made by the authority authorized in this behalf and at the same time proviso to Section 45 of the PML Act, 2002 does provide that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by the authority prescribed therein and, thereby, when both the provisions do stipulate that the cognizance can be taken only upon 'a complaint', contemplation never seems to be there to have more than one complaint and, thereby, there does not appear to be any scope for launching prosecution by way of a supplementary complaint. Since, the cognizance of the ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 27 offence has been taken upon a supplementary complaint, the said order cannot be held to be sustainable in the eye of law.
16. Going further into the matter, it be stated that the question .
has been raised over the maintainability of the supplementary complaint on the premise that the provisions as contained in Section 44 (1)(b) and 45 of the PML Act, refers to 'a complaint'. Even if such reference is there of 'a complaint', it never prevents of filing of supplementary complaint as the reference of a complaint has been made in those provisions in the context that whenever a complaint filed by an authority authorized, court may take cognizance over it.
17. We have already noted the circumstances, under which a supplementary complaint has been lodged. In such situation, it can be said that it has been lodged in the same manner in which supplementary charge sheet is submitted in a police case. If such a restricted meaning as has been sought to be advanced then the result would be that even if after filing of a complaint culpability of any other person is found during investigation, he will not be prosecuted. This can never be the intention of the legislature."
32. Likewise, a learned Single Judge of the Hon'ble Calcutta High Court in Amit Banerjee vs. Shri Manoj Kumar, Assistant Director, Enforcement Directorate, 2016 (2) JCC 1034, in case under Prevention of Money Laundering Act, 2002, while dealing with the issue of filing of supplementary complaint held that the same could be filed after leave had been granted by the Court to conduct further investigation. It is apt to reproduce the relevant observations, which read thus:-
"21.Coming to the issue of filing of the supplementary complaint, I find that the said complaint was presented before ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 28 the Special Court pursuant to the leave granted by the Special Court to conduct further investigation. Although the power to conduct further investigation is envisaged in Section 173(8) of .
the code relating to Police investigation under Chapter XII of the Code, the said powers would extend to investigation of a crime, cases where investigations are conducted under the special law conducted by any other agency under a special statute, namely PML Act, in view of the fact that 'investigation' as defined in Section 2(h) of the Code is to include investigation conducted by other agencies under special statutes as has been held in Directorate of Enforcement vs. Deepak Mukherjee (1994) 3 SCC 440."
33. As noticed above, all the decisions on the subject as have been referred to above, have been rendered by the learned Single Bench. We cannot persuade ourselves to agree with the view taken by the Hon'ble High Courts of Bombay, Karnataka, Delhi and Punjab & Haryana High Court as we are inclined to hold that a supplementary complaint after having obtained leave of the court in given facts and circumstances of the case is legally maintainable in the same manner in which a supplementary charge-sheet is submitted in a police case. We also inclined to adopt the reasoning of the Hon'ble Jharkhand High Court where it held that, in case, a restricted meaning is given then result would be that even after filing of the complaint culpability of any other person is found during investigation, he would not be prosecuted, which can never be the intention of the legislature.
::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 2934. From the conspectuous of the aforesaid discussion, we have no hesitation to conclude even though there exists no specific provision in the Code of Criminal Procedure to file supplementary .
complaint in a complaint case, however, if on further investigation and with the express leave of the court, the culpability and the complicity of any other person is established the supplementary complaint be filed.
35. Indubitably, in this case the NCB has not obtained any further permission for further investigation or even placing on record the supplementary complaint. Therefore, the trial on the basis of such supplementary stands vitiated against the Khekh Ram and once the complaint itself held to be not maintainable, then obviously any conviction and sentence based on such complaint has essentially to be set aside.
36. Accordingly, Appeal No. 450 of 2016 is allowed and the impugned judgment of conviction and sentence passed by the learned Special Judge-I, Kullu on 26.09.2016, is set aside. The appellant is acquitted of the charges framed against him. He is ordered to be released forthwith if not required in any other case. Registry is directed to prepare release warrants immediately.
Cr.Appeal No. 38 of 201737. The learned counsel for the appellant has formulated following points for resolvement:-
i) Facts brought on record by the NCB falsify the case of the prosecution.::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 30
ii) Documents on record show that it was a mere paper work and nothing happened and no such incident took place at any point of time.
.
iii) NCB has miserably failed to connect the FSL report Ex.PW1/A with the alleged contraband.
iv) Respondent has failed to comply with Section 42(2) of the Act.
v) Non-joining of independent witness is fatal to the case of the NCB.
vi) NCB case is full of infirmities, discrepancies, embellishments and improvements etc.
vii) Appellant has been wrongly implicated while the real culprits let off by the respondents.
viii) Non-interrogation of the appellant casts r serious doubt on the NCB story.
Point No. I.
38. It would be noticed that the case set-up by the NCB is that on 20.10.2014, PW9 S/Shri A.C Malla alongwith PW10 Roshan Lal Negi, Maheshwar Barwal, Varinder Singh, Vinay Singh and Surjeet Singh were on surveillance duty in Kullu area where when at about 6:30 p.m., PW 9 received an information that at about 8:30 p.m. one person, namely, Neelmani (herein after referred to as accused) was likely to appear near span situated at about 1 km from Shat village and would signal with torch light and thereafter the persons on the other side of the village would send contraband through span. This information was imparted to PW7 Sh. Nirbhay Singh by ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 31 PW9 on his mobile phone and on his verbal directions barricade (nakka) in the said area was laid.
.
39. As per the further case of the NCB, at about 8:30 p.m., the accused appeared and gave the signal with the help of torch to the other side and the villagers accordingly sent some material through span. Such material was taken by the accused. He was cordoned off and thereafter apprehended. Notice under Section 50 of the NDPS Act was issued to him and the accused alongwith the bags were thereafter taken to Zonal Office, Mandi, where the bags were opened and the other proceedings were conducted.
After his arrest vide jamatalashi memo Ext.PW9/H, a sim bearing No. 98167-11354 was recovered and this sim as per the case of the NCB was being used by the accused on that date when he was in touch with the other persons over this phone.
40. Now, in case, Ext.PW 3/B, the calls details of this phone numbers perused, these clearly falsify the case of the NCB inasmuch as these clearly reflect that the appellant was using this phone and was in consistent touch with number of persons from 8:30 p.m. on 20.10.2014 till 12:23 p.m. on 21.10.2014 and as many as 37 calls that were made. This fact assumes importance because it is during this time that the NCB claims to have conducted the proceedings of search and seizure. If that be so, it is difficult to comprehend that the petitioner even after his arrest would be ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 32 allowed to use his mobile that too up till 12:23 p.m. of the next day i.e. 21.10.2014.
.
41. In addition to the above, we also notice that even though the case of the NCB is that they recovered the alleged contraband on 20.10.2014, but in case the memo of recovery is perused the same is dated 21.10.2014, which is not only contrary to the case set-up by the NCB but also contrary to the other documents like Panchnama Ext. PW-9/F, recovery-cum-seizure memo Ext. PW-9/D, Test memo Ext.PW9/E and the complaint of the NCB wherein the NCB officials have shown the date of recovery as 20.10.2014.
42. Now, in this background, in case, the statements of the NCB officials, namely, S/Shri Surjit Singh and Roshan Lal Ext. PW-9/Q-
1 and Ext.PW-9/P-1 recorded under Section 67 of the NDPS Act and thereafter the statement of Sh. Roshan Lal Negi in the Court as PW-
10 is perused, it would be noticed that these witnesses are silent about the receiving the alleged information and transmitting the same to PW-7 Superintendent, NCB at 6:30 p.m.
43. It is the case set-up by the NCB that these officials alongwith PW-9 Sh. A.C. Malla were present at Kullu area in routine surveillance and travelling to place Shat. It is further the admitted case of the NCB that officials of the NCB had already received information regarding the alleged contraband which they, in turn, ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 33 had transmitted to PW-7. Then why these witnesses in their statements under Section 67 of the NDPS Act have no uttered a .
single work about the receiving or transmitting the said information.
This casts serious doubt on the story of the NCB.
Point No. II
44. As per the case set-up by the NCB that no proceedings were conducted on the spot because it was dark and the accused was taken to Zonal Office, Mandi where search and seizure proceedings were conducted. PW-9 claimed to have issued two notices Ext.PW-9/A, the option given to the appellant under Section 50 of the NDPS Act and Ext. D-2, notice given to the appellant under Section 67 of the NDPS Act. In D-2, it has been specifically written that 19.780 kgs. of Charas has been recovered from the appellant and directions were issued to him to appear before PW-9 and interestingly the place of issuance of this notice is mentioned as 'Shat'. If that be so, then how come the weight of the contraband finds mention in this notice when it is the specific case of the NCB that search, weighing and seizure took place at Zonal Office, Mandi and not at village Shat.
45. Now, in case notice under Section 50 of the NDPS Act Ext.PW9/A is perused, even in this notice the place of issuance of notice is village Shat which again contradicts the very case of the ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 34 NCB that accused was taken to Zonal Office, Mandi, immediately after his apprehension.
.
46. This fact has been categorically admitted by PW9 in his statement before the Court when he states "I do not obtain written consent of the accused in compliance to provisions of Section 50 of the NDPS Act."
47. In addition to this, it would be noticed that seizure memo Ex.PW-9/D, wherein the date, time and place of seizure has been written as 20.10.2014, 20:40 hours at Shat, which is again contrary to the case set-up by the NCB as according to it no proceedings had been conducted at Shat.
48. Apart from above, we may notice certain other discrepancies in the documents which have been produced before this Court; (i) Memo Ext.PW-9/E does not contain any date when the same was prepared; (ii) In Panchnama Ex.PW-9/F, the time of receiving the information and the time of reaching is tampered with; (iii) PW-9/G is the statement of the accused recorded under Section 67 of the Act wherein the date has been changed from 21 to 20 to show the arrest of the appellant.
49. Thus, it stands approved on record that the NCB has fabricated the documents or else these documents ought to be in consonance with the case set-up by it.
::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 35Point No. III
50. Even though the NCB form in triplicate have been .
placed on record but the same are in compete contradiction to the oral testimonies of the NCB witnesses as well as memo Ext.PW-
9/D. The seizure memo is completely silent about the taking of samples marked as Lot A-1, B-1, C-1 and D-1 which were alleged to have sent for analysis. It only reflects about one gunny bag and one hand bag being seized while there is no reference in seizure memo about the samples.
51. Further, as per the complaint, seal used for sealing the bulk and samples was "NARCOTICS CONTROL BUREAU-4". The samples were deposited in the godown vide receipt Ext.PW-7/C were having the seal "NARCOTICS CONTROL BUREAU-4".
52. Whereas the register maintained in the godown is placed on record Ext.PW-7/D also shows that case property sealed with seal "NARCOTICS CONTROL BUREAU-4".
53. The samples were sent to laboratory through NCB forms annexed with report Ext.PW-1/A and NCB Ext.PW-9/E and the seal mentioned therein which was allegedly tallied by PW1 is different from the seal and bear impression of seal was "NARCOTICS CONTROL BUREAU-CHD-4" for which the report has been given.
54. There is no explanation on record as to how the impression of seal was changed.
::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 3655. It is only in the Court that it was claimed that the seal of CHD-4 was used but when PW10 was confronted on this aspect by .
the defence, he admitted in his statement Ext.PW-9/P-1, that he had not mentioned the word CHD-4 while mentioning the seal.
56. That apart, there is no mention of affixing the seal with impression CHD-4 in the statement of Sh. Roshan Lal Negi recorded under Section 67 of the NDPS Act Ext.PW9/P-1 of the Sh. Roshan Lal Negi from whom the alleged seal was allegedly taken.
57. Furthermore, there is no explanation as to why the case property deposited in the godown vide receipt Ext.PW-7/C having seal "NARCOTICS CONTROL BUREAU-4" was not sent to laboratory and the samples having seal impression "NARCOTICS CONTROL BUREAU CHD-4" was sent for obtaining report Ext.PW1/A. Therefore, in such circumstances, the arguments of the learned counsel for the appellant that possibility of tampering cannot be ruled out does carry substantial force.
Point No. IV
58. It is the case set-up by the NCB that its officials had prior information, however, the statements and documents on record clearly go to show that paper work was done later only to show the arrest of the appellant in a manner as alleged by the NCB and the information was neither reduced in writing nor transmitted to the superior officers at the time and date as alleged by the NCB.
::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 3759. It is the specific case of the NCB as averred in the para-3 of the complaint that on 20.10.2014 NCB team was on .
routine surveillance duty at Kullu and at about 18:30 hrs 'Secret' specific information was received by Sh. A.C. Malla, I.O. that a person, namely, Nilmani @ Nitu aged 30-35 years will arrive between 8:30 p.m. and 9:00 p.m near a span (luggage carrying trolley from one valley to another side) situated at around half to 1 km. ahead to Shat village towards Manikaran and he will signaled the torch on off thrice towards village situated at other side of the hill and the villagers will end 15-20 kgs. charas in span towards Nilmani @ Nitu and he will pick up the contraband. The said information was given on mobile and also reduced into writing and laid before the Superintendent, Narcotics Control Bureau, Chandigarh. The Superintendent telephonically directed A.C Malla, I.O. to organize a surveillance operation and constitute a team of NCB for intercepting the accused.
60. Now, in case, the evidence is adverted, then it would be noticed that oral and documentary evidence available on record falsify the case of the NCB that any such information was received or transmitted to the superior officer. The complainant states that the information was given on mobile and reduced in writing and laid before the Superintendent who telephonically ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 38 directed Sh. A.C. Malla to organize a surveillance operation and constitute a team of NCB for intercepting the accused.
.
61. We may at this stage notice in the following facts and circumstances of the case, which create serious doubt in the case of the NCB:
a) the information Ex.PW-7/A is dated 22.10.2014 and not 20.10.2014 and releasing this discrepancy, PW-7 while entering witness box improved his version qua receiving of the information and introduced another story by stating that the said information was received through FAX, which is Ext.PW7/A and the same was received by him on 20.10.2014 around 11:00 p.m. However, when Ext.PW-7/A is perused, the same admittedly is not a FAX message and not even an original copy and, therefore, in the given circumstances, the NCB has withheld the best evidence which calls for an adverse inference.
b) There are no call details of the officials who sent the information under Section 42 of the Act and the person who received the same to substantiate the factum of calling and receiving of calls as alleged by them.
c) PW-9 even though tried to support the version of PW-7 regarding the sending of the FAX message but has candidly admitted in his cross-examination that Ext.PW-7/A is not a FAX copy and further admit that the FAX copy has not been placed on record.
d) As per PW9, the case property was taken by him to Zonal Unit, NCB Chandigarh on 21.10.2014 and was deposited with PW-7, who issued receipt Ext.PW-7/C in this regard.
It would also be noticed that in case PW-9 had visited PW-7 on 21.10.2014 then why the information under Section 42(2) of the NDPS Act was not placed before him on 21.10.2014 ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 39 itself and came to be placed before him subsequently on 22.10.2014.
e) It is the case set-up by the NCB that the apprehension, .
search and seizure was conducted after sun set and before sun rise. Therefore, as per the mandate of law, PW-9 was required to write his reasons of believe in the said information as to why warrants could be obtained without affording the opportunity for escape, however, no such reasons find mention in Ext.PW7/A.
f) The time of receiving the information and apprehension of the appellant in Panchnama Ex.PW-9/F has been tampered with.
62. Adverting to compliance of Section 42 of the Act, it will apposite to extract the entire provision which reads thus:
"42. Power of entry, search, seizure and arrest without warrant or authorization (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) to the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any Narcotic Drug, or Psychotropic Substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property ::: Downloaded on - 30/12/2017 23:49:28 :::HCHP 40 or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is .
kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset -
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he r has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act;
PROVIDED that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of Sub-Inspector;
PROVIDED FURTHER that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 41 an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his .
belief.
(2) Whereas an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
63. Now, as regards the compliance of the aforesaid Section 42, there can be no quarrel with the proposition that what it requires is that where an official takes down an information in writing under sub-section (1) is required to sent a copy thereof to his immediate officer. That apart, Section 42(1) indicates that any authorized officer can carry out search between sunrise and sunset without warrant of authorization. The scheme indicates that in event the search has to be made between sunset and sunrise the warrant would be necessary unless officer has reasons to believe that a search warrant or authorization cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, there is no case that any ground for belief has contemplated by proviso to sub-
section (1) of Section 42 or sub-section (2) of Section 42 was recorded by any other officials of the NCB to proceed to carry on the search.
::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 4264. What would be the effect of non-compliance of Section 42 was a subject matter of consideration in a recent .
judgment of the Hon'ble Supreme Court in State of Rajasthan vs. Jag Raj Singh @ Hansa (2016) 11 SCC 687 wherein the facts were quite identical to the one involved in the present case and it was observed as under:
"9. The NDPS Act was enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. This Court had occasion to consider the provisions of NDPS Act in large number of cases. This Court has noted that the object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly.
This Court in State Of Punjab vs Balbir Singh, 1994 3 SCC 299, in paragraph 15 has made the following observations:
"15.The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial."::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 43
10. To the similar effect are the observations of this Court in Saiyad Mohd. Saiyad Umar Saiyed & others vs. The State Of Gujarat, 1995 3 SCC 610. Following was stated in paragraph 6 .
"6. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than IO years but which May extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to r account satisfactorily". Having regard to the grave consequences that may entail the possession of illicit ar-
ticles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate."
[11] In the present case, Section 42 is relevant which is extracted as below:
" 42. Power of entry, search, seizure and arrest without warrant or authorisation.-(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 44 information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may .
furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and r any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-
two hours send a copy thereof to his immediate official superior."
::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 4512. The High Court has come to the conclusion that there is breach of mandatory provisions of Section 42(1) and Section 42(2) and further Section 43 which was relied by the Special .
Judge for holding that there was no necessity to comply Section 42 is not applicable. We thus proceed to first examine the question as to whether there is breach of provisions of Section 42(1) and Section 42(2). The breach of Section 42 has been found in two parts. The first part is that there is difference between the secret information recorded in Exh. P-14 and Exh. P-21 and the information sent to Circle Officer, Nohar by Exh. P-
15. It is useful to refer to the findings of the High Court in the above context, which is quoted below:
" From the above examination, it is not found that Exh. P-14 the information which is stated to be received from r the informer under Section 42(2) of Act or Exh. P-21, the information given by the informer which is stated to be recorded in the Rozanamacha, copy whereof has been sent to C.O. Nohar, who was the then Senior Officer, Rather, Exh. P-15, the letter which was sent, it is not the copy of Exh. P-14, but it is the separate memo prepared of their own. From the above examination, it is not found in the present case that section 42 (2) of Act, 1985 is complied with."
13. What Section 42(2) requires is that where an officer takes down an information in writing under sub-Section (1) he shall sent a copy thereof to his immediate officer senior . The communication Exh. P-15 which was sent to Circle Officer, Nohar was not as per the information recorded in Exh. P 14 and Exh. P 24. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2).
14. Another aspect of non-compliance of Section 42(1) proviso, which has been found by the High Court needs to be adverted. Section 42 (1) indicates that any authorised officer can carry out search between sun rise and sun set without warrant or authorisation. The scheme indicates that in event ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 46 the search has to be made between sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant or authorisation cannot be .
obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, there is no case that any ground for belief as contemplated by proviso to sub-section (1) of Section 42 or Sub-section (2) of Section 42 was ever recorded by Station House Officer who proceeded to carry on search. Station House Officer has appeared as PD-11 and in his statement also he has not come with any case that as required by the proviso to Sub-section (1), he recorded his grounds of belief anywhere. The High Court after considering the entire evidence has made following observations :
r "Shishupal Singh PD-11 by whom search has been conducted, on reaching at the place of occurrence by him no reasons to believe have been recorded before conducting the search of jeep bearing HR 24 4057 under Section 42(1), nor any reasons in regard to not obtaining the search warrant have been recorded. He has also not stated any such facts in his statements that he has conducted any proceedings in regard to compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof has been sent to the senior officials. Shishupal Singh could be the best witness in this regard, who has not stated any fact in his statement regarding compliance of proviso to Section 42(1) and Section 42(2), sending of copy of reasons to believe recorded by him to his senior officials."
20. After referring large number of cases, this Court recorded conclusion in paragraph 25 which is to the following effect:
"25. The question 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 ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 47 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.
::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 48To 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 r 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 ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 49 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."
25. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance of requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance of Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in paragraph 5.
The present is not a case where insofar as compliance of Section 42(1) proviso even an arguments based on substantial compliance is raised there is total non- compliance of Section 42(1) proviso. As observed above, Section 43 being not attracted search was to be conducted after complying the provisions of Section 42. We thus, conclude that the High Court has rightly held that non compliance of Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.
Point No. V
65. It is more than settled that non-joining of independent witnesses is not always fatal to the case of the NCB and would depend on the facts and circumstances of each case.
66. Now, adverting to the facts of the case, it would be noticed that the admitted case of the NCB is that information was ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 50 received by PW-9 at 6:30 p.m. when he was in Dhalpur area in Kullu from where he reached the alleged spot where the accused is said .
to have been apprehended. The Dhalpur area is a part of the Kullu Bazaar and in the month of October obviously would be crowded with people at that time and, therefore, PW9 had ample time and opportunity to associate independent witnesses, especially, if the events unfolded in the manner as projected by the NCB.
67. In this backdrop, it would be necessary to advert to the testimony of PW-9, the relevant portion whereof are extracted below:-
"Secret information was received by me in Dhalpur area. It is correct that Shat is seven kilometers away from Bhunter. Manikaran chowk is at a distance of eight kilometers from Dhalpur, where diversion leads to Shat. Kullu is District Headquarter and police station is there. Bhunter starts at a distance of 200 meters from Manikaran chowk. Bhunter is Tehsil Headquarter. Nagwain is also Tehsil headquarter which is just away from Bhunter. There is police station at Aut, which is on road head like police station of Bhunter. Our office is in a rented building at Mandi. Owner resided in the said building. Tea stall is there in the ground floor. There are houses surrounding the building at Mandi. It is correct that another tea shop at a distance twenty yards away from our office. Tehsil office is also nearby to our office. I did not associate any person from the locality, while carrying out proceedings in the office. We sent in a vehicle to Shat. We took about half an hour to cover distance from Bhunter chowk to Shat. I did not sent any of the official of our team to call for witnesses from locality at Shat. Self stated place was isolated and it was pitch ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 51 dark. I did not try to associate Gazetted Officer of Magistrate from Kullu, when I received the information, how could I have associated these persons in such circumstances."
.
68. Likewise PW5 Davinder Nath has candidly admitted the availability of independent witness at or near the place of occurrence, as would be evident from his statement, relevant portion of which extracted below:-
"There is abadi of about 50-60 families in village Shat. It is correct that there are 2-3 houses below the span and one house is on upper side, but none is residing in the house. However, 2-3 houses below the span are occupied by the persons. Houses are visible from the road at the point of span. Towards Manikaran, Chhinjra village is also situated from span.
Chhinjra village is having good population. At a distance of 100 meters away from span, there is abadi towards Jari. I used to come Bhunter bazaar. Bhunter bazaar is situated towards both sides of river. Hathithan is just adjoining to Bhunter and Hathithan bazaar runs in 1 km area. At place Bhunter, there is police station and Tehsil headquarters." "In October, apples season is in full swing and day and night transportation of apple cartons through span takes place including ration and other articles."
69. From the aforesaid statement, this Court has no difficulty in concluding that despite availability of independent witnesses, the NCB did not choose to associate them even though they were having a vehicle driven by its driver Vijay Kumar who was part of the raiding party.
::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 5270. It needs to be noticed here that the instant is not a case of chance recovery, therefore, non-association of .
independent witnesses cannot be undermined and brushed aside lightly, more particularly, in light of what has been discussed above and has otherwise come on record.
71. Similar question came up before the learned Division Bench of this Court in Bhupender Chauhan vs. State of Himachal Pradesh 2015 (3) Shim.LC 1346, wherein it was observed as under:-
"Now for discerning from the evidence on record, for rendering an apt conclusion that the Investigating Officer despite availability of independent witnesses had omitted to endeavour to elicit their participation in the apposite proceedings, at the site of occurrence, for hence rendering them to be flawed as well as vitiated, an advertence to the testimony of PW-1 is required to be made. The testimony of PW-
1 C. Sohan Lal as existing in his cross-examination portrays an admission on the part of this witness that the house of Ex- President of Panchayat Kotla is located between Larji Mour and Village Thuari. Moreover, there also exists an admission in his cross-examination qua the existence of three houses near the house of Dola Singh, whose house is located at a distance of 100 meters from Chour Nallah (site of occurrence). Apart from the fact that this witness has deposed qua the existence of habitation in close proximity and vicinity of the site of occurrence, the association of whose inhabitants could have been, hence, elicited by the Investigating Officer in the apposite proceedings at the site of occurrence, this witness in his cross-examination has further deposed that the Investigating Officer had not made any arduous efforts to solicit the participation of independent witnesses in the ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 53 apposite proceedings. The aforesaid evidence renders open or gives leeway to an inference that the Investigating Officer despite existence of habitation in the proximity and vicinity of .
the site of occurrence had willfully not made either arduous or assiduous efforts to solicit the participation of the independent witnesses in the opposite proceedings. Lack of sincere efforts on the part of the Investigating Officer to solicit the participation of independent witnesses in the apposite proceedings at the site of occurrence, sequels an apt deduction that the Investigating officer was goaded by an oblique motive to do so or he intended to smother or hide the truth qua the genesis of the prosecution version which hence stands flawed as well as vitiated.
14. Reinforcing strength to the aforesaid inference as derived from the factum deposed by PW-1 that despite existence of habitation in close proximity or vicinity of the site of occurrence, the Investigating Officer having willfully omitted to join inhabitants thereof in the apposite proceedings at the site of occurrence as such rendering the genesis of the prosecution version emaciated, is lent by the further factum as exists in the cross-examination of the Investigating Officer of his omitting to join independent witnesses in the apposite proceedings at the site of occurrence despite existence of a village in close vicinity to the site of occurrence. As a sequitur the inference as has hereinabove ensued on a discerning appraisal of the evidence of PW-1 C. Sohan Lal and the evidence existing in the cross-examination of the Investigating Officer, obviously then tilts the scale of justice in favour of the accused, besides shreds apart the evidentiary value of the testimonies of the officials witnesses even though they have deposed in unison and in consistency qua the factum of the apposite proceedings having been with legal aptness concluded at the site of occurrence."::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 54
Point No. VI to VIII
72. It is vehemently argued by the learned counsel for the .
appellant that there are major contradictions, inconsistencies, embezzlement and improvement in the NCB case.
73. As regards the apprehension of the appellant in case the averments made in complaint, more particularly para-6 are adverted to, then as per the case of the NCB at about 8:30 p.m., a person came and signaled to the other side by torch and after about 5-7 minutes some material came in span from the other end and the person picked up the same and started moving towards Shat village. The NCB team cordoned off the person immediately.
However, if the statement of PW9 is now perused, he clearly states that after picking up the material accused started running and team cordoned off the area and thereafter he went near to the person and asked his name and address. This version is not supported by PW10 who states that this person immediately on lifting of the articles came to be apprehended by the team.
74. Now, adverting to the contention of the appellant that real culprits have been let off.
75. It is vehemently argued by the learned counsel for the appellant that the admitted case of the NCB is that contraband belonged to one Lalu @ Lal Chand @ Ram Lal, Mohar Singh and Amri Lal and for this reliance is placed on the testimony of PW-9 ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 55 who states "thus during investigation, it was revealed that main supplier was Ram Lal alias Lalu." Similarly, PW8 Karambir Singh also .
states "source disclosed to me that contraband was belonging to Mohar Singh and Amri Lal. I did not initiate any proceedings under Sections 81 and 82 Cr.P.C. against both Mohar Singh and Amri Lal."
76. Apparently, there is no explanation on record why the NCB did not initiate proceedings under Sections 80 and 82 of the Cr.P.C. against the aforesaid persons as was done for arresting co-
accused Khekh Ram. This assumes importance when it has come on record that there was doubt on the integrity of NCB officials for letting off the real culprits which fact has been candidly admitted by both the I.Os. PW8 in his cross-examination has correctly stated that it was correct that inquiry was done regarding money transaction done to let off real culprits. Likewise PW-9 also stated that "Inquiry was done by the department regarding some allegations of money transactions having taken place allegedly letting off real culprits."
77. Apart from above, there is no explanation forthcoming as to why the accused was sent to judicial custody on the same day of his arrest without any efforts by the NCB official to interrogate him on any aspect of the case. PW9 in his statement has admitted that no inquiries were made qua this aspect of the case, as is evident of the statement which is extracted below:-
::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 56"I do not enquire about the settlement amount of the contraband. I did not inquire who made the payment. I did not inquire to whom payment was made and on which date. I did .
not inquire at what place settlement was made. I did not inquire with whom settlement was made and what transpired during settlement. I moved application Ext.D-1 for judicial custody of accused."
78. Additionally and more importantly, we notice that the entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each were, in fact, sent for analysis.
Thus, taking the prosecution case at best what is proved on record is the recovery of only 100 grams of charas from the possession of the accused. Admittedly, the alleged contraband was in different shapes and sizes in the form of biscuits and flat pieces.
79. Therefore, in this background, the question arise as to whether the entire bulk of 19.780 Kgs as was recovered, in absence of there being chemical examination of whole quantity, can be held to be charas.
80. This question need not detain us any longer in view of the authoritative pronouncement by the Hon'ble Supreme Court in Gaunter Edwin Kircher vs. State of Goa (1993) 3 SCC 145, wherein the Court was dealing with the alleged recovery of two cylindrical pieces of Charas weighing 7 grams and 5 grams each. However, only one piece weighing 5 grams was sent for chemical analysis and was established to be that of Charas. The learned trial Court ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 57 convicted the accused by taking the total quantity to be 12 grams and such finding was affirmed by Hon'ble Supreme Court, .
however, reversing such findings, the Hon'ble Supreme Court observed as under:-
"6. Section 27 of the Act reads thus:
"27. Punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance Whoever, in contravention of any provision of this Act, or any rule or order made or permit issued thereunder, possesses in a small quantity any narcotic drug or psychotropic substance, which is proved to have been intended for his personal consumption and not for sale or distribution, or consumes any narcotic drug or psychotropic substance, shall, notwithstanding anything contained in this Chapter, be punishable-
(a) Where the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, di-acetyl-
morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government, by notification in the Official Gazette, with imprisonment for a term which may extend to one year or with fine or with both; and (b) Where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under Cl. (a) with imprisonment for a term which may extend to six months or with fine or with both (2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person,"
Explanation- (1) For the purposes of this section "small quantity"
means such quantity as may be specified by the Central Government by the notification in the Official Gazette.
::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 58In general possession of any narcotic drug or psychotropic substance has been prohibited by S. 8 of the Act and any person found in possession of the same contrary to the provisions of the Act or any rule or order, made or permit issued thereunder is liable .
to be punished as provided thereunder to imprisonment for a term which shall not be less than 10 years and shall also be fined which shall not be less than Rs. 1 lac. S. 27 of the Act, however, is an exception whereby lesser punishment is provided for illegally possessing any "smaller quantity" for personal consumption of any narcotic drug or psychotropic substance. Under this Section the following ingredients should be fulfilled:
"(a) The person has been found in possession of any narcotic drug or psychotropic substance in "small quantity";
r (b) Such possession should be in contravention of any provision of the Act or any rule or order made or permit issued thereunder; and
(c) The said possession of any narcotic drug or psychotropic substance was intended for his personal consumption and not for sale or distribution."
The first explanation to this Section lays down that the small quantity means such quantity as may be specified by the Central Government by a notification. By virtue of the notification issued on 14-11-85 for the purpose of this Act 5 gms. or less quantity of Charas shall be the small quantity. Explanation 2 further lays down that the burden of proof that the substance was intended for the personal consumption and not for sale or distribution, lies on such person from whose possession the same was recovered. As held, above in the instant case the prosecution has proved that the quantity seized from the accused was less than 5 gms. Therefore it is within the meaning of "small quantity" for the purpose of S. 27.
::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 597. Then the other ingredient that has to be satisfied is whether the substance found in possession of the appellant was intended for is personal consumption and not for sale or distribution. No doubt as the Section lays down the burden is on the appellant to prove, .
that the substance was intended for his personal consumption. As to the nature of burden of proof that has to be discharged depends upon the facts and circumstances of each case.
Whether the substance was intended for personal consumption or not has to be examined in the context in which this exception is made. In the instant case the accused though in general has taken a plea of denial but his examination under S. 313, Cr.P.C. by the Magistrate reveals that there was such a plea namely that it was meant for his personal consumption. In the judgment of the trial Court it is noted that the accused made an application on 23-3-90 stating that the piece said to have been recovered from him was less than 5 gms. and not 12 gms. as alleged and that the application was written and signed by the appellant himself. The prosecution case itself shows that he was having this substance in a pouch along with a chillum (smoking pipe) and smoking material. The averments made by the appellant in the application and as extracted by the trial Court would themselves show that it was meant for his personal consumption. The above surrounding circumstances under which it was seized also confirm the same.
The appellant is a foreigner and as a tourist appears to have carried this substance for his personal consumption. We are aware that the menace of trafficking in narcotic drugs and psychotropic substance has to be dealt with severely but in view of the provisions of S. 27, we are unable to hold that the small quantity found with the appellant was not meant for his personal consumption and that on the other hand it was meant for sale or distribution. Therefore the appellant is liable to be punished as provided under S. 27 of the Act.
::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 6081. Thus, what can be deduced from the aforesaid discussion is that:-
.
(i) Even though the specific case set-up by the NCB is to the effect that the accused had been apprehended at about 8:30 p.m. on 20.10.2014 and as per PW-10 he was not allowed to go anywhere till 21.10.2014 at 2:00 a.m. and had not contacted anyone on his mobile phone nor he receive any call. However, the call details clearly prove that he was in constant touch with number of persons from 8:30 p.m. on 20.10.2014 till 12:23 p.m. on 21.10.2014 and as many as 34 calls had been made.
(ii) The contraband alleged to have been recovered on 20.10.2014 but in case the memo of recovery Ex.PW9-D is perused, the same is dated 21.10.2014.
(iii) The witnesses S/Shri Surjit Singh and Roshan Lal whose statements have been recorded under Section 67 of the Act and available as Ext.PW-9/Q-1 and Ext.PW9/E are conspicuously silent about the receiving of the secret information and transmitting the same to the PW-7, Superintendent, NCB at 6:30 p.m. on 20.10.2014.
(iv) It is the specific case set-up by the NCB that no proceeding whatsoever conducted on the spot i.e. 'Shat' because it was dark, therefore, the accused was taken to Zonal Office, Mandi where search and seizure ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 61 proceedings were conducted. PW9 has claimed to have issued two notices Ext.PW-9/A i.e. option given to the appellant under Section 50 of the NDPS Act and Ext.D-2, .
notice given to the appellant under Section 67 of the NDPS Act and in both these notices, the place of issuance is mentioned as 'Shat'.
(v) Memo Ext. PW9/A does not contain any date when the same was prepared.
(vi) In Panchnama Ext.PW9/F, the time of receiving information and the time of reaching is tampered with.
(vii) In Ext.PW9/G, the statement of the accused under Section 67 of the Act, the date has been tampered with and changed from 21.10.2014 to 20.10.2014 to show the arrest of the accused.
(viii) The seals alleged to have been used are different from those exhibited on the record.
(ix) The information Ex.PW-7/A is dated 22.10.2014 and not 20.10.2014 and realizing this discrepancy, PW-7 while entering witness box improved his version qua receiving of the information and introduced another story by stating that the said information was received through FAX, which is Ext.PW7/A and the same was received by him on 20.10.2014 around 11:00 p.m. However, when Ext.PW-7/A is perused, the same admittedly is not a FAX ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 62 message and not even an original copy and, therefore, in the given circumstances, the NCB has withheld the best evidence which calls for an adverse inference.
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(x) There are no call details of the officials who sent the information under Section 42 of the Act and the person who received the same to substantiate the factum of calling and receiving of calls as alleged by them.
(xi) PW-9 even though tried to support the version of PW-7 regarding the sending of the FAX message but has candidly admitted in his cross-examination that Ext.PW-
7/A is not a FAX copy and further admit that the FAX copy has not been placed on record.
(xii) As per PW9, the case property was taken by him to Zonal Unit, NCB Chandigarh on 21.10.2014 and was deposited with PW-7, who issued receipt Ext.PW-7/C in this regard.
It would also be noticed that in case PW-9 had visited PW-7 on 21.10.2014 then why the information under Section 42(2) of the NDPS Act was not placed before him on 21.10.2014 itself and came to be placed before him subsequently on 22.10.2014.
(xiii) It is the case set-up by the NCB that the apprehension, search and seizure were conducted after sun set and before sun rise. Therefore, as per the ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 63 mandate of law, PW-9 was required to write his reasons of believe in the said information as to why warrants could be obtained without affording the opportunity, however, .
no such reasons find mention in Ext.PW7/A.
(xiv) The entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each had been sent. Therefore, even assuming that the case set-up by the NCB is proved to the hilt even then it is only 100 grams of charas that can be said to have been recovered from either of the accused for which the maximum conviction would be about one year and concededly the appellants have undergone more than the aforesaid said period in custody.
(xv) There is no explanation forthcoming as to why the accused was sent to judicial custody on the same day of his arrest without any efforts by the NCB official to interrogate him on the vital aspects of the case.
82. It is cardinal principle of criminal jurisprudence that "graver the offence, stricter the proof." The purpose of criminal court is not to convict any accused facing the trial but to do justice.
83. On the basis of what we have observed above, we have no hesitation to conclude that the NCB has miserably failed ::: Downloaded on - 30/12/2017 23:49:29 :::HCHP 64 to lead cogent, reliable and satisfactory evidence to prove the guilt of the accused beyond reasonable doubt.
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84. Accordingly, we find merit in this appeal and the same is allowed. The impugned judgment of conviction and sentence passed by the learned Special Judge-I, Kullu on26.09.2016, is set aside. The appellant is acquitted of the charges framed against him. He is ordered to be released forthwith if not required in any other case. Registry is directed to prepare release warrants immediately.
(Tarlok Singh Chauhan),
r Judge
(Chander Bhusan Barowalia)
Judge
December 29, 2017
sanjeev
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