Allahabad High Court
Santosh Kumar Tripathi vs State Of U.P. on 6 February, 2014
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No.17 AFR Reserved
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD,LUCKNOW BENCH, LUCKNOW
Case :- CRIMINAL APPEAL No. - 1741 of 2009
District- Lucknow
Appellant :- Santosh Kumar Tripathi
........ Appellant/Accused(In Jail)
Respondent :-State Of U.P. ...........Respondent/Prosecution
Counsel for Appellant :- Rakesh Kumar Misra,R.P.Mishra II,
Counsel for Respondent :- Govt. Advocate
Hon'ble Vishnu Chandra Gupta,J.
JUDGEMENT This criminal appeal has been preferred by appellant Santosh Kumar Tripathi under section 374 (2) of Code of Criminal Procedure (For short Cr.P.C.) against the judgment and order dated 23.7.2009 passed by Additional Sessions Jude /FTC II Lucknow in Crl. Misc. Case No. 155 of 2007 State Vs. Santosh Kumar Tripathi relating to case crime no. 155 of 2007 under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (For short NDPS Act) P.S. GRP, Charbagh, District Lucknow, whereby the appellant was convicted and sentenced under section 8/20 of NDPS Act with rigorous imprisonment of 10 years and fine of Rs. 1,00,000/-, in default thereof to undergo one year and six month additional simple imprisonment.
Relevant facts for deciding this appeal are that on 8.6.2007 at 12.30 P.M., S.I. Jai Narain Singh alongwith Constable Shesh Dhar Shukla and Constable Ashok Kumar Rai proceeded after making entry in GD No. 27 at 10.40 a.m. from police station GRP, Charbagh, Lucknow for checking and search of suspected criminals. When the police personnels were on patrolling duty and were proceeding towards plat-form no. 8-9 from plat-form no. 1, an informer informed that a person who is sitting in front of Khamman Pir Baba has tightened charas with his body and is going to sale it somewhere. If efforts are made without any further delay, he may be arrested with contraband. Believing this information, the police personnels took personal search of each other and after satisfying that nobody is possessing any contraband or illegal thing, they tried to collect independent witness and asked the passengers available on plate-form No. 8-9, but they declined to be the witness. Consequently, the police personnels proceeded towards Majar of Khamman Pir Baba. When they reached near tea canteen with informer, the informer pointed out a person. Thereafter the informer left the place. Thereafter the police personnels proceeded towards him. Seeing it that person (accused appellant) hurriedly moved towards east. He was chased and apprehended on plat-form no. 8-9 at about 12.30 p.m. by police party. On interrogation, the accused appellant told his name, parentage and address. SI Jai Narain Singh (P.W.1) apprised about his right that he may be searched before Magistrate or Gazetted Officer as he was suspected to have contraband. The accused appellant did not exercise his right to be searched as aforesaid and allowed the police party to take his search. He also executed consent memo (Ext. Ka-2). On search, the police party recovered total seven packets from the possession of the accused appellant. Two packets were tightened with waist in cotton bag, two packets were tightened in the thighs with the help of anklet and three packets were found inside the reddish coloured bag kept by him. It was weighted on plate-form through weighing scale of one fruit seller which was brought by Constable Shesh Dhar Shukla (P.W. 2). The weight of the seven packets was found to be 8 Kg. P.W. 1 S.I. Jai Narain Singh took out some material from one packet out of 7 and sniffed the same and found it to be charas. Thereafter all the packets recovered from the possession of the accused appellant were sealed on spot the bag of accused appellant. The accused appellant was arrested by the police after disclosing his crime. A recovery memo (Ext. Ka-1) was drawn by SI Jai Narain Singh on the spot and after getting it witnessed from the Constable Shesh Dhar Shukla and Ashok Kumar Rai. A copy of the recovery memo was handed over to the accused appellant whose signature was also obtained on the recovery memo. The accused appellant also signed the consent memo (Ext Ka-2). Thereafter the accused appellant was brought to police station along with recovered contraband.
On the basis of recovery memo a First Information Report (Ext.Ka-5) was lodged against the accused appellant at case crime no. 155 of 2007 under section 8/20 of the NDPS Act. The case was registered at police station GRP, Lucknow at serial no. 35 in General Diary (Ext. Ka-6) at 14.35 hours on the same day. The investigation of this case was entrusted to S.I. Bansh Raj Nigam. The information of this incident was given on phone as well as through constable SFP Control to high officer. Special report of this incident is said to have been sent after its preparation to High Ups.
During the course of investigation, Circle Officer Sunita Singh, Eastern-Northern Railway-I, Lucknow vide order dated 11.6.2007 withdrew the investigation of this case from S.I. Banshraj Nigam and entrusted the same to S.O. Vimal Kishore Srivastava, Police Station GRP, Lucknow. During the course of investigation, the sample of contraband was taken by order of Special Judge, EC Act on 11.7.2007. The Court sent the same for chemical examination to Forensic Science Laboratory, Mahanagar, Lucknow ( for short "FSL").
After collecting the report of chemical examination and report of Forensic Science Laboratory disclosing the material as Charas, completing all the formalities of investigation and preparation of site plan (Ext. Ka-3), the police submitted charge-sheet (Ext Ka 4) against the accused appellant under section 8/20 of the NDPS Act. The court took cognizance of the case. Charge under section 8/20 of the NDPS Act was framed against the accused appellant on 31.10.2007. The accused appellant denied the charge levelled against him and claimed to be tried.
To prove its case, the prosecution examined SI Jai Karan Singh as P.W. 1 and Constable Shesh Dhar Shukla as P.W-2. They are witnesses of fact and stated about the incident and proved recovery memo and consent memo executed by the accused appellant. S.O. Vimal Kishore Srivastava was examined as P.W. 3, who was Investigating Officer of this case and recorded the statement of witnesses, prepared site plan, sent contraband for chemical examination, collected the report of FSL and after completing all the formalities submitted charge-sheet against the accused appellant. Thereafter prosecution closed its evidence.
Accused appellant was examined under section 313 Cr.P.C. wherein the allegation and circumstances against him were denied by the accused appellant and also claimed his false implication. He also stated that he had gone to pay Rs. 10,000/- to one Shambhoo Gupta, R/O Railway Colony, Lucknow, from whom he had taken loan, but the police snatched the said amount from him and falsely implicated in this case. It was also alleged by the accused appellant that sample was changed. Accused appellant did not adduce any defence. The trial court after considering the material available on record and the evidence adduced by the prosecution convicted and sentenced the accused appellant vide impugned judgement and order dated 23.7.2009. Hence this appeal.
The trail court while convicting and sentencing the accused appellant held that compliance of section 50 of NDPS Act has been made. The plea of defence regarding non compliance of section 55 of NDPS Act was raised on the ground that register kept in Malkhana of police station GRP, Lucknow was not produced, therefore, prosecution could not establish that recovered article was kept in the Malkhana of police station GRP, Lucknow. The plea of want of independent witness, change of sample, non production of link evidence of taking and sending sample were rejected after relying upon the judgement of the Bombay High Court in Refakat Ali Khan Vs. State of Maharastra, 1993Cr.LJ 3844 wherein it was ruled that procedural irregularity cannot be the basis of vitiating trial. The learned trial Court also relied upon the judgement of Apex Court in Hamid Bhal Aazam Bhai Malik Vs. State of Gujarat 2009 (1)JIC 687 SC, wherein it has been held that any mistake in implementing any legal provision cannot give any reason to disbelieve the whole prosecution story and ultimately convicted the appellant.
The learned counsel for the appellant submitted that in this case sample has not been taken on the spot by the police party and no reason has been assigned for the same. The procedure adopted for taking sample is contradictory to the Standing Instruction of Narcotic Control Bureau (for short "NCB"), Delhi. Moreover, the manner in which sample was taken was also not in accordance with provisions of section 53 of NDPS Act. Learned counsel for the appellant further submitted that the sample is said to have been taken on 11.07.2007 in the Court of Special Judge, EC Act, Lucknow and sent for chemical analysis, but the same has been received in the Forensic Science Laboratory, Lucknow on 12.07.2007. Moreover, the round impression seal of the Special Judge, EC Act, Lucknow used for sealing the samples was not found affixed on the sample which was sent for chemical analysis as is evident from the report of FSL. No link evidence has been adduced.
The learned Counsel for the Appellant further submitted that it is admitted case that sample was taken from only one packet, out of seven packets and material of remaining six packets was not tested. It is further submitted by him that in view of judgement of their Lordships of Supreme Court in Gaunter Edwin Kircher v. State of Goa, AIR 1993 SC 1456, the contents of six remaining packets cannot be taken to be the Charas even if evidence of prosecution is taken to be true. It is on record that sample which was taken from the packet was hardly having material of one Kg. and possibility cannot be ruled out that this quantity may be lesser than that in view of evidence available on record. It was also submitted that there are material contradictions in the evidence of PW1 Jai Narain Singh and PW2 Shesh Dhar Sukla which give reason to doubt the alleged recovery. No representative sample was taken in this case. Hence after relying upon the judgement of Apex Court in Kher Singh Vs. Union of India 2002 (4) SCC 480, it is submitted by the learned counsel for the appellant that on the basis of alleged recovery and report of FSL the conviction of appellant cannot be allowed to sustain.
It is further submitted by the learned counsel for the appellant that the investigation conducted by PW3 S.O Vimal Kishore Srivastava was not fair and pre judicial to the interest of accused as mandatory provision has not been followed while conducting the investigation. The investigation is carried out in a very casual manner. No evidence of taking sample has been brought on record. It is further submitted that in this case due defective investigation, a serious prejudice has been caused to the accused, as such, the conviction cannot be allowed to sustain.
Per contra, learned counsel for the State submitted that in this case huge quantity of charas was recovered from the possession of appellant. The manner in which the charas was kept by the accused appellant was indicative that it was being transported with intent to sale. Admittedly, the quantity of recovered contraband was of more than commercial quantity. He further submitted that seven packets containing charas were recovered from the possession of the appellant, out of which one packet was opened and physically observed by the arresting officer and found to be a charas. The opinion of arresting Officer as well as statement of accused appellant substantiated from the chemical examination report of FSL. It is further submitted that the alleged recovered article was kept in the police station. It is evident from the entry made in General Diary of the police station prepared at the time of registration of FIR. As such, it cannot be said that recovered charas has been planted against the accused appellant. It is not possible to plant such a huge quantity of contraband recovered from the possession of the appellant. It is further submitted that sample was taken before the court of Special Judge, EC Act, Lucknow, so the possibility of tampering or changing the article is completely ruled out, hence, the use of stamp affixed on the sample cannot be doubted, specially when it is not denied that sample has been sent by the Special Judge, EC Act, Lucknow for testing and the report was sent back to the Special Judge, EC Act, Lucknow. Therefore, there is no illegality in awarding the punishment after convicting the appellant under section 8/20 of NDPS Act.
On the basis of submissions made by learned counsel for the parties following questions are to be considered for just decision in this appeal-
I.Whether there are material contradictions in the evidence of SI Jai Narain Singh(PW1) and Constable Shesh Dhar Shukla (PW2). If so what would be the effect?
II. Whether there is any irregularity in taking sample of contraband. If so, what would be the effect?
III.Whether the case falls within the ambit of section 20-b (ii) (B) of the NDPS Act i.e. because the quantity involves is the quantity lesser than commercial quantity but more than small quantity?
IV.Whether the investigation conducted in this case is tainted and is not fair and prejudicial to the interest of the accused?
The offence under section 20 of N.D.P.S. Act relating to commercial quantity is punishable with very stringent punishment, therefore, the evidence of prosecution requires strict and minute scrutiny.
The Hon'ble Supreme Court in Hema Vs. State. (2013) 10 SCC 192 held that not only fair trial but fair investigation is also the fundamental right of citizen conferred under Article 21 of the Constitution of India. The investigating officer cannot be permitted to conduct investigation in a tainted and biased manner. The investigation must be fair, transparent and judicious. Such investigation forms essential requirement of rule of law. In Khet Singh Vs. Union of India,(2002) 4 SCC 380, the Apex Court held at page 383 :
"5. It is true that the search and seizure of contraband article is a serious aspect in the matterof investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance."
In view of law propounded by the Apex Court in the aforesaid decisions, it is necessary to look into the statutory provision first which relates to search recovery and sample of contraband.
Chapter-V of N.D.P.S. Act deals with procedure. Section 51 deals with provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures. Section 52 and 52A deals with disposal of persons arrested and articles seized under the Act. Section 53 deals with power to invest officers of certain departments with powers of an officer in-charge of a police station.
In this case manner of seizure and taking of sample and sending the sample for test has been seriously challenged.
It it not in dispute that alleged contraband has been seized from the accused appellant after his arrest in a public place as provided under Section 43 of N.D.P.S. Act. The seizure was made by S.I. Jai Narain Singh, who was under obligation to discharge his duties in light of Sections 52 and 52A of N.D.P.S. Act which provide that any officer arresting a person under Sections 41 to 44 may be informed on the ground of such arrest, as soon as possible. Sub Section 3 of Section 52 provides that every person arrested and article seized under Sub Section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to officer in-charge of nearest police station or, officers empowered under Sub Section 53. When arrested person and seized article are forwarded to the officer authorized under Sub Section 3 of Section 52 with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article. Section 52A deals with disposal of seized narcotic drugs and psychotropic substances, which is reproduced herein below:-
"52A. Disposal of seized narcotic drugs and psychotropic substances.
(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of -
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
The aforesaid provisions of Section 52A prescribes procedure for which contraband should be disposed off. The purpose of disposal at the earliest is giving in Sub Section 1. Section 2 of Section 52A , the Magistrate has no option but to allow the same as soon as possible. Every court trying an offence under this Act, shall treat the inventory, photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub Section 2 and certified by the Magistrate, as primary evidence in respect of such offence.
Section 55 provides that an officer-in-charge is competent to investigate the offence so, if the seized contraband and accused is forwarded to the officer- in-charge of a police station, he shall take charge of and keep it in a safe custody, pending the orders of the Magistrate, all the articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any other officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in-charge of the police station.
Some Standing instructions were also issued clause 1.5 of Standing Instruction 1/88 issued by the Narcotics Control Bureau, New Delhi,in regard to seizer and sampling of contraband which are as follows:
"Place and time for drawl of sample.--Samples from the narcotic drugs and psychotropicsubstances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot."
The learned counsel for the appellant also pointed out to us clause 3.8 of Standing Instruction 2/88 issued by the Narcotics Control Bureau, New Delhi, which reads as follows:
"Each seizing officer should deposit the drugs fully packed and sealed with his seal in the godown within 48 hours of seizure of such drugs, with forwarding memo indicating:
(i) NDPS crime number as per crime and prosecution register under the new law (i.e. the NDPS Act).
(ii) Name(s) of accused.
(iii) Reference of test memo.
(iv) Description of drugs in the sealed packages/containers and other goods, if any.
(v) Drugwise quantity in each package/container.
(vi) Drugwise number of packages/containers.
(vii) Total number of all packages/containers."
The compliance of provisions of the act and standing instruction it is necessary to look into the evidence of the prosecution witness.
As per prosecution story the accused appellant was arrested from the public place i.e. plat-form of railway station and seven packets were recovered from his possession, out of which four were tightened with body in side wearing clothes and three were found in a bag kept by him. According to S.I. Jai Narain Singh out of these seven packets, he took out some material from one packet physically observed by sniffing and came to the conclusion that it is a "Charas". He did not take any sample of contraband on spot. Alleged recovered packets were kept in a bag which was with the appellant and was sealed therein by S.I. Jai Narain Singh, P.W. 1 affixing his own seal and took the accused appellant and sealed contraband material at G.R.P. Police Station Charbagh, Lucknow and handed over the same to police station. It is not clear either from the statement of S.I. Jai Narain Singh or from the record prepared at the time of keeping the articles in police station by Head Constable whether Station House Officer (SHO) of police station was present in the police station or not? However, from the entry made in the G.D. at the relevant time it appears that investigation of this case was not handed over to S.H.O. and the investigation was entrusted to Banshraj Nigam, S.I. which was seriously objected by Circle Officer, Eastern Northern Railway-I, Lucknow and only thereafter the investigation was taken over on 12.07.2007 by S.O. Vimal Kishore Srivastava. Thereafter he moved an application for picking up sample of contraband from the seized stock before the court of Special Judge, E.C. Act, Lucknow, who allowed the same. The sample was taken and sent for chemical analysis to FSL through Constable Praveen Kumar, but the same was not delivered in FSL on 11.07.2007 and the same was delivered on 12.07.2007. The report of Joint Deputy Director, FSL dated 2.8.2007 reveals that sample which was sent along-with sample and impression found on the sample was having marked "I ASJ/ FTC O". In the said report the weight of sample of contraband was noted as 101 gram. This procedure has been seriously challenged by the learned counsel for the appellant.
In Khet Singh v. Union of India, (2002) 4 SCC 380, at page 385 and at page 387 the Hon'ble Supreme Court has held in paragraphs 10 and 16 as under:
"10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody."
-------------
"16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence."
SI Jai Narain Singh (PW1) supported the version of prosecution as contained in recovery memo. In his examination-in-chief, he categorically stated that one packet, out of seven was opened and physically checked by sniffing the contents and found it to be charas. Nothing has been stated about taking sample on the spot of contraband recovered from the possession of the accused appellant either from already opened packet or from any other packet. Even in the court he deposed that out of seven packets, only one packet was opened, out of which some material was taken out. He categorically stated that out of these seven packets, six are intact. Out of these seven packets, three are transparent and remaining four are not transparent and in these four packets contents contained therein cannot be seen nor recognised. The packets produced in the court do not contain signature of accused, crime number and name of the accused. He also deposed that weight of the open packet would be about 1 Kg from which sample was extracted. He further deposed that cloths in which articles were seized have contain some descriptions, but who wrote it is not known to him. He also categorically stated that he is not aware with the hand writing of those two constables who were accompanied with him at the time of recovery. He could simply identify their signatures. He also categorically stated that for getting the weight a weighing scale was brought by Constable Shesh Dhar Shukla (PW2) from one fruit vendor. He also stated that he neither told to fruit vendor nor owner of tea shop to become the witnesses. He put his seal which contains his name while sealing the contraband. He after inspection of lower court record and material exhibits deposed that neither impression seal of his name is available on record nor the seal by which he sealed the contraband on spot is on the packets. He also admitted that neither contraband nor accused were produced by him before SHO. He handed over the contraband and accused to the Head Constable present in the police station. He could not tell as to who sealed the contraband on the spot. He could not give any explanation as to why sample was not taken on the spot. He also stated that weight of all the packets was taken collectively. In reply to the question put by the court he stated that all the packets were not of the same size. The packets were of different sizes. Four packets were of same size and three packets were of same size but of different size with those four .
Constable Shesh Dhar Shukla (PW2) stated that the accused was sitting on the tea shop. The shops of Prashad and Tea were situated in front of Khamman Pir Majar. Contrary to the statement of PW1, he stated that weight of all the packets were separately taken and the total weight of all the packets was noted down. He also stated that separate weight of separate packet was disclosed by him to the Investigating Officer. Contrary to the statement of PW1, he also stated that no other documents except recovery memo was prepared on the spot. This witness categorically stated that no consent letter was signed by the accused on the spot. He also did not know whether memo of arrest was prepared on the spot or not? Contrary to the statement of PW1, this witness also stated that sample was taken on the spot but it was taken from one packet. Material taken for sample was about 200-250 gram. The sample of contraband was separately sealed in white cloth after keeping it in Polythene. Remaining contraband was kept in a bag and separately sealed. Contrary to the statement of P.W. 1, this witness also stated that fruit vendor whose weighing scale was taken for weight of contraband was also present on the spot and same vendor took weight of the contraband in their presence. However, the signature of that vendor was not taken on recovery memo. He categorically stated that S.H.O was not present in the police station. This witness supported the version of PW1 to the extent that due to absence of SHO the contraband and accused were handed over to the Head Constable in the police station.
S.I. Banshraj Nigam who was the first Investigating Officer of this case has not been examined by the prosecution. The investigation of this case was taken back from him on the ground that he was not competent officer to conduct the investigation in view of section 53 of the NDPS Act and probably for this simple reason the investigation was entrusted to SHO Vimal Kishore Srivastava (PW3) who was competent officer to investigate the case in view of section 53 of the NDPS Act. CO of police Railway-I expressed her annoyance for entrusting the investigation to Banshraj Nigam.
SHO V.K.Srivastava(PW3), the Investing Officer, stated in examination-in-chief that witnesses Ashok Kumar Rai and Shesh Dhar Shukla told him that all the packets were opened and sniffed though this fact could not be substantiated in the court because only one packet was found opened and six packets were found intact when recovered articles were produced for inspection in the court. This witness also stated that on 11.7.2007 i.e. after more than one month, the recovered contraband was taken out from Malkhana of police station and was produced before Special Judge, E.C. Act, Lucknow. He further stated that sample was taken in the court, but he could not tell as to who took the sample and who sealed the packet after taking the material from packet for sample. He could not say how much quantity of contraband was taken for sample. In the case diary, the weight of sample was not mentioned as stated by him. Moreover, he categorically stated that he did not know how much quantify is necessary for taking sample. He also stated that on the sample specimen seal of the court was affixed. He in specific word stated that seal which was affixed on the sample was of Special Judge EC Act, Lucknow. He further stated that sample was sent for test on 11.7.2007 through constable Praveen Kumar. It was admitted by him that Constable Praveen Kumar had deposited the same on 12.7.2017 in the FSL. P.W. 3 could not say whether the sample taken on 11.7.2007 was actually deposited in MalkKhana or not before handing it over to FSL? He stated that probably the sample was remained with constable Praveen Kumar or it would be deposited in Malkhana. After seeing FSL report he deposed that sample was having seal mark 'I-ASJ FTC.O'. However, he stated that he is not knowing that 1st Additional District Judge is Special Judge EC Act or not or whether Special Judge, EC Act is Fast Track court or not? However, he denied that sample was changed.
Constable Praveen Kumar has also not been examined in the court. No specimen of seal by which the sample was sealed placed for inspection before the Trial court. The letter sending the sample to FSL by the Special Judge, EC Act, Lucknow contains rounded impression seal. In this round impression seal, name of the court of Special Judge EC Act, Lucknow is mentioned. It does not contain impression " I ASJ/FTC O" as was found in the report of FSL. The specimen seal by which sample was sealed by PW1 S.I. Jai Narain Singh was also not placed on record. PW1 S.I. Jai Narain Singh in his deposition stated after seeing the packets produced in the court of the alleged contraband, that these packets do not contain impression seal nor any memo of impression seal of his name is available on record, who took the sample could not be told by P.W.3. Admittedly the sample according to prosecution, was taken before the court of Special Judge, EC Act,Lucknow. The sample which was sent for chemical analysis was not having seal of 'Special Judge EC Act, Lucknow', and is not tallying with the impression of seal of which was available on report of FSL. It is also important to mention here that documents which contain impression seal of Special Judge, EC Act, Lucknow and attested signature of Constable Praveen Kumar was not proved by PW3 though the same is still available on record with exhibit file as paper No. AA-8/1. These documents contain endorsement of FSL of receipt of sample along with impression seal of dated 12.7.2007.
It is, thus, obvious that only one packet was opened for taking sample out of seven packets. The weight of that packet was stated approximately one Kg by PW1, therefore, it cannot be said that the quantity of Charas is lesser than commercial quantity.
The entire evidence adduced by the prosecution makes it clear that provisions of sub clause 2 of section 52A of NDPS Act have not been complied with as the contraband seized was not forwarded to the officer-in-charge of the nearest police station, but the same was produced before Head Constable of P.S. GRP Charbagh. The accused and contraband was also not produced for the purpose of verification and correctness of the inventory prepared on the spot or to take photograph of contraband or allow to draw representative sample of drugs or substances in the presence of Magistrate. No certification of correctness of inventory or any list of samples so drawn was ever entered in the GD nor the same has not been produced before the Trial Court. It shows that PW3 the Investigating Officer/SHO was so careless and negligent that he could not tell the court who took the sample in the Court of Special Judge EC Act or how much quantity was taken or required for sample. The link evidence has not been produced in this case though it was available. No explanation has been submitted by the prosecution for not producing link evidence specially when the impression seal found in FSL was not of Special Judge EC Act, Lucknow. Admittedly the sample has been taken from one packet and representative sample has not been taken i.e. taking substance from each and every packets. Therefore, remaining six packets cannot said to be charas with all certainty. The contents of those packets were not examined by FSL nor were physically tested by the arresting officer. The statements of PW1 and PW2 are contrary to each other on the vital issue i.e. regarding taking of sample on the spot, the presence of fruit vendor whose weighing scale was used, the manner in which weight was taken, the person who has taken weight and preparation of consent memo, etc. All the three witnesses of prosecution who tried to support the prosecution case and recovery of alleged huge quantity of charas could not said to be reliable witnesses. The evidence of such witnesses do not inspire any confidence in view of the aforesaid short comings and the same cannot be used to sustain the conviction of appellant in this case.
In view of the facts and circumstances of the case it is established that the evidence of PW1 SI Jai Narain Singh and PW2 Constable Shesh Dhar Shukla have lot of material contradictions, hence in absence of independent witness testimony of those two witnesses cannot be relied upon.
Moreover, there was an irregularly in taking sample of contraband. The manner in which the sample has been taken and sent for analysis with discrepancy of the impression seal,which has not been reconciled from the evidence adduced by the prosecution, the non production of link evidence would be fatal to the prosecution and also cause serious prejudice to the accused appellant. In this case, investigation conducted is certainly tainted and could not be said to be a fair investigation which shall be prejudicial to the interest of the accused.
In view of the above, the prosecution failed to prove its case beyond all reasonable doubt and the appellant deserves to be acquitted of the charge levelled against him. The appeal deserves to be allowed and the impugned judgement convicting and sentencing the appellant with rigorous imprisonment of ten years and with fine of Rs.1 lac is liable to be set aside.
In the result, the appeal is allowed.
The impugned judgement and order dated 23.7.2009 passed by Additional Sessions Jude /FTC II Lucknow in Crl. Case No. 155 of 2007 State Vs. Santosh Kumar Tripathi relating to case crime no. 155 of 2007 under section 8/20 of NDPS Act is set aside. The appellant is acquitted of the charge levelled against him . The appellant is in jail. He be released forthwith without any further delay, if not wanted in any other cases.
Copy of this judgement along with lower court record be sent immediately for compliance by the trial court.
Senior Registrar of this Court shall also ensure the compliance of this order.
Order Date: 6th February, 2014 GSY