Jammu & Kashmir High Court
State Of J&K vs Verinder Singh And Anr on 28 April, 2023
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
S. No.
HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT JAMMU
CRAA No. 41 of 2011 (O&M)
Reserved on: 11.04.2023
Pronounced on: 28.04.2023
State of J&K ...Appellant(s)
Through :- Mr. K.D.S. Kotwal, Advocate
v/s
Verinder Singh and anr. .....Respondent (s)
Through :- None.
Coram:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
Rajesh Sekhri-J
1. By virtue of this judgment, the present appeal hanging fire for the last more than 12 years shall be put to quietus.
2. This appeal has been directed against judgment dated 28.02.2010 rendered by learned 2nd Additional Sessions Judge, Jammu (hereinafter referred to as „trial court‟), in File No.148/Challan titled „State of J&K v. Verinder Singh and another‟, and FIR No. 34 of 2007 of Police Station, Miran Sahib for offences under Sections 353/34 RPC, 4/25 Arms Act, 8/15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, for short) and 6/13 DCO, vide which, respondents have been acquitted of the charges.
2 CRAA No. 41 of 2011
3. Before a closer look at the grounds urged in the memo of appeal, it shall be apt to have an overview of the facts giving rise to the present case.
4. Case of the appellant-State/prosecution is that on 07.07.2007, Ajaz Ahmad, PSI along with police party of Police Station, Miran Sahib, while on patrolling received source information at about 8:00 P.M that respondents/accused were engaged in illegal trade of Poppy straw in their house in Ward No. 6. The PSI informed and requested SDPO and SDM to reach before they rushed to the spot to apprehend accused. Respondent-accused No. 1, it is alleged, on seeing the police party made an attempt to escape in his car bearing Registration No. JK02P-8077, but his attempt was foiled and he fled from the spot leaving the car behind. PSI-Ajaz Ahmad conducted search of the car and recovered poppy straw in a polythene bag, 1000 capsules of paravanspas, 60 capsules of Spasmoproxvon, a box containing 20 bottles of Rexicof, 02 tokas and one kirch. It is further case of the prosecution case that respondent/accused No. 2, Kamaljit Kour, meanwhile attacked the police party with Kirch, but she was overpowered by a lady constable, namely, Kamlesh Kumari and was taken into custody on the spot and Kirch was seized. Report was flashed to the Police Station, Miran Sahib, consequently aforesaid FIR came to be registered and investigation was assigned to SHO, Inspector-Harjit Singh, who came to the spot and seized the car in the presence of SDM and SDPO, R.S. Pura. After rituals of formal investigation, including preparation of the site plan, formal recovery and seizures of the aforementioned drugs and weapons, the IO extracted samples of 50 grams of Poppy straw, 10 capsules each of Parvanspas and Spasmoproxvon and one bottle of Rexicof, which were sealed on the spot. It is also case of the prosecution that 600 grams of opium, 40 kg of poppy straw and a bag containing 3 CRAA No. 41 of 2011 20 kg of poppy straw were also recovered and seized on house search of the respondents, their samples of 50 grams each were also taken and after formal sealing and re-sealing all the samples were forwarded to FSL for chemical analysis. On the conclusion of investigation, since aforesaid offences were established against the respondents, a final report, in terms of Section 173 of the code of Criminal Procedure, 1973 (for short Cr.P.C.) was filed.
5. Respondents were charged by the trial court for the aforesaid offences on 10.01.2008, whereby they pleaded innocence and claimed trial, prompting the trial Court to call for the prosecution evidence. Prosecution has examined as many as 14 witnesses.
6. In order to appreciate the prosecution evidence in the right perspective, it shall be apt to give a brief resume of the prosecution evidence, which reads thus:
7. PW-1 Ajaz Ahmad was incharge of the patrolling party at the relevant point of time, on whose report FIR against respondents came to be registered. He has stated that while on patrolling, he received source information that accused were involved in the illegal trade of Poppy straw in their house. He gave telephonic information to the SHO and proceeded to the house of accused along with the patrolling party. On seeing them, respondent no.1 tried to escape in his car bearing Registration No. 8077-JK02P, but he ran away leaving the car behind. He searched the car and recovered 02 kgs of Poppy straw from a polythene bag, 1000 parvanspas capsules, 60 capsules of spasmoproxvon and 20 bottles of Rexicof. Accused-Kamaljeet Kour attacked constable-Sukhvinder Singh with toka, but she was apprehended by constable-Kamlesh Kumari. Further, two tokas and one kirch were recovered from the said car. He also stated that after enquiry from accused-Kamaljeet Kour, a bag containing 40 kgs and 4 CRAA No. 41 of 2011 another bag containing 20 kgs Poppy straw were recovered on digging the compound of the house of accused and further on their house search, a bucket containing one kg Poppy straw, one weighing pan, two weights of 500 gms each, one sword and a plastic cane containing 500 gms opium came to be recovered. One strip each of 10 capsules was drawn as a sample. In cross examination, he has stated that they reached Simbal Camp at 7:45 p.m. The information received by him was not reduced into writing. He did not inform the SHO or SDPO in writing. There were houses near the Bus Stand at a distance of 200 to 300 meters from the house of accused persons and there were also houses around the house of accused persons, but none of them was called at the time of house search. Search warrant was not obtained. He himself recovered the articles and drugs from the car. SHO used his seal but he does not know where the said seal was kept. He has no knowledge about the re-sealing. He reflected his ignorance about any dispute between SHO and accused No.1.
8. PW-2 Rajinder Singh though admitted his signatures but denied contents of the seizure memo.
9. PW-4 Jaswant Singh has turned hostile. He has stated that he was told by the SHO that they had recovered Poppy straw and other goods from the house of accused and his signatures were obtained on a plain piece of the paper. Nothing incriminating could be extracted on his cross examination by the prosecution.
10. PW-5 Sampuran Singh has also turned hostile.
11. PW-6 Karanjit Singh, another member of the patrolling party, has stated that on 07.07.2007, while he along with PW-1, SI-Ajaz Ahmad and other police officials were on patrolling, they were informed by a person that accused were engaged in the trade of Poppy straw. They went to the spot. Accused No. 1, on 5 CRAA No. 41 of 2011 seeing them, tried to escape in his vehicle bearing Registration No. JK02P-8077, but he ran away, leaving the vehicle behind. PW-1 informed SDPO and SHO. He was sent to the Police Station with the report for lodging FIR. He returned to the spot along with SHO, SDPO and SDM. They conducted search of the car. One white coloured polythene bag containing 1000 capsules of spasmoproxvon and 60 capsules of proxvon, two tokas, one kirch and a box containing bottles were recovered. When they asked for the search, Constable-Sukhvinder Singh was attached by accused No. 2 with a Kirch, but she was caught by a lady constable and was taken into custody. Thereafter, they recovered two bags containing 40 kgs and 20 kgs Poppy straw in the presence of SDPO and SDM. They also went to the basement of the house and recovered a plastic bucket containing Poppy straw, a sword, one gallon containing raw opium, two pans and two weights of ½ kg each and one weight of 200 gms. SHO had taken 10 capsules each, 40 gms Poppy straw from each packet and 10 gms opium as samples for chemical analysis. In cross-examination, he has stated that they reached Simbal Camp, Matador Stand at around 7:45 p.m. to 8:00 p.m. They received the information from a Sikh aged about 60/70 years. Neither information was reduced into writing by SI-Ajaz Ahmad, nor they informed their superior officers. They did not send any report to the Police Station from the bus stand. There were shops at the Matadoor stand at a distance of about 30 mtrs from the house of the accused. He forwarded the docket for registration of the case to the Police station before the house search. Police personnels did not get themselves searched before house search was conducted. Packets were signed by the SHO. He does not know who went to the basement and where poppy bags were recovered from.
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12. PW-7 Kamlesh Kumari is also member of the Patrolling Party and has stated that on 07.07.2007, while they were patrolling in Ward No. 4, Matador Stand, Simbal Camp, SHO received source information that accused were dealing in the sale of Poppy Straw. They along with SHO went to the spot at Ward-4, Simbal Camp. A Maruti Car was parked outside the house of accused and when they tried to arrest accused-Verinder Singh, he escaped with his vehicle. SDPO and SDM were called by the SHO on spot. She again stated that accused had left the Car behind and on the search of the Car, Poppy straw and Tokas were recovered. Thereafter, they conducted house search of accused. Accused-Kamaljeet Kour tried to assault Constable-Sukhvinder Singh, but she caught hold of her. On house search, Poppy straw, capsules, opium, toka etc. were recovered from the basement of the house. In cross examination, she deposed that they left the police Station at about 7:30 p.m. and when they reached the spot, accused were standing near the car. She does not remember who brought out articles from the Car and whether SDPO and SDM reached after the search had concluded. She does not remember who had informed SDPO and SDM and whether Poppy straw was weighed in the Police Station or not. Seized material was not seized in her presence and was not put on her superdnama.
13. PW-8 Yashpal is also member of the patrolling party and has stated that on 07.07.2007, while he along with other police personnels was on patrolling in Ward No. 4 Simbal Camp, SI Ajaz Ahmad received information at about 7-7:30 p.m. that accused were dealing in the trade of Poppy straw. They proceeded towards the house of accused. Accused was standing near the car, and ran away. On search of the vehicle, a bag containing capsules, bottles and Poppy straw were recovered. SI-Ajaz Ahmed informed SDPO and called him on the spot and on the arrival of the SDPO, when accused No. 2 was enquired, she attacked 7 CRAA No. 41 of 2011 Sukhvinder Singh with Kirch, however, she was caught hold by PW-Kamlesh Kumari and thereafter, on disclosure of accused No. 2 and on digging the compound of the house, two bags of Poppy straw were recovered. On further house search about 01 kg Poppy straw from a bucket and a bottle containing some liquid were also recovered. A small quantity was drawn as a sample and was taken to the Police Station. In cross-examination, he has stated that there were open shops at Simbal Morh. The person who informed SI-Ajaz Ahmed about accused was a Sardar of about 40 to 45 years of age. House of accused was at a distance of 50 to 70 ft. from Simbal Chowk and there were also houses around their house. Information received at Simbal Chowk was not reduced into writing by SI- Ajaz Ahmed nor anybody was sent to Police Station from the said place for Registration of the FIR. They had not obtained search warrant before or after search of the car. House search was conducted in the presence of SDPO and SDM, but nobody got himself searched before search of the house. Neither Constable-Sukhwinder Singh nor Karanjeet Singh sustained any injury. He has not seen Poppy straw, capsules or kirch in the Court.
14. PW-9 Sukhwinder Singh, being a member of the patrolling party, has also stated that while on patrolling, when they reached Matador Stand in Ward No. 4, Simbal Camp at about 9.00 p.m., Ajaz Ahmad-SI received information that accused were running the trade of Poppy straw in their house. This information was flashed by SI-Ajaz Ahmad to the SDPO. They went to the house of accused. Accused tried to escape in the car, but did not succeed and thereafter he ran away leaving the car on the spot. On search of the Car, a cloth bag containing Poppy straw, white envelope containing capsules of parvanspas and spasmoproxivon, one box containing bottles of Rexicof, two tokas and one kirch were recovered from the Dicky of the car. Accused-Kamaljeet Kour attempted to 8 CRAA No. 41 of 2011 attack him with Kirch but she was caught by Kamlesh Kumari and Kirch was seized. Karanjeet Singh was sent to the Police Station with a docket, thereafter SHO, SDPO, and SDM came to the spot and at the instance of accused- Kamaljeet Kour, two bags containing Poppy straw were recovered from the compound and one bucket containing 01 kg Poppy straw, a weighing pan, two weights of 500 grams, one sword and a plastic cane containing opium were recovered from the basement. Samples of 50 grams each of Poppy straw, 10 capsules each and 10 grams of opium and one bottle were extracted as samples marked A to Z and were sent to FSL. In cross examination, he has stated that there is a market in the Simbal Camp Chowk and there were open shops. Information was neither reduced into writing nor sent to the Police Station by PW-1. PW-1 did not send message to his Senior Officers in writing from Simbal Camp. They had not obtained any search warrant from the Magistrate for the house search. The bag and seal were kept in the Malkhana by the SHO. He has admitted that accused-Virender Singh and his wife (accused No. 2) had filed a complaint against SHO before the CJM in April 2007 and same is being investigated by SDPO, R.S. Pura and that prior to the occurrence, accused- Virender Singh and his wife were also taken into custody in Police Station, Miran Sahib.
15. PW-10 HC Abdul Qayoom was Incharge Malkhana of Police Station Miran Sahib. He has stated that seized articles were handed over to him by the SHO, which were kept in the Malkhana. Samples and seals were sent to FSL. The details of the sealed articles were entered in Register No.19. In cross- examination, he has stated that 08 packets were sent to FSL two days after. He did not weigh those packets. He has not produced the Malkhana Register. 9 CRAA No. 41 of 2011
16. PW-11 Rajiv Mangotra was Naib Tehsildar, Executive Magistrate Maralia. He has stated that on 10th of July, 2007, he re-sealed 08 sealed packets produced before him and issued certificate EXP-RM. He had also put impression of seal, used for re-sealing, on the certificate. In cross examination, he has stated that packets were not opened and shown to him. The impression of seal already put on the sample was not given to him. 07 packets were produced before him on 08.07.2007.
17. PW-12 Mandeep Kour was Sub Divisional Magistrate R.S. Pura at the relevant time. She has stated that on 7th of July, 2007, Police conducted house search in her presence. There were 2/3 ladies in the said house and there was no male member. She does not remember about the articles seized by the Police. She has identified her signatures on the seizure memo but stated that she signed it on the asking of SHO. She has also signed seizure memo of the car. She has identified her signatures on seizure memo of Poppy straw, weighing pan etc. She has clarified that all these documents were signed by the SHO and later she put her signatures on his request.
18. PW-14 Pawan Abrol, Assistant Scientific Officer, FSL, Jammu has stated that he received 08 sealed packets forwarded by the Assistant Superintendent of Police, SDPO, R.S. Pura vide his letter No.29977-78/SDA dated 11.11.2007 through Constable-Karanjeet Singh on 12.07.2007. Said exhibits were subjected to various chemical tests and Chromatographic examination and Exhibit No. P-334/07, Exhibit No. P-338/07, Exhibit No. P- 339/07, Exhibit No. P-340/07 revealed the presence of characteristic features of Poppy plant and morphine. Exhibit No. P-341/07 was identified as Opium Dextropropoxyphene, hydrochloride Dicyclomine hydrochloride and Acetaminophen were found present in exhibit No. P-336/07. Dextroprophyphene, 10 CRAA No. 41 of 2011 hydrochloride, dicyelomine hydrochloride and Paracetamol were found present in Exhibit P-335/07. Codeine Phosphate and chloropheniramine maleate were found in the Exhibit No. P-337/07. He has admitted the certificate as Ext-P14 under his name and signatures. In cross examination, he has stated that packets were bearing signatures of Dy.S.P. and the Magistrate but there were no signatures of accused. He has not mentioned weight of Poppy straw. He received 79, 71 gms of Poppy straw respectively. He also received 27 grams of opium, 5/10 gms of opium and 50 gm of Poppy straw were taken for test.
19. PW-17 Harjeet Singh, Dy. S.P. was SHO of P/S Miran Sahib at the time of occurrence. He conducted investigation of the present case. He has stated that on 07.07.2007 at about 8:00 PM, he received a report (Ext-P-1) of Ajaz Ahmed through Constable- Karanjeet Singh with respect to the information received by the said SI, on the basis of which FIR No. 34/07 (EXT-P17) for offences under sections 8/15 NDPS Act, 353 RPC, 6/13 DCO & 4/25 Arms Act was registered. He started investigation and proceeded to the spot. SDPO and SDM also came on the spot. Seizure memos of the Poppy straw, Maruti car, toka, kirch, two bottles containing 1000 Spasmo Provsivan capsules and seizure memos of site plan were prepared. Superdnama (EXTP-17/8) was also prepared. He took samples from the seized items and sealed on the spot which were sent to FSL for chemical analysis. He recorded statements of witnesses. Accused- Verinder Singh had absconded, but his wife, accused Kamaljit Kour was arrested and was sent to Women Cell, Jammu. Aforesaid offences were established against accused during investigation. In cross-examination, he has stated that Munshi of P/S has not been cited as a witness. He reached the spot at 8.30 PM. He has admitted that it was sun set at the time he received the information. PSI Ajaz Ahmed had not entered the house of accused till he reached the spot. He 11 CRAA No. 41 of 2011 entered the house of accused after getting permission from his seniors. His search and search of accused was conducted by the SDPO, but no document was prepared regarding the same, however, it is reflected in the daily diary. From the basement of the house of the accused, a plastic bucket containing Poppy straw and a weighing pan were recovered. Memos were not prepared with respect to articles recovered from the house of accused. The packets of samples were not signed by accused, but said packets were signed by the independent witnesses. CFSL form was not filled. He did not put his seal on the seized items. The seal was kept on the superdnama of one Karanjeet Singh. Seized articles were re- sealed on 10.07.2007. He did not obtain receipt from the Malkhana. Samples were sent to FSL on 12.07.2007. He does not know whether accused had lodged any complaint against him in the Court of CJM, Jammu before the occurrence and he has denied that present case was registered against the accused because of the said complaint.
20. PW-18 Daljeet Singh has conducted partial investigation of the present case. He has stated that he got information about this case on 07.07.2007. He arrested accused during his investigation and obtained report of the FSL and presented challan in the court. In cross-examination, he has stated that investigation was entrusted to him on 07.07.2007 and accused was arrested on 27.11.2007 from Bus Stand, Jammu. He has not mentioned in the memo of arrest that accused was arrested from Bus Stand Jammu.
21. This is the crux of prosecution evidence. Accused were examined under Section 342 Cr.P.C. whereby they not only denied the incriminating imputations arrogated to them but discarded the evidence as being farce and frivolous on account of a complaint filed by respondent No.1 against the Investigating Officer-Harjeet Singh and opted not to enter the defence. 12 CRAA No. 41 of 2011
22. Learned trial court on appreciation of the prosecution evidence and after hearing the rival sides has acquitted the respondents as noticed at the outset.
23. Having heard the rival contentions and perused the impugned judgment, we find ourselves in total agreement with the findings recorded therein.
24. Mr. K.D.S. Kotwal, learned Dy. AG has reiterated the grounds urged in the memo of appeal.
25. The appellant-State has questioned the impugned judgment on the usual grounds that learned trial Court has failed to appreciate the evidence in the right perspective, impugned judgment has been passed in a mechanical fashion and there was sufficient material in the shape of ocular and documentary evidence on record to sustain conviction of the respondents, but learned trial court has fallen in error of law to ignore such vital evidence and, therefore, impugned judgment is liable to be set aside.
26. However, minute evaluation of evidence recorded in the case canvasses a picture that creates a conceivable doubt about the truthfulness of the prosecution story which is marred with glaring discrepancies. We are of the considered opinion that case of the appellant-State in the trial Court is not only discrepant on material aspects particularly with respect to the infraction of mandatory provisions of the NDPS Act, but also replete with serious contradictions.
27. Learned trial Court has underlined infraction of various mandatory provisions of the NDPS Act and we find ourselves in complete agreement with the observations of learned trial Court that in cases under the NDPS Act and the Rules framed thereunder, it is not only the recovery and seizure of the contraband, which is sufficient to sustain conviction, but manner of conducting 13 CRAA No. 41 of 2011 investigation is of vital significance, in view of the fact that offences under the NDPS Act, being heinous in nature and against the society at large, are visited with severe punishment and the legislature in its wisdom, while legislating the Act has provided various safeguards to be religiously followed by the investigating agency. Various provisions governing the arrest, search and seizure have been incorporated in Chapter-V of the NDPS Act to ensure that no innocent person is subjected to harassment.
28. Keeping the aforesaid principles in mind, if we proceed to analyze the prosecution evidence in the present case, it is found that mandatory provisions of the NDPS Act have been observed in breech and flouted by the investigating agency with impunity. It needs a specific mention that in NDPS cases the investigation of a case, if conducted properly and in accordance with the NDPS Act and the Rules framed thereunder, gets completed on the spot, except the placing of the recovered and seized contraband in safe custody, re-sealing of the same through Executive Magistrate or Gazetted officer 1st Class and forwarding of the re-sealed sample for chemical analysis through FSL.
29. One of the salutary provisions, investigating officer is bound to follow is that he is obliged to reduce the information received by him into writing and forwarding a copy thereof to his immediate superior officer within 72 hours. Section 42 of the NDPS Act mandates compliance of the requirements contained therein, i.e. if the officer has reason to believe from personal knowledge or information received by him from any person which is required to be taken down in writing that any drug or psychotropic substance or controlled substance in respect of which an offence punishable under the Act has been committed, he is empowered to exercise his power enumerated in clauses (a) and (b) of sub Section 1 of Section 42 of the NDPS Act between sun rise and sun set, subject to 14 CRAA No. 41 of 2011 just exceptions. It is manifest, as such, that taking down of information in writing is necessarily to be complied with. The proviso appended to sub section (1) of Section 42 of the NDPS Act provides that if such officer has reason to believe that search warrant or authorization 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 sun set and sun rise after recording the grounds of his belief. Further sub section (2) of Section 42 of the NDPS Act lays down that where an officer takes down any information in writing under Sub Section (1) or records grounds of his belief under the proviso thereto, he shall within 72 hours send a copy of the same to his immediate superior officer.
30. Reverting to the present case, it is the case of appellant that while patrolling in Ward No. 4, Simbal Camp, the Incharge patrolling party, PSI-Ajaz Ahmad received source information that accused were peddling narcotic drugs from their house. According to PW-1 Ajaz Ahmed, on receipt of this information he telephonically informed the SHO and proceeded to the spot. It is not only an admitted case of the prosecution/appellant-State in the trial Court, but all the prosecution witnesses, who happened to be members of the Patrol party, have stated that information received by the Incharge PW-1, Ajaz Ahmed was neither reduced into writing nor same was forwarded to the immediate superior officers. As a matter of fact, there is admission on the part of the complainant i.e. Incharge of the Partrolling Party, PW-Ajaz Ahmed that information received by him was neither reduced into writing nor forwarded to the superior officers. It is manifest that investigating officer has given a complete go bye to this mandatory provision of law.
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31. Hon‟ble Supreme Court in Karnail Singh v. State of Haryana reported as (2000) 2 SCC 513, commenting upon the import of Section 42(2) of the NDPS Act has clearly ruled in the following words:
"Under Section 42(2) as it stood prior to amendment 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 would adversely affect the prosecution case and 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, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section."
(Emphasis supplied)
32. A similar view has been expressed by Hon‟ble Supreme Court in 2009 AIR (Criminal) 401 SC.
33. It is manifest from the afore-quoted case law that non-compliance of Section 42 of NDPS Act vitiates the trial.
34. Further house search of the respondents in the present case has admittedly been conducted after the sun set and it is also admitted case of the Appellant-State in the trial court that no search warrant was obtained for the house search. As already observed that if investigating agency has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun rise and sun set, but after recording the grounds of his belief within the meaning of proviso appended to sub section 1 of Section 42 of the NDPS Act. It is evident from the said proviso that requirement of obtaining search warrant can be dispensed with, if the investigating officer has reason to believe that such warrant cannot be obtained without affording 16 CRAA No. 41 of 2011 opportunity to the offender to escape or conceal the evidence and the investigating officer can enter the house for search even after sun set but after recording the grounds of his belief. Admittedly, no such reasons have been recorded by the investigating officer in the present case before house search of accused persons. House search, as such, in the present case is in clear violation of the mandatory provisions of section 42 of the NDPS Act.
35. It is further case of the prosecution that PW-1 Ajaz Ahmed, during Naka duty, received source information that accused were involved in the illegal trade of Poppy straw from their house and the Incharge Naka after sending telephonic information to the SHO, Police Station, proceeded to the house of accused persons. The Incharge Naka PW1-Ajaz Ahmad has reiterated the same statement in the Court but he has nowhere stated that he informed any gazetted officer or Executive Magistrate 1st class. According to the investigating officer PW-17 Harjit Singh, SDPO and SDM also came to the spot as PW-1 had already informed the SDPO and SDM. Almost a similar line has been toed by most of the prosecution police witnesses. However, it is an admitted case of the prosecution/appellant State in the trial court that accused were not served upon prior notice of option to be searched in the presence of a Magistrate or Executive Magistrate 1st Class. Section 50 of the NDPS Act envisages that any officer duly authorized under Section 42 of the NDPS Act in case of prior information about the commission of offence under the Act, shall take the person, about to be searched, without unnecessary delay to the nearest gazetted officer or Magistrate. The safeguard provided under Section 50 of the NDPS Act is intended to serve dual purpose "to protect an accused against false accusation and frivolous charges as also to lend credibility to search and seizure conducted by the empowered officer" and infraction thereof vitiates the trial. 17 CRAA No. 41 of 2011
36. Another staggering circumstance, to shake credibility of the prosecution case, is testimony of the gazetted officer, PW-12 Mandeep Kour, SDM R.S. Pura who has stated that she put her signatures on the seizure memo of Poppy straw and car on the asking of the SHO only. Therefore, entire case of the prosecution has been dislodged by the Gazetted officer stated to have been called on the spot by the investigating agency.
37. Further section 52(A)(2) of the NDPS Act provides for preparation of an inventory of the narcotics drugs and psychotropic substances containing details like description, quality, quantity, mode of packing, marks, numbers and other identifying particulars etc. and forwarding the same to the officer of the nearest Police Station or to the officer empowered under Section 53 of NDPS Act and making an application to the Magistrate for the purpose of certifying the correctness of the inventory so prepared; or taking, in the presence of such Magistrate, photographs of such drugs or substance and certifying photographs as true; or allowing drawing representative samples of such drug or substance; in the presence of Magistrate and certifying the correctness of any list of samples so drawn. The Magistrate is bound to allow such application as soon as may be. In the present case, neither any such inventory has been prepared nor application made to the Magistrate as mandated nor any form has been filled up by the Executive Magistrate.
38. Commenting upon the import of section 52(A)(2) of the NDPS Act, Hon‟ble Supreme Court in Gurbax Singh v. State of Haryana reported as 2001 (1) Supreme 625 has observed as under:
" ........ that non-compliance of the provisions of Sections 52, 55 and 57, which are no doubt, directory and violation thereof, would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure 18 CRAA No. 41 of 2011 will have bearing, on the appreciation of evidence, regarding search and seizure of the accused."
39. It is evident from the afore-quoted observation of Hon‟ble Supreme Court that compliance of Section 52(A)(2) of the NDPS Act is an indicator towards reasonable, fair and just procedure adopted by the investigating officer during search and seizure and non-compliance thereof, deliberately and intentionally, must be viewed with suspicion. It may be underlined that if such mandatory provisions are observed in breech by the investigating agency and if Courts condone such acts or violations of statutory safeguards, the legitimacy of the judicial procedure may come under cloud.
40. Another lacuna noticed in the prosecution case is that it has failed to prove that contraband recovered in the present case was kept in the safe custody and forwarded to FSL in accordance with law and without any delay. It is pertinent to note that in view of stringent provisions regarding punishment and grant of bail, the legislature in its wisdom enacted section 55 of the NDPS Act to ensure that officer Incharge of Police Station shall immediately take charge and keep the alleged contraband in safe custody, in order to rule out any possibility of tampering with the contraband. Prosecution is obliged to prove that the contraband after its recovery and seizure from the accused was kept in safe custody, in the Malkhana of the concerned Police Station under proper entry in the Malkhana register. The prosecution is also obliged to prove that said sample of the contraband was forwarded to FSL without any delay.
41. Hon‟ble Supreme Court in State of Rajasthan v. Gurmail Singh reported as AIR 2005 SC 1578 has clearly ruled that if the link evidence adduced by the prosecution is not satisfactory and Malkhana Register is not produced to prove that contraband was kept in the safe custody of the Malkhana and further 19 CRAA No. 41 of 2011 that if no sample of seal is sent along with samples to the Chemical Analyst, the prosecution case can be viewed doubtful. The relevant extract of the judgment has been culled out below as a ready reference:
"We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles.
Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent."
42. A similar view has been expressed by the Apex Court in State of Rajastan v. Daulat Ram reported as AIR 1980 Sc 1314.
43. Similarly, in Prem Shahi v. State of Uttrakhand reported as (2013) Supreme (UK) 162, Uttrakhand High Court has also held as below:
"Having perused the contents of Section 55 of the NDPS Act, I have no hesitation to hold that contraband, so recovered from the accused, shall be forwarded to the officer Incharge of the police station; who shall put the contraband and sample seal in a safe custody and shall affix his seal to such articles before keeping them in the Maalkhana. Section 55 further authorizes Incharge of the police station to permit the Investigating Officer or any other officer to take sample of the contraband in the presence of Incharge of the police station and affix his own seal on the sample, so drawn as well as on the packet, wherein rest of the contraband, is kept, after taking the sample."
44. Reverting to the present case, though prosecution has examined incharge, Malkhana, PW HC Abdul Qayoom, but he has failed to produce the Malkhana register in the trial Court to prove that contraband alleged to have been recovered from the possession of accused was kept in safe custody in the Malkhana of concerned Police Station. Reference is made to State of Rajasthan v. Tara Singh reported as 2011 (3) SCR 1112, in which High Court of 20 CRAA No. 41 of 2011 Rajasthan dealing with the import and significance of Section 55 of NDPS Act, has held in the following manner;
"4. xxx xxx xxx We must emphasize that in a prosecution relating to the Act the question as to how and where the samples had been stored or as to when they had dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters."
45. There is an admission on the part of investigating officer PW-17 Harjit Singh, Dy. SP that he did not obtain any receipt of seized articles from the Malkhana. Incharge Malkhana PW-10, HC-Abdul Qayoom has stated that seized articles were handed over to him by the SHO and he kept them in the Malkhana. He further stated that details of sealed articles were entered in register No. 19. However, he clarified in cross examination that he has not brought Malkhana register in the court. Although prosecution has examined Incharge Malkhana, however, it failed to prove the Malkhana Register as also the relevant entry made in the said Register to establish that seized contrabands recovered in the present case were kept in the safe custody, which adversely affects the prosecution case and vitiates the trial.
46. Another significant aspect of the present case is delay in forwarding the samples of the contraband allegedly recovered from the respondents to FSL. As per the prosecution case, contraband were recovered and seized on 07.07.2007 and were re-sealed by the Executive Magistrate on 10.07.2007 and forwarded to FSL on 12.07.2007. There is nothing in the prosecution evidence to show that when did the investigating officer received samples from the Incharge Malkhana and whether after re-sealing same were re-deposited in the Malkhana or not. Since samples were handed over to the Incharge Malkhana on 07.07.2007 and re- sealed by Executive Magistrate on 10.07.2007 and were forwarded to the FSL on 12.07.2007, it can be presumed that samples remained with the investigating 21 CRAA No. 41 of 2011 agency between 10.07.2007 to 12.07.2007. Incharge Malkhana PW-10 Abdul Qayoom has not even stated about the date of receipt of contraband by him and he has admitted in the cross examination that samples were sent to FSL after two days. The investigating officer has admitted that he did not obtain the receipt of the seized articles from the Malkhana and he further admitted that after re-sealing of articles on 10.07.2007, samples were sent to FSL on 12.07.2007. There is clearly delay in sending the samples to the FSL.
47. Following observation of Chhattisgarh High Court in Ganga Bhai v. State of M.P reported as 2012 (4) Crimes (HC) 687 is apposite to the context, it reads thus:
"30. After having considered the evidence led by the prosecution in its entirety, I am of the considered opinion that there is non compliance of the provisions of Sections 52 and 55 of the Act, 1985. Neither delay in delivering the sample at FSL has been explained nor the Malkhana Register was produced in evidence. The prosecution did not examine the officer-in-charge of Malkhana, Station House Officer and Constable 302 Shyam Sunder Chandrakar. Therefore, the report of FSl (Ex. P8) cannot form basis of conviction of the appellant under Section 20B of the Act, 1985. In view of teh above, the impugned judgment deserves to be set aside."
48. It is clear from the afore-quoted observations of Hon‟ble Supreme Court that placement of the contraband recovered and seized from accused is significant to rule out the possibility of the contraband and the sample being changed or tampered with. It is trite that prosecution is obliged to prove that right from the stage of seizure of the contraband, till it reaches the hands of chemical analyst, there is no possibility of the contraband being tampered with. In the present case, there is not only delay in forwarding the samples of the alleged contraband to the FSL, but prosecution has also failed to prove that when investigating officer obtained contrabands from the Malkhana for re-sealing.
49. At last but not the least all the independent witnesses PW-2 Rajinder Singh, PW-4 Jaswant Singh and PW-5 Sampuran Singh associated with the 22 CRAA No. 41 of 2011 seizure memos, have turned hostile. Witnesses to the seizure memo though admitted their signatures but denied the contents. The gazetted officer PW-12 Mandeep Kour, SDM, R.S. Pura not supporting the case of the prosecution goes to the root of the prosecution.
50. Having considered the evidence led by the prosecution in the trial court, in its entirety, we are of the considered opinion that there is not only infraction of various mandatory provisions of the NDPS Act, but prosecution evidence is found discrepant on material factual aspects. In this backdrop, there is no scope to raise hypothesis of guilt against the respondents for the commission of offences, they have been charged with. Thus considered, we do not find any illegality, much less, perversity in the otherwise well reasoned impugned judgment.
51. Consequently, the present appeal, being devoid of merit, is dismissed and impugned judgment is upheld. Record of the trial court, if any, be returned forthwith. Respondents are discharged of their bail bonds.
(RAJESH SEKHRI) (SANJEEV KUMAR)
JUDGE JUDGE
JAMMU
28.04.2023
Paramjeet
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No