Allahabad High Court
Smt. Sita Gati Magar vs State Of U.P. on 4 May, 2018
Author: Shashi Kant
Bench: Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Judgment Court No. - 27 Case :- JAIL APPEAL No. - 4061 of 2014 Appellant :- Smt. Sita Gati Magar Respondent :- State Of U.P. Counsel for Appellant :- From Jail, Hemendra Pratap Singh A.C Magar Counsel for Respondent :- A.G.A. connected with Case :- JAIL APPEAL No. - 1255 of 2015 Appellant :- Smt. Samjhana Jaisi Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Hemendra Pratap Singh Counsel for Respondent :- A.G.A. Hon'ble Shashi Kant,J.
1. Heard Sri Hamendra Pratap Singh, learned Amicus Curiae for the appellants, learned A.G.A. for the State of U.P. and perused the record.
2. Both the above Jail appeals have been filed under Section 383 Criminal Procedure Code, 1973 (in short 'Cr.P.C.') against the judgment and orders 26.08.2014 and 27.08.2018, passed by Sri Jitendra Kumar Sinha, Additional Session Judge, Court No. 5, Maharajganj in Special Case No. 01/2012 (State vs. Smt. Seeta Gati Magar) and Special Case No. 02/2012 (Smt. Samjhana Jaisi vs. State of U.P.) arising out of Case Crime No. 930 of 2011 and Case Crime No. 931 of 2011 respectively, under Section 8/23 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") Police Station Sonauli, District Maharajganj, whereby the appellants have been convicted under Section 8/23 of the Act and each appellant sentenced for rigorous imprisonment of 10 years alongwith fine of Rs. 1,00,000/-, in case of default in payment of fine, additional imprisonment for one year is also provided.
3. Since both the above criminal appeals have been preferred by the respective appellants against the common judgment and order of conviction and sentence. Hence, both the appeals have been heard together and are being decided by this common judgment.
4. Brief facts relating to the above appeals, as appear from the record are that:
4.1. On 23.10.2011 Sub Inspector Ram Shabd Verma P.W.1 along with Constable Lakhi Chand was patrolling in Kasba Sonauli in view of the ensuing Deepawali Festival. He received information from the informer that few people carrying illegal goods were coming to Sonauli from Nepal. On proper checking they may be apprehended.
4.2. After receipt of above information, a search operation for checking the persons coming from Nepal was started at India-Nepal Seema gate. P.W.1 had also taken with him S.I. Satey Singh, Head Constable Hukum Singh, Constable Rohit Kumar, lady Constables Jahan Aara Khan and Devi Shahi, all from the S.S.B. deputed on security duty. During search operation they saw two ladies coming from Nepal, along with their children, looking the search operation, all of sudden they returned back, on suspicion they had been intercepted and interrogated about their names, addresses and reasons for their sudden return. In response they told their names Seeta Gati Magar, w/o Pooran Singh, village, post and Police Station Nisi, District Bangulung, Nepal and Smt. Samjhana Jaisi w/o Gore Jaisi, Vorgaon, Ward No.7, Post and Police Station Vorgaon, District Bangulung, Nepal. They also told that they were carrying charas wrapped in cloth, tied up to their waists.
4.3. They were informed that as they were carrying charas, therefore, they will be searched before the Gazetted Officer or Magistrate. On it both the above ladies told individually and jointly that they had told true facts and expressed their willingness to be searched by the lady Constables present with the police. They also gave there written consent (Exhibits Ka- 2 and Ka-3) to that effect.
4.4. On their concurrence, Smt. Sita Gati Magar was searched by lady Constable Jahan Aara Khan. In the above search, seven packets of charas were recovered from the black cloth tied up to her waist which was weighed from the weighing scale and weights brought by Constable Lakhi Chand, weight of above recovered charas was found 5 k.gs. The other lady Smt. Samjhana Jaisi was searched by lady Constable Devi Shahi and in her search seven packets of charas from the black cloth tied up to waist was also recovered on being weighed, the weight of above charas was also found 5 k.gs. Both the ladies could not show any authority to keep and carry the above charas with them and repeatedly sought pardon for their offence. After telling them reasons of their arrest, they were taken into custody at 7:45 hours. Two packets samples of 100 grams from above recovered charas, taking small portions from each packet and after wrapping them in separate plastic, were sealed, rest 4 k.g. and 900 grams above recovered charas were put in same clothes and thereafter wrapping it in white clothes, were also sealed. The specimen of seals were also prepared.
4.5. Though some people collected at the time of the arrest and recovery, but on being asked to be witness of recovery and arrest, they left the place without telling their names and addresses. The information regarding their arrest was sent to their family through proper channel to S.H.O. Bailhiya, Nepal.
4.6. The recovery memo (Exhibit Ka-1) was prepared on the spot and after reading it over, signatures /thumb impressions of concerned were obtained thereon and a copy of the same was provided to the accused persons.
4.7. On the basis of above recovery and arrest, S.I. Ram Shabd Verma P.W.1 lodged the FIR against the above accused on 23.10.2011 at 11:00 hour as Case Crime No. 930 of 2011 and Case Crime No. 931 of 2011, under Section 8/23 of the Act. A Joint Chik FIR (Exhibit Ka-8) of above cases was prepared and entry regarding registration of the case was made in the General Diary (G.D.) (Exhibit Ka-4) 4.8. The investigation of the case was entrusted to P.W.5 S.I. Ram Saran Yadav who visited the spot, prepared the site plan, recorded the statements of witnesses and sent samples of recovered charas for chemical examination to FSL Ramnagar, Varanasi. Vide order dated 28.12.2011 investigation of the case was transferred to P.W.6 Ram Saware Yadav who copied chemical examination reports of sample dated 27.12.2011 (Paper No. 16-Ka and 18-Ka) in which it was stated that charas was found on examination of the samples. After completing other formalities of the investigation, he submitted the charge sheets under Section 8/23 of the Act (Exhibit Ka-6 and Ka-7) against the accused appellants.
4.9. Vide order dated 05.04.2012 of the Sessions Judge, Maharajganj, above cases were transferred to the Court of Special Judge, Maharajganj, who farmed charges under Section 8/23 of the Act against the accused appellants. The appellants denied the charges and claimed for trial.
4.10. To prove its case, the prosecution has examined P.W.1, S.I. Ram Shabd Verma, P.W.2 Constable Hriday Narayan Yadav, P.W.3 Constable S.S.B., Rohit Kumar, P.W.4 Lady Constable S.S.B. Jahan Aara Khan, P.W.5 S.I. Ram Saran Yadav and P.W.6 S.I. Ram Saware Yadav.
4.11. In the documentary evidence, prosecution has produced recovery memo (Exhibit Ka-1), consent letters (Exhibits Ka-2 and 3), Carbon copy of G.D. regarding registration of the case (Exhibit Ka-4), site plan (Exhibit Ka-5), charge sheets against the appellants Smt. Seeta Gati Magar (Exhibit Ka-6) and Smt. Samjhana Jaisi (Exhibit Ka -7), Chik FIR (Exhibit Ka-8), report of FSL (Paper No.18 Ka and 16 Ka) alongwith material object 1 to material object 6.
4.12. In their statements recorded under Section 313 Cr.P.C., the appellants told prosecution case and its evidence wrong and false. They also claimed their prosecution wrong on the basis of the the false recoveries of contraband items. In their further statements they stated that when they were coming to Sonauli for marketing, the police wrongly and falsely implicated them, in the case. However, they did not produce any evidence in their defence.
4.13. After hearing the parties and perusal of evidence available on record, the Court below reached to the conclusion that prosecution has successfully proved its case against the appellants beyond doubt and passed impugned judgment and order for conviction and sentence of the appellants as stated above.
5. Feeling aggrieved therefrom, the present appeals have been filed by the appellants.
6. Learned Amicus Curiae for the appellants contended that :
6.1. The appellants are innocent and have been wrongly and falsely implicated by the police in this case to show good work.
6.2. The mandatory provisions of Sections 42, 50, 55 and 57 of of the Act have not been complied.
6.3. The samples of allegedly recovered charas was not taken properly. There is also no mention about weighing machine, details of weights and name of the person from whom they were being brought.
6.4. The FIR of the case has been lodged with inordinate delay, while the distance of police station from the place of occurrence is less than 1 k.m. only.
6.5. There is no independent witness of the incident and signatures of the appellants were not obtained on the samples which create a serious doubt about the genuineness of the samples sent for chemical examination.
6.6. The appellants are in jail since 23.10.2011 and there is no one to look after their cases.
6.7. Samples of seals are not produced before the Court.
6.8. Neither percentage of charas in the alleged sample has mentioned in the FSL reports nor the Court below has taken that into consideration.
6.9. There is major contradictions in the statements of P.W. 1 Ram Shabd Verma, P.W. 3 Constable S.S.B., Rohit Kumar and P.W. 4 lady Constable Jaha Aara Khan on the various points which create serious doubts on the prosecution story and reliability of the above prosecution witnesses.
6.10. The Court below has committed manifest error of law in not following the relevant case law.
6.11. The impugned judgment and orders dated 26.08.2014 and 27.08.2014 are wrong, illegal and liable to be set-aside.
7. Per contra, learned A.G.A. contended that after discussing the evidence available on record in detail, the Court below has passed the impugned judgment and order providing cogent reasons therefor. Not only this the Court below has also taken each and every aspect of the matter into consideration and considering the case law referred by the parties, passed the judgment and order which is fully justified and requires no interference. The appeals lack merit and are liable to be dismissed.
8. On the basis of above referred rival arguments of the parties. Only one question arises for determination as to whether impugned judgment and orders are based on proper appreciation of the evidence available on record and are sustainable in the eyes of law?
9. Before entering merits of the case, it is desirable to take into consideration relevant provisions of the Act which read as thus :.
42. Power of entry, search, seizure and arrest without warrant or authorisation.
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence 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 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 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 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 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 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 sub-section (1) or records grounds for his belief under the proviso thereof, he shall within seventy-two hours send a copy thereof to his immediate official superior.
43. Power of seizure and arrest in public place. Any officer of any of the departments mentioned in section 42 may -
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
50. Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]
55. Police to take charge of articles seized and delivered :- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
57. Report of arrest and seizure :- Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
10. Now it is also desirable to take into consideration the evidence available on record, which is being discussed hereinafter.
10.1. Since P.W.1, S.I. Ram Shabd Verma is the first informant and star witness of the prosecution therefore, it would be appropriate to reproduce his evidence, for proper appreciation which is as follows :
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ugh gSA ?kVuk LFky o Fkkuk ds chp es fdlh jktif=r vf/kdkjh dk vkokl ;k dk;kZy; ugh gSA ?kVuk LFky ij esjs ikl viuk eksckby FkkA eS vius mPp vf/kdkjh;ks dks lwpuk nh x;kA bl dk mYys[k th0Mh0 es gSA QnZ es ugh gSA eS eqfYteku dks ?kVuk LFky ls Fkkuk ykus ds iwoZ vfHk;qDrks dh dksbZ MkDVjh ugh djk;hA lk{kh QnZ 4d1 o 2 dks ns[kdj crk;k fd izFke lwpuk fjiksVZ esjh ekStwnxh es QnZ ds vk/kkj ij ntZ gqvk FkkA ,QvkbZvkj fpd ij esjs gLrk{kj ugh gSA ,QvkbZvkj fpd dh dkih eq>s feyh FkhA ml izfr dks eSus foospd dks ogh fn[kk;k Fkk D;ksfd ewy muds ikl FkhA uequk eksgj dh lR; izfrfyfi th0Mh0 es nkf[ky dh x;h gSA cjken eky ls 100 xzke 100 xzke tks uequk ds fy, tks fudyk Fkk mls MkdsV ij ugh p<+ok;k Fkk eky [kkuk es nkf[ky fd;k x;kA nksuks ls cjken eky dks vyx vyx cUMyks es ,d lkFk eky [kkuk esa nkf[ky fd;k x;kA cjken 'kqnk eky es mij 4500 xzke ugh fy[kk FkkA cfYd QnZ es fy[kk gSA QnZ es le; 0745 vafdr gSA foUnh NwV x;k gSA fnu jkr ugh fy[kk x;k gSA ysfdu lqcg dk ekeyk gSA eSus efgykvks dks eky ds lkFk fxjQrkj fd;k ;g lgh gSA fxjQrkjh djus ds ckn lkjs izi= rS;kj fd;sA ;g lgh gS fd vfHk;qDrks jktif=r vf/kdkjh ds ikl ugh ys x;sA uD'kk utjh esjh fu'kk nsgh ij cuk;k x;k gSA fxjQrkjh ds le; turk ds reke O;fDr vk tk jgs FksA eS ?kVuk LFky ij eksVj lkbfdy ls ?kVuk LFky ij x;s FksA esjh ,d eksVj lkbfdy FkhA lHkh iqfyl 2 o ,l,lch ds 5 dqy lkr yksx FksA ?kVuk LFky ls uSiky dh nwjh 10 xt gSA ?kVuk LFky ls usfel yS.M yxHkx 7 dne nqjh ij FkkA Hkkjr ,oa uSiky jk"Vª ds chp ukseSal yS.M dh nqjh 10 xt gksxhA ukseSal yS.M ds ml rjQ ;kuh uSiky lhek es osygb;k pkSdh gSA bl chp es dksbZ edku ugh gSA jkLrk gSA yksx vk tk jgs FksA ogkW turk dh HkhM+ vk;h o x;h xokgh ds fy, dgk x;k ij fcuk uke irk crk;s gV o<+ x;sA muds f[kykQ dksbZ eSus dk;Zokgh ugh fd;s gSA ;g dguk xyr gS fd eq[; rLdjks ls cjken lqnk eky dks uksfeUl yS.M es cdjh pjk jgh vkSjrs dks uke irk iwNdj cSBk fy;k vkSj turk ds Mj ls mlh eky ds lkFk mu lHkh dh pkyku dj fn;kA x;g dguk xyr gS fd iqfyl dh okgokgh ywVus ds fy, QthZ QnZ rS;kj dj Fkkus ij rS;kj fd;k vkSj reke ¼viBuh;½ gLrk{kj djk fy;kA ;g dguk xyr gSA mlh izi= ds vk/kkj ij >qBk eqdnek fy[kk fn;kA ;g dguk xyr gSA fd vius }kjk xyr rF;ks ds vk/kkj ij QnZ rS;kj dj >wBk eqdnek ntZ djk;k x;kA bldh iqf"V ds fy, >wBh xokgh ns jgk gwWA (English Version) "On 23.10.2011, I was posted at Sonauli Police Outpost within the jurisdiction of police station Sonauli. On the said date, I was in Sonauli area along with my companion Constable Lakhi Chandra to see the law and order on the occasion of Diwali. At that time, an information was given by the informer that some persons were coming having with them some illegal goods from Nepal, and that they could be caught upon checking. On this information, I took with me Sub-inspector Shri Satey Singh, Head Constable Hukum Singh, Constable Rohit Kumar, Lady Constable Jahan Aara and Lady Constable Devi Shahi, all from SSB and posted for security at Sonauli Gate at India-Nepal Border. Taking them with me, we were checking the persons moving to/from Nepal through the border gate. We saw two women coming from Nepal's side with two children with them. On seeing the police action, they turned and begun to return. We got suspicious and on seeing them returning, the Lady Constable stopped them and asked their names and addresses and also asked the reason for their returning. On this one lady told her name to be Sita Gati Magar W/o Pooran Singh R/o Village Nisi, Post and PS Nisim, District Baglung, Nepal and another lady told her name to be Samajhna Jaisi W/o Gorey R/o Borgaon, Ward No. 7, Post Borgaon, District Baglung, Nepal. They also stated that they had Charas packets with them covered with clothes, which they had tied to their waists. Those ladies were told that if they had Charas, they would be physically searched in presence of a gazetted officer or a magistrate, and that this was their right. On this, both the women told that they had stated everything correctly and that they might be physically searched by a lady constable. They further stated that they did not need to be physically searched before any magistrate or a gazetted officer. They further added that they had been giving their consent letter on their own will. After giving their consent letter, a physical search was conducted on Sita Gati Magar by the Lady Constable Jahan Aara, maintaining her dignity. During her physical search, 07 packets of Charas were found wrapped in a black colour cloth and tied up to her waist. Thereafter, a weighing scale was arranged through Constable Lakhi Chand and the recovered Charas was weighed, which came to be 05 kilograms. A physical search on another woman namely Samajhna Jaisi was conducted by Lady Constable Devi Shahi and 07 packets of Charas were found wrapped in a black colour cloth and tied up to her waist. On being weighed, the same was found to be 05 kilograms. Both the aforesaid women were asked to produce the authority letter for keeping and transporting the Charas but they failed to show the same. They kept asking for pardon for their mistake. Both the said women were informed about the offence committed by them and the section under which the offence was triable and they were taken into police custody at 7:45 am. The recovered illegal Charas was taken into police custody and a total of 100 grams of Charas was collected from each of them, covered the same in polythene and thereafter specimen seal was prepared. The witness identified his signature, which was marked as Ext. Ka-2. On seeing paper no. 10-Kha available on record, the witness stated that this consent letter is of Samajhna Jaisi, which is in his handwriting and the signature of the accused is available on it. He identified his signature which was marked as Ext. Ka-3.
Today, before the court, a sealed bundle has been produced on which Case Crime No. 930/11 u/s 8/23 of NDPS Act, PS Sonauli, Maharajganj Vs. Sita Gati Magar was written. It also has the thumb impression of Sita Gati Magar. It bears my signature as also the date 23.10.2011. The bundle was seen by the Court and date written on it.
When the case property was unsealed on the order of the court, 7 bundles of Charas were found wrapped in a black colour cloth and in a polythene under white cloth.
The white cloth, black cloth and 7 bundles of Charas were marked as Object Ext. 1, Object Ext. 2 and Object Ext. 3 respectively.
The recovered Charas from the accused Samajhna Jaisi was brought before the court in a sealed bundle. On the white cloth, case crime no. 931/11 u/s 8/23 of NDPS Act, PS Sonauli, Maharajganj Vs. Samajhna Jaisi is written, and it also bears signature of the accused (Samajhna Jaisi), as also of mine with date. This bundle has been seen by the court. On the order of the court, the bundle was opened and 7 bundles of Charas packed in polythene were recovered wrapped in a black cloth. The white cloth was marked as Object Ext. 4, black cloth was marked as Object Ext. 5 and the 7 bundles of Charas were marked as Object Ext. 6. The investigating officer had recorded my statement.
The remaining 4 kilograms & 900 grams and another 4 kilograms and 900 grams were kept in the same cloth, thereafter put in a white cloth and thereafter sealed and a specimen seal was made. At the time of arrest and recovery, public had gathered at the recovery site but they left away, without disclosing their names and addresses, on being asked to be witnesses. At the time of arrest and recovery, the orders and directions of the Hon'ble Supreme Court and of the Human Rights Commission were complied with. The information of arrest and recovery was given to the higher officers, and the information about the arrest of the accused persons was given to their families by way of appropriate mode through Incharge Inspector Velhiya, Nepal.
The memo was written at the spot and its contents were read over to the accused persons and the police fellows, and their signatures/thumb impressions were obtained on it. A copy of the memo was given to the accused persons.
The consent letter was given by both the accused persons separately at their own will. The case property, accused persons and police fellows came to the police station and the case property was submitted at the MaalKhana, and the accused persons were detained there under the watch of a lady constable. Thereafter, a case was registered and both the lady accused were sent to the court under care of a lady constable.
On seeing the paper no. 5-Ka available on file, the witness confirmed it to be the same recovery memo, which he had prepared in his handwriting at the spot and read over its contents to all present there, and which bears the signaures/thumb impression of the accused persons and police fellows as also his signature. The witness identified his signature, and the same was marked as Ext. Ka-1.
The consent letter being paper no. 11-Kha available on file and given by Sita Gati Magar is in my handwriting bearing my signature and her thumb impression. x x x x On behalf of the accused persons, the cross-examination is being done by their amicus curiae. The recovered case property i.e. all the Charas packets are not similar. The weights of all the bundles are not equal. All the packets are wrapped in separate polythenes. None of the packets bears its weight. These bundles do not bear any specimen seal or signature. The weights which were used to weigh them consisted of a 2- kg weight, 1-kg weights and 100-gram weights. These weights are not mentioned in the recovery.
Each of the two packets was broken at one end or the other, from which the samples were taken.
The paper related to the specimen seal is not available on record. The Investigating Officer of this case held a post equivalent to that of mine. Both the persons stood in relation to each other as the persons posted in one and the same department. The lady constable from SSB was with me during checking. The lady from SSB was first to be seen, who was present in her uniform.
I saw the lady accused persons from a distance of 5 steps. At this stage, the cross-examination shall continue.
Cross examination continues on 23.01.2013.
Ramshabd Verma has stated on oath that total 7 persons were present at the spot, and all these persons remained present till the papers were prepared. After the paper work, all these persons came to police station with accused persons and maal (articles related to crime). The maal was deposited at the maalkhana, and the lady accused were put under the observation of a lady constable. A case was lodged. With respect to statement, the accused were frisked, but nothing was found in their possession.
There is no office of any gazetted officer near the occurrence spot. Between the occurrence spot and the police station, there is no office or residence of any gazetted officer.
I had my own mobile phone at the occurrence spot. I had informed higher officers through it. It is mentioned in GD, but not in the memo.
I had not had the medical examination of accused persons done before bringing them to the police station from the occurrence spot.
The witness, seeing the memo (4C 1 and 2), stated that the first information report was registered in my presence.
The Chik FIR does not bear my signature. A copy of Chik FIR was given to me. I had not shown the copy to investigating officer because he had the original copy.
True copy of the specimen seal was filed in GD. Samples of 100 gm, which were taken out were not mentioned in docket; rather, they were deposited at the maalkhana. The recovered maal from both of them were kept in separate bundles and deposited at the maalkhana simultaneously.
On the recovered maal, 4500 gram is not written; rather it is written in memo. In the memo, time is mentioned to be 0745, in which colon is missing. It is not written whether it was day or night, but the occurrence is related to morning.
I had arrested ladies with maal. It is true. After arresting them, I had prepared all papers.
It is true that I had not taken the accused to any gazetted officer. The site-map was prepared on being pointed out by me. During the arrest, many persons from the public had reached there.
I had reached the occurrence spot riding on a motorcycle. There was a motorcycle, which belonged to me. There were total 7 persons (2 police personnel and 5 SSB Personnel).
Nepal is situated at the distance of 10 yards from the occurrence spot. 'No Men's Land' is situated at the distance of 7 paces from the occurrence spot. The width of 'No Men's Land' between India and Nepal would be 10 yards.
North of the 'No Men's Land' is situated Well-India Chowki within the border of Nepal. There are no houses in between. There is a path. People were commuting to and fro. A crowd of public reached there, and they were asked to adduce their evidence; but without telling their names, they left the spot. I did not take any action against them.
It is wrong to say that in relation to the maal (articles related to crime) recovered from the main smugglers ,the ladies, shepherding their goats in the 'No Men's Land', were restrained after being asked their names and address; and fearing the pubic, they were challaned with the same maal. It is wrong to say that intending to get a pat on the back in police department, a fake memo was prepared at the police station and fake signatures were obtained thereat. It is wrong to say that on the basis of these papers, a fake case was registered.
It is wrong to say that to a false case was registered on the basis of wrong facts prepared by me."
11. P.W.2 Hriday Narayan Yadav has proved the copy of Chik FIR and xerox copy of G.D. Regarding registration of the case. In his cross-examination, he has stated that he provided copy of FIR to the complainant and obtained his signature on the FIR.
12. P.W.3 Constable SSB Rohit Kumar has supported the facts stated in memo of recovery in his examination-in-chief and in the cross-examination stated that at the time of the checking of both the ladies, other persons were not present. Both the lady constables searched each other. Seven packets of charas were recovered from the possession of each accused appellants behind the curtain. All the packets were of equal size. Sample was taken only from one packet. Constable Lakhi Chand was weighing machine and weights from any shop but he is not aware about that.
13. P.W.4 lady Constable Jahan Aara Khan has supported the prosecution case and recovery of charas from the appellants in her examination-in-chief. In her cross-examination, she has stated that before the search of accused appellants 100, 200, 300 persons were searched but nothing illegal was found from their possession. When they (police team) saw towards the appellants, they turned their rickshaw and started to run towards Nepal. She was not aware whereabouts of rickshaw puller but they have permitted him to go. She and other lady Constable searched the respective appellants. At the time of recovery, no gazetted officer or Magistrate was present. Recovery memo was prepared by Darogaji. Separate packets were not weighed. At the time of recovery, the people present but they have denied to be witness of arrest and recovery and left the place without telling their names and addresses.
14. P.W.5 First Investigating Officer, (I.O.) S.I. Ram Saran Yadav has given details of investigation done by him and proved various documents prepared by him during investigation. In his cross-examination he has stated that he started investigation of the case on 23.10.2011. At first occasion, S.H.O. gave him a copy of Chik FIR and the recovery memo. Thereafter he visited the spot along with first informant. The witness denied the suggestion to the effect that he did not do investigation on the spot.
15. P.W.6 Second I.O. S.I. Ram Saware Yadav has stated in his evidence regarding investigation conducted by him. He also proved the various documents prepared by him during investigation. In his cross-examination he has admitted that he has not taken statement of any one, but denied the suggestions to the effect that he has not properly investigated the case rather completed all formalities, at the police station itself and submitted the wrong charge-sheets against the appellants.
16. Now I will examine submissions of the learned counsel for the appellants regarding non-compliance of various mandatory/ important provisions of Ss. 42, 43, 50, 55 and 57 of the Act providing various safeguards to accused in their ascending order.
Compliance of Section 42/43 of the Act.
17. In this regard, some important decisions of Hon'ble Apex Court and other Courts may be usefully referred here which are as follows:
17.1. In Rashid and anther vs. State of Rajsthan, 1991 Cri.LJ 733, the Court held that section 42 will not apply to a case where a search was not taken in a building, conveyance or enclosed place, paragraph 3 of the judgment reads thus :
"3. In my opinion,S.42 will not apply to a case where a search was not taken in a building, conveyance or enclosed place and will apply to a case where the person authorised u/s.42 of the NDPS Act has reason to believe that an offence under Chapter IV Of that act has been committed. S. 43 of the aforesaid Act reads as under:
"43. Power of Seizure and arrest in Public places-Any officer of any of the departments mentioned in S.42 May- 43.(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect pf which he has reason to believe an offence punishable under Chapter IV has been committed and alongwith such drug or substance, any animal or conveyance or article liable to confiscation under this act any document or other4 article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance;
43(b.) detain and search any person when he has reason to believe to have committed an offence punishable under IV and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation: For the purposes of this section, th expression 'Public Places' includes any public conveyance, hotel, shop, or other place intended for use by or accessible to, the public."
A reading of S.43 will show that no recording of reasons in writing for belief that an offence under Chapter IV has been committed is necessary. To me there appears to be logic behind it. If an officer suspects that an offence has been committed under chapter IV ND&PS Act in a public places , there can be hardly any time for him to record any reason in writing for his belief or to obtain warrant of authorization . A bare comparative reading of Ss. 42 and 43 will show that whereas S.42 of the said Act applies to a case of entry into or search of any building etc.,S .43 of the act applies to a case of search in public place, in which case it was not necessary to record.
17.2. In Deep Chandra vs. State of Rajsthan, 1996 Cri.LJ 54, the Court held that the appellant's search was taken on the street, which is 'public place' and as such, the provision of Sec 42(2) of the Act do not apply this case. Relevant part of the judgment reads thus :
"11... Admittedly, the appellant's search was taken on the street, which is public place and as such, the provisions of Sec 42(2) of the act do not apply this case and it was not incumbent on the S.H.O to have sent the copy of the source information forthwith to the immediate official superior. The provisions of section 43 of te act, which deal with the power of seizure and arrest by an empowered officer in public place, apply in this, which do not require that the copy of the source information should be immediately sent by the forwarding officer to his immediate official superior however as per Sec 57 of the act, whenever any person makes any arrest or seizure under the act, he is required within forty eight hours next after such seizure to make a full report of all particulars of arrest and seizure to the immediate official superior. The object is to put a check on the officer of the lower rank as they can misuse their drastic powers."
17.3. In Labh Singh vs. Union of India, 2002 Cri.LJ 28, the Court held that :
"29. As already stated above, search in the present case has been effected from the truck. in India, the Truck, which carries goods from one place to another on public demand and on consideration, in all circumstances would be regarded as public conveyance. Therefore, the Truck in question from which contraband heroin was recovered would be treated as public conveyance and when it is treated as public conveyance, no question of application of Section 42 of the NDPS Act arises and the provisions of Section 43 of the NDPS Act would apply in the present case.
30. in these circumstances, the findings of the learned Special Judge that provisions of Section 42 of the NDPS Act are not applicable in the present case, but provisions of Section 43 of the NDPS Act would apply, are liable to be confirmed as they are based on correct appreciation of facts and law."
17.4. In Smt. Krishna Kanwar alias Dhakuraian vs. State of Rajsthan, 2004 2 SCC, 608, the Court held as follows :
" 15. Section 42 enables certain officers duly empowered in this behalf by the Central or state Government ,as the case may be, to enter into search any building, conveyance or enclosed place for the purpose mentioned therein without any warrant or authorization. Section 42 deals with "building, conveyance or enclosed place" whereas Section 43 deals with the power of seizure and arrest in public place."
17.5. On applying ratio of above decisions to the present case, I find that though the search operation was conducted on information that some persons carrying illegal goods are coming from Nepal and may be apprehended after proper checking, but the above information was neither in respect of the appellants nor any particular person. Till the disclosure of the appellant that they were carrying the charas, the police personnels were fully unaware about the fact that the appellants were committing any offence under the Act. Admittedly, the search was conducted in public place i.e. at India Nepal Seema Gate and not in any building, conveyance or enclosed building. In above view of the matter, provision of Section 42 are not attracted in the matter rather provision of Section 43 are applicable in the present case. In these circumstances, not reducing the information in writing and not communicating the same to immediate official superior within 72 hours are no way fatal for the prosecution case.
Compliance of Section 50 of the Act.
18. In this regard, some important decisions of Hon'ble Apex Court and other Courts may be usefully referred herein :
18.1. In Wilson Dayal V. State 1993 Cri.LJ 1188, the Court held that :
"10. SI K. C. Ahluwalia appearing as P.W.8 nowhere stated that he gave any option to the accused nor he asked the accused to search him before searching the petitioner. The Warrant Officer M. N. Gureja also appearing as P.W.7 admitted that no offfer was made to the accused for being searched before Gazetted Officer or before a Magistrate nor the Investigating Officer offered himself to be searched by the accused Therefore,to my mind,in view of this admitted position on record,the only conclusion which can be reached is that in this case there is clear violation of the provision of Section 50 of the Act."
18.2. In State of Himanchal Pradesh vs. Soran Singh, 1998 Cri.LJ 1829 (FB), the Court held that :
"6. The alleged recovery of the narcotic drug in question was not the result of a chance occurrence. It was only in cases where the police while conducting investigation in a criminal offence and if a search conducted in connection with that offence had resulted in the seizure of a narcotic drug or psychotropic substance, compliance of Section 50, Sub-section (1) becomes impossible, as by then search had already been over. In the present case, the alleged search was under the provisions of the Act and, therefore, compliance with Section 50 was mandatory..... "
18.3. In Labh Singh vs. Union of India, 2002 Cri.LJ 28, the Court held that :
"32. In the present case, the alleged heroin was recovered from the Truck and the learned Special Judge has held that since there was no personal search and heroin was recovered for the Truck, therefore, compliance of Section 50 of the NDPS Act was not necessary.
33. In my considered opinion, since contraband heroin was recovered from the Truck and there was no personal search, therefore, no question of compliance of Section 50 of the NDPS Act arises, though notices under Section 50 of the NDPS Act were given to the accused appellants separately. Thus, the findings of the learned Special Judge that in the present case compliance of Section 50 of the NDPS Act was not necessary are liable to be confirmed, as they are based on correct appreciation of facts and law."
18.4. In Balu vs. State of Rajsthan, 2005 Cri.LJ 33, the Court held that Section 50 applies to the personal search. Anything carried by the suspect in his hands, shoulder or head would also be on his person. Relevant part of the judgment reads thus :
"12. Section 50 applies to the personal search. Anything carried by the suspect in his hands, shoulder or head would also be on his person. A purse or packet if is on his hands. A sling bag handling on the body of the suspect is of on his person would not become luggage if it is carried in the hand. Something on the person of the suspect cannot be taken search of unless provisions of section 50 are observed. If a bag is carried by the suspect and not otherwise. Since the appellant was alleged to carry plastic bag on his shoulder it was essential for the SHO to scrupulously follow the legislative safeguards Contained in Section 50. Conviction of appellant under section 8/18 NDPS Act thus cannot be sustained."
18.5. In Raj Kumar vs. Uttrakhand, 2013 Cri.LJ 4112, the Court held that the provision of Section 50 of the Act is not applicable when the contraband is recovered either from the briefcase or bag or vehicle. Relevant part of the judgment is extracted as under :
"12. Hon'ble Apex Court in the case of Ajmer Singh V. State of Haryana, reported in (AIR 2010 SC (Supp) 582), having placed reliance on earlier judgments of the Hon'ble Apex Court, has reiterated that provision of Section 50 of the NDPS Act are applicable only in the case of personal search of the accused and the same are not applicable when the contraband is recovered either from the briefcase or bag or vehicle.
13. Since in the present case, Contraband was recovered from the bag hanging on the back of the appellant, therefore , provision of section 50, NDPS cannot be pressed in service."
18.6. In Sajan Abrahim vs. State of Kerala, AIR 2001 SC 3190, the Court held that oral information about right of the accused to be searched before a Magistrate or a Gazetted Officer is sufficient compliance of Section 50 of the Act. Relevant part of the judgment reads thus :
"8. Next submission is, the prosecution has violated Section 50 of the Act which is mandatory as held by the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172. The submission is, the appellant was not informed in writing of his right to be searched in the presence of a Magistrate or a Gazetted Officer.
9. We find PW1, PW3 and PW5 have deposed that PW5 has informed the respondent orally about it but the appellant opted out of this right. It is only thereafter a search was made.
10. In the present case we find the High Court recorded a finding that PW5 informed the appellant about his right as provided under Section 50 of the Act which is established not only by the oral evidence of PWs. 1, 3 and 5, but also by the recitals made in Ext.P1 the seizure mahazar prepared by PW5 and the F.I. Statement given by the respondent (the appellant before us). The submission, however, is communicating orally to the appellant is not a compliance under Section 50. We cannot agree. The aforesaid Constitution Bench upholds oral communication also to be valid under Section 50 of the Act. Hence, this submission has no merit.
11. Thus in our considered opinion, we do not find, on the facts of this case, as also recorded by the High Court that there has been any violation of Section 50 of the Act."
18.7. In Bharat Bhai Bhagwanji Bhai vs. State of Gujarat, AIR 2003 SC 7, the Court held that in case of search of the person in suspicion provision of Section 50 has no application, relevant part of the judgment reads thus :
"9. Admittedly, on perusal of the evidence as is available on the records, it is clear that there was no prior information to the police officer that the accused is likely to come with a narcotic substance,neither the inspector had any reason to believe from his personal knowledge or information that the accused is likely to be in the area from where he was found with the contraband item. As a matter of fact, even at the time of effecting search, there was no knowing that an offence under Chapter IV of NDPS Act has been committed by the accused. The Inspector merely suspected the commission of an offence by reason of the fact that the accused started running on seeing the patrolling party. The evidence on this score is clear and categorical to the effect as discussed hereinbefore. Though the Panchas have given a slightly different version of the search and seizure,but that does not by itself take away the primary evidence as regards the search and subsequent discovery of Charas in the Possession of the accused and the resultant seizure thereof. The contextual facts thus depict a situation not covered within the purview of Section 50. In this Context, the observation of the Constitution Bench of this Court in State of Punjab v. Baldev Singh (1999(6) SCC 172) also lends credence to the above statement of law. In Paragraph 12 of the Report, this Court stated as below:
12. On its plain reading section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by section 42 of the act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under NDPS Act is also recovered, the requirements of S.50 Of the act are not attracted."
18.8. In Smt. Krishna Kawnar alias Dhakuraian vs. State of Rajsthan, 2004 2 SCC, 608, the Court held that no specific form prescribed or intended for conveying the information required to be given under Section 50, relevant part of the judgment reads thus :
"21. It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under Section 50. What is necessary is that the accused(suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed or intended, the court has to see the substance and not the form of intimation. Whether the requirements of section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or a straitjacket formula."
18.9. In State of Haryana vs. Suresh, AIR 2007 SC 2245, the Court held that a bag,briefcase or any such article or container, etc can, under no circumstances, be treated as body of human being, relevant part of the judgment reads thus :
"14 A bag, briefcase or any such article or container,etc can, under no circumstances,be treated as body of human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like bag, a brief-case, a suitcase, a tin box,a thaila , a jhola, a gathri a holdall,a carton,etc of varying size dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back placed on the head. In Common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head,etc. Therefore, it is not possible to include theses articles within the ambit of the word "person" occurring in Section 50 of the Act."
18.10. In Criminal Appeal No. 1809 of 2009 (Vijaysinh Chandubha Jadeja v. State of Gujarat) decided on 29th October, 2010, a Constitutional Bench of Apex Court (consisting five Judges) considered the question as to whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to `inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?, after detailed discussion over the issue the Court held as follows :
"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll14, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."
(Emphasis supplied by this Court) 18.11. Hon'ble Apex Court in its latest judgment pronounced in Criminal Appeal No. 273 of 2007 (Arif Khan @ Agha Khan vs. State of Uttrakhand), decided on April, 27 2018 held that :
"20. In other words, the question that arises for consideration in this appeal is whether the prosecution was able to prove that the procedure prescribed under Section 50 of the NDPS Act was followed by the Police Officials in letter and spirit while making the search and recovery of the contraband "Charas" from the appellant (accused).
21. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra).
22. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.
23. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392).
24. Keeping in view the aforementioned principle of law laid down by this Court, we have to examine the question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of the NDPS Act while making search and recovery of the contraband "Charas" from the appellant and, if so, whether it was done in the presence of a Magistrate or a Gazetted Officer so as to make the search and recovery of contraband "Charas" from the appellant in conformity with the requirements of Section 50.
25. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer.
26. It is the case of the prosecution and which found acceptance by the two Courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him under Section 50 in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two Courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act.
27. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "Charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.
28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.
29. Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.
30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.
31. In the light of the foregoing discussion, the appeal succeeds and is allowed. Impugned judgment is set aside. As a consequence thereof, the appellant's conviction is set aside and he is acquitted of the charges in question."
(Emphasis supplied by this Court.) 18.12. As far compliance of Section 50 of the Act is concerned, in the present case, the alleged charas was recovered from personal search of the appellants i.e. from the packet of cloth tied in the waists of the appellants, as such, mandatory provision of Section 50 of the Act was required to be duly complied. Though, in the present case written consent letters of the appellants (Exhibits Ka-2 and Ka-3) are brought on record in which the appellants had expressed their consent for their search by lady Constables. On Exhibit Ka-2 the appellant Smt. Sita Gati Magar has appended her thumb impression whereas on Exhibit Ka-3 the appellant Smt. Samjhana Jaisi has made her signature in Hindi. But undisputedly the appellants were not produced before any Magistrate or Gazetted Officer and the search and recovery of contraband charas from the appellants was not made in the presence of a Magistrate or Gazetted Officer. None of the police officials of the raiding party who recovered the contraband charas from the appellants was the Gazetted Officer as such they were not empowered to make search and recovery from the appellants of the contraband 'charas' except in presence of either a Magistrate or Gazetted Officer as provided under Section 50 of the NDPS Act. As such, in view of the judgments of Hon'ble Apex Court in Vijaysinh Chandubha Jadeja and Arif Khan @ Agha Khan (both Supra). There is no compliance of mandatory provision of Section 50 in this case and recovery of contraband charas and conviction of the appellants are bad in law.
Compliance of Section 55 of the Act.
19. In this regard, some important decisions of Hon'ble Apex Court and other Courts may be usefully referred herein.
19.1. In Wilson Dayal V. State 1993 Cri.LJ 1188, the Court held that :
"12. From the testimony of SI K.C. Ahluwalia, the Officer Incharge i.e. SHO was not available and therefore, the IO deposited these sealed parcels with the Moharrar Malkha without getting the seal of the S.H.O. Affixed on the the sealed parcels there was only on seal ad that was of S.I.K.C Ahluwalia, the investigating officer. No seal of the Officer in-charge of the police station was affixed which s what is the requirement of Section 55 of the act. Therefore, Ms. Grover was justified in urging that in this case the investigating officer gave a complete go bye to the mandatory provision of the Act."
19.2. In State of Punjab vs. Kulwant Singh, 1995 JIC 639 (PH) (FB), the Court held that :
"24. Section 55 of the act makes its obligatory upon an officer-in-charge of the police section to take charge of and keep in safe custody pending the orders of the magistrate, all articles seized under this act withing the local area of that Police Station and which may be delivered to him. It further makes it obligatory on the officer-in-charge of the police station to allow any officer why may be accompanying such articles to the police station or who may be deputed for this purpose to affix his seal on such articles or to take samples of and from them and all such samples so taken shall also be sealed with the seal of the officer-in-charge of the police station. Thus, this section provides a safeguard of mandatory nature for the accused qua the affixing of seal in order to rule out the possibility of tampering with the sample."
19.3. In Rajmal vs. State of Rajsthan, 1998 Cri.LJ 2626, the Court held that :
"12. I have carefully examined the evidence as stated above and find that the prosecution has not satisfactorily proved that the seal placed on the sample packets remained intact from the time the seal was placed on them till the packets reached the office of the Director, Forensic Science Laboratory. The evidence of the prosecution with regard to who deposited the sealed packets in teh malkhana with Abdul Latif is also not consistent. Abdul Latif PW-6 has stated that the sealed packets were deposited by the S. H. O. but in the entry made in the malkhana register it was stated that the samples were deposited by Krishna Kumar Khamesara PW-2. Regarding the movement of the sample packets from malkhana register, it was natural that an entry ought to have been made in the malkhana register that the samples have been removed from the malkhana and sent to the Forensic Science Laboratory with Chunnilal but strangely enough no entry has been made about transmitting the sample packets to the Director, Forensic Science Laboratory through District Police Superintendent. Chunnilal has also not signed the malkhana register in token of having received the sealed samples for taking the same first to the S. P. and then to the Director, Forensic Science Laboratory. The register also does not contain the specimen impression of the seal. According to Chunnilal he obtained the samples from the malkhana on 21-9-1994 and deposited the same in the office of the Director, Forensic Science Laboratory on 23-9-1994. He also stated that on 21-9-1994 he deposited the same in the office of the S. P., Chittorgarh. If he deposited the articles in the office of the S. P., Chittorgarh, linking evidence that such samples remained intact in the office of the S. P., Chittorgarh ought to have been produced. It is also suspicious that if Chunnilal did not deposit the samples in the office of the S. P., Chittorgarh why did he keep the same with him for two days. Since there is a discrepancy of the manner in which the samples were put in the container, emphasis on complete and satisfactory evidence of the seal remaining intact is necessary and natural. From the above I conclude that there is lot of suspicion about the linking evidence for proving that the seal from the beginning to the end remained intact. The Apex Court in the State of Rajasthan v. Daulat Ram AIR 1980 SC 1314 : (1980 Cri LJ 929) made the following observations (at page 930 of Cri. L. J.):-
Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question a fact which had to be proved affirmatively by the prosecution.
(Emphasis supplied by this Court.)
13.My conclusion, therefore, is that the prosecution was to prove that the seal placed on the samples remained intact from the time the seal was placed up to the time the packets reached the office of the Director, Forensic Science Laboratory, Jaipur.
14.For the above reasons, the trial Court was not justified in holding the accused guilty of the offence under Section 8/18 of the Act."
19.4. In Savitri alias Subha V. State of Chattisgarh 2001 Cri.LJ 4602, the Court held that :
"13. P.W.3 Prakash Sharma. Undisputedly was not an officer-in-charge of the police station, Jagdalpur. He was posted there as Sub- Inspector. The said Prakash Sharma in his statement does no where say that he produced the accused persons before the station House Officer or produced the articles and samples before the said officer for affixation of his seal. He had simply stated that he handed ever the seized articles and samples to malkhana mohirir Unfortunately, the said Malkhana mohirir was not examined by the prosecution nor entry register of Malkhana was produced in the court . From the statements of P.W.3 Prakash Sharma , it would only appear that statements it would not appear that the articles and samples remained intact in the Malkhana and were brought out in the same condition. There is no dispute about the fact that the S.H.O. Or officer-in-charge of the police station did not affix his seal on the samples or the articles. From the statements of P.W. 3 Prakash Sharma, the court can only read that he had seized some articles , drew certain samples and gave the same for safe custody to Malkhana Mohirir; but in his statement, it cannot be read that the said samples were kept intact. The person who had been taken the samples to the F.S.L has also not been examined by the prosecution in its wisdom had examined P.W.1 Smt. Sushila Tekam, who had taken the search of the accused persons and recovered the alleged contrabands. PW.2 Sitaram P.W.4 Devo alias Bhayana were witnesses to the search and seizure, but they turned hostile.P.W.3 Prakash Sharma had received the information. Went to the spot and seized the alleged articles. In absence of examination of Malkhana Mohirir and because of non-production pf the register of Malkhana showing the deposit entries of the alleged contrabands and samples,it would not be possible for a court to hold that articles were deposited with the Malkhana. The best evidence relating to the deposit was though available with the prosecution,but was not produced in the court. Even otherwise,from the evidence it would appear that the police did not comply with the provisions of section 55 of the N.D.P.S.Act."
14. In the matter of Gurbax Singh (supra), the Supreme Court had observed that there was non-compliance of section 55 of the Act because the I.O. Did not say that muddamal parcels were sealed by the officer-in-charge. The Supreme Court also found that in absence of the evidence relating to proper sealing of the articles and its safe custody,it would not be fair to convict the accused.
(Emphasis supplied by this Court.)
15. In the present case also , there is no evidence that the articles were kept in safe custody or samples were properly sealed. In absence of positive evidence to show that what was seized from the accused was kept intact and the sealed articles were ganja and contraband, I am unable to agree with the learned trial Court.
16. The Findings recorded by the trial court are set aside. It is Held that the prosecution has failed to prove its case beyond doubt against the accused. In a case like present, the benefit must go to the accused. In a case like present, the benefit must go to the accused. Giving benefit of Doubt to the accused persons, I acquit them . The appellants are said to be in jail. They be released forthwith, if not required in any other matter."
19.5. In State of Rajasthan V. Tara Singh (2011) 11 SCC 559, the Court held that :
"5. We find, however, that the second aspect on which the High Court has opined calls for no interference. As per the prosecution story the samples had been removed from the malkhana on 26-2-1998, and should have been received in the laboratory the very next day. The High Court has, accordingly observed that the prosecution had not been able to show as to in whose possession the samples had remained from 26-2-1998 to 9-3-1998. The High Court has also disbelieved the evidence of PW 6 and PW 9, the former being the Malkhana Incharge and the latter being the constable, who had taken the samples to the laboratory, to the effect that the samples had been taken out on 9-3-1998 and not on 26-2-1998. The Court has also found that in the absence of any reliable evidence with regard to the authenticity of the letter dated 26-2-1998 it had to be found that the samples had remained in some unknown custody from 26-2-1998 to 9-3-1998.
6. We must emphasis 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 been dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. The High Court was, therefore, in our view, fully justified in holding that the sanctity of the samples had been compromised which cast a doubt on the prosecution story. We, accordingly, feel that the judgment of the High Court on the second aspect calls for no interference. The appeal is, accordingly, dismissed. The respondent is on bail. His bail bonds stand discharged."
19.6. As far compliance of Section 55 of the Act is concerned, it is evident from copy of G.D. Entry No.11 dated 23.10.2011 (Exhibit Ka-4) that the recovered charas from the possession of the appellants was deposited in the maalkhana of police station Sonauli. Remand sheets of the appellants dated 23.10.2011 (Paper No. Kha-20 and Kha-18) show that on the above date, the appellants were produced before the Magistrate concerned and after perusal of case diary the Magistrate granted remand. In the above order sheets, it is also mentioned by way of over writing that maal (seized articles) were perused but the above over writing was neither signed nor any initial was made over those. Moreover First I.O. of the case P.W.5 has said nothing in this regard in his evidence. In this regard, P.W.1 has stated in his evidence that after registration of the case, the appellants were produced before the Court in supervision of the lady Constable. Only lady Constable P.W. 4 Jahan Ara Khan has been examined but she has stated nothing in her evidence about production of the appellants before the Remand Magistrate, otherwise also she was not authorized and entitled to seek remand of the appellants. No other lady Constable was examined by the prosecution to prove the above facts. There is also no evidence on record about production of case property (seized articles) before the Court i.e. Remand Magistrate. P.W.1 has also said in his evidence while proving the material objects, sealed bundles of contraband articles that its were seen by the Court, if so, necessary evidence should be evidence on record about taking out the seized articles from the maalkhana and its re-retry in maalkhana, which is not available on record. Not only this in the above situation, resealing of the seized articles was also required, which is not proved on the basis of the evidence available on record. Above facts creates not only a serious doubt about perusal of seized articles by the Remand Magistrate but also suggest two possibilities i.e. either seized articles were not seized by the Remand Magistrate or seals of seen articles were tampered.
19.7. In-charge maalkhana and maalkhana register was not produced by the prosecution to prove that seized articles were kept in safe custody after his submission in the maalkhana till its handing over to the FSL.
19.8. It is also alleged that seized articles were kept in maalkhana but there is no evidence to the effect that above seized articles and its samples were put before the S.H.O. for affixation of his seal over the case property. Admittedly P.W.1 was not S.H.O. of Police Station Sonauli. He was a Sub-Inspector and posted as In-charge Police Chowki, Sonauli. There is also no evidence about preparation of form no. 95 and its production to FSL along with samples of contraband.
19.9. The letters dated 04.11.2011(14-kha), sending samples for examination to FSL did not show any enclosure of the letter except the samples of contraband. The above letters along with samples were handed over to Constable Arvind Yadav on 04.11.2011 which were received in the FSL on 11.11.2011 meaning thereby samples were in possession of Constable Arvind Yadav for about a week but he was not produced in evidence to prove that samples were remained intact and were not tempered. Samples of contraband for examination was also sent with the delay of 11 days and one week thereafter its receiving in the FSL i.e. after 18 days from its recovery.
19.10. In view of the above, it could not be said that allegedly recovered contraband articles and samples remained intact and they were not tampered.
19.11. For the aforesaid, it may be concluded with certainty that there is no compliance of Section 55 of the Act which provides a safeguard by way of affixing seal by S.H.O., to rule out any possibility of tampering with the samples.
Compliance of Section 57 of the Act.
20. In this regard, some important decisions of Hon'ble Apex Court and other Courts may be usefully referred herein :
20.1. In case of Surajmal Kanaiyalal Soni vs. State of Gujarat, 1991 Cri.LJ 1483, the Court held that :
"33. Mr. Shethna, learned Advocate for the appellant, asserting that the provisions of Section 57, NDPS Act, were not complied with as, even though it was obligatory to make a full report of all the particulars of such arrest or seizure, within 48 hours, to the immediate superior official, no such report in writing was sent by Police Inspector Patil to his immediate superior official. Police Inspector Patil has stated that before proceeding for keeping watch he had informed his immediate superior Mr. Roul and after seizure also he had informed him on phone about the recovery and the offence but had not submitted any report in writing. Section 56, NDPS Act, does not provide that the report in writing should be submitted within 48 hours. 'Report' as used in context means 'make official or formal statement' 'inform against'. As Section 57 provides for making full report of all the particulars of such arrest and seizure, it is desirable to make a report in writing but in absence of specific provision making it obligatory to submit report in writing, it cannot be held that report should be in writing. Even if it is held that the report is required to be submitted in writing, non-compliance of submitting such report Under Section 57, NDPS Act, by itself would not vitiate the investigation and the trial. The provisions of Section 57 should not be considered such mandatory, non-compliance of which should be fatal to the prosecution as such report is to be submitted subsequent to the arrest and seizure and in most of the cases after filing of the complaint and producing the muddamal before the Police Station Officer. It appears that such provision is made in Section 57, NDPS Act, with a view to see that the police officers or other officers, who may be authorised to investigate Under Section 52, NDPS Act, may not misuse the power and subsequently create evidence. Normally seizure is made under the panchnama and in presence of panch-witnesses and after that the complaint is filed and First Information Report is lodged before the Police Station Officer and the muddamal is also normally produced before the Police Station Officer. After the entries are made in the official record it may not be easily possible to tamper with the evidence or create evidence. The very fact that the First Information Report is made is sufficient security and after that there may not be any possibility for changing the record. In such circumstances, it should be held that even though compliance of that section is necessary non-compliance of it will not be fatal to the prosecution till it is established that it has resulted in miscarriage of justice or prejudice is caused to the accused. When the panchnama is prepared and the FIR is lodged and the entry is made in the Police Station Diary or the relevant record and the muddamal is produced before the Police Station Officer, it cannot be accepted that any prejudice is caused to the accused merely because report was not made to the immediate superior in writing, within 48 hours.
34. Himachal Pradesh High Court in case of Sudarshan Kumar (supra), while holding the provisions of Section 57 mandatory, observed that non-compliance of it would result into failure of the prosecution case. With due respect, we are not in a position to accept the broad proposition of law. In our view, the prosecution may fail for non-compliance of provisions of Section 57, NDPS Act, only in case miscarriage of justice or prejudice to the accused are established."
20.2. In State of Himanchal Pradesh (Supra) (FB), the Court held that "6. ......Whenever an arrest was made or seizure effected under the Act, the officer doing so shall, within 48 hours after the search or seizure, submit a full report of the same to his immediate official superior is the mandatory requirement of Section 57 and this has not been complied with by the prosecution. The acquittal of the accused by the learned Sessions Judge both in regard to appreciation of evidence and compliance with the mandatory requirements of the provisions of the Act was fully justified warranting no interference by this Court."
20.3. In Pandav Sarkar vs. State of U.P., 2012 Cri.LJ 1855, the Court held that :
"21. Yet another unsatisfactory character of prosecution case is non compliance of section 57 of the NDPS Act, which provides that whenever any person is arrested or any seizure made under this act, within 48 hours next after arrest or seizure, the arresting and seizing person will make a full report of particulars of seizure to his immediate superior officials. In this connection testimony of P.W. 2 arresting officer S.I. Surendra Kumar Tyagi, at internal page 6 of his deposition is noticeable. He had deposed that he had given intimation on telephone and wireless but has not made any entry in that respect in GD. No document has been produced by prosecution to lend credence to such a statement by P.W. 2. In the absence of any documentary evidence mere ipse dixit P.W. 2 is not sufficient to conclude that compliance of section 57 was done in the present case. No superior officer was produced nor interrogated to substantiate such a claim by PW2. Prosecution would have done well to bring on record some document containing recital in respect of such compliance. No doubt section 57 of the Act is directory and non compliance of the same by itself is in- sufficient to set aside the conviction but at the same time it's non compliance and non observance diminishes credibility of testimonies of prosecution witnesses and when scanned with other surrounding circumstances may make prosecution version unsubstantiated. In the present case, non observance of section 42 and 50 of NDPS Act as held here in above, coupled with no document regarding compliance of section 57 affects authenticity of prosecution case to a large extent. More over there is no public witness attached with the search and seizure."
(Emphasis supplied by this Court.) 20.4. Hon'ble Apext Court while considering the mandatory requirement of independent and separate compliance of section 42 and 57 of the Act in Kishan Chand vs. State of Haryana, (2013) 2 SCC 502 held that :
"24. .......These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Sections 42, 50 and 57 of the Act. They are neither inter-linked nor inter-dependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases...."
(Emphasis supplied by this Court.) 20.5. There is no mention in the FIR (Exhibit Ka-8), recovery memo (Exhibit Ka-1), G.D. (Exhibit Ka-4) regarding registration of the case and in the statement of P.W.1 recorded under Section 161 Cr.P.C. by the Investigating Officer as is evident from parcha no. II dated 24.10.2011 about the fact that P.W.1 has informed his superior authorities about recovery and arrest of the appellants. Even I.O. P.W.5 and P.W.6 have also said nothing in their evidence regarding compliance of Section 57 by them. For the first time after a long gap of one year and three months, P.W.1 has stated in his statement recorded before the Court that Superior Authorities were informed about recovery and arrest but admitted in his cross-examination that he has informed the superior authorities from his mobile phone but admitted that this fact has not found place in the recovery memo (Exhibit Ka-1). It is clear from the above that fact of information to superior authorities regarding recovery and arrest of the appellants is a clear improvement and afterthought which cannot be believed and relied in absence of any other corroborative evidence.
20.6. As such, there is no reliable, clinching and cogent evidence on record regarding sending a full report of all the particulars of arrest and seizure of contraband articles from the appellants, by P.W.1 and P.W. 5 I.O. of the case to his immediate official superior within 48 hours from arrest of the appellants and seizure as required by section 57 of the Act.
20.7. In these circumstances, the present case appears a case of total non-compliance of the mandatory provision of Section 57 of the Act providing important safeguards to check and control, misuse the powers of the police and other officers authorized under Section 52 of the Act to investigate the cases of N.D.P.S. Act and to create evidence against the accused persons subsequently.
Manner of taking samples
21. According to P.W.1 he had taken samples from taking small quantities from all seven packets recovered from the each appellants but contrary to that P.W. 3 has said in his evidence that samples were taken from only one packet.
In U.O.I vs Bal Mukund & Ors. (2009) 12 SCC 161, the Court held that :
"7. The manner in which a sample of narcotic is required to be taken has been laid down by the Standing Instruction No. 1/88, the relevant portion whereof reads as under:
"e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/ container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. .....
36.There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law."
As such, there is no evidence on record regarding taking of samples as provided in above referred standing instruction no. 1/88 for taking the samples. In these circumstances, taking of proper samples is also highly doubtful.
Report of Chemical Examination.
22. In this regard, some important decisions of Hon'ble Apex Court and other Courts may be usefully referred herein :
22.1. In Rakesh Kumar vs. State of H.P., 2008 Cri.LJ 2924, the Court held that :
"13. The last point urged by the learned Counsel for the appellant was that in the sample of Charas sent to the laboratory, the resin content was found to be 30.08% only and, therefore, it cannot be said that the recovered substance was Charas weighing 900 grams and it has to be held that the recovered Charas was only 30.08% of total 900 grams recovered at the spot which comes to little less than 1/3rd of the total substance recovered. Accordingly, it was submitted that the total recovered Charas was only less than 300 grams, The learned Counsel for the appellant relied upon a decision of Division Bench of this Court and according to the said decision, the quantity of the Charas recovered in this case cannot be said to be 900 grams as per the reasoning given by the Division Bench of this Court. Thus it was submitted that the appellant is entitled to punishment provided for recovery of small quantity only.
14. Reliance was placed upon a decision of/Division Bench of this Court in Dharam Pal v. State of H.P. Latest HLJ 2007 (HP) 827. A perusal of this judgment shows that a question was raised before the Division Bench that in case the percentage of resin found in the content of Charas is less than the recovered Charas, the quantity of resin found can be said to be Charas and not the whole quantity recovered from possession of the accused. Accordingly, it was held that the sentence has to be imposed keeping in view the quantity of resin found in the total quantity of Charas recovered from the possession of the accused. A perusal of the said judgment of the Division Bench shows that a similar plea was raised before the Bench and in that case the quantity of Charas recovered was 1.600 grams, but the chemical examiner on the analysis of representative of the sample of the stuff found that it contained only 28.92% resin and accordingly had referred to the term cannabis, charas, ganja etc. The Division Bench finally concluded that since the report of the chemical examiner shows that percentage of resin found was 28.9% and it was silent about the rest of the contents of the stuff which means that the entire quantity of the recovered stuff was not Charas. The learned Additional Advocate General appearing for the State had submitted that there are no definite findings of the Chemical examiner that apart from the percentage of the resin found in the stuff, rest of it was not Charas or it contained some other substance. It was submitted on behalf of the State that there is nothing in the report to suggest that the other part of the substance recovered was mixture of gur, dhoop or some other extraneous substance which was mixed with Charas and as such, it cannot be said that only percentage of resin found In the substance recovered was Charas and not the remaining substance recovered from the possession of the accused. This question cannot be considered by this Court on the basis of the arguments raised by the learned Additional Advocate General since this question has been discussed at length by the Division Bench of this Court which had finally concluded that only the percentage of the resin found in the substance can be termed as Charas and not the remaining substance. Once there are findings of the Division Bench about this aspect, this plea is not open to be considered before this Court which is bound by the Division Bench ruling of this Court.
15. Applying the decision in the above case in which it was held that recovered stuff was Charas only to the extent of resin content found therein and accordingly, it has been conducted that since in the present case the resin content found was 30.08% approximately 1/3rd, it can be conducted that the Charas recovered from the possession of the accused was 1/3rd of the total substance i.e. less than 300 grams only. However, the punishment prescribed under Section 20 of the Act remains the same since in case charas found was above 100 grams which is above small quantity since small quantity is less than that, therefore, the conviction prescribed remains the same under Clause (B) i.e. for quantity less than commercial quantity but greater than small quantity and the punishment prescribed is rigorous imprisonment for ten years or fine which may extend to one lakh rupees. The punishment awarded by the learned trial Court is rigorous imprisonment for nine years and fine to the extent of Rs. 90,000/-."
(Emphasis supplied by this Court.) 22.2. In Deep Ram V.State of Himachal Pradesh, (2012) 119 AIC 561 (H.P.,H.C.), the Court held that :
"11. Further, on the scrutiny of the report of analysis Ext. PX-1, I also find that it does not conform to the requirement of law. The Chemical Examiner has conducted the qualitative and quantitative tests based on microscopic and beams alkaline examinations. On former examination, the chemical examiner found the presence of cystolithic hair and the later test was positive. The resin contents of both the samples were 28.78% and 29.09%, respectively, on the basis of which the Chemical Examiner concluded that both these exhibits contain the contents of "Charas".
12. As a matter of fact, "Charas" is one of the three forms of cannabis (hemp), as defined in Section 2(iii) of the Act, reads as follows:
"(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish."
13. In Sunil v. State of Himachal Pradesh and other connected matters, reported in Latest HLJ 2010 (HP) 207, the Division Bench of this Court, of which, I was also one of the members, had examined the same type of report inter-alia the other reports taking note of the definition of "Charas" under the Act. The Court came to the conclusion that the stuff to fall in the category of "Charas", should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant.
14. Flowering and fruiting tops of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ganja.
15. When "Charas", i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act.
16. Being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment varies according to the quantity possessed. Quantities are defined as small and commercial in Sections 2(viia) and 2(xxiiia), respectively. Small and commercial quantities of "Charas", ganja and mixture are different, per Table notified by the Ministry of Finance, Department of Revenue, vide notification No. S.O. 527(E), dated 16th July, 1996, under clauses vii(a) and xxiii(a) of Section 2 of the Act. For "Charas" and hashish, which are referred to as extracts and tinctures of cannabis plant in entry No. 23, small quantity is less than 100 grams and commercial quantity is above 1 kg. in respect of ganja, small quantity is less than 1000 grams and commercial quantity is more than 20 kgs, per entry 55.
17. On the basis of report Ext. PX-1, in the instant case, the stuff is opined to be the contents of "Charas" because of the presence of cystolithic hair and beams alkaline tests having been found to be positive plus the presence of the resin. The report does not show anywhere that the resin was of cannabis plant in order to bring it within the definition of "Charas". Thus, the report aforesaid, is discrepant. Therefore, the cumulative effect of both these points is that the prosecution has failed to prove its case beyond reasonable doubt, in accordance with law. As such, the appeal is allowed and the conviction and sentence passed by the learned trial Court are hereby set aside."
(Emphasis supplied by this Court.) 22.3. In State of H.P. vs. Mehboon Khan, 2014 Cri.LJ 705 (FB), The Court held that :
"46. A bare reading of the definitions hereinabove demonstrates that ''cannabis (hemp)' has three forms, i.e. charas, ganja, and mixture of any of the first two forms of cannabis. In these cases, the respondents have been tried for possession of the first form of ''cannabis' i.e. ''charas'. Charas as per above reproduced definition means separated resin in whatever form, whether crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. The meaning assigned to the resin by the Convention noted supra is also that the resin separated from the cannabis plant is ''cannabis resin' not only when it is purified but also in its crude state i.e. mixed with other parts of the plant. Since the definition does not provide for a particular percentage of resin content s in the stuff, therefore, within the meaning assigned to the charas under the Act as well as by the convention, Charas is a resinous mass and the mere presence of resin contents extracted from cannabis plants in purified form or in crude form i.e. mixed with other parts of the plant , if detected during the course of analysis, alone is sufficient to show that the sample stuff was of charas.
47. We are, therefore, of the considered opinion that the definition of ''cannabis (Indian Hemp)'/Charas under the Act and also within the meaning of Single Convention on Narcotic Drugs, 1961 does not provide for the percentage of resin in the analyzed stuff to prove that the same is Charas. Similarly, the percentage of tetrahydrocannabinol in a sample of charas is also not required to be indicated as a determinative factor in support of its purity and rather mere presence of tetrahydrocannabinol in the stuff analyzed itself is sufficient to arrive at a conclusion that the same is charas. Otherwise also ''cannabis (hemp)' is a narcotic drug as defined under Section 2 (xxiv) of the Act. Therefore Chemical Examiner is not under any legal obligation to state the percentage of tetrahydrocannabinol which is a narcotic substance in narcotic drugs falling in any of the categories,namely cannabis plant, charas, hashish oil, liquid hashish or ganja.
48. On the other hand, the tetrahydrocannabinol an active agent of Charas is a psychotropic substance within the meaning of section 2 (xxiii) of the Act, being included at Sl. No.13 in the Schedule below clause (xxiii) of Section 2 of the Act. The Schedule under clause xxiii of Section 2 annexed to the NDPS Act sets out a list of psychotropic substances. Tetrahydrocannabinol finds mention at Sl. No. 13 thereof as under:-
47.
Sl.
International non-
Other non-
Chemical Name No. proprietary names proprietary names
13. Tetrahydrocannabinol 7,8,9,10-tetrahydro-6,6,9-tremethyl-
pentyl-6H-dibenzol [b,d] pyran-I-
OI] (9R, 10aR)-8,9,10,10a-
tetrahydro-6,6,9trimethy-3-pentyl-
6H-dibenzol [b,d] pyran-I-O] (6aR,9R-10aR)6a,9,10,10a-
tetrhydro6,6,9-trimethyl-3-pentyl-
6H-dibenzo (b,d) pyran I-CI.
(6aR, 10aR)-6a, 7,10,10a-tetrahydro-
6,6,9-trimethy 1-3pentyl-6H-
dibenzo [b,d] pyran-I-OI (6aR,10aR)-6a,7,8,10,10a-hexahydro 6,6 dimethyl-I-9-methylene-3- pentyl-6H-dibenzo[b,d] pyran-I-OI
49. Therefore tetrahydrocannabinol is a psychotropic substance.
50. In the notification No.SO527(E) dated 16.7.1996 issued by the Ministry of Finance, Department of Revenue in respect of the small and commercial quantity of narcotic drugs and psychotropic substances, tetrahydrocannabinolfinds mention at Sl. No. 150. The offence of possession of tetrahydrocannabinol is punishable under Section 22 of the NDPS Act. The small quantity in relation to punishment for commission of an offence for unlawful possession of tetrahydrocannabinol within the meaning of Section 22 of the NDPS Act is 2 grams whereas commercial quantity, 50 grams. In relation to the drug i.e. cannabis and cannabis resin which find mention at Sl. No.23 of the notification referred to hereinabove, the small quantity is 100 grams; whereas commercial quantity is 1 kilogram.
51. The reports in Sunil's case and its connected matters nowhere suggest that the remaining stuff was not charas and some other substance, which can be termed as neutral material and resultantly was required stuff. No, doubt in E Micheal Raj's case (AIR 2008 SC 1720:22008 Cri LJ2250) (supra), it is held that the purity of the contraband is a determinitive factor in respect of its quantity whether small quantity, above smaller quantity and the commercial quantity and lesser than commercial quantity and the commercial quantity and the commercial quantity, however, in that case the recovered stuff was heroin, which within the meaning of section2(xi) is 'opium derivatives', a manufactured drug, which has been defined under clause (d) of section 2(xvi) of the NDPS ACT. In the notification issued by powers vested under clause (viia) and (xxiiia) of section 2 of the NDPS Act, heroin finds mention at SI.NO. 56. As per this entry, its chemical name is 'Diacetylmorphine' Clause (d) of section 2(xvi) defines 'Dicetylmorphine' as follows:-
"(d) diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts."
52. Heroin, which is a manufactured drug, is distinct and different from Charas, cannot therefore be in crude form and rather only in purified form. Therefore, there cannot be any quarrel qua the law laid down in E Micheal Raj's case that it is only the actual contents by weight of the narcotic drugs, relevant for the purpose of determining small quantity, intermediate or commercial quantity. When in Sunil's case and the connected matters in the opinion of the expert, the entire mass was charas and there was no evidence that the same was mixture of some neutral substance, therefore, the entire bulk recovered in this case should have been taken as charas. In Dharampal's case supra, there is no evidence that the remaining substance was neutral and as such was to be excluded from the bulk recovered from the accused."
(Emphasis supplied by this Court.) 22.4. Hon'ble Apex Court in Appeal (Crl.) 1250 205 (E. Micheal Raj vs Intelligence Officer, Narcotic) decided on 11.03.2008, held that :
12. As a consequence of the Amending Act, the sentence structure underwent a drastic change. The Amending Act for the first time introduced the concept of commercial quantity in relation to narcotic drugs or psychotropic substances by adding clause (viia) in Section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the term 'small quantity' is defined in Section 2, clause (xxiiia), as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalised sentence structure, the punishment would vary depending upon whether the quantity of offending material is 'small quantity', `commercial quantity or something in-between.
13. It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appear to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.
14. In the case of Ouseph alias Thankachan v. State of Kerala, (2004) 4 SCC 446, this Court in para 8 has held as under:
The question to be considered by us is whether the psychotropic substance was in a small quantity and if so, whether it was intended for personal consumption. The words small quantityµ have been specified by the Central Government by the notification dated 23-7-1996. Learned counsel for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each sampule contained only 2 ml and each ml contains only .3 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity specified under the notification. From the aforesaid decision, we find that the Court has taken the quantity of the narcotic drug or psychotropic substance found in the mixture, relevant for the purpose of imposition of punishment......
16. ....... We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.
17. In the present case, the narcotic drug which was found in possession of the appellant as per the Analysts report is 60 gms. which is more than 5 gms., i.e. small quantity, but less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the commercial quantity, but greater than the small quantity and, thus, the appellant would be punishable under Section 21(b) of the NDPS Act. Further, it is evident that the appellant is merely a carrier and is not a kingpin.
18. In these circumstances, the ends of justice would be subserved if we reduce the sentence of the accused-appellant to 6 years rigorous imprisonment with fine of Rs.20,000/- and in default of payment of fine rigorous imprisonment for six months. We order accordingly."
(Emphasis supplied by this Court.) 22.5. In the present case, there is no mention in the chemical examination reports of FSL regarding presence of resins of 'cannabis (hemp)' and its percentage in the samples of contraband. The chemical examination reports mention only that on applying physical and chemical tests, charas was found in the samples but its are not providing details of physical and chemical tests which had been applied on the samples. The reports do not show any where presence of resins of cannabis plant and their percentage in the samples as stated earlier in order to bring samples within the definition of 'charas'. Thus aforesaid chemical examination reports of FSL (Paper No. 18 Ka and 16 Ka) are discrepandt and do not appear in conformity to the requirements of law. In above view of the matter it could not be said with certainty that there were charas in the samples of contraband which were sent for chemical examination.
22.6. Assuming for the sake of the arguments that it was charas then what was its quantity in the samples of contraband could not be determined, which is necessary to decide the issue that recovered contraband articles were of small, intermediary or commercial quantity having important bearing in awarding sentence in case of the appellants found guilty.
Other defects and infirmities.
23. Apart from above, there are certain other glaring defects and infirmities which raise serious doubts about genuineness of the prosecution case.
24. Now I would deal the above defects and infirmities of prosecution case which are as under :
24.1. According to the Chik FIR and recovery memo, arrest of the appellants and recovery from them has been shown on 23.10.2011 at 7:45 a.m. But FIR has been lodged on the same day at 11:00 a.m. while distance of the police station from the place of incident has been shown only 3 k.m. as is evident from Chik FIR. In these circumstances, lodging of the FIR after more than three hours without any cogent explanation for above delay, FIR of the case is certainly a delayed FIR. P.W. 2 has stated in his evidence that he obtained signature of P.W.1 on the FIR but P.W.1 has admitted that his signature was not available on chik FIR.
24.2. There is no public witness of the recovery and arrest of the appellants.
24.3. There is also contradictions in the evidence of prosecution witnesses on the point of number of persons present at the time of the arrest and recovery. For instance according to P.W.1 at the time of arrest and recovery, a large number of people collected there but when asked to the witness of the arrest and recovery, they left the place without telling of their names. P.W.4 and P.W.3 also supported this version of P.W.1 in their examination-in-chief. But in his cross-examination, P.W.3 has stated that at the time of the search of the appellants no other person was present there.
24.4. According to prosecution, before the search of appellants, lady Constables Jahan Ara Khan and Devi Sahi searched each-other. But there is no evidence that before search, the appellants were given opportunity to search the police-personnels.
24.5. P.W.1 has stated in his evidence that all packets were not similar in size and weight. Contrary to this, P.W.3 has stated in his cross-examination that all packets were similar.
24.6. P.W.1 has admitted in his evidence that weight of packets was not written on any packet. All packets were tied with a separate plastics. There was no seal and signatures of the appellants etc. on those packets and no paper of specimen seal was available before the Court below. It is also surprising that even consolidated weight of all seven packets was not mentioned on the sealed packets.
24.7. P.W. Has also admitted that Samples of 100 gm, which were taken out were not mentioned in docket; rather, they were deposited at the maalkhana.
24.8. According to P.W. 1, seized articles were weighed by weights of 2 k.gs. and 100 grams but this fact is not mentioned in the recovery memo and FIR. P.W. 3 is not aware that wherefrom the weights were brought. Constable Lakhi Chand who brought weighing scale and the weights has not been examined.
24.9. According to recovery memo, FIR, evidence of P.W.1 and P.W.3, both the ladies were coming on foots towards Seema Gate from Nepal and on looking police activities both ladies have turned and started to return back, while according to P.W.4 both ladies were coming on rickshaw and on looking police activities, they turned the rickshaw and started to run towards Nepal. The Police-personnels permitted rickshaw puller to go from there.
24.10. Except to allegedly recovered charas, no other articles or money has been recovered from the possession of the appellants. Both the appellants are resident of different places but there was so many similarities in the prosecution case against the appellants, not only quantity of 5 k.g. allegedly recovered charas is common but seven packets of contraband wrapped in black clothes tied up to their waste and carrying of their small children with them by both the appellants are also common. All these similarities could not be said a mere coincidence rather suggesting a sterio type police story regarding arrest of the appellants and recovery of contrabands from them.
Conclusions
25. Considering non compliance of mandatory provision of Section 50 as well as important provisions of Sections 55 and 57 providing safeguards to the proposed accused against their false implication, no evidence for taking samples as per above referred standing instruction no. 1/88 and non mention of presence of resins of 'cannabis (hemp) and their percentage in the samples of contraband in the chemical examination reports of FSL alongwith above referred other defects and infirmities of the prosecution of the case, I am of the considered view that that prosecution could not prove its case against the appellants beyond all reasonable doubts.
26. The Court below has neither taken aforesaid facts and circumstances into consideration, nor properly appreciated the evidence available on record in its right prospects and as such could not draw the proper conclusions.
27. For the aforesaid reasons, impugned judgment and orders are not in accordance with law and are liable to be set-aside. The above question for determination is answered accordingly.
28. Consequently, the aforesaid Criminal Appeals are succeeded and allowed. The impugned judgment and orders dated 26.08.2014 and 27.08.2018 passed by Additional Session Judge, Court No. 5, Maharajganj are set-aside. The accused appellants are acquitted from the offences with which they stood charged. Fine paid, if any be refunded to them.
29. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellants are directed to furnish their personal bonds of the amount fixed by C.J.M./Court concerned and two reliable sureties each of the like amount (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition or for grant of leave to appeal against this judgment, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
30. Since the appellants are in jail, they will be set at liberty, if not required in any other criminal case forthwith after compliance of the above directions contained in predeceasing paragraph of this judgment.
31. Office is directed to certify this order to C.J.M, Maharajganj/Court concerned and remit the lower court record to the Court concerned immediately.
32. Before parting with the case, I would like to place our appreciation for the assistance provided by learned Amicus Curiae appearing for the appellant. He will also be entitled to get a consolidated fee of Rs. 12,000/-. (Twelve Thousands.) Order Date :- 4th May, 2018.
Monika