Allahabad High Court
Awadh Ram vs State Of U.P. on 18 January, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 11.12.2017 Judgement delivered on 18.01.2018 Court No. - 17 Case :- CRIMINAL APPEAL No. - 1758 of 1997 Appellant :- Awadh Ram Respondent :- State Of U.P. Counsel for Appellant :- A.C.Srivastava,Sameer Jain Counsel for Respondent :- A.G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal appeal has been filed against the judgment and order dated 3.9.1997 passed by First Additional District and Sessions Judge, Siddharthnagar in Criminal Case No. 32 of 1995 (State Vs. Awadh Ram) arising out of Case Crime No. 103 of 1995 under Section 20B (ii) of NDPS Act, P.S. Dhebharua, District Siddharth Nagar, whereby the accused appellant Awadh Ram has been convicted and awarded punishment of ten years rigorous imprisonment, fine of Rs. 1,00,000/- and in default of payment of fine three years additional rigorous imprisonment.
2. In brief, the prosecution case is as follows:-
3. On 19.9.1995, Sri Aslam Khan, S.O. Dhebaruwa (PW-1) along with his companion Constables Akhilesh Shahi (PW-2), Rajmani & Prabhunath were doing patrol duty with their official vehicle being driven by Constable Ramugrah. When they reached near Chargahwa Bridge 200 Grudge prior to Badhni Pachpedwa towards east of the bridge, they slowed down the vehicle and at about 3.00 am in the night saw that one person was coming on foot from the side of Bhatni towards Pachpedwa. When they reached near them, they focussed their torch on him and tried to stop him, but he started running. The police party after having used sufficient force, caught hold of him and asked his name. He disclosed his name and also simultaneously told that he was having charas, which he was bringing from Nepal. He was given opportunity as to whether he wanted his search to be made in presence of a Gazetted Officer or a Magistrate but he did not avail of that and told the S.O., Aslam Khan that he could take his search. When he was searched, from his bag which he was carrying in his right hand, about 1kg and 750 grams charas wrapped in a cloth was recovered. He cold not produce any licence to possess the said charas. Out of that recovered charas, 100 grams was taken as sample by S.O., Aslam Khan and thereafter, the sample taken and the reamainder charas were sealed in separate clothes by S.O., Aslam Khan and recovery memo was prepared. A copy of the same was given to accused in presence of companion police officials as witnesses. The signature thereon (recovery memo) was also obtained of the accused which is Ext. Ka-1. Thereafter, the police party along with the case property and the accused reached P.S. Dhebarua and on the basis of the said recovery memo, chick F.I.R. was prepared and a case was registered against the accused under Section 20/23 of NDPS Act as Case Crime No. 103 of 1995, Chick F.I.R. (Ext. Ka-2) of which was prepared and the entry of this case was made in G.D. dated 19.9.1995 at Report No. 5 at about 5:40 am. The investigation was handed over to Ashesh Pal Singh (PW-3), who conducted the inspection of the spot at the instance of PW-1 and prepared the site plan which is Ext. Ka-4. After taking into consideration, the report of FSL dated 3.3.1996 (Ext. Ka-6) and entire evidence collected by him, he submitted charge-sheet (Ext. Ka-3) against the accused-appellant.
4. The charge was framed against the accused on 26.4.1996 under Sections 20(b)(ii) of NDPS Act to which he pleaded not guilty and claimed to be tried. From the side of proseuction Aslam Khan, S.O. has been examined as PW-1, Constable Akhilesh Shahi has been examined as PW-2, who are witnesses of fact and S.I. Shri Ashesh Pal Singh as PW-3 who conducted the investigation. Thereafter, the evidence of the prosuection was closed and the statement of accused-appellant was recorded under Section 313 Cr.P.C., in which he denied any such recovery of contraband substance from him and took the plea of false implication. He also examined witness Chhedi as DW-1 and witness Abdul Haq as DW-2 in defense.
5. Learned court below has held the accused-appellant guilty on the basis of above evidence and awarded him the abovementioned punishment.
6. Perusal of the judgment of court below indicates that it did not find material contradictions in the statements of PW-1 and PW-2 namely Aslam Khan and Akhilesh Shahi. It was held that the provisions of Section 50 of NDPS Act would not be applicabe in the light of law laid down by Supreme Court in State of Punjab Vs. Balbir Singh (1995) JIC 382 wherein it was held that if any contraband substance is recovered from a person without any prior information, the provisions of Section 50 of NDPS Act would not be invocable. It is further held that evidence has come on record that the information regarding arrest of the accused and seizure of contraband substance was reported to S.P., Addl. S.P and the C.O., Etawah by wireless and simultaenously original chick F.I.R. was sent to the C.O. which bears his signature and thereafter, the case against the accused was registered at P.S. on 19.9.1995. All this proved that the compliance of Section 50 of NDPS Act was fully made. The statements of DW-1 Chhedi and DW-2 Abdul Haq have been discarded because the accused had not stated in his statement under Section 313 Cr.P.C. that he was falsely implicated in this case due to his enmity with the local M.L.A. Therefore, no substance found in his defense that he was got falsely implicated by said M.L.A. Sri Ravindra Pratap @ Pappu Chaudhary.
7. Sri Sameer Jain, learned amicus curiae has argued before this Court as follows.
8. It is stated by him that the contraband substance alleged to have been recovered from the accused appellant was not weighed by arresting police party nor the sample taken out of it was weighed, which was essential as per the Standing Instructions I/88 of the Government of India.
9. The seal by which the allegedly recovered contraband substance was sealed, was not produced before court. The contraband substance is stated to have been taken out from the bag in which it was found kept and it is also stated that the same was sealed in a separate cloth, not in the same bag in which it was found kept. The arresting party ought to have prepared recovery memo of that bag and should have got it exhibited. The learned lower court has wrongly held that the provisions of Section 50 of NDPS Act would not be applicable in this case because as per the prosecution version, the accused, before his search was made, had disclosed that he had charas. Therefore, the police party had full knowledge before making his search that he had charas and hence, the provisions of Section 50 of NDPS Act should have been complied with. It is settled law as per the judgment delivered by Supreme Court in Parmanand's case that, if accused is personally searched, even though nothing is found from his person but from the bag which he is carrying, the some contraband substance is recovered, in such a situation the provisions of Section 50 of NDPS Act shall be applicable.
10. It is also pointed out by Sri Sameer Jain, learned amicus curiae that the arresting party did not comply with the provisions of Section 50 of NDPS Act because it is recorded in the recovery memo that accused was given only the option whether he would like to be searched in presence of a Magistrate or a Gazetted Police Officer. Referring to such endorsement in the recovery memo, it is pointed out that the said option that he could be taken before Gazetted Police Officer would not be taken to be a compliance of Section 50 of NDPS Act because as per the provision of said Section it was essential to apprise the accused of his legal right to be searched in presence of a Magistrate or a Gazetted Officer, such a Gazetted Officer may not be a Police Officer only. Therefore, in the case at hand by giving him option that he could be taken before police Gazetted Officer for his search would not be taken to be a compliance of Provisons of Section 50 of the NDPS Act in letter and spirit. Moreover, reliance is placed by learned amicus curiae on the law laid down in Jadeja's case, in which it is laid down by Supreme Court that it is essential for compliance of Section 50 of NDPS Act that the suspect ought to be apprised of his legal right of being searched before a Gazetted Officer or a Magistrate and not only this, rather an effort should be made by the police party to produce him before the nearest Magistrate who enjoys more confidence of public. In the light of this position of law, it is argued that no such legal right was brought to the knowledge of the accused-appellant and hence, there was clear violation made of the provisions of Section 50 of NDPS Act by the prosecution.
11. It is further argued by learned amicus curiae that the seal which was used in sealing the contraband substance and the sample of it could not be proved, the same was not kept on record. PW-1 in his statement has clearly stated that he does not know where the seal was kept. It is also not proved by prosecution by bringing register of Malkhana as to whether the recovered contraband substance, its sample and also the seal with which both these articles were sealed on the spot were deposited in Malkhana in safe condition, which was essential. Reliance is placed by learned amicus curiae on State of Rajasthan Vs. Gopal, (1998) 8 SCC 449, in which it has been laid down by Supreme Court that it is essential for the prosecution to prove with which seal the contraband substance recovered from the accused was sealed and that such seal should have been placed on the file and should have been produced before Court at the time of recording of evidence to prove that the said contraband substance was the same which was recovered from the accused on the spot.
12. It is next argued by learned amicus curiae that the occurrence of recovery from the accused is reported to be of 19.9.1995 at about 3:00 am, a letter which was written to FSL for analysis of the sample of contraband substance is of 26.9.1995, which was received by the FSL on 17.10.2015. As per the date indicated in the FSL's Report (Ext. Ka-6), this date of receiving the sample of contraband on 17.10.205 is in conflict with the statement of PW-3, Ashesh Pal Singh (I.O) given at page 17 of the paper book in which he has stated that the said sample of contraband was sent to FSL on 25.10.1995. This would create enough doubt as to the sample of which substance was sent to FSL.
13. It is also argued that inordinate delay in sending the sample of contraband substance has not been explained which was mandatory as per the law laid down by the Supreme Court in State of Rajasthan Vs. Tara Singh, (2011) 11 SCC 559, because that would be a very important link evidence to prove the prosecution version. Regarding the link evidence, reliance is also placed by learned amicus curiae on the law laid down in State of Rajasthan Vs. Gurmail Singh, (2005) 1 JIC 884, wherein it has been mandated that link evidence should be there of entire facts as to when the sample of contraband substance was taken out from the Malkhana for preparation of covering letter to be sent to FSL and where the said contraband substance was kept till it was sent to FSL, if there was a long gap.
14. It is further argued that the prosecution's version is that the sample of contraband substance was taken by Constable Sanjay but he has not been produced in evidence who was an important witness to establish the link evidence. Hence, the inference would be drawn against the prosecution.
15. Further, it is argued that DW-1 Chhedi and DW-2 Abdul Haq were examined in defense by the accused. Both of whom have clearly stated that accused was picked up from his home on 17.9.1995. This evidence is intact because whatever has been asked in cross-examination from the above witnesses, the fact that the accused was lifted from home on 17.9.1995 by police personnel does not stand demolished.
16. Learned court below has lightly discarded evidence only on the ground that accused did not state under Section 313 Cr.P.C. that he was got falsely implicated in this case by the M.L.A. Sri Ravindra Pratap @ Pappu Chaudhary and that he was lifted from his home on 17.9.1995. The court ought to have taken this evidence of the defense with same seriousness, as he has taken that of the prosecution. In this regard, he has relied upon the law laid down in the case of Munshi Prasad Vs. State of Bihar, (2002) 1 SCC 351, in which it has been laid down that the defense witness should be evaluated with equal seriousness as is done with the prosecution's witness.
17. Next, it is argued that details of the Charas recovered have not been mentioned by prosecution. According to the statement of PW-1, at page 11 of the paper book, the four packets of charas are alleged to have recovered from the accused but no such mention is made in the recovery memo. It has also not come in evidence that if there were four packets of Charas as alleged by the Arresting Officer, from which of these packets the sample was taken or whether the sample was taken from all the packets? This would be an important peace of evidence to determine as to what quantity of contraband substance was recovered from the accused and whether the sample of the same was got examined/analysed from FSL.
18. The learned A.G.A. in rebuttal argued that the prosecution has proved its case to the hilt and the punishment awarded by the court below is absolutely justified on the basis of evidence on record. He, however, conceded that the contraband substance recovered from the accused was not weighed on the spot nor was its sample weighed. He further conceded that, it was essential for contraband substance and the sample to be weighed by the prosecution, in view of an Instructions Order I/88 issued by Government of India. He also conceded that the sample of seal has not been proved in this case by the prosecution. Malkhana register had also not been brought before court when evidence was recorded. He also admitted that the prosecution ought not to have confined the option to Gazetted Police Officer before whom the accused could be searched because there was no such provision that the search could be made before a Gazetted Police Officer only. He also conceded that the evidence has not come on record that accused was apprised about his legal right that he had a right to be searched in presence of a Gazetted Officer or a Magistrate because no-where word 'Right' has been found written in the entire evidence nor has it came in oral evidence. He stated that remainder (contraband substance) was produced before court by PW-1 Aslam Khan and was marked as material Ext. Ka-1. The said material was opened before court for being identified by PW-1 Sri Aslam Khan.
19. First of all the argument made by the learned counsel amicus curiae that compliance of section 50 of the Act was not made is being taken up. The recovery memo contains that when the appellant had tried to flee after looking police personnel and was caught, he was asked the reason why he was running away from them and he replied that he had brought charas in his bag from Krishna Nagar in Nepal and was going to his village, he was asked whether he wanted his search to be made in presence of the Magistrate or a Gazetted Police Officer or did he have faith in the police party? He replied that he was ready to be searched by them as he had charas with him, because calling a Magistrate or a Gazetted Police Officer would take time. The Arresting Officer, PW-1 has also stated in examination-in-chief that when the appellant was asked the reason of his running away from them, he disclosed that he had charas with him, whereafter he was told whether he would like to be searched in presence of the Magistrate or a Police Gazetted Officer to which responded by saying that he was ready to be searched by police party present. PW-2, Constable- Akilesh Shahi has not stated in examination-in-chief that before making search of the appellant he was apprised of his legal right to be searched in presence of the Magistrate or a Gazetted Officer nor the Investigating Officer Ashesh Pal Singh (PW-3) has stated in examination-in-chief that he had ensured before filing charge- sheet that the accused appellant had been apprised of his legal right to be searched before the Magistrate or a Gazetted Officer. The learned Court below has dismissed the plea of the accused appellant regarding non-compliance of the provision of Section 50 of the Act by mentioning that the same was not required as it was a case of sudden arrest and recovery of contraband substance from the accused-appellant, because there was no prior information that he was carrying charas, hence in view of the law laid down in State of Punjab vs Balbir Singh, 1995 JIC 382 SC, in such a case there would be no requirement of making compliance of Section 50 of the Act.
20. The learned amicus curiae has relied upon State of Rajasthan vs. Gopal, (1998) 8 Supreme Court Cases 449, wherein due to non-compliance of the provision of Section 50, the Apex Court dismissed the appeal, the relevant paragraph is quoted herein below: -
"4 . The ccused was apprehended by the Head Constable and thereafter was taken to the Railway Police Station and the search and seizure had been conducted there. The accused was not given any option to exercise his discretion for being searched in the presence of a Magistrate or before a gazetted police officer. Therefore, mandatory provision of section 50 had also not been complied with. In the aforesaid facts, the order of acquittal is not required to be interfered with by this Court. This appeal, therefore, fails and is dismissed. The bail bonds furnished by the respondent shall stand discharged."
21. Further, reliance is placed upon State of Rajasthan vs Parmanand and another, (2014) 5 Supreme Court Cases 345, in which it has been laid down that if along with the search of bag, personal search is also made of the accused, section 50 of the Act would be applicable. The relevant paragraph 15 is reproduced herein below: -
"15 . Thus, if merely a bag carried by a person is searched without there being any search of his person, section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, section 50 of the NDPS Act will have application. In this case, respondent no. 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent no. 2 Suraj mal was also conducted. Therefore, in the light of the judgements of this Court mentioned in the preceding paragraphs, section 50 of the NDPS Act will have application."
22. Further he has relied upon Ashok Kumar Sharma vs. State of Rajasthan, (2013) 2 Supreme Court Cases 67, which reiterates the law laid down in Vijaysinh Chandubha Jadeja's case that merely giving option to be searched in presence of a Magistrate or a Gazetted Officer is not sufficient, the accused must be told of his legal right to be searched in presence of a Magistrate or a Gazetted Officer, if they so desired, and only after his refusal to exercise that right, the police party could take his search. It is also held that the said provision under Section 15 of the Act has been inserted keeping in view that poor rustic villagers might not have knowledge of law. The relevant paragraphs are quoted herein below: -
"7 . We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under section 50 of the NDPS Act. On this question, there were conflicts of views by different benches of this Court and the matter was referred to a five Judge Bench. This Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609 answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate. This Court also held that it is mandatory on the part of the authorised officer to make the accused aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer is concerned, an obligation is cast on him under section 50 of the NDPS Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate. The question, as to whether this procedure has been complied with or not, in this case the deposition of PW 1 assumes importance, which reads as follows:
"He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in written and said that I have faith on you, you can search me. Further regarding apprising and consent is Exhibit P - 3 on which I put my signature from A to B and the accused put his signature from C to D. E to F is the endorsement of the consent of the accused and G to H is signature, which has been written by the accused."
The above statement of PW 1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused person has a right under section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person.
8. We may, in this connection, also examine the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Undisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect the rustic villager, totally illiterate, a poor man on the street, to be aware of the various laws laid down in this country, leave aside the NDPS Act. We notice that this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorised officer acting under section 50 of the NDPS Act to inform the suspect of his right under section 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting a strict compliance with that procedure.
9. We are of the view that non-compliance with this mandatory procedure has vitiated the entire proceedings initiated against the appellant - accused. We are of the view that the Special Court as well as the High Court has committed an error in not properly appreciating the scope of section 50 of the NDPS Act. This appeal is, therefore, allowed. Consequently, the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside. The appellant - accused, who is in jail, to be released forthwith, if not required in connection with any other case."
23. Next, the learned amicus curiae has relied upon Mohinder Kumar vs. State, Panaji, Goa, 1999 Supreme Court Cases (Cri) 79, in which it is held by the Supreme Court that if the police purely accidentally stumbles upon the offending articles, from the stage, the empowered person has reason to believe that accused persons were in custody of narcotic drugs, he was under obligation to proceed further in the matter in accordance with the provisions of the NDPS Act. The relevant paragraph no. 3 is quoted herein below: -
"3 . In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised suspicion he went there and effected the search, seizure and arrest. It was therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panchas and on their arrival drew up the panchnama. In these circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under section 42 (1) and proviso, if the search is carried out between sunset and sunrise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the grounds to a superior officer, as required by section 42 (2) of the Act. He also did not adhere to the provisions of section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case, it has been further stated that the provisions of section 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted."
24. In view of the above backdrop of the legal position, it has to be seen in the light of the facts of the present case as to whether the compliance of section 50 of the NDPS Act was made by the arresting party/prosecution. The statements which have been recorded above of all the witnesses clearly show that it is only the recovery memo and the statement of PW-1, in which it has come that when accused-appellant disclosed that he had charas with him, he was told as to whether he he would like to be searched in presence of a Magistrate or a Police Gazetted Officer. The tenor of statement is in the form of only an option given to the accused whether he would like to go to either of the above two authorities for research to be conducted and not apprising him of his legal right that in case he wanted to exercise his legal right to be searched in presence of a Magistrate or a Gazetted Officer he could be taken before them. It is also on record that the accused - appellant was a poor person who could be taken to be ignorant of law that he had such a right which can be gathered from the fact that even before the Court below he could not afford to engage counsel and the Court had to appoint an amicus curiae for him to plead his case. Therefore, in these circumstances, it was all the more important for the prosecution/police party to apprise him that he could be taken before either of the above two authorities, if he so wanted. What would have been his answer had he been given such an offer, could not be guessed at this point of time. Moreover it may further be clarified that under law the provision is of a Gazetted Officer before whom the accused could be offered the search to be taken and not a police Gazetted Officer. To that extent also, it would be treated that there was non-compliance on the part of the provisions of Section 50 of the NDPS Act. Therefore, the trial and consequently his conviction, on this very count would stand vitiated.
25. The next important argument made by the learned amicus curiae is that in absence of the seal being presented before the Court below at the time of trial, by which the recovered contraband substance is alleged to have been sealed and also the sample of the same is allegedly sealed, would lead to the conclusion that the prosecution has failed to prove that the alleged recovered contraband on the spot was the same, sample of which was sent to the Forensic Science Lab and the remainder of which was presented before Court at the time of trial. In this regard, the learned counsel has taken the Court through the evidence on record to prove this point. In recovery memo, it has been recorded that on search being made of the appellant, from the bag he was carrying in his right-hand, 1.75 KG charas was recovered wrapped in a cloth. Sample out of it was taken of 100 grams charas and was separately kept in a cloth and both were separately sealed. Which seal was used i.e. the description of seal, has not been given in the recovery memo. In FSL' s report dated 11.1.1996, it is mentioned that one packet covered with cloth and sealed, bearing seal of "CJM S.D.R. + signature" was received on 17.10.1995 of suspected charas which was analysed and found to be charas which was addressed to the Chief Judicial Magistrate, Siddharth Nagar. PW-1, the Arresting Officer, who is SHO of P.S., Dhebarua, has stated in examination-in-chief that one bundle in sealed condition was brought from the Malkhana of P.S., Dhebarua, which was opened before Court, out of which in the shape of a candle stick of charas emerged which was recognised as the same charas which was recovered from the accused and was exhibited as material Exhibit-1. In cross-examination, this witness has stated that the sample seal which he had prepared on the spot was not on the file. He had affixed on the recovered item his own seal which bore a letter "A" of his name. The same seal was also fixed on the sample. He had deposited the recovered contraband substance and the sample seal in Malkhana but where the sample seal had gone he could not tell. PW-2, who is also a witness of fact and was accompanying PW-1 at the time of recovery has also stated only this much in the examination-in-chief that the recovered charas was sealed on the spot but has not made clear as to seal of which description was affixed thereon. The investigating officer, PW-3 has stated nothing regarding sample seal in the examination-in-chief, however, in cross-examination, he has stated that the sample was sent to the Forensic Science Lab for investigation on 25.10.1995 through Chief Judicial Magistrate by constable Sanjay Kumar Singh, weight of which may have been about 50 grams, thereafter he said 100 grams. He has not clarified as to whether at the time when the sample was presented before C.J.M., it was in sealed condition having seal affixed thereon by the Arresting Officer that is PW 1 of his own name, which was opened before C.J.M. and thereafter C.J.M. affixed his own seal on the sample to be sent to the Forensic Science Lab. It is apparent from the Forensic Science Lab's report that it bore seal of CJM on it and not that of the Arresting Officer/PW 1, therefore the link evidence is missing as to how the seal of CJM came to be affixed on the sample when according to PW-1, the sample was taken on the spot and was sealed by his own seal. PW-1 has not stated in examination-in-chief as to whose seal was found affixed on the remainder which was opened before the Court and was marked as material Exhibit-1. He has clearly admitted that the said seal which he had affixed on the spot, the sample of the same was not on the file. In view of above statement there arises a doubt in respect of the contraband substance presented before Court at the time of evidence that it was the same substance which the police/prosecution is alleging to have been recovered from the accused on the spot. Learned amicus curiae has relied upon State of Rajasthan vs Gurmail Singh, 2005 (1) JIC 844 (SC), in which it is held that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles were said to have been kept in Malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in Malkhana till it was taken over by PW-6 on June 5, 1995. It was further found that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case led the High Court to acquit the respondent correctly. This Court is of the view that in the present case also it is apparent that it has not come on record that sample seal was sent to the FSL as well as to Court, this lacuna makes a dent in the case of prosecution.
26. The next argument made by the learned amicus curiae is that it was essential as per law to measure the weight of the recovered contraband substance on the spot as well as that of the sample taken, which has not been done in the present case and this would also lead to the doubt whether any such substance was recovered from the accused. It is true that the occurrence is of 19.9.1995, i.e., is prior to the amendment brought about in the NDPS Act when the provision for punishment was made proportionate to the recovery of contraband substance. But even then it cannot be held that weighing the contraband substance allegedly recovered from the accused was not necessary because for assessing the gravity of offence it was always desirable that quantity of contraband substance be weighed so that punishment could be awarded proportionately. Larger the quantity of recovered contraband higher the punishment is normal rule despite there being minimum punishment prescribed under old Act. Nothing has been recorded in the recovery memo as to how the contraband substance was weighed. Whether any weighing machine was called for? If yes, from where. In the recovery memo it is recorded that 1.75 KG charas was recovered wrapped in a cloth which was kept in a bag, out of which 100 grams was taken as sample in a separate cloth and both were sealed separately. How the sample was weighed to be 100 grams? In the report of Forensic Science Lab the weight of the sample has not been recorded, hence it cannot be held as to whether 100 grams sample of charas was sent to the lab. All these things were necessary to be recorded to prove genuineness of recovery. These missing links would lead to doubt in the mind of Court as to whether any such recovery was made or the said contraband substance was planted/falsely shown recovered from the accused-appellant. In cross-examination, PW-1 has stated that the weight of the charas recovered from the accused was recorded on the basis of conjecture and it is told by police, the same was not weighed on the spot. Sample was also not weighed. It's weight was written on the basis of conjecture. The bag, which was containing the contraband substance was not taken in possession because the same could not have been sealed. The said bag was given back to the accused and was not brought to the police station for being deposited but about this there was no entry made in GD. It was recorded in recovery memo that charas was found wrapped in a cloth which was kept in the bag, even that cloth was not taken into possession, rather the same was also handed back to the accused but it's mention has not been made in recovery memo. It is very strange that the Arresting Officer has stated so. It was his bounden duty that both the items, i.e., the bag and the piece of cloth in which the charas is alleged to have been found wrapped should have been taken in possession and should have been deposited at the police station to prove the genuineness of recovery. In cross-examination, this witness has stated that when the sealed bundle was opened in Court, four different packets of plastic were found there, from which one charas was taken out, but he had not made mention of this in recovery memo that the charas which was recovered from the accused were kept in for plastic bags, he forgot to write it in recovery memo. Later on he also stated that when the bag and the cloth which was recovered from the accused were handed back to him, what he did of those articles, he could not tell. He had not mentioned in the recovery memo as to what was the shape of the recovered charas and what was the number of ''gulliyan'. The above statement shows that a very important piece of evidence has been omitted from being mentioned in the recovery memo by this witness. He ought to have mentioned that there were four plastic packets from which charas was recovered and also that from all the four packets samples were taken. How such a vital point would be missed out by him is beyond comprehension and would lead to doubt in the mind that any such recovery was made and that the sample sent to the Forensic Science Lab actually represented charas recovered from all the packets. Nowhere has it come on record that from all the four packets sample was taken or little bit amount of charas was taken from each packet which was mixed and thereafter the same was sent to the Forensic Science Lab for being tested. The learned amicus curiae has provided a copy of the judgment of this very Court delivered in Jail Appeal No. 4577 of 2014 (Arvind Dubey vs State of U.P.), in which this Court referred to the Standing Instructions No. I of 88 issued by the Narcotic Control Bureau, New Delhi laying down the guidelines how the sample should be taken, and the judgment of the Supreme Court in Khet Singh vs Union of India, (2002) 45 ACC 41, wherein it was held that though the above guidelines did not have force of law but they ought to be followed to show that a fair procedure was adopted by officer In-charge of the investigation. For the sake of convenience the said guidelines are reproduced herein below along with the above judgment: -
"1.5.- Place and time of drawal of sample:- Samples from the Norcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search(Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.
1.6.- Quantity of different drugs required in the sample:- The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all norcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicates sample also. The seized drugs in the packages/containers should be well mixed to make it homogenous and representative before the sample in duplicates is drawn.
1.7.- Number of samples to be drawn in each seizure case:- (a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container.
(b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hasish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.
(c) Whereafter making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.
(d) If it is 5 or more in case of other drugs and subsistances and 20 or more in case of Ganja and Hasish, one more sample in duplicate may be drawn for such remainder package/containers.
(e) While drawing one sample in duplicate from a particular, 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.
1.8.- Numbering of packages/containers:- Subject to the detailed procedure of identification of packaes/containers, as indicated in para 1.4 each package/container should be securely sealed and an identification slip pasted/attached on each one of them at such place and in such manner as will avoid easy obliteration of the marks and numbers on the slip. Where more than one sample is drawn, each sample should also be serially numbered and marked as S-1, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial number of the packages and marked as P-1, 2, 3, 4 an so on.
1.9.- It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, panchnama witness and seizing officer and all of them shall be required to put their signature on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the sample.
1.10.- Packing and sealing of samples:- The sample in duplicate shold be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the S.No. of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "secret-Drug sample/Test memo" to be sent to the concerned chemical laboratory."
27. It is apparent from the said guidelines that as far back as 1988, these guidelines were laid down for transparency in recovery of contraband substance from the accused particularly keeping in view the heavy punishment awardable under the Act to be followed by the prosecution. But from the above discussion it is apparent that what to speak of compliance of these guidelines, the prosecution has failed to do even the bare minimum i.e. it has not even mentioned that there were four plastic packets from which charas was recovered from the accused and even weight of the allegedly recovered contraband and its sample have been mentioned on the basis of conjecture, which is a gross violation of the above guidelines and makes the investigation murky. These lacunae left in the prosecution's case would lead this Court to form a view that the prosecution has been extremely careless in all respect whether it be preparing recovery memo with all the details recorded therein, taking sample or sealing the contraband as well as sample on the spot or apprising the accused of his legal right of being searched before a Magistrate or a Gazetted Officer.
28. It is also argued by the learned amicus curiae that the prosecution has failed to prove that it kept the sample, the remainder and the sample seals in Malkhana in safe condition before the same was taken out for being presented before the Court below for being exhibited or before it was being taken to either C.J.M. and from there to the Forensic Science Lab. The entries in Malkhana register should have been placed before Court to prove when the remainder contraband and its sample and the seals of sample were deposited in Malkhana and when they were taken out to be sent to FSL as well as to be presented before Court. This link evidence was very essential to establish that throughout from the period when the same was allegedly recovered till it was finally presented before Court or before FSL they were kept in safe condition without opportunity of any kind of tampering. The prosecution has failed to prove this.
29. Next, it has been argued that the compliance of section 57 of the Act has not been made. It was essential as per provisions of this section that soon after arrest was made and recovery of contraband substance was made from the accused, a complete written report ought to have been prepared to be sent to the Higher Authorities. In this regard attention is drawn to the statement of PW-1, who has stated in examination-in-chief that he had sent information about recovery of charas from the accused and his arrest through RT set to the additional S.P. and the Circle Officer, Etawah and a copy of original chick F.I.R. was sent to the Circle Officer, Etawah. Though no such report appears to have been prepared separately under section 57 of the Act, but in the opinion of this Court, the compliance of section 57 is being held to have been made because a copy of chick F.I.R. has been stated to have been sent to the Circle Officer concerned who is immediate Higher Authority.
30. Lastly, it is argued by the learned amicus curiae that two witnesses were examined in defence that is DW-1 and DW-2 whose statements have been dismissed very lightly. Due consideration has not been made of these statements, who have stated that the accused was picked up from his house on 17.9.1995 by Dhebarua police at the instance of a local MLA, Pappu Chowdhary, at whose house the accused was employed for 2 to 3 years as ''Halwaha' and when he left the said job, Pappu Chowdhary became annoyed and with his connections with the local police got him implicated in the present false case. It is alleged that the learned lower Court has disbelieved their statements solely on the ground that the accused had not taken a defence under section 313 Cr. P.C. that he had been falsely implicated by the said MLA as alleged above. The reliance is placed by the learned amicus curiae on Munshi Prasad and others vs. State of Bihar, (2002) 1 Supreme Court Cases 351 in paragraph 3 of which the following has been held: -
"3 .......... Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution - a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutor's witnesses."
31. This Court fully agrees with the law cited above. The learned Court below ought to have made a proper appreciation of the witnesses of defence also instead of brushing aside their statements on the ground that the accused did not take this plea under section 313 of Cr. P.C. that he was falsely implicated by the said MLA. This Court however does not feel to make critical analysis of the statement of these witnesses and opine about their trustworthiness, because even if their testimony be ignored, the prosecution has failed to prove beyond reasonable doubt that 1.75 KG charas was recovered from the accused, in view of the infirmities noted above in respect of sample seal not being presented before Court, sample and the contraband substance not being weighed, no entry being made about charas recovered from the accused from four plastic packets, no compliance of section 50 being made in letter and spirit, no link evidence being given about safekeeping of the sample, the remainder and the sample seal, till they were sent to the Forensic Science Lab and the Court, for being tested, and for being exhibited respectively. In view of these lacunae this appeal deserves to be allowed.
32. The appeal is allowed, the judgment and order dated 3.9.1997 of the Court below is set aside. The accused is held not guilty of the charge under section 20 (b) (ii) of the NDPS Act, 1985. He shall be released in this case forthwith, if not detained in any other case. The case property shall be destroyed in accordance with law after period of appeal is over or if law permits otherwise. Let a copy of this judgment be sent to the Court below for immediate compliance and the lower Court record be transmitted back forthwith.
33. The learned and amicus curiae Shri Sameer Jain shall be paid Rs. 10,000/- for assisting this Court ably. The interest taken by him in enlightening the Court on various points of law is commendable.
Order Date :- 18.01.2018 A.P. Pandey