Allahabad High Court
Haider Ansari vs State on 22 February, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement reserved on 19.122017 Judgment delivered on 22.02.2018 Court No. - 17 Case :- JAIL APPEAL No. - 7872 of 2007 Appellant :- Haider Ansari Respondent :- State Counsel for Appellant :- From Jail,Dr. Abida Syed A/C Counsel for Respondent :- A.G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal appeal has been preferred from jail against judgment and order dated 10/9/2007 passed by the Additional Sessions Judge, Court No. 3, Kanpur Nagar in Sessions Trial No. 204/2004, State vs Haidar Ansari arising out of crime no. 519 of 2004 under sections 18/20 of NDPS Act, PS Chakeri, District Kanpur Nagar, whereby the accused appellant Haidar Ansari has been convicted under section 20 b (ii) (C) of NDPS Act and has been awarded punishment of 10 years rigorous imprisonment, fine of Rs. one lakh and in default of payment of fine six months additional simple imprisonment.
2. In brief facts of the case are that on 26/07/2004 S I, C.K. Upadhyay along with constable Jitendra Bahadur Singh, constable Sushil Tewari, constable Firoz Khan and constable Swadesh Kumar were involved in patrolling duty, search of wanted criminals and in conducting pending investigations. When they reached Rama Devi intersection via Mohalla Shakti Nagar, one person having seen the police party turned back and tried to run away. Suspecting him to be of criminal antecedents he was apprehended about 20 steps away from Hanuman Ji temple at about 18:55 hours and after having inquired his name and address his search was taken in presence of the companion officials. He disclosed his name as Haidar Ansari and from the bag being held in right-hand, 6 cakes of charas of 500-500 grams wrapped in grey polythene separately were recovered. Since the arrest was made all of a sudden, no Gazetted Officer or Magistrate could be informed. He could not show any license to possess the charas and begged for apology. He was apprised that he had committed an offence under section 18/20 of the NDPS Act and was taken in police custody. 10 grams each was taken out by way of sample from each cake of charas and thus total 60 grams of charas was kept in a separate white cloth and was sealed. The sample seal was prepared. The remainder was sealed back in the same bag from which it was recovered, which was of yellow colour and had written on it ISI mark. It was also sealed and sample seal was prepared. The compliance of the directions of the Supreme Court and the Human Rights Commission were complied with. One or two passers-by were requested to be a witness of this recovery but they avoided because of incurring enmity. In the light of torch and candle, head constable Jitendra Bahandur Singh prepared recovery memo (Exhibit Ka 1) which was dictated to him by the first informant, S. I., CK Upadhyay. The same was read out to the companion witnesses and the accused and signatures were obtained of the witnesses thereon. The constable Firoz Khan was dispatched to the residence of the accused to inform about the arrest of the accused. A copy the recovery memo was provided to the accused. On the basis of the recovery memo PW 3, Kashmir Singh registered case crime no. 519 of 2004 under sections 18/20 of the NDPS Act against the accused appellant, who prepared chick F.I.R. no. 276 of 2004 (Exhibit Ka 2) and made an entry of this case in GD at report no. 67 at 20.45 hours on 26/7/2004 which is Exhibit Ka 3. The investigation of the case was handed over to S I, Shri Devendra Singh (PW 4) who inspected the place of occurrence and prepared the site plan at the instance of the complainant of the case/ First informant which is Exhibit Ka 4. The sample of the contraband substance was deposited by constable Hari Niwas on 3/8/2004 which weighed 61 grams in sealed condition and was received by constable Hari Niwas in sealed condition on orders of CMM, whereon the signature of Hari Niwas were verified by him which is Exhibit Ka 3. The report of Forensic Science Lab was received which is Exhibit Ka 6. After concluding the evidence he submitted charge- sheet which is Exhibit Ka 7.
3. On the basis of evidence on record charge was framed against the accused appellant on 28/01/2005 under section 20 (b) (ii) (C), to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined S I, Shri Chandra Kant Upadhyay as PW 1, HC Jitendra Bahadur Singh as PW 2, constable Kashmir Singh as PW 3, S I, Shri Devendra Singh as PW 4 and constable Shiv Nath Singh as PW 5.
5. By way of documentary evidence the prosecution presented recovery memo (Exhibit Ka 1), chick F.I.R. (Exhibit Ka 2), GD (Exhibit Ka 3), site plan (Exhibit Ka 4), charge- sheet (Exhibit Ka 7), Forensic Science Lab's report (Exhibit Ka 6), copy of Malkhana register (Exhibit Ka 8). By way of material Exhibit, prosecution produced Exhibit 1 to Exhibit 6, the covered cakes of charas, the bag was marked as Exhibit 7 and the cloth was marked as Exhibit 8.
6. Thereafter the evidence of prosecution was closed and the statement under section 313 Cr. P.C. was recorded of the accused appellant, who denied the recovery of contraband substance to have been made from him and referred to all the statements of witnesses as utter lie. In defence he stated that Pappu Khalil deals in smack on Rama Devi intersection, he has got him implicated in this false case, in fact he had come to purchase she-buffalo. He did not examine any witness in defence.
7. The learned Court below has found the case proved against the accused appellant on the basis of above evidence and has held him guilty of the aforesaid charge and awarded him above-mentioned punishment.
8. The main argument before the learned lower Court was made by Amicus Curiae on behalf of the accused that compliance of section 50 of NDPS Act was not done but the learned lower Court repelled this argument on the ground that it was a case of sudden recovery and besides that the contraband substance was recovered from the bag being carried by the accused appellant, hence the provisions of section 50 of the NDPS Act would not be applicable. Holding that such a huge quantity of contraband charas could not be planted, the learned Court below has found the charge proved against the accused.
9. Heard the arguments of learned amicus curiae Dr. Abida Syed as well as learned AGA and perused the record.
10. The learned Amicus Curiae, Dr. Abida Syed has made following submissions that the alleged recovered contraband has not been weighed and its weight has been recorded on the basis of conjecture. 50 grams each is alleged to have been taken from each cake of charas which in totality weighed to be 60 grams but in the report of Forensic Science Lab, the quantity of sample of said substance was found to be just 50 grams. It is argued that accused belonged to Bihar and had come to purchase she-buffalo but was falsely implicated. On the basis of these lacunae, the prosecution has failed to prove its case and the appeal deserves to be allowed.
11. On the other hand from the side of learned AGA it has been alleged that the prosecution has proved its case beyond reasonable doubt. From each cake of charas weighing 500 gram, for sample, 10 gram each was taken out, thus total weight of the quantity of contraband sent to the Forensic Science Lab is said to be 60 gram but in Forensic Science Lab it is found to be 50 gram which is a small difference in weight, attributable to the difference in weighing machines. The seal, with which the sample of the contraband, was sealed and was sent to the FSL was having text on it "UPA S. I. U.P.P.". No question was put by the defence as to whose seal was affixed on the sample of contraband as well as the remainder. The only lacuna is that weight of recovered contraband is recorded on the basis of conjecture, but the defence ought to have made cross examination on this point which has not been done.
12. First of all the main argument on the point of non-weighing of the contraband substance is being taken up. In this regard, in the recovery memo it is mentioned that when the "jamatalashi" (personal search) was made of the accused, from the bag which he was holding in the right-hand, 6 cakes of charas of 500 grams each were recovered and an amount of 10 grams each was taken as sample of charas. How this weight was taken of the total contraband recovered and the sample taken out of it has not been mentioned in the recovery memo. PW 1 in this regard has dittoed the recovery of contraband substance as mentioned in the recovery memo and has stated in cross-examination that the contraband substance recovered, was not weighed. Its weight was recorded on the basis of conjecture. Similarly, PW 2 also he has reiterated the version mentioned in the recovery memo regarding recovery of the contraband substance and in cross-examination he has also stated that he was telling 500 grams to be the weight of each of 6 cakes of charas recovered from the accused on the basis of conjecture as the same was not weighed on the spot. Therefore it is evident that the total weight of the recovered contraband charas is based on conjecture as there is no evidence on record that the same was weighed on the spot, which was essential, because as per the new provisions of the NDPS Act, the punishment provided for the commission of offence under the said Act has been made dependent upon the recovery of the quantity of the contraband substance.
13. It would be pertinent to refer to provisions of law in this regard. The Norcotic Control Bureau, New Delhi by issuing standing Instructions No. I/88 has laid down the standards of procedure to be followed in the matters of recovery of contraband substances and taking of their samples. These instructions have been issued with a view to bring uniformity of approach in such matters and also to provide for a secure system of handling of drugs' samples which is to standardise the procedure with regard to drawing, forwarding and testing of samples. The relevant portions of the said instructions are being reporduced herein below:-
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 duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogenous and representative before the sample in duplicate 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) Where-after 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 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.
1.8.- Numbering of packages/containers.
Subject to the detailed procedure of identification of packages/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 should 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."
14. The Hon'ble Supreme Court in Khet Singh Vs. Union of India (2002) 45 ACC 41 has held in paragraph 10 of the judgment as below:-
"10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody."
15. The position of law described above makes it abunduntly clear that normally when the contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law unless there is no facility for weighing articles or other requisite facilities are lacking. In such situation, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so.
16. It is clear that in the case at hand nothing has been brought on record in the recovery memo or in the statement of prosecution witnesses that there was no facility available of weighing the contraband substance recovered from the accused. Therefore, in what circumstances it was assumed that each cake of charas recovered, weighed to be 500 grams. Also, there is no evidence on record that the sample taken out of it was also weighed, which would make it doubtful as to whether the alleged quantity of 60 gram charas was taken out by way of sample to be sent to the Forensic Science Lab. In the report of Forensic Science Lab the weight of this sample is recorded as 50 gram only. Thus it is evident that no proper steps were taken for establishing the recovery of the above quantity of contraband charas from the accused.
17. The next point that is being taken up relates to recovery of the contraband substance and its being sealed on the spot, to be kept in safe custody. In recovery memo it is mentioned that after recovery of the contraband substance, 60 gram out of it was taken out as sample i.e. 10 grams from each cake of charas. The sample was sealed in a white cloth and sample of its seal was prepared, while the remainder was sealed back in the same bag of yellow colour from which it was recovered and sample of its seal was prepared. Whose seal was affixed on the sample as well as the remainder has not been recorded in recovery memo. In Forensic Science Lab's report it is recorded that on 03/08/2004, a sealed packet bearing seal of "UPA S.I. U.P.P." was received containing suspected charas of 50 grams, which was found to be charas after its test. PW 1 has also stated the same version which has been recorded in the recovery memo as regards sealing of the contraband substance and sample and also that samples of seals were prepared, but no mention has been made in examination in chief as to whose seal was used in sealing these articles. In cross-examination this witness has stated that one big bundle was presented before Court, which was opened and the charas which was taken out of it was stated by him to be the same charas which was recovered from the bag being carried by the accused appellant, which were exhibited as material Exhibit 1 to 6 and that 10 grams each were taken out and the same was sealed in separate cloth. The other small bundle was opened, in which the samples of charas were kept and saying this he stated that it was the same charas which was taken out as sample. PW 2 has also stated the same version which has been mentioned in the recovery memo about recovery of the contraband substance and its samples being taken, sealing of them separately and preparing samples of seals. PW 4, the Investigating Officer has not stated anything as to whose seal was affixed on the remainder as well as the samples. PW 5 is Malkhana Mohorrir who has stated in examination in chief that he had brought Malkhana register of the year 2004, at serial no. 184 of which there is entry made of crime no. 519 of 2004 pertaining to section 18 of the 20 of NDPS Act and there is entry made on sealed bundle of 3 KG charas along with sample seal and other sealed bundle containing 60 grams of sample of charas. On which date these articles were deposited in Malkhana has not been mentioned by this witness in examination in chief not the same has been clarified in cross-examination, however he has made clear that the said entries were not in his handwriting and that he was only deposing on the basis of record. It is apparent from the above statements/evidence on record that none of the above witnesses could clarify as to whose seal was affixed on the contraband substance and it sample nor has it come on record that the seal affixed thereon was compared with the sample seal at the time of opening these bundles before the Court at the time of recording of statement of these witnesses. It has also not come on record whether the sample seal was presented before Court or not on the said date of evidence nor has it come on record that the sample seal was found on file of the case. It was mandatory for the prosecution to bring on record the evidence that before exhibiting the recovered contraband substance in Court, the seal affixed on the bundle containing contraband substance was compared with the sample of seal and was found to be the same sample. For want of this evidence it cannot be held beyond doubt that the contraband substance which was produced before Court was the same which was recovered on the spot and whose sample was taken on the spot. This would amount to violation of section 55 of the Act which lays down that "an officer in charge of 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 the sample so taken shall also be sealed with the seal of the officer in charge of the police station." The object of incorporating this section was to preserve the sanctity of the case property. It may be equally possible that the sealing officer may himself be the officer Incharge of the police station and in that eventuality it is not necessary for the sealing officer to produce the case property before some other police officer. The compliance of the section is though not mandatory but is merely directory in nature. This provision is meant only to reinforce the link evidence regarding safe custody of the case property and that non-compliance of this provision will not vitiate the trial or conviction ipso facto. Therefore, this non-compliance, though may not vitiate the trial but it would certainly be an important consideration to see whether it has caused any prejudice to the accused.
18. It would be pertinent to refer here to the law laid down in State of Rajasthan Vs. Gurmail Singh (2005) 3 SCC 59 wherein the acquittal made by the High Court was upheld by the Hon'ble Apex Court because there was no evidence found on record 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. The relevant paragraph of the said judgment are quoted herein below which are para 3 and 4:
"3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20-5-1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW 6 on 5-6-1995. We further find that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.
4. We find no error in the judgment of the High Court."
19. In view of the above position of law, it is clear that in the case at hand also, the prosecution has failed to prove as to which seal was used by the arresting party on the place of occurrence at the time when contraband substance was recovered from the accused appellant and also while preparing its sample. The prosecution has not been able to prove as to whether the sample of seal which was prepared on the spot at the time of sealing the contraband and its sample, was presented before court at the time of recording of statement of witnesses of fact to prove that before exhibiting the recovered contraband sample seal was matched with the seal affixed on the contraband substance, nor it has come on record that the sample of seal was also sent to the F.S.L. for being compared by it at the time of making the analysis of the sample of the contraband substance. This leaves a big loophole in the prosecution case to establish that the contraband substance which was presented before court was the same which was actually recovered from the accused on the spot.
20. Next, this Court would like to see whether provisions of section 50 of the NDPS Act would be applicable in the case at hand or not. The Court below has given finding that this being a case of sudden arrest and the contraband substance being recovered from a bag being carried in his hand by the accused, the compliance of section 50 would not be required. In this regard the legal position needs to be made clear.
21. The section 50 of the Act provides as under:
"Section 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.
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."
22. The Supreme Court of India has interpreted this section in Bharatbhai Bhagwanjibhai vs State of Gujarat in paragraph 8 and 9 as follows:
"8. 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 the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."
9. The learned Advocate in support of the appeal further contended that the decision of this Court in Ahmed v. State of Gujarat (2000 (7) SCC 477), upon reference to both Balbir and Baldev (supra) came to a conclusion of the applicability of Section 50 in all cases of NDPS Act. Unfortunately, however, the reliance on Ahmed (supra) is totally misplaced by reason of the fact that this Court in Ahmed was considering the issue of empowered officer or a duly authorised officer. This Court went on to record that to ensure fairness in the search itself and for compliance with Section 50 of the Act, no differentiation can be made whether the search is being made by the empowered officer, who obviously is an officer of a gazetted rank or the authorised officer, who may be a subordinate officer to whom the empowered officer authorises. This Court went on to observe that a combined reading of the provisions of Sections 42 and 50 would make it crystal clear that wherever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf, then if the person to be searched requires to be taken to a gazetted officer or the nearest Magistrate, the same must be complied with and failure to comply with the same would constitute an infraction of the requirements of the provisions of Section 50, which would ultimately vitiate the conviction and it is on this score this Court relied upon the plain and categorical language used by the legislature in Section 50. The decision in Ahmed (supra) does not lend any credence to the submissions in support of the appeal. The High Court in fact recorded a categorical satisfaction as regards the acceptance of evidence as credible and trustworthy and we also do not find any reason to record a different opinion in regard thereto.
23. In the State of Punjab vs Balbir Singh, (1994) 3 Supreme Court Cases 299, following is held in paragraph 25:
"25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
"(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of CrPC and when such search is completed, at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
- - - - - - - - -
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."
24. Therefore it is evident that though in a case of sudden recovery of contraband substance, it is not essential for prosecution to prove that compliance of section 50 of the Act was made, but from the point when the contraband substance is recovered onwards, the subsequent provisions of the Act have to be followed. Therefore in the case in hand the next important point regarding compliance arises that of section 57 of the Act.
25. The section 57 of the Act provides as under:
"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."
26. Therefore it is evident that the prosecution has to prove as to whether in the case at hand a report was transmitted to the higher authorities or not that the accused was arrested and the seizure of contraband substance was made from him. The entire evidence from PW 1 to PW 5 does not indicate that any such report was prepared by the arresting party which could be transmitted to the higher authorities. Therefore it is evident that compliance of the provisions of section 57 of the Act was not made at all. It would be essential to see as to what is the position of law in regard to non-compliance of section 57 of the Act.
27. In paragraph 14 and 15 of Dilbagh Singh vs State of Punjab, (2007) 11 SCC 290, the Supreme Court has interpreted section 57 as follows:
"(14) Qua the imputation of non-adherence of the requisites of Section 57 of the Act, suffice it to note that both the Courts below, on an analytical appreciation of the evidence on record have concurrently concluded that the Investigating Officer at the site, had after the arrest of the accused persons and or seizure of the contraband forwarded the information with regard thereto to his higher officer, namely, Deputy Superintendent of Police without any delay and that the related FIR with the necessary endorsements therein had reached the Ilaka Magistrate on the same date i.e. 28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by the learned counsel for the petitioner to either contradict or decimate this finding based on records. In this view of the matter as well, the assertion of non-compliance of Section 57 of the Act does not commend for acceptance. In our view, having regard to the facts available, the requirements of Section 57 of the Act had been duly complied with as well.
(15) The decision in Mohinder Kumar (supra) not only is distinguishable on facts, as the search therein was of the petitioner's premises, the investigation was afflicted as well by several other omissions on the part of the authority conducting the same. Though in this rendering, it was observed that in State of Punjab vs. Balbir Singh - (1994) 3 SCC 299 the provisions of Sections 52 and 57 of the Act had been held to be mandatory in character, it is pertinent to note that this Court in Sajan Abraham vs. State of Kerala - (2001) 6 SCC 692 had exposited that Section 57 was not mandatory in nature so much so that if a substantial compliance thereof is made, it would not vitiate the case of the prosecution. Incidentally the decision rendered in Balbir Singh (supra) was rendered by a Coram of two Hon'ble Judges whereas the one in Sajan Abraham (supra) was by a three Judge Bench."
28. Therefore, it is evident that, though the non-compliance of the provisions of section 57 by itself is not mandatory but directory only, it may not vitiate the recovery of contraband substance single-handedly, but in case it is found that the accused has been caused prejudice by its non-compliance, it may adversely impact the case of prosecution. If delay occurs in compliance of this provision, that can be condonable but total non-compliance maybe taken to affect the accused adversely. These safeguards have been provided under the Act only to ensure that no innocent person is falsely implicated in offences under the Act because it entails huge penalties. Its non-compliance may have adverse impact on the probative value of evidence regarding arrest and search.
29. From the above analysis, it is apparent that the prosecution has failed to prove that the recovery of alleged quantity of the contraband substance (charas) beyond reasonable doubt. The compliance of Sections 52 and 57 of the Act have also not been made. The burden on the accused to prove as to how, he came to the possession of the alleged contraband substance could be shifted under Section 35 and 54 of the N.D.P.S. Act only when the prosecution was able to prove beyond reasonable doubt the recovery of the said contraband substance, therefore in the case at hand, the said burden could not be shifted on the accused. In above conspectus, this Court is of the view that this Appeal deserves to be allowed and it is, accordingly, allowed. The judgement and order dated 10.09.2007 of the court below is set aside.
30. The accused-appellant is held not guilty of charges under Section 20 b (ii)(C) of the N.D.P.S. Act. Let him be released forthwith in this case unless he is wanted in any other case. The case property shall be destroyed after expiry of period of Appeal or if the law permits otherwise.
31. The copy of this judgement shall be sent to the court below forthwith for necessary compliance along with the lower court record.
32. Learned Amicus Curiae, Dr. Abida Syed Shall be paid Rs.7,500/- for assisting the Court in deciding the appeal.
Order Date:-22.02.2018 AU/h