Gujarat High Court
Salimuddin @ Jugan N. Ansari vs State Of Gujarat on 6 September, 1999
Equivalent citations: 2000(71)ECC425, (1999)3GLR699
JUDGMENT M.S. Parikh, J.
1. This appeal is directed against the judgment and order dated 30th June 1992 rendered by the learned Additional Sessions Judge, City of Ahmedabad, in Sessions Case No. 228/91. The appellant herein (for short `the accused') came to be convicted under Section 20(b) of the Narcotic Drugs & Psychotropic Substances Act (for short `NDPS Act') and was sentenced to suffer rigorous imprisonment for 10 years and fine of Rs.1,00,000, in default to suffer rigorous imprisonment for a period of one year. He was also convicted and sentenced for the offence under Section 66(1)(b) of the Bombay Prohibition Act to undergo rigorous imprisonment for a period of 3 months. The learned Addl. Sessions Judge directed substantive sentences to run concurrently.
2. The prosecution case, leading to the trial of the accused may briefly be stated:-
On 1-4-1991, Police Constable Jagatsinh informed PSI Mr. D.B. Jadeja that one person Salimuddin @ Jugan Niyazuddin Ansari carrying with him some stock of charas and was to pass through Lal Mill Four Roads from Bapunagar-Noornagar and to proceed towards Topi Mill. The PSI therefore made necessary entry in the Station Diary, informed the superior officer about the information, called the required panch witnesses and informed them about the aforesaid information and proceeded to the aforesaid place where Salimuddin was to reach and arranged a watch with the aid of the persons of his staff and the panch witnesses. The aforesaid person Salimuddin dressed with white pant and white shirt was found approaching the place walking down the distance from the side of Noornagar. He was stopped at the place and since he was to be searched he was informed as to whether he wanted to be searched in presence of a Gazetted Officer. The accused having expressed his desire to be searched in presence of a Gazetted Officer, Police Inspector of Gomptipur police station was informed. The said Inspector having reached the place the accused was searched in his presence. During the course of the search it was found that there was a plastic bag in the right pocket of the pant put on by the accused. It was apparently found to contain charas. The whole of the alleged article of charas was seized, taken possession of in presence of the panch witnesses after the same was weighed. The muddamal article was accordingly seized and sealed in presence of the accused on the spot. The same was handed over to the police station officer (`PSO' for short). The accused was also handed over to the PSO. The PSI of the Gomptipur police station, Mr. D.B. Jadeja accordingly gave his complaint in writing.One Pravinprasad Jagdishprasad who was on duty as a PSO in Gomptipur police station had taken on record the report and complaint of Mr. Jadeja as Prohibition Crime Register No. 209/91. Investigation was then carried out and the muddamal article was sent for examination to the Forensic Science Laboratory. Upon receipt of the report from the Forensic Science Laboratory the accused came to be chargesheeted for the aforesaid offences. The case was committed to the Sessions Court where after trial the accused met with conviction and sentence as aforesaid. The defence of the accused consisted of denial of the prosecution case while alleging that Constable Jagatsinh sought false case being filed against the accused under the circumstances that Jagatsinh had taken the accused to the police station at about 6.30 in the evening on 1st April 1991 and that a false case was filed at the instance of said Jagatsinh who owed money to the accused. There is no defence evidence except the aforesaid defence version in further statement of the accused.
3. In order to establish the prosecution case as aforesaid prosecution examined following witnesses;
1. PW 1 Chandansinh Hadmatsinh Chauhan, Ex. 8, who happened to be the Inspector and a Gazetted Officer in Gomptipur police station at the relevant point of time;
2. PW 2 Jagatsinh Mulsinh Ex.12 who happened to be the Constable in the Gomptipur police station at the relevant point of time;
3. PW 3 Pravinsinh Ghemarsinh Ex.14 who was also serving in the Gomptipur police station at the relevant point of time; 4. PW 4 Abbas Abdulmajid Ex.19 who was working as a Writer Head in Gomptipur police station at the relevant point of time;
5. PW 5 Ratilal Lakhaji Ex.22 who was also performing his duty in the Gomptipur police station at the relevant point of time;
6. PW 6 Kamaluddin Imamuddin Saiyed Ex. 25, a panch witness;
7. PW 7 Mafatlal Chimanlal Shah, Ex. 27, who had an occasion to weigh the muddamal article at the relevant point of time;
8. PW 8 Avdherabhai Nilkantrao Ex. 29, another panch witness;
9. PW 9 Manuja Chehura Ex. 30 who was performing his duties in Gomptipur police station at the relevant point of time;
10. PW 10 Dilip Babubhai Jadeja Ex. 31 who happened to be the PSI of Gomptipur police station and who had an occasion to attend to the incident and file complaint as aforesaid;
11. PW 11 Traveniprasad Jhaveriprasad Tiwari, Ex. 38 who also happened to be the PSO of Gomptipur police station at the relevant point of time.
4. Following documents have been placed on record by the prosecution;
1. Complaint Ex. 34 given by PSI, Mr. D.B. Jadeja;
2. Report Ex. 39;
3. Entry regarding the information received at 20.40 hours (8.40 p.m.) on the day of the incident, i.e. 1.4.91, Ex. 32;
4. Panchnama Ex. 10;
5. Arrest Memo, Ex. 33;
6. Forwarding Memorandum with regard to muddamal article addressed to the authority in Forensic Science Laboratory, Ex. 15;
7. A receipt dated 2nd April 1991 of muddamal article sent by the Additional Director, Forensic Science Laboratory, State of Gujarat, Ahmedabad, Ex. 16;
8. Expert opinion dated 6th June 1991 issued by the Senior Scientific Assistant of Forensic Science Laboratory with forwarding letter dated 11th June 1991 respectively appearing at Ex. 17 & 18;
9. A report dated 2nd April 1991 sent to the Deputy Police Commissioner appearing at Ex. 35;
10. Entry from the Station Diary with regard to the information Ex. 36;
11. Entry regarding the registration of the offence from the Station Diary dated 1st April 1991 Ex. 37.
5. Upon appreciation of the aforesaid evidence, the learned Additional Sessions Judge came to the conclusion that the prosecution established its case beyond reasonable doubt. He dealt with the submissions made on behalf of the defence. He observed that the variations in the prosecution evidence with regard to appearance of tin box in which the muddamal article was placed were minor in nature and did not tend to adversely affect the prosecution case. Dealing with the arguments with regard to the procedure followed at the time of search and seizure, the learned Additional Sessions Judge has observed that the muddamal article was searched and seized on the spot. The same was held to have been found from the possession of the accused at the relevant point of time. He has also observed that the seals and the slip were opened up in the F.S.L. (Forensic Science Laboratory) and that there remained no doubt with regard to the seals having remained intact till the muddamal article came to be examined by the expert in the Forensic Science Laboratory. He observed that the muddamal article came to be entrusted by Mr. Jadeja at 12.10 night on the same day in the sealed condition and during morning hours on the next day i.e. on 2nd April 1991 it was entrusted to Constable Ratilal for being sent to F.S.L. He has therefore upon appreciation of evidence found that there is no likelihood of muddamal article having been disturbed or tampered with in any manner. Dealing with the description of tin box, the learned Judge has observed that the tin box has been clearly described with the depiction of `Taj Mahal' appearing on the tin box in the FSL report. He has also observed that simply because there were one or two marble shape pieces of charas in the muddamal it could not be inferred that there was some occasion for the muddamal article being tampered with. Simply because the pieces have not been specifically described in the Panchnama, such a presumption could not be drawn. Dealing with all the submissions made with regard to muddamal charas, the learned Additional Sessions Judge has come to the conclusion that there was no occasion for the muddamal being tampered with before the same could be examined and reported about by the experts from the Forensic Science Laboratory.
6. During the submissions made on behalf of the appellant-accused before us, evidence of all the aforesaid witnesses came to be read by the learned advocate. It was submitted on behalf of the appellant that there were discrepancies in the prosecution evidence. It was also submitted on behalf of the appellant that Section 50 of the NDPS Act was not complied with inasmuch as there was partial compliance thereof. It was finally submitted that there was also violation of Section 55 of the NDPS Act. The submissions, which relate to factual aspect of the matter, will appropriately be dealt with hereafter. It would be just and proper to deal with the submissions made with regard to non-compliance of the provisions of Sections 50 and 55 of the NDPS Act in the first instance.
7. It has been submitted from the prosecution evidence that at the time of search of the accused, admittedly he was asked whether he wanted to be searched/examined in the presence of a Gazetted Officer. Upon the accused having expressed that he wanted to be so examined, P.I., Chandansinh Hadmatsinh Chauhan, PW 1 Ex. 8 was summoned and in his presence the accused was examined and searched. From this fact, it has been submitted that provision of Section 50 of the NDPS Act has been violated by the prosecuting agency inasmuch as there is partial compliance thereof. It has been submitted that under Section 50 of the NDPS Act accused had a right of being informed as to whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. Since in the present case the accused had been informed whether he wanted to be searched in presence of a Gazetted Officer and since he was not informed about whether he wanted to be searched in presence of not only a Gazetted Officer but also a Magistrate, Section 50 of the NDPS Act stood violated. In support of this submission, Ms. Rohini Acharya, learned advocate representing the case of the appellant placed reliance upon a decision of Orissa High Court in Gopal Reddy vs. State, reported in 1995 (2) Crimes Page 155. In that case, the accused was detained and 5 Kgs. of Ganja from the carton in possession of the said accused was recovered. At the time of his search he was only asked whether he wanted to be taken before a Magistrate. Referring to the decision of Hon'ble Supreme Court in the case of State of Punjab Vs. Balbir Singh and Others, reported in (1994) 7 O.C.R. 283, learned Single Judge of the Orissa High Court came to the conclusion that it was obligatory on the part of the concerned officer to inform the person of his right to be searched in presence of a Gazetted Officer or a Magistrate as contemplated under Section 50 of the NDPS Act. Dealing with the submission of learned counsel for the State that the accused had a right to be searched in the presence of available gazetted officer or available Magistrate, the learned Judge has observed that that is not the intention of the Legislature. Reference was made to a decision of Orissa High Court in Brajabandhu Parida vs. State - 1993 (II) Crimes 1111 on behalf of the prosecution. In that case the person who was to be searched was given the option of being searched before a Magistrate who was accompanying the raiding party and on the accused accepting to be searched in his presence, the search was made. In that background, it was held to be in compliance with the requirements of Section 50 of the NDPS Act holding that the facts were not similar. In the case on hand, it has been observed that the accused was asked only whether he would like to be taken before a Magistrate and not a word has been breathed about he being taken to any Gazetted Officer of the departments indicated in Sec. 42 of the NDPS Act. In that background, it has been held that partial compliance with the requirements of Sec. 50 of the NDPS Act would amount to non-compliance thereof and would vitiate the trial.
8. Reference was then made to a decision of Rajasthan High Court in Sardar Singh Vs. State of Rajasthan - 1996 (4) Crimes 249. In that case also, the accused was given partial option to be searched in presence of a gazetted officer and learned Single Judge of the Rajasthan High Court has reached similar conclusion that partial compliance of Section 50 of the NDPS Act cannot be said to be the compliance of the said provision. The learned Single Judge made reference to the decisions in the cases of Badrilal Vs. State of Rajasthan - in Cr. Appeal No. 156/93 decided on 31-1-1996 by a Single Judge; Veeru Lal Vs. State of Rajasthan in Cr. Appeal No.344/93 decided on 22.9.1995 by a Single Judge; and State of H.P. v. Prithi Chand & Anr. reported in 1996 S.C.C. (Cr.) 210, and has observed that unless cogent evidence is produced to show that the accused was made aware of his right of protection as contemplated by Section 50 of the NDPS Act, there would be no compliance with the requirements of the said provision under the NDPS Act.
9. In reply, Mr. K.P. Raval, learned A.P.P. has referred to a decision of this Court in the case of Mohmadkhan Rasulkhan Pathan Vs. State of Gujarat, reported in 1998(1) 39-1 GLR Page 445. It was the prosecution case there that pursuant to secret information received by the Inspector, Customs (Preventive), Ahmedabad, proceedings were undertaken. The information was reduced into writing, placed in a sealed cover and delivered to the Superintendent of Customs, Mr. P.D. Nair. Both of them went to the Assistant Collector (Preventive), Mr. Thakur, handed over the sealed cover to him. After undertaking the required procedure, the raiding party which consisted of Superintendent Mr. Nair, Customs Inspectors, Mr. Saiyed and Mr. Barot along with panchas reached the place where accused was standing with the container as per the secret information received. After the identity of the officers was disclosed search was conducted. It was found that the container contained 16 Kgs. of charas. In the background of such facts and dealing with the submissions concerning compliance of Section 50 of the NDPS Act, it was argued before this Court that there was violation of the said provision and the accused was entitled to be acquitted. In the process, the decision in the case of State of Punjab Vs. Balbir Singh (AIR 1994 SC Page 1892) was canvassed. Similar arguments had also been canvassed in D.B. Thakur V. State - 1996 (1) GLR 219. A Division Bench of this Court, referring to the decision of Hon'ble Supreme Court, in the case of State of Punjab Vs. Balbir Singh (Supra) concluded that such officers as are mentioned in Section 50 of the NDPS Act would have to comply with mandatory requirements as contained in the said provision. The officers so mentioned in the said provision are not the gazetted officers. This Court, therefore, concluded that the officers who are gazetted officers would not have to comply with the said provision. While following the said earlier decision rendered by the Division Bench of this Court, a note of two other decisions of the Hon'ble Supreme Court, in the case of Raghbir Singh Vs. State of Haryana - 1996 SCC (Cri.) 266 and State of Punjab Vs. Labh Singh - 1996 SCC (Cri.) 103, was taken. Mr. Raval, the learned APP has also placed reliance upon the said decisions of the Supreme Court and we might at once reproduce para Nos. 10 and 11 of the citation in Raghbir Singh's case (Supra):-
"10. Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment. It is, therefore, that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate, depending upon who is conveniently available."
"11. The option under Sec.50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word "nearest" in Sec.50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, Gazetted Officer or Magistrate."
10. The decision in Labh Singh's case has been considered by this Court in Para 15 of the citation in Mohmadkhan Rasulkhan Pathan's case (Supra). Para 15 might be reproduced;
"15. The next one is the case of State of Punjab v. Labh Singh, reported in 1996 SCC (Cri.) 103 where valuable right of the accused conferred under Sec.50 of the N.D.P.S. Act was under consideration. The Apex Court has observed that each case should be considered in the light of the facts and circumstances in which the contraband was seized, viz., the time when the search was conducted, the place where it was seized, whether police had prior information of the contraband being in transport or place of concealment, whether there was proper opportunity for the police to secure the presence of a Gazetted Officer, whether the delay in search and seizure would result in the escape of the accused from arrest or contraband would be destroyed or whisked away and a host of all relevant attendant circumstances. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. All that would support the view that if the facts of the case are such as necessarily concern the raiding officer who is a Gazetted Officer, there would be no violation of Sec.50 of the N.D.P.S. Act merely because it is not appearing in the record that the accused was not questioned whether he wanted to be searched or examined in the presence of the Gazetted Officer or a Magistrate. That is exactly what has happened in the present case."
11. In the background of the aforesaid decisions which have been presented for our consideration by the learned counsel, we are required to deal with the issue in the present case. It is not in dispute that the accused was asked whether he wanted to be examined/searched in presence of a Gazetted Officer. The question is whether the accused was required to be given option, both of a Gazetted Officer and a Magistrate or whether he was required to be given an option alone of a Gazetted Officer or a Magistrate. The two decisions, of Orissa High Court and Rajasthan High Court would indicate that accused has to be informed about both the options. The decisions of this Court would indicate that if the searching officer was a Gazetted Officer, it would not be necessary to inform the accused at all. In order that, we may deal with the question which is posed in the present appeal, we would like first to consider the recent decision of the Hon'ble Supreme Court in the case of The State of Punjab Vs. Baldev Singh, reported in J.T. 1999 (4) S.C. 595. It so happened that a divergence of opinion between different Benches of the Hon'ble Supreme Court came to be noticed with regard to the ambit and scope of Section 50 of the NDPS Act. In the cases of State of Punjab v. Balbir Singh, JT 1994(2) SC 108, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, JT 1994 (6) SC 326, Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, JT 1995 (3) SC 489 and in number of other cases it was laid down that failure to observe the safeguards, while conducting search and seizure, as provided by Section 50 would render the conviction and sentence of an accused illegal. However, in State of H.P. v. Pirthi Chand and Anr., JT 1995 (9) SC 411, and State of Punjab v. Labh Singh, JT 1996 (6) SC 589, relying upon a judgment in Puran Mal v. Director of Inspection (Investigation) New Delhi & Ors., (1974) 1 SCC 345, a discordant note was struck and it was held that evidence collected in a search conducted in violation of Section 50 of NDPS Act did not become inadmissible in evidence under the Evidence Act. In view of such divergence of opinion, the matter went before a larger Bench by way of a reference. The Bench, speaking through Dr. A.S. Anand, Hon'ble the Chief Justice, considered the divergent views and held as under;
"(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;
(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;
(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act;
(9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, cannot by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case."
12. We may also reproduce the following observations appearing in Para 20 of the citation:-
"20. In State of Punjab v. Labh Singh, (supra) again it was reiterated that the accused has been provided with a protection of being informed of his right to be searched in presence of a Gazetted Officer or a Magistrate and failure to give an opportunity to the concerned person to avail of the protection would render the prosecution case unsustainable."
Having gone through this decision, we find that the Supreme Court had the occasion of considering the scope and ambit of Section 50 of the NDPS Act and nature of the requirements set out in the said provision. It might be noted from the conclusions that when an empowered officer or a duly authorised officer (as particularised in Sec.50) is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search, and failure to inform the concerned person about existence of such right would cause prejudice to him. It would therefore clearly appear that duty to inform the accused person of his such right is cast upon an empowered officer or a duly authorised officer as mentioned in Section 50 of the NDPS Act, vis-a-vis, right to be informed for being searched in presence of a senior officer such as a gazetted officer or the nearest Magistrate and that would obviously be in the context of search to be carried out at the earliest and before such gazetted officer or such Magistrate who is available at the earliest. As stated in Raghbir Singh's case (supra), the option under Section 50 of the NDPS Act is only of being searched in presence of such senior officer and that there is no further option of being searched in the presence of either a gazetted officer or a Magistrate. The right of being searched conferred under Section 50 of the NDPS Act has to be viewed in this manner. It might be noted from the last conclusion in Baldev Singh's case (supra) that Ali Mustaffa Abdul Rahman Moosa's case has been stated to have correctly interpreted and distinguished the decision in Puran Mal's case. We had, therefore, an occasion to go through the decision in Ali Mustaffa'a case. The same has been reported in AIR 1995 SC 244. Section 50 of the NDPS Act was for consideration in that case. In the background of the relevant facts it was stated that seizure of charas was effected in presence of the witnesses on the spot itself and the contraband was taken into possession after making the mahazar and that before the search of the accused was made he was not given any option as to whether he desired to be searched in the presence of a gazetted officer or a Magistrate as envisaged by the aforesaid provision. It was submitted on behalf of the respondents before the Supreme Court that the question of giving option to the accused in compliance with Section 50 of the NDPS Act would be subject to the condition that the accused "requires" that he be searched in the presence of a gazetted officer or a Magistrate, but where the accused does not so `require' for whatever reason his conviction would not stand vitiated, in case the option was not given to him. The Apex Court said, that a similar argument had been advanced in Balbir Singh's case (1994) 3 SCC Page 299. Following observations from Balbir Singh's case have been reproduced with emphasis supplied by the Apex Court;
"The words, "if the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right."
The decision in Pooran Mal vs. Director of Inspection (Investigation), New Delhi - 1974 SC 348 was canvassed for saying that even if search and seizure of the contraband were not in compliance with the provisions of Section 50 of the NDPS Act, it would still not affect the conviction because the seized articles could be used as "evidence". The Apex Court, dealing with this submission, has said that it is misconceived and reliance on Pooran Mal's case is misplaced. While explaining the decision in Puran Mal's case, the Apex Court has observed that it only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against that party under the Income Tax Act and not to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. In Baldev Singh's case (supra), this view has been accepted. However, what is important to be noticed from Ali Mustaffa's case is that the accused in that case was not given any option.
13. The question, therefore, is whether the accused, who is sought to be searched by an officer as stated in Section 50 of the NDPS Act, is required to be informed about his right to be searched in presence of any one of the senior officers, may be a gazetted officer or may be the nearest Magistrate, or whether the accused is required to be informed as to whether he wants to be searched in presence of such officers by giving him the option to select. In our considered opinion, the decision in Raghbir Singh's case (supra) provides an answer to this. In Raghbir Singh's case, the Apex Court has considered the impact and effect of the word "nearest" and has held that choice of such an officer would obviously be with the empowered officer or authorised officer acting on prior information and about to search person of the accused. It would be appropriate to illustrate this proposition. Supposing in a given case, just nearby the place, where the accused is stopped and is required to be searched, there is a Magistrate available and the empowered officer or the authorised officer stopping the accused knows about availability of such Magistrate and he also knows about non-availability of any other gazetted officer in the nearby place or for that matter at a place within reasonable distance from the place of incident. Now, in such a case, when the empowered officer or duly authorised officer informs the accused about his right of being searched in presence of both gazetted officer and a Magistrate and the accused opts for a gazetted officer, what would happen ? The use of word "nearest" in the provisions of Section 50 of the NDPS Act would become redundant. This very illustration can be examined from another angle. Supposing the accused knows that there is no gazetted officer in the whole of the area apart from the nearest place and only a Magistrate is available and he has a plan to escape or destroy the contraband. Naturally, he would opt for being searched in presence of a gazetted officer and that could easily facilitate execution of his such plan. Under such circumstances, the information, which is required to be imparted by an empowered officer or a duly authorised officer under Section 50 of the NDPS Act is only with regard to the accused having right of being examined by either of the senior officers, may be the nearest Gazetted Officer or may be the nearest Magistrate, choice remaining obviously with the empowered officer or duly authorised officer who must be knowing about who is such a senior officer available in the vicinity or in the nearest. Even on a plain reading of Section 50 of the NDPS Act, as also first two conclusions in Baldev Singh's case, we find the usage of conjunction "or" between the nearest gazetted officer and the nearest Magistrate. Once it is found that ultimate choice of searching the accused in presence of `X' officer or `Y' officer as contemplated in Section 50 of the NDPS Act is with the empowered officer or authorised officer carrying out the search, the usage of the conjunction "or" between the words, "the nearest gazetted officer" and "the nearest Magistrate" becomes meaningful. In this view of the matter and bearing in mind the decision in Raghbir Singh's case (supra), we find that it would be sufficient compliance if an empowered officer or a duly authorised officer informs the accused about his right of being searched in the presence of a gazetted officer bearing in mind the fact that a gazetted officer is the nearest available. In this view of the matter, we are unable to accept the submissions made by Ms. Rohiniben Acharya, learned advocate representing the cause of the accused. Since the PSI who was to carry out the search of the accused in this case informed the accused about his such right and the accused having opted for being searched in presence of a gazetted officer, namely, Police Inspector, Gomptipur police station, there is no room for holding that provision of Section 50 is violated. Instead, there has been a compliance of the said provision in the present case.
14. The next submission, in support of the cause of the accused, is with regard to compliance of Section 55 of the NDPS Act. It would be appropriate to reproduce the provision:-
"Section 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 the 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."
It is not in dispute that there was seal of the gazetted officer, namely Police Inspector who was also in-charge of the Gomptipur police station. It is also not in dispute that when the search was carried out on the spot at the time of the incident on 1st April 1991, the muddamal article, namely 219 grams of charas after it was weighed was packed into a tin box and was sealed and handed over to another PSO keeping the seals intact. It would be important to note at this point of time that there was no occasion of either the Police Inspector or any other officer to take out by way of sample or separate any portion of the muddamal article from the tin box for the same being transmitted to the expert in Forensic Science Laboratory. Instead the whole of the muddamal as it stood sealed in the tin box had been sent to the Forensic Science Laboratory. We will deal with the discrepancy in the description of the muddamal article given by the concerned witnesses when we deal with the submissions revolving round such and other discrepancies pointed out for the purpose of appreciation of evidence. For the present, we reiterate that the muddamal article as it came to be seized and sealed stood transmitted to the Forensic Science Laboratory without the same being dealt with in any manner by any of the officers, and in this regard there appears nothing giving rise to doubt.
We now proceed to deal with the submissions made by Ms. Rohini Acharya, learned advocate for the appellant-accused. She first referred to the notes appearing on Page 675 and onwards from Law of Narcotic Drugs and Psychotropic Substances by Prahlad Prasad Gupta, 1998 Edition. She read before us the note inter alia saying that except the provision contained in Section 55, no provision seems to have been made in the NDPS Act and rules framed thereunder regarding mode of taking and sealing of the sample, mode of sending the same to Chemical Examiner and their chemical examination or even touching the matters of such procedure. It has been suggested that two samples should be required to be taken so that one may be sent to the chemical examiner and the other may be preserved and kept safely so that in case of loss or destruction of the sample sent to the chemical examiner in transit or otherwise, for the purpose of 2nd test, the sample preserved may be used. Reference has been made to Standing Instructions/Orders issued by the Central Government on 15-3-1988 (1/88), 11.4.1988 (2/88), and 13.6.89 (1/89). It has been recited that with a view to bring uniformity of approach in such matters and to provide for a secured system of handling of drug samples, it was decided to issue Standing Orders laying down procedures with regard to drawing, forwarding and testing of samples. Following clauses in that regard from Standing Instruction/Order No. 1/88 were read:-
"(iii) The quantity to be drawn in each sample should be 5 gms in respect of all narcotic drugs and psychotropic substances except in the cases of opium, ganja and charas, hashish where a quantity of 24 gms in each case is required. The same quantity should be taken for the duplicate samples also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. (vide para 1.6);
(iv) In the case of seizure of a single package/container one sample in duplicate is to be drawn. In case of seizure of more than one package/container one sample in duplicate from each package/container should be drawn (vide para 1.7);
(v) All samples must be drawn and sealed in the presence of the accused, panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose possession the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and duplicate of each sample. (vide para 1.9.)"
xxx xxx xxx xxx xxx xxx xxx Till specific rules are framed under any provision of the Act, general procedure laid down in Standing Instruction No. 1/88 so far may be applicable, may be followed and drawal, storage, testing of samples of narcotic drugs and psychotropic substances, in relation to which some offender is sought to be prosecuted for contravention of any provisions of the Act or rules framed thereunder."
We may pause here and state that in the present case, whole of the muddamal has been seized and sealed in presence of the accused and panch witnesses and the seals of the seizing officer as well as the gazetted officer in presence of whom the search was carried out have been affixed. The learned advocate also made reference to some notes of the decisions quoted by the Author at Pages 680 and 682 of the Book. We would, however, like to deal with the decisions which have been cited in this regard, since the proposition which is sought to be canvassed is the same as would appear from the decisions so referred to.
15. The first decision, which has been referred to is in the case of Bhajan Singh v. State of Haryana, reported in 1988 (1) Crimes at Page 444. It has been observed by a learned Single Judge of the Punjab & Haryana High Court that the provisions of Section 41, 42, 43, 50, 51 & 55 of the NDPS Act have been held to be mandatory and contravention thereof would vitiate the investigation and trial. We are unable to locate exact facts from the decision so relied upon. Then there is a reference to a decision of a Division Bench of Gauhati High Court in the case of Md. Jainulabdin v. State of Manipur, reported in 1991 Cri.L.J. at Page 696. Reference has been made to Head-Note (H) which deals with what the Bench has observed in Para 22 of the citation. Para 22 would read:-
"22. That leads us to the last question regarding S. 55 of the Act. According to this section an officer-in-charge of the police station shall take charge for safe custody of articles seized under the Act within his jurisdiction and which may be delivered to him and shall allow the officer bringing such articles to affix his seal to such articles or to take samples and the officer-in-charge shall also seal the articles with his own seal. Reading this section, we are of the opinion that while enacting this section legislature had two intentions viz. actual articles seized are produced at the time of trial and samples of the said articles are sent for analysis by expert and secondly after the articles are produced before the officer-in-charge, these are not substituted by some other articles. These safeguards have been provided both for prosecution and the accused and have to be followed scrupulously. In other words, these are mandatory provisions of law and unless followed, it would go in favour of the accused."
Then there is a reference to a decision of Rajasthan High Court in the case of Nathiya & another v. The State, 1992 (1) Crimes Page 537. In that case, the Investigating Officer was the same person who recovered the alleged contraband charas from the appellants and the point which has been in substance dealt with revolves round the provisions contained in Section 20 of the NDPS Act, vis-a-vis, the investigation to be carried out by an independent officer who was not in any way a party to the recovery proceedings. However, the observations appearing in Para 18 have been read before us. The same might be reproduced:-
"18. There is one more interesting feature of the case. According to the prosecution P.W.3 Sohanraj, Inspector, Border Custom Department, Barmer obtained samples from the seven sealed bags on 11.3.1987. A memo Ext.P11 is said to have been prepared in this connection. Ex. P11 recites that one of the samples was taken for the purposes of sending to Chemical Examiner, Delhi. It is not known as to what happened to this sample. The prosecution has not placed on record the report of the Chemical Examiner, Delhi and it can be safely assumed that had the report been produced, it would not have been favourable to the prosecution. The matter does not rest here. The learned counsel for the appellant submits that the S.H.O. was not entitled to allow the Inspector to take such samples from the bags kept with him without orders of the Magistrate. He submits that there is violation of Section 55 of the Act in this regard. This section reads as follows:-
"55. Police to take charge of articles seized and delivered:- An Officer-in-charge of a police station shall take charge 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."
A bare reading of this section goes to show that all articles seized under the Act have to be kept in the safe custody pending the orders of the Magistrate. No orders of the concerned Magistrate have been placed on record to show that his permission was taken prior to the opening of the bags kept in the police station. This again casts serious doubt about veracity of the prosecution story."
It might be noted from the aforesaid observations that according to the prosecution PW 33 Sohanraj, Inspector, Border Custom Department, Barmer obtained samples from the seven sealed bags on 11.3.1987. That would mean that there was the occasion of obtaining samples some time after muddamal article came to be searched, seized and sealed. (28.2.87). Then there is a reference to a decision rendered by a Division Bench of Calcutta High Court in Babu Chakraborty (in Jail) v. State of West Bengal 1998(1) Crimes 197. Paras 6 and 7 have been read before us, and we might reproduce the same:-
"6. Section 54 of the Act provides for presumption in respect of possession of the illicit articles which is quoted below:-
"Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved that the accused has committed an offence under Chapter IV in respect of___
(a) any narcotic drug or psychotropic substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily."
"7. Section 55 is another important section containing provisions regarding action to be taken by the officer-in-charge of the Police Station in respect of articles seized and delivered. This is a mandatory section and will have to refer to the said section in reference to the evidence on record as such we think it necessary to quote the aforesaid section:
"Police to take charge of article 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 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."
It is clear from the above provisions that under the aforesaid section it is compulsory on the part of the officer-in-charge of the Police Station to allow the officer bringing the seized articles to the Police Station to affix his seal. The officer-in-charge of the Police Station is under statutory obligation to allow such officer to take a quantity of the sample as a safeguard against tampering with the article seized and deposited. The officer-in-charge is also duty bound to affix his own seal. The clear purpose of such provisions of section 55 is to ensure that the sample of the case property are not tampered with at any stage. In the case of Sunil Kumar v. State, it has been found that the mandate of Section 55 is fulfilled when the officer-in-charge of the Police Station allows the Investigating Officer to affix his own seal of such article and the said officer-in-charge also affixes his seal thereafter. The provisions of section 55 and section 52(3) of the Act cannot be treated as empty formalities but are substantive provisions to ensure authenticity of recovery by making senior officers responsible for the proceedings of sampling, sealing and deposit in the malkhana. Any violation of such provisions would vitiate the investigation and consequentially the prosecution."
In that case, a raid was conducted on 5th May 1989 at 21.45 hours and the articles were seized as per the seizure list Ex. 7 prepared on the spot and the seized articles were sealed and labelled. Thereafter, the Excise Department took up the case and started investigation, in the process of which the seized article (Heroin) was sent to the Central Public Health and Drug Laboratory, Calcutta on 12-5-89. There were 3 label packets containing following articles;
(1) 7 polythene packets owing 3 grams and 25 miligrams containing Heroin.
(2) 6 small thin tracing paper packets containing Heroin weighing 2 grams and 25 miligrams.
(3) One small brass scale.
(4) 3 pieces cigarette Rangta (a type of silvery wrappers).
(5) 2 paper pipes.
Out of the aforesaid packets Items No. 3, 4 & 5 were put in a big label packet noted in Ex. 1. It appeared in the evidence that;
"the accused in pursuance of his talk to Mina Saheb brought out 13 packets (polythene bag) containing one rose colour powder substance" along with some `Raangta' of cigarette packets and one scale and some white packets. He further says that these articles were seized by him under a seizure list as per direction of Mina Saheb which was signed by the witnesses. He also says that he affixed labels to these seized articles which were also signed by the witnesses. This witness opened a seal packet in court containing 6 small packets and he stated that these packets containing grey powder were produced by the accused and these packets were signed by the witnesses. This witness also opened another sealed packet in court and brought out 7 small packets containing grey powder substance. P.W. 2 further says that those 7 packets were also seized by him on being produced by the accused. He has further proved the labels allegedly covering the seized articles being marked Ex. 4, 5 and 6. He further says that these labels were signed by Ramprasad one of the search and seizure witnesses. There is no explanation why the other search list witness namely Swapan Samanta did not sign those labels."
The Court has therefore observed that it is curious to note that the trial judge has observed while recording the deposition of P.W. 2 that the seals on the seal packet were found intact, but while going through the Exts. 4, 5 and 6, the court did not find any such seal. On appreciation of the evidence of P.W. 2 saying the aforesaid facts the Calcutta High Court came to the conclusion that the said witness was a wholly incompetent and unreliable witness regarding the search and seizure. It would, therefore, clearly appear that the matter stands on altogether distinguishable fact situation.
16. Then there is a reference to a decision of Orissa High Court in Trinath Goudo V. State - 1996 (1) Crimes 607. Observations of a learned Single Judge of Orissa High Court appearing in Para 5 have been read. The same might be reproduced :-
"In paragraph 3 it has been stated by P.W. 3 that two sample packets were sealed by paper seal containing LTI and signatures of the witnesses, A.S.I. and himself. From Ext.7 (the report of the Chemical Examiner) it is seen that articles were packed and sealed by newspaper and a piece of white paper attached to it contained signature of the accused, witnesses and Officer-in-charge. There is nothing in evidence of either P.W. 1 or P.W. 3 about sealing the seized articles in newspaper. In view of unsatisfactory evidence regarding manner of sealing of sample packet and custody of seized articles, it would be unsafe to convict the accused. Conviction and consequential sentence are set aside. Accused be set at liberty forthwith unless he is required to be in custody in connection with any other case."
On going through the decision it would appear that on 18.11.1991 at about 7 a.m., when the S.I. of Excise E.I. & E.B., Berhanpur (P.W. 3) was performing patrol duty with A.S.I. of Excise (P.W.1) and other members of staff at Village Charumaria on the Canal road, he found accused coming towards the bus stand holding a gunny bag over his head. P.W. 3 enquired from him as to whether he wanted to be searched in presence of a Gazetted Officer or the nearest Magistrate. On account of suspicion regarding the bag containing contraband articles a search was necessary. Upon the accused expressing his desire accordingly he was so searched and the searching officer took two samples of 50 grams each from the seized ganja which were kept in two paper packets, tied up with strings at the cross point and personal seal of PW 3 was affixed over the wax. The said two packets were also seized with paper seals containing signatures of the accused, P.Ws. 1 and 3 and other witnesses and seals containing impression of personal seal of P.W. 3 were affixed. On the very day the accused was produced before the Judicial Magistrate. It was submitted that there was total absence of material to show as to under what condition ganja seized was kept. With regard to the certificate issued by the Scientific Officer it was stated that the manner in which packing was done left ample scope for manipulation. Undisputedly seized articles were not produced before the officer in-charge. Under such circumstances the court observed, `Untremelled by the question whether Section 55 of the Act is mandatory or directory in nature, the undisputed legal position is that seized articles should be in safe custody. Instead the articles were in Excise Malkhana till production before the Sessions Judge, Berhanpur'. It is in the background of these facts that aforesaid observations have been made by the Orissa High Court.
From the aforesaid decisions, we may observe here that we are unable to find facts which may be said to be parallel in the matter of seizure and sealing of muddamal articles and expedition with which the whole of the muddamal article has been sent for scientific examination by the expert in the Forensic Science Laboratory, in so far as the present case is concerned.
17. At this very stage, we may also refer to a decision of the Hon'ble Supreme Court in the case of Valsala v. State of Kerala, reported in AIR 1994 S.C. 117, referred to by the learned advocate for the accused. The Apex Court has not gone into the question with regard to whether Sec. 55 of the NDPS Act is mandatory or directory. The facts before the Supreme Court clearly indicate that the article seized did not appear to have been kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. Besides, there was delay of more than 3 months in sending the seized articles to the court. What is important to be noticed from this decision is that the question viz., Sec. 55 of the NDPS Act is mandatory or directory has been left open by the Apex Court. In the case on hand, the whole of the muddamal article with the seals intact came to be transmitted immediately on the next day for chemical examination by the expert in Forensic Science Laboratory and the communication and the report of the expert from Forensic Science Laboratory clearly indicate about the seals having remained intact till upto the stage of examination of muddamal article.
18. Mr. K.P. Raval, ld. APP has referred to a Bench decision of this Court in the case of State of Gujarat v. Abdul Rashid Ibrahim Mansuri reported in 1990 (2) GLH 398. Reference has been made to Para 41 of the citation, which would read as under;
"41. Mr. Malik, learned Advocate for the respondent, contends that the provisions of Sections 52 and 55 are not complied with inasmuch as the Police Station Officer has not put his seal on the muddamal packets and subsequently the muddamal articles were taken to the Dudheshwar Crime Branch Police Chowky, from where P.S.I., Vaghela has taken the same to the Forensic Science Laboratory. Under Section 52, the Officer arresting the person has to inform him of the grounds of arrest and in case warrant is issued by the Magistrate and on the strength of the warrant, such person is arrested, then such personshould be forwarded to the Magistrate. Sub-section (3) of Section 52 provides that every person arrested and articles seized under sub-section (2) of Section 41 or Section 42 or Section 43 or Section 44 shall be forwarded without unnecessary delay to the Officer in charge of the nearest Police Station or the Officer empowered under Section 53. Under sub-section (4) of Section 52, the authority or the Officer, to whom any person or article is forwarded under sub-section (2) r sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. So far as dealing with such person is concerned, the Officer in charge of the Police Station may either secure police custody remand or send such person to judicial custody under the provisions of the Criminal Procedure Code. So far as the articles, which are produced before the Police Station Officer is concerned, they are required to be dealt with as provided in Section 55 of the Act. Section 55 provides that the Officer in charge of the Police Station himself take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of that police station and 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 samples so taken are also required to be sealed with the seal of the Officer in charge of the Police Station. Sections 52 and 55, NDPS Act deal with the situations after the seizure and arrest. The articles are required to be sealed by the Police Station Officer with a view that they may be protected properly and may not be tampered with. In case such articles are produced before the Officer in charge of the Police Station, the Officer producing such articles should affix his seal to such articles or take samples of such articles. In case the samples are taken, such samples are also required to be sealed with the seal of the Officer in charge of the Police Station. The seal of the Officer in charge of the Police Station is to be affixed only on the samples which are taken. It is not necessary that in case the articles are brought and delivered to the Officer in charge of the Police Station by the authorised Officer seizing such goods, then again the second seal of the Officer in charge of the Police Station should be affixed on it. Even when the articles are produced, the Police Station Officer has to allow the Officer seizing the articles or the Officer deputed by such Officer to affix his seal. In case the Officer seizing the articles has affixed the seal at the place of seizing the articles or at any other place and after that, the articles are delivered to the officer in charge of the Police Station, it will not be necessary for the Officer in charge of the Police Station to affix the same. Section 55 does not provide for any such procedure. Submission of Shri Malik that a second seal should have been affixed deserves to be repelled."
From the aforesaid observations, it might be noted that the seal of the officer was to be affixed only on the samples which are taken. It is not necessary that in case the articles are brought and delivered to the Officer in charge of the Police Station by the authorised officer seizing such goods, then again the second seal of the Officer in-charge of the Police Station should be affixed on it. This is what the Bench has observed on consideration of the provision contained in Section 55 of the NDPS Act. In the present case, the box containing the muddamal article duly sealed came to be handed over to the Police Station Officer who had preserved the same in the said condition in the box meant for preserving the muddamal articles and immediately on the next day the whole of the muddamal which was duly sealed as aforesaid was sent to the Forensic Science Laboratory. Thus, present case would squarely be covered by the aforesaid observations of the Division Bench in Abdul Rashid's case (Supra). The Bench has further observed that in case the Officer seizing the articles has affixed the seal at the place of seizing the articles or at any other place and after that, the articles are delivered to the Officer in charge of the Police Station, it will not be necessary for the Officer in charge of the Police Station to again affix the same. Section 55 does not provide for any such procedure. Similar is the present case. We have no reason not to follow the aforesaid Bench decision of this Court. We, therefore, do not propose to enter into the controversy with regard to whether the provisions contained in Section 55 are mandatory or directory. Instead, as aforesaid, we find that there is compliance of the provision, as noted by the Division Bench of this Court in Abdul Rashid's case (supra).
19. We would now take up the discrepancies in the evidence which are sought to be highlighted by Ms. Rohini Acharya, learned advocate for the appellant-accused. She has drawn our attention to following discrepancies;
(1) There has been a difference in the description of muddamal charas at various stages;
(2) There has been a difference in the description of the tin box, more particularly, the colour thereof;
(3) There has been some variation in the statement regarding time if the evidence of PW 7 who had an occasion to weigh the muddamal article is appreciated.
We would first deal with the discrepancy with regard to the difference in the description of muddamal articles. A reference in this regard has first been made to Exhibit 34, which is the complaint. It has been recited in this complaint that upon search of the person of the accused having been carried out, small pieces of black colour and powder in a plastic bag could be located from the right pocket of the pant of the accused. Same is the description of the muddamal in Panchnama Ex. 10. P.W. 1 Chandansinh Hadmatsinh Chauhan Ex. 8 has described the muddamal article as stock of charas contained in the plastic bag but in his cross-examination he has admitted that he could notice in the court in the muddamal article one big piece in plastic bag and some small pieces and powder in another plastic bag. He has admitted that he could not explain separation of the muddamal in the plastic bags as the same was done in the Forensic Science Laboratory. He has also admitted that other 8 packets which have been given the signals No. 2 to 8 were not given at the time when the muddamal articles were seized and sealed in a tin container. It has to be noted that there is no dispute with regard to the fact that the muddamal article having been placed in the tin container and duly sealed was without any delay sent to the Forensic Science Laboratory. Now, if the expert in the Forensic Science Laboratory saw to the samples being made for examination by giving signals to the different packets, it can hardly be said that there is a discrepancy with regard to description of muddamal which would throw doubt about tampering thereof either in the police station or during transit. We have gone through the evidence of the witnesses in respect of description of muddamal articles. We need not repeat the submission made there from. The appearance of muddamal articles in two marble type pieces and in other pieces as well as powder form contained in plastic bags, clearly relates to the separation of articles for the purpose of chemical examination in the Forensic Science Laboratory. It has not been suggested either in the trial or before us that any mischief was likely to have been played in the Forensic Science Laboratory. We are, therefore, not inclined to accept the submission of learned advocate for the accused concerning the difference in the description of muddamal as noted above. In our opinion, such discrepancy does not appear to have caused any prejudice to the accused.
20. Then there is a discrepancy with regard to description of the tin box, especially the colour thereof as deposed to by P.W. 2 Jagatsinh Mulsinh Bhatt Ex. 12. This witness has deposed in his examination-in-chief that upon the find of illicit article from the right pocket of the pant put on by the accused, police constable Ratilal called one businessman for the purpose of weighing the article. The witness had an occasion to bring a tin container which he has described to be `red colour square tin container' by saying thus "Ek Patarano Lal Colourno Choras Dabbo Hu Lai Ayo." Now, the tin box is rectangular in shape. It is possible that the witness might be describing the tin box as "Ek Patarano Lamb Choras Dabbo Hu Lai Ayo." Thus, there is possibility of mistake having been committed either in respect of what the witness deposed before the Court or there might have been mistake in the perception of the witness himself. We have no hesitation in coming to the conclusion that there is an error apparent on the face of describing the tin container. However, it consistently appeared in the prosecution evidence that there was a rectangular tin container with a depiction of `Taj Mahal' appearing on the container. Even this witness has clarified that the tin container which he had brought at the time of the incident was the same as one shown to him in the Court. In view of possibility of the error as aforesaid, this discrepancy will not have any consequence upon the find of muddamal article from the person of the accused.
Then, there is a discrepancy with regard to the timings pointed out from the evidence of Mafatlal Chimanlal PW 12 Ex. 27. He has deposed that he had an occasion to go to the place of incident with weighing instruments and to weigh the muddamal article. It would clearly appear that the witness was short of memory with regard to exact timings. He has deposed that he did not remember the exact date when he was called by the police for the aforesaid purpose. He has also deposed that he did not remember the exact weight of the muddamal article. He has testified that around 12 months before the date of deposition, the incident had taken place. In the background of such a state of memory on the part of this witness what he has stated in the cross-examination has to be evaluated. There he has said that around 8.00 or 8.30 in the evening some police person approached him at his shop in order that he would go to the place of incident for the purpose of weighing muddamal article. It is true that the secret message was received at 8.40 in the evening, and if exact timings are compared, the statement made by this witness in his cross-examination would run counter to the timings of the actual occurrence. However, we have to evaluate the evidence of the witness bearing in mind the forgetfulness on his part. This is apparent on the reading of his evidence. Even then the witness has remained consistent with regard to the role which he had played at the time of the incident. Having gone through the evidence of all the witnesses with regard to the material parts of the prosecution story, we are of the opinion that the evidence is quite natural in respect of what must have actually happened. The discrepancies which have been sought to be pointed out clearly appear to be minor in nature and will hardly tend to disturb the prosecution evidence so as to throw any doubt.
21. Having heard the learned advocate for the accused and the learned A.P.P. for the State, while going through the evidence in its entirety, we do not find the present case to be one requiring any interference in the conviction and sentence rendered by the learned Additional Sessions Judge.
22. Before we proceed to dictate the order, we might also note the final submission of the learned advocate appearing for accused. She has submitted that the accused has been suffering from Asthma and inspite of his young age his ailment is chronic and persisting. While expressing our sympathy, we cannot show any indulgence in the matter of sentence on the ground of ailment from which the accused has been suffering. However, we would like to impress upon the learned A.P.P. to communicate to the concerned jail authority to see that proper and complete medical treatment is made available to the accused. In the result, this appeal fails. The same is accordingly dismissed. (rmr). ........