Allahabad High Court
Ram Charan Jatav vs State Of U.P. on 30 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 2477
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED In Chamber Case :- CRIMINAL APPEAL No. - 733 of 2013 Appellant :- Ram Charan Jatav Respondent :- State of U.P. Counsel for Appellant :- Meraj Ahmad Khan,Arvind K. Pandey,Jai Prakash Prasad,Manish Kumar Pandey,Mirza Ali Zulfaqar,Vichitra Kumar Chandel Counsel for Respondent :- Govt. Advocate Hon'ble Pradeep Kumar Srivastava,J.
1. Heard Sri Jai Prakash Prasad, Advocate learned counsel for the appellant and Sri Ravi Kant Kushwaha, learned AGA for the State.
2. This criminal appeal has been filed against the impugned judgement dated 16.1.2013 passed by Additional Sessions Judge, Court No.3, Jyotibha Phule Nagar in ST No.256 of 2002, Crime No. 62 of 2002, Police Station Amroha Nagar, District J.P. Nagar, by which the accused-appellant Ram Charan Jatav has been convicted and sentenced under Section 18/20 of NDPS Act for 10 years RI and Rs. 1,00,000/- fine and in default for additional one year imprisonment.
3. The brief prosecution case is that on 1.2.2002 Sub Inspector K.P. Sharma (Incharge SOG), J.P. Nagar with constable Rajendra Singh, constable Jai Prakash, constable Abhimanyu, constable Laxman Singh and constable driver Harender Singh, on the basis of information received from arrested accused Ram Kunwar Verma from Gandhi Murti Tiraha with brown sugar and on his information expecting recovery of brown sugar from the house of Ram Charan Jatav resident of Jai Om Nagar, Amroha went near Madho Cinema. There, In-charge Inspector Ram Bachan Singh, SI Jitendra Singh, constable Gul Haider Jaidi, constable Paramjeet Singh with constable driver Sabban Khan met on their Government jeep. The police party tried to search out some public witness but it was night and no witness could be traced. The police party conducted search of each other to ensure that they are not carrying any illegal narcotics substance. They tried to inform the Gazetted Officer, but, they could not contact him. Along with accused Ram Kunwar, the police party reached the house of Ram Charan Jatav at about 12:30 in the mid night, Accused Ram Kunwar knocked the door and the door was opened by a person. Accused Ram Kunwar said that he is Ram Charan Jatav from whom he purchased brown sugar. On being asked, the person disclosed his name to be Ram Charan Jatav son of Sukhi Singh resident of Jai Om, Police Station Amroha Nagar. On being asked he said that he had given 100 gram brown sugar for selling the same and he is having about half kg of brown sugar in his possession. He was asked whether he would like to be searched before any Gazetted Officer or the Magistrate whereupon he responded that he believed on the police party and permitted search. Instead, he said that he would himself give the brown sugar and he picked out about 500 gm brown sugar packed in a polythene from a black colour bag, which was hanging on the wall. The police personnel opened the same and smelled the same and found it to be brown sugar and the same was taken into possession by the police. In the light of torch, 50 gm of brown sugar was picked out from the recovered brown sugar as sample and was kept in polythene packet. The samples and remaining brown sugar was separately kept in a plastic packet and was sealed in white cloth and samples seal was pasted. Accused Ram Charan Jatav was asked about the person he obtained brown sugar and he informed that he obtained brown sugar from Tika Ram, resident of Jabdi and Rehan resident of Katkui, Amroha. He also told that they are still in possession of more brown sugar which they have kept in their house. He offered that he can show their house. The accused Ram Charan Jatav was informed about the offence he committed and was taken into custody. The recovery memo was prepared in the light of torch and after reading and hearing the same, the signature of the police personnel was obtained and a copy thereof was given to the accused. On the basis of the recovery memo, on 1.2.2002 at 3:30 AM, offence against accused Ram Charan Jatav was registered under the aforesaid section, chik was prepared and entry thereof was made in the GD. The offence was investigated by the police and Investigating Officer M.P. Tyagi recorded the statements of the witnesses, prepared site plan of place of recovery and after obtaining the report from the Forensic Science Laboratory, on the basis of evidence collected by him, he filed a charge sheet against the accused under Section 18/20 of NDPS Act. The charge was framed against the accused who denied the charge and claimed trial.
4. The prosecution examined as many as three witnesses. The statement of accused Ram Charan Jatav was recorded under Section 313 CrPC, who put forward the case of denial and stated that the prosecution case is false and he has been implicated on the basis of enmity and the police has filed a wrong charge sheet against him. He is innocent.
5. After hearing prosecution and defence and perusing the evidence on record, the learned trial court passed the impugned judgement and convicted and sentenced the accused-appellant.
6. Aggrieved by the impugned judgement, the accused appellant filed this appeal and has challenged the impugned judgment on the ground that the mandatory requirement under Sections 50 and 57 of the NDPS Act was not complied with and the recovered contraband was not weighted at the time of recovery. The recovered contraband was alleged to be brown sugar but in chemical examination the same has been reported to be heroine, the recovery memo was not signed by the accused-appellant and the same is false and fabricated. The information of his arrest was not given to his wife although the contraband was recovered from his house. No independent witness or public witness of recovery was present at the time of recovery and the police party did not comply the provision of Section 100 of the Criminal Procedure Code and section 42, 50 and 57 of NDPS Act and no information of arrest of accused was given to superior officer. The conviction of the accused-appellant is against the weight of evidence on record and is against law and the sentence awarded is too severe. Therefore, the appeal is liable to be allowed and the accused-appellant is entitled for acquittal.
7. Learned AGA submits that the accused-appellant was found to be in possession of contraband in commercial quantity and on the basis of evidence on record, the learned trial court has rightly convicted and sentenced the accused-appellant.
8. In view of the rival argument of both the sides, the evidence given by the prosecution is required to be analysed to examine the legality of the impugned judgement.
9. PW-1 SI K.P. Sharma and PW-2 SI Bachchan Singh have been examined as witness of recovery and they have proved the recovery memo and recovered contraband as Ext. Ka-2, Ext. Ka-3, Ext. Ka-4, Ext. Ka-5, Ext. Ka-6, Ext. Ka-8, Ext. Ka-9, Ext. Ka-10, Ext. Ka-11 and Ext. Ka-12. PW-3 SI Madan Pal (Investigating Officer) is the formal witness and he has proved the police papers such as site plan Ext. Ka-16, charge-sheet Ext. Ka-17, FSL report Ext. Ka-18, chik FIR Ext. Ka-18A, GD report Ext. Ka-19.
10. The submission of the learned counsel for the accused-appellant is that despite the presence of Gazetted Officer and the Magistrate near the place of recovery, the police party did not inform the accused about his legal right and just to complete formality, it was written in the memo that the accused said that he believes on police party and does not want to be searched before any superior officer and the police party may take his search. Further submission is that the recovery team did not ensure compliance of Section 50 of NDPS Act, which is mandatory. It has been further submitted that 500 gram of brown sugar was said to have been recovered from the accused-appellant but the same was found to be heroine by Forensic Science Laboratory. Further submission is that the police was well informed that the accused-appellant is in possession of contraband but no effort was made for his search before Gazetted Officer or the Magistrate. The information was neither reduced in writing nor communicated to immediate superior and as such, the requirement of section 42 (2) and 50 was not complied. Within 48 hours from the recovery, the superior officers were not informed and as such Section 57 of NDPS Act was not complied with. The wife of the accused-appellant was also not informed. No signature of the accused-appellant was obtained on recovery memo.
11. From the reading of the statement of the recovery officer PW-1 SI K.P. Sharma and other witness of recovery PW-2 SI Ram Bachan Singh, it is clear that they have proved the version of recovery memo and FIR. The recovery was made in the midnight and despite the efforts made, no public witness could be traced. The law with regards to recovery not supported by public witness or non-availability of public witness has been clarified time and again by the Supreme Court and it has been held that the statement of police witness cannot be discarded only because of his being a police and if his statement is trustworthy, conviction can be based. Thus, in Jarnail Singh v State of Punjab, 2011 CRLJ 1738(SC), Ajmer Singh v State of Haryana, (2010) 3 SCC 746, State of Punjab v Makhan Chand, AIR 2004 SC 306 and Dharam Pal Singh Vs. State of Punjab, 2010(71) ACC 548 (SC), it has been held by the Supreme Court that the obligation to take public witnesses(independent witness) is not absolute. If after making efforts which the court considers in the circumstances of the case reasonable the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer is believable after taking due care and caution in evaluating their evidence.
12. Again, in Gian Chand v State of Haryana, AIR 2013 SC 3395, it was held that mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditable and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed. In view of the above, on facts and circumstances of this case, I do not find any force in the contention of defence regarding non-availability of public witness.
13. I find that during cross-examination PW-1 S.I. K.P. Sharma has stated that there was no recovery from accused Ram Charan Jatav from his cloths and the recovery was made from the bag, which was hanging on the wall. PW-2 SI Ram Bachan Singh has also stated that on the voice raised by Ram Kunwar, accused Ram Charan opened the door and the moment the door was opened, he was caught. It also appears from the reading of the statement of PW-1 and PW-2 that after Ram Charan Jatav was caught, he was informed that Ram Kunwar has said that he used to take brown sugar from him and before personal search the accused Ram Charan Jatav told that he was having brown sugar. The brown sugar was not recovered from personal search but was recovered from the bag, which was hanging on the wall. Prior to that there was no recovery from him. Since, personal search of accused has not been conducted nor there is any evidence to that effect, this case is not covered under section 50 of NDPS Act. Therefore, the plea of appellant regarding non-compliance of section 50 NDPS Act has no force.
14. PW-1 has admitted that he has not written the colour of the contraband so recovered. It has been submitted that the case of prosecution was about recovery of brown sugar and on chemical examination the same was found to be heroine. It makes the recovery doubtful. Because, both brown sugar and heroine are illegal contraband, it makes no difference if the recovered article was mentioned as brown sugar. However, I am of the view that merely because the witness has admitted that the heroine, smack and brown sugar are different kind of narcotic substance, it cannot be said the recovery of contraband was suspected and it also falsified the whole prosecution case.
15. The bag from which the contraband was recovered was 8 to 10 steps away from the main door and the door in between was open and the wife of the accused was in the house. The submission of the learned counsel to the appellant is that no information was given to the wife. I however find that Ext. Ka-4 is on record from the perusal of which it is clear that the information was prepared in writing and a copy thereof was given to the wife of accused.
16. It has been submitted by learned counsel for the appellant that the chik FIR has not been proved by the scriber and it has been proved by PW-2 as secondary witness, which is not admissible in evidence. A close reading of the evidence shows that PW-2 has stated that the chick was prepared by HM Indradeo Shukla who had been posted with him and he had seen him writing and is acquainted with his writing and signature. Therefore, the subission on the admissibility of chick does not appear to be sound.
17. It has been submitted by the learned counsel to the appellant that the signature of the accused was not obtained on the recovery memo and the same is a tainted document. I find that PW-1 has also admitted that after preparation of memo and before supplying the copy thereof to the accused-appellant, his signature was not obtained and the signature was obtained only after providing the copy. The legal procedure is that the recovery memo so prepared should be read over and explained to the accused and his signature should be obtained on the memo. In a case based on recovery of illegal drug, recovery memo forms the basis of prosecution and if same has not been prepared according to legal procedure, it amounts to serious infirmity.
18. it has been also submitted that the recovered drug was not weighted and weight of the recovered drug is essentially required to ascertain whether the recovery was of commercial quantity or otherwise. In the recovery memo it has not been mentioned that the recovered drug was weighted. PW-1 who led the search team has not said in his examination-in-chief even that the recovered drug was weighted whereas PW-2 has stated that the recovered charas was not measured and the quantity has been written by way of guess work. In the cross-examination, PW-1 has said that the recovered drug was weighted by weighing machine which was kept in the police-jeep. No such statement has been given by him to the IO. It appears to be an improvement in his statement to cover the lapse and which is clear from the statement of PW-2 who has categorically stated that the weight of the recovered drug was just a guess work and the same was not weighted.
19. It has been argued that the search has been conducted in violation of the provision of section 42 NDPS Act and the search has been conducted in the midnight without any search warrant. Under Section 41 of the Act, the Magistrate has been authorized to issue warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under the Act, for the search, irrespective of time, of any building conveyance, place. In terms of Section 41(2) of the Act, some sort of relaxation is found with regard to status of the officers being that of gazetted one. Section 42 the NDPS Act is as under:
"42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:"
20. Thus, section 42 provides that the officer of designated rank may enter in a building, conveyance or place and conduct search of a illegal drug etc and seize the same and in case of resistance, may break open the door etc and may also detain or arrest any person who might have committed or suspected to have committed any offence under the Act. The second proviso to section 42(1), however, provides as follows:
"provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief."
Section 42 (2) further provides:
"Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
21. Section 42 is a mandatory provision as held in Krishna Kunwar v State of Rajasthan, (2004) 2 SCC 608 and it has two components. One relates to the basis of information, from personal knowledge and information given by a person and taken down in writing. Secondly, the information must relate to commission of an offence punishable under Chapter IV of the Act and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Section 42 is applicable only when search is made by a police officer or authority concerned. It has been held in Sekhar Suman Verma v Narcotics Control Bureau, (2016) 11 SCC 1 that compliance of section 42 is not necessary where search and seizure has been conducted by a gazetted officer himself acting under section 41.
22. Section 42 is not applicable in case of search of public place. Public place, as mentioned in Explanation to section 43, includes 'public conveyance, hotel, shop or other place intended for use by, or accessible to, the public'. It has been held in Directorate of Revenue v Mohd. Nisar Halia, (2008) 2 SCC 370 that a room in a hotel is a public place but occupied by a guest may not be so in view of the right of privacy available to such person and the authority has restricted power to infringe the right of privacy. In K.S. Puttaswamy v Union of India, (2017) 10 SCC 1, it has been remarked that right to privacy is a fundamental right and is not lost in public places, but attaches to the person.
23. In State of Punjab v Balbir Singh, (1994) 3 SCC 299, referring to the provision of section 42 (1) and (2), the Supreme Court has laid down that the arrest and seizure may be carried out between sunrise and sunset and for that there is no need of warrant. But, if the search is to be conducted in between sunset to sunrise, a warrant is required. But the exception is that if the officer conducting search has reason to believe that a warrant cannot be obtained without affording an opportunity of concealment or escape to the offender and he must record in writing his reason for such belief. The warrant is also not needed if the arrest and search is being affected by a gazetted officer as held in Sekhar Suman Verma v NCB, (2016) 11 SCC 368.
24. The question of effect of non-compliance or delayed compliance of section 42 has been considered by the Supreme Court in several cases. Thus, in Karnail Singh vs. State of Haryana (2009)8 SCC 539 held that total non-compliance requirements of Sub-section 1 and 2 of Section 42 of the Act is impermissible, however, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42 of the Act. From the evidence, it is evident that none of the prosecution witnesses, more particularly PW-1 and PW-2, who played a vital role, spoke regarding compliance of the Section 42(2) of the NDPS Act.
25. The NDPS Act happens to be a Special Act providing severe punishment and on account thereof, there happens to be consistent view that all the requirements, so prescribed thereunder, is to be strictly followed. In case of failure on the part of prosecution, the same is bound to give adverse impact irrespective of nature of evidence having produced in order to substantiate its case. From perusal of the case record, it is apparent that there happens to be serious lapses on the part of the prosecution in complying with the mandatory provisions of the law and that being so, the order impugned would not survive. In this case, none of the police personnel conducting search and arrest have claimed themselves to be a Gazetted Officer. Therefore, the case has to be examined keeping in view whether the recovery officer has recorded reason in writing for his belief that obtaining warrant will afford the accused opportunity to conceal the contraband and to escape in view of proviso to section 42(1) of the NDPS Act and the matter was reported to the superior officer within 72 hours in terms of section 42(2).
26. In State Of Punjab vs. Balbir Singh, 1994 (3) SCC 299, the Supreme Court has made the following observations:
"The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial."
To the similar effect are the observations of this Court in Saiyad Mohd. Saiyad Umar Saiyed vs. The State of Gujarat, (1995) 3 SCC 610.
27. What Section 42(2) requires is that where an officer takes down information in writing under sub-Section (1) he shall send a copy thereof to his immediate officer senior who is Circle Officer. There appears to be no evidence on record that the information taken from accused Ram Kunwar was reduced in writing. It is not disputed that the search was conducted after sunset and before sunrise. Prior to conducting search in such situation, it is provided that the officer conducting search should record in writing the grounds for belief and within 72 hours, the same should be communicated to the immediate superior. The scheme indicates that in event the search has to be made between sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, there is no case that any ground for belief as contemplated by proviso to sub-section (1) of Section 42 or Sub-section (2) of Section 42 was ever recorded by PW-1. He simply incorporated in the recovery memo that there is possibility of concealment and escape. He has also not stated any such facts in his statements that he has conducted any proceedings in regard to compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof has been sent to the senior officials. In the statement, he has said that he did not inform to the Kotwali, Amroha. He has stated that on his information to Kotwali, Amroha Incharge SI Bacan Singh came. Bachan Singh has been examined as PW-2, but he has also not stated about any such communication and moreover he is also equally ranked.
28. In Mohan Lal v State of Rajasthan, 2015 CRLJ 2811 (SC), the court referred to the decision in Karnail Singh v. State of Haryana (2009) 8 SCC 539, wherein the issue emerged for consideration is whether Section 42 of the NDPS Act is mandatory and failure to take down the information in writing and forthwith sending a report to his immediate officer superior would cause prejudice to the accused. The Court was required to reconcile the decisions in Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000)2 SCC 513 and Sajan Abraham v. State of Kerala (2001) 6 SCC 692. The Constitution Bench explaining the position opined that Abdul Rashid (supra) did not require about literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham (supra) held that requirement of Section 42(1) and 42(2) need not be fulfilled at all. The larger Bench summarized the effect of two decisions which the Court reproduced as below:
"(a) The officer on receiving the information of the nature referred to in sub-section (1) of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Section 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
29. Earlier, in Rajinder Singh v. State of Haryana (2011) 8 SCC 130, placing reliance on the Constitution Bench, it has been opined that total non- compliance with the provisions of sub-sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with satisfactory explanation for the delay can, however, be countenanced.
30. Learned counsel for the appellant has also contended that there has been non-compliance of Section 57 of the NDPS Act, which reads as follows:
"Report of arrest and seizure - Whenever any person makes any arrest or seizure under this Act, he shall, within fortyeight 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."
31. I find that in Sajan Abraham (supra), placing reliance on State of Punjab v. Balbir Singh (1994)3 SCC 299, it has been held that Section 57 is not mandatory in nature and when substantial compliance is made, it would not vitiate the prosecution case. In Kishan Chand v. State of Haryana (2013) 2 SCC 502, the Court while dealing with the compliance of Sections 42, 50 and 57, has opined thus:
"When there is total and definite non- compliance with such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance."
32. It is pertinent to mention that the purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance with these provisions in their entirety, the court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevance.
33. In a crime based on recovery of illegal drugs for which stringent provision in terms of procedure and punishment has been provided in the NDPS Act, it is necessary to ensure free and fair investigation without any objectionable features and infirmities. Presumption against innocence based on possession of illegal drug and shifting the burden of proof on accused requires fair and untainted investigation without any glimpse of malice, mischief, doubt, falsity, fabrication and prejudice to the accused. Fairness and purity in investigation is so necessary for criminal justice administration that without it fair trial will become a mockery and will result in miscarriage of justice.
34. From the above discussion, it is clear that the search team did not comply with the mandatory provision of section 42 of NDPS Act; the recovered drug was not weighted and on the basis of guess work the quantity was mentioned; the recovery was made from the house of appellant in the midnight without obtaining warrant from the magistrate and without recording grounds of belief as required under the Proviso of section 42 and the legal procedure in preparing the recovery memo was not followed and the signature of the accused was not obtained after preparing the same. The learned trial court has ignored the shortcomings and lapse in the prosecution version, recovery process and evidence and the finding of the learned trial court is perverse and illegal. The impugned judgement convicting and sentencing the accused is not sustainable under law and is liable to be set aside.
35. The appeal is therefore allowed. The impugned judgement dated 16.1.2013 passed by Additional Sessions Judge, Court no.3, in Sessions Trial No. 256 of 2002 is set aside and accused-appellant Ram Charan Jatav is acquitted from the charge under sections 18/20 of the NDPS Act. If he is in jail, he be released forthwith.
36. Office is directed to transmit the lower court record along with copy of this judgement to the learned court below for information and necessary compliance.
Order Date :- 30.04.2020 Mini (Justice Pradeep Kumar Srivastava)