Allahabad High Court
Tilisara Rai Magar vs State Of U.P. on 22 December, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 20.11.2017 Delivered on 22.12.2017 Court No. - 13 Case :- JAIL APPEAL No. - 2739 of 2017 Appellant :- Tilisara Rai Magar Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Seema Pandey A.C. Counsel for Respondent :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal appeal has been directed against the judgment and order dated 3/4/2017 passed by the Additional Sessions Judge (Fast Track Court No. 1) in Special Sessions Trial No. 33 of 2013, State of Uttar Pradesh vs Tilisara Rai Magar arising out of case crime No. 634 of 2013 , police station - Sonoli, District Maharajganj whereby the accused appellant Tilisara Rai Magar has been convicted and awarded punishment under section 8/23 of NDPS Act (to be referred in short as Act here onwards) of 10 years rigorous imprisonment, fine of Rs. 1 lakh and in default of payment of fine additional imprisonment of 6 months.
2. The facts in brief of this case are as follows.
3. On 18/8/2013 Sub Inspector Rajkumar (PW 1) along with Constable Prabhu Dayal, Constable Ramesh Kumar, lady Constable Anita Dhruve, lady Constable Anuradha Singh (PW 3), and lady Constable Anuja were busy in search of people coming from Nepal as usual. Right then, one lady was seen coming on foot, who was stopped by lady Constable Anita Dhruve and was taken inside an enclosure made by a screen. On being enquired as to what she had hidden beneath her clothes, she stated her name to be Tilisara Rai alias Maya and told that she was carrying packets of charas in a Thaili tied to her body beneath her clothes. She was asked whether she would like to give her search before the Gazetted Officer or a Magistrate or would she like to be searched by a lady Constable of the police party. To this offer, she responded by saying that since she had been caught by them, the police party could take her search. Thereafter, she got the Thaili which was tied to her body, untied by Anita Dhruve, in which there were 6 packets of Nepali charas in rectangular shape and 12 packets of flat oval-shaped charas and all these packets were packed in almond coloured polythene. All these packets were weighed by bringing a balance (electrical weighing machine) from the shop of Ashok and the same was found to weigh 5 KG and 120 grams. After taking out the small quantity of charas from each packet, sample was taken. Signatures of two independent witnesses were also obtained. The arrested lady accused, the recovered Nepali charas, recovery memo, sample seal and sample of charas, all were handed over at P.S. for further action under section 8/23 of the Act. On the basis of said recovery memo case crime No. 634 of 2013 under section 8/23 of the Act was registered on 18/8/2013 at 16:10 hours , chick F.I.R. (Exhibit Ka 3 ) of which was prepared by Head Constable Ramanuja Yadav (PW 2) and its entry was also made by him in general diary (Exhibit Ka 4) at report No. 24, time 7.40 hours and the investigation was started by ASI Ram pal (PW 4) who prepared site plan (Exhibit Ka 5) at the instance of the first informant, took into consideration the report of Forensic Science Lab (Exhibit Ka 6) and after recording statements of all the witnesses filed charge sheet (Exhibit Ka 7).
4. Charge was framed against accused appellant on 11/8/2014 under section 8/23 of the Act, to which he pleaded not guilty and claimed to be tried.
5. The prosecution examined Rajkumar as PW 1, Ramanuj Yadav as PW 2, Anuradha Singh as PW 3, Rampal Singh as PW 4 and Hari Prasad as PW 5. Out of the aforesaid witnesses, PW 1 and PW 3 are witnesses of fact; PW 2, PW 4 and PW 5 are formal witnesses.
6. Besides above oral evidence, from the side of prosecution the following documentary evidence has been led. Search memo is Exhibit Ka 1; recovery memo is Exhibit Ka 2; chick F.I.R. is Exhibit Ka 3; GD is Exhibit Ka 4; site plan is Exhibit Ka 5; Forensic Science Lab's report is Exhibit Ka 6; charge- sheet is Exhibit Ka 7; and extract of Malkhana register is Exhibit Ka 8.
7. After the conclusion of the evidence of prosecution, the statement of accused was recorded under section 313 of the Criminal Procedure Code in which the appellant denied any such recovery of illegal Nepali charas to have been made from her; all the statements recorded against her have been stated to be false ; took the plea of wrong implication of her by police and pleaded complete innocence, however she has not examined any witness in defence.
8. Before the learned Court below the arguments made by the learned counsel for the defence were that there were material contradictions in the statements of witnesses of fact. The mandatory provision under section 50 of the Act had not been complied with. PW 2, Constable Ramanuja had not proved chick F.I.R. and GD beyond doubt. PW 4, SI Rampal had not conducted fair investigation. Forged sample was prepared and sent to the Forensic Science Lab and because of that only the said report states that the sample was found to contain charas. No independent witness was examined by prosecution. On the other hand the prosecution had argued that it had successfully proved the case of conviction against the accused appellant. Provision of section 50 of the Act was complied with fully. The report of Forensic Science Lab was stated to be authentic proving that the contraband substance recovered from the accused appellant contained charas
9. After having considered the entire evidence on record the learned Court below has held the accused appellant guilty and has awarded the above-mentioned punishment. It has found the compliance of section 50 of the Act to have been made in letter and spirit by the prosecution and found the recovery of contraband substance (charas) proved from the accused appellant, beyond a shadow of doubt.
10. The learned amicus curiae Ms. Seema Pandey has challenged the impugned judgment on following grounds. The quantity of the sample taken out of total recovered contraband (charas) i.e. 5 KG and 120 grams, has not been disclosed. Each packet was not separately weighed, though it is stated that 6 rectangular packets and 12 over shaped packets of Nepali charas were recovered which weighed 5 KG 120 grams. Though it is stated that some quantity was taken from each packet, but what was that quantity has not been made clear. The compliance of section 50 of the Act was not made in letter and spirit. The letter by which the sample of contraband was sent to Forensic Science Lab has not been brought on record. The quantity which is found to have been received on 26/8/2013 in Forensic Science Lab is shown to be 60.50 gram suspected charas which was sealed in a cloth with seal affixed on it of "C.O. NAT" while in the forwarding letter the quantity of sample of contraband was entered as 100 gram. In the outcome/result in the report signed on 12/9/2013 and dispatched on 20/9/2013 it is recorded that the percentage of resin in the sample of contraband was found to be 35.4% and the sample was found to contain charas. It was argued as to how it (sample of contraband) could be sealed by a seal of C.O. when he was not on the spot, which creates doubt about the whole recovery proceedings. Further it is argued that it has come in evidence that search of the appellant was made by lady Constable Anita but she has not been examined by prosecution and there is no authorisation of Anita by the empowered officer to make search of the appellant. There were 2 independent witnesses namely Nathu Ram and Santosh who had signed on recovery memo, but none of them has been examined.
11. From the side of learned AGA it has been argued that it was the case of sudden recovery of contraband substance from the appellant where compliance of section 50 of Act was not necessary, yet the compliance of the said provision has been fully made because it is evident from the evidence of witnesses of fact who have narrated in support of the entry made in recovery memo that as soon as it was revealed by the appellant that she had charas strapped to her body, she was apprised about her right /option of being searched in presence of Magistrate or a Gazetted Officer but she preferred being searched by the police party, in pursuance of which the lady Constable took search of the accused in a screened enclosure and recovered the alleged contraband substance. It is also stated that the prosecution has been successful in proving that the charas recovered from the accused appellant and its sample and sample seal were kept in safe condition in Malkhana and there was no tampering with the sample found to be charas by the Forensic Science Lab, hence in a foolproof manner the prosecution has been able to establish that the accused appellant was found in possession of illegal charas of above mentioned quantity which she did not have licence to possess. Therefore the learned Court below has rightly convicted her.
12. First of all this Court has to see on the basis of evidence on record as to whether the prosecution has been able to prove beyond reasonable doubt that the provision of section 50 of the Act has been complied with? This is a matter of fact which needs to be evaluated in the light of evidence on record.
13. It is evident from the perusal of the recovery memo that when the police party found the accused/appellant coming on foot from the side of Nepal she was stopped by lady Constable Anita Dhruve and was taken to a screened enclosure for search of her person and when she enquired from her as to what had she concealed beneath her clothes, she apprised her that she had strapped packet of charas kept in a thaili. Immediately thereafter she was asked whether she would like to give search before Gazetted Officer or a Magistrate, to which she replied that as she had already been arrested, she was ready to be searched by the police party itself and pursuant to that the said contraband was recovered from beneath her clothes strapped to her body kept in a thaili. In this regard PW 1 has stated in the examination in chief that while checking was being made as usual, one lady /accused appellant was seen coming on foot from the side of Nepal. When she was stopped by Constable Anita Dhruve for being checked and was taken to a screened enclosure, the appellant divulged that she had concealed charas in a thaili strapped to her body beneath the clothes. Having come to know about it, she was apprised that it was her right that she could get herself searched in presence of a Gazetted Officer or a Magistrate, to which she stated that since she had already been arrested, hence her search could be taken by police party only. At the time of making search, Nathu Ram and Santosh (public witnesses) also reached there, in front of whom consent letter was prepared by PW 1 under his instructions and thumb impression was obtained thereon of the appellant and the signatures of both the public witnesses were also taken thereon and the same was also signed by PW 1. PW 1 indicated that Exhibit Ka 1 was the said consent letter which was so signed by all and contains thumb impression of the appellant. He further stated that in front of them, at his instance, the lady Constable Anita Dhruve took search of the appellant, and in that search 6 packets of Nepali charas in rectangular shape and 12 packets of Nepali oval-shaped charas were recovered, strapped from the stomach of the appellant. Nothing significant has been asked in the cross-examination by the defence counsel from this witness as regards compliance of section 50 of the Act. Similarly the other witness of fact, Anuradha Singh (PW 3) has repeated the same version and has gone on to say in the examination in chief that the appellant was told that she could get herself searched in presence of a Gazetted Officer or Magistrate and that the same was her legal right, but the appellant stated that she was ready to be searched by the police party as she had already been arrested. Thereafter at the instruction of the staff the three lady Constables, which included PW 3 as well, took search. The appellant came out after getting the thaili of cloth detached from her body by lady Constable Anita Dhruve, from which 6 packets of Nepali charas of bigger size and 12 packets of oval-shaped Nepali charas were taken out. From PW 4, Rampal Singh, the investigating officer, the defence has not asked anything regarding non-compliance of section 50 of the Act.
14. From the above it is absolutely clear that PW 1 had clearly apprised the appellant about her legal right that she could be searched in presence of a Magistrate or a Gazetted Officer in case she so desired. It is settled law as laid down in Baldev Singh's case that there was no prescribed format for apprising the accused of his/her legal right of being searched in presence of a Gazetted Officer or a Magistrate. This right could be apprised to him/her orally as well and it was subject matter of fact to be assessed in the light of evidence led by both the sides as to whether the prosecution had been able to establish beyond pale of uncertainty that it had apprised the accused of his/her right to be searched in presence of a gazetted officer or a Magistrate. In the case at hand it is absolutely clear that there was incorporation made in the recovery memo itself that the accused was enquired whether she wanted to be searched in presence of the above two authorities and also from the statement of PW 2 and PW 3 the said fact is absolutely proved that she was also apprised about her right to be searched in presence of the above two authorities but she did not show any inclination and preferred to be searched by the raiding party itself which comprised lady Constables as well, whose services were availed by the raiding party in making search of the female accused appellant. The appellant raised objection that the search was made by Constable Anita Dhruve while she has not been produced in evidence, rather Constable Anuradha Singh has been examined as PW 3 who was not involved in search of the appellant. This is not a valid objection because PW 3 has clearly stated that all the three lady Constables were involved in search of the appellant and that it was Anita Dhruve who had taken the appellant into the screened enclosure and had come out with the contraband substance kept in a thaili strapped to her body by the appellant, which was detached from there in presence of PW 3. In this view of the matter the statement of PW 3 regarding search made by Anita Dhruve of the accused appellant may not be disbelieved only on the ground that Constable Anita Dhruve was not examined. It may also be mentioned here that the written consent (Exhibit Ka 1) has also been proved by the prosecution to have been given by the appellant. This written consent contains the fact that on 18/8/2013 at about 7.45 hours the appellant was coming from Nepal to Bharat. In the meantime when she reached near SSB main check post, Sonoli she was stopped by Constable Anita Dhruve and Constable Anuradha Singh on the said check post for checking her. She was taken for being checked in a shed meant for checking of females. She was asked as to what she had concealed beneath her clothes. She stated that there was charas. Thereafter the said Constable asked her whether she wanted that some Gazetted Officer be called or would she like to be searched by lady Constable in presence of ASI Rajkumar who was present outside. At this She stated that since she had been caught, her search could be taken by the police party. During search 18 packets of charas were recovered from her which were weighed in presence of 2 independent witnesses and were found to be 5.120 kilogram. This was signed by ASI Rajkumar, all the three lady Constables and two witnesses of public. Therefore this document also indicates that she was apprised adequately about her right to be searched in presence of a Gazetted Officer, however her right to be searched in presence of a Magistrate has been proved by PW 1 and PW 3 , both witnesses of fact as mentioned above.
15. The next important point which this Court would like to take up is whether the prosecution has been able to prove successfully that the said contraband substance (charas) was recovered from the appellant. This is also a subject matter of fact to be decided on the basis of evidence on record.
16. PW 1 has stated in examination in chief that a weighing machine was procured from a sweets shop of Ashok along with weights which was electronic balance. Weighing was done by him and the recovered charas was found to be 5 KG and 120 grams. A small quantity from each packet was taken out as sample. The recovered charas and the sample charas were separately sealed and sample seal was prepared. A sealed bundle of cloth was presented in Court in his presence, which bore on it case crime No. 634 of 2013 under section 8/23 of NDPS Act PS Sonali, vs Tilisara Rai and beneath that, names of witnesses and their addresses were written and further beneath that the thumb impression of Tilisara Rai was affixed and beneath that was written in English "Rajkumar". The said bundle was opened by order of Court and from this bundle 6 bigger packets of rectangular shape of Nepali charas and 12 small oval-shaped packets of Nepali charas were taken out, seeing which this witness stated that it was this charas which had been recovered from the appellant. They were exhibited as material Exhibit 1 to 6 and 7 to 18 respectively. In cross-examination this witness has stated that this recovered charas was sealed by him by the seal of SI Ram Pal Yadav, who was accompanying him. After looking the charas he stated that it did not bear any seal. At the time of making checking he was the senior most officer. The search of Anita Dhruve was not taken by anyone. He had not taken search of accused and had also not arrested her. After arrest of the appellant, the recovered substance and the accused both were taken by him to PS and an FIR was lodged. It was wrong to say that the charas was not recovered in his presence from the accused. It was also wrong to say that at the time of occurrence there was a huge crowd. It was also wrong to say that the accused appellant was sitting at a tea shop and from there she was arrested and was falsely implicated.
17. PW 3 has stated that on weighing the charas was found to be 5 KG and 120 grams. Out of it a small quantity was taken out from all the packets of charas and sample was prepared. The signatures of independent witnesses were also taken. The recovered charas, the lady accused, recovery memo, sample of charas and sample seal were sent for further proceedings. Recovery memo is Exhibit Ka 2 which has her signature. Search memo is Exhibit Ka 1 which bears his signature and the signature of the accused and independent witnesses. Appellant was arrested by Constable Anita Dhruve. The recovered contraband substance (charas) was not in front of him. Whose seal was put on the recovered charas she could not tell nor could she tell who all had put their signatures on the seal. She had put her signature at police station and other witnesses had also put their signature. The writing work done at police station was done in the handwriting of A S I, Rajkumar. There is no cross-examination made by defence on the point of whose seal was affixed on the recovered charas and its sample.
18. PW 4, the investigating officer has stated that on 27/9/2013 he received a report from Forensic Science Lab and made its entry in his diary which is Exhibit Ka 6 and in it, the sample was found to be charas. In cross-examination this witness has stated that he had not seen the recovered charas before taking over investigation. When the substance was sent for examination, it was not signed by him. It was signed by the circle officer. The recovered contraband substance bore seal of complainant/first informant of the case. He had not taken statement of independent witnesses. He had taken statement of shopkeepers who were having shops nearby but he could not tell their name. He had not seen the recovered substance after opening it, but on recovery memo charas was written and on that basis he had taken it to be charas. Thereafter report of examination was also received stating that it was charas. When the substance was sent for examination, its entry was made in GD. The substance was not sent by him, it was sent by SO Sahab and Malkhana Incharge through Circle Officer, entry regarding which is found in GD to the effect that SHO had sent the substance to Forensic Science Lab. He had not taken statement of SHO and Malkhana Incharge. The report of Forensic Science Lab had been received before charge- sheet was submitted.
19. PW 5 Hari Prasad has stated that on direction of Court he was submitting before Court the certified copy of the relevant page of Malkhana register which contained entry of contraband substance related to Tilisara Rai Magar, it has reference at serial No. 65 (Exhibit Ka 8) of charas weighing 5 KG 120 gram recovered from accused appellant Tilisara Rai Magar. There is also entry of sample of contraband substance having been deposited in Forensic Science Lab, Ramnagar, Varanasi at Lot No. 1413/2013 which was deposited by Constable Om Prakash Yadav. In cross-examination this witness has stated that he cannot disclose as to in whose handwriting Exhibit Ka 8 has been written, he was stating on the basis of record and that Exhibit Ka 8 was photo copy of the Malkhana register.
20. From the above statements of PW 1 and PW 4 it is apparent that as per PW 1 the seal of sub inspector Ram Pal Yadav was affixed on the recovered contraband, who was accompanying him (PW1), but in cross-examination this witness has admitted after seeing the recovered charas when it was brought before Court at the time of his statement that it did not have any seal, which would mean that the case property (recovered contraband charas) which was alleged by the prosecution to have been sealed on the spot by PW 1, was not found having any seal on it when statement of PW 1 was recorded. The other eye-witness, Anuradha Singh (PW 3) has also stated in cross-examination that the charas recovered from the accused appellant was not produced before her at the time of recording her restatement in Court. She further stated that she could not tell as to whose seal was used while sealing the same. It may also be noticed that the sample seal was not produced before Court nor there appears from evidence on record that before identification of the contraband substance by PW 1, the Court below compared the seal found affixed on the so produced contraband substance before Court with the sample seal so as to eliminate any doubt that the contraband substance produced before it was the same which prosecution alleged to have been recovered from the accused on the spot and sealed there.
21. Here it would be pertinent to rely upon Valsala vs State of Kerala, 1993 supplementary 3 SCC 665 2 in which following is held in paragraph 4 : -
"4. We have seen the report of Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear that it is also noted by both the courts below that the seized article was produced in the Court only on January 14, 1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW 6, the officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to Chemical Examiner. There is a big gap and an important missing link. In the mahazar Exhibit P - 2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW 6 does not say that he continued to keep it in his custody under seal till it was produced in the Court on January 14, 1988. The evidence given by PW 6 Police Sub Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the Court. As a matter of fact he did not produce it in Court. PW 3, A S I is supposed to have produced the same in the Court. But PW 3 does not say anything about this. It is only PW 7 the Circle Inspector who comes into the picture at a later date, who admitted in the cross-examination that the seized article was sent by PW 3 (A S I) to the Court and PW 7 in his cross-examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW 7 that the chemical Examiner's report is marked. PW 7 further admitted that he did not even know when it reached the Court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to chemical Examiner. Though this is purely a question of fact but this is an important link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts cannot convict.
5. In the result the judgment of the learned Sessions Judge as affirmed by the High Court is set aside...... "
22. It is apparent from the above citation that the Apex Court passed an acquittal order when it did not find link evidence as to where the recovered contraband substance was kept safely. Though the facts of the present case are not wholly identical but to a certain extent the benefit of above ruling may go to the accused because it is apparent that in cross-examination PW 1 has clearly admitted that the seal which was used on the spot of SI Ram Pal Yadav was not found affixed on the charas which was produced in Court. PW 3 stated that the said recovered charas was not produced before her when her statement was recorded before Court. PW 4, the investigating officer has stated that recovered charas bore seal of complainant/first informant. These statements would go to show that it cannot be held that the same contraband substance was produced before Court which according to the prosecution's case had been recovered from the accused on the spot. It was essential for the prosecution witnesses to bring on record that the seal which was used at the time of sealing the alleged recovered contraband substance was compared with the seal on the said material when brought before Court for being exhibited and only after the seal was found matching, it could be held that it was the same case property which was recovered from the accused and sealed on the spot. This has not been done and hence it is an important missing link in this case.
23. It may also be highlighted that as per PW 1 seal of sub inspector Ram Pal Yadav was affixed on the contraband substance and on its sample but on the sample which was received in Forensic Science Lab the seal affixed is found of ''C.O. Nat'. It makes it evident that the sample which was sealed allegedly on the spot by using seal of sub inspector Ram Pal Yadav, must have been opened and thereafter the seal of ''C.O. Nat' must have been used. When this happened, where this was done, whether there could be any possibility of tampering, evidence on all this was required to be adduced by prosecution, which would link the contraband substance recovered from the accused to the sample which was sent to FSL, of that contraband substance, to prove that the same was charas. Therefore there is huge missing link which would leave doubt in the mind as to whether the sample sent to the FSL was that of alleged recovered contraband which was recovered from the accused on the spot and consequently the recovery of said contraband would itself become suspect. In this regard reliance may be placed on State of Rajasthan vs Gurmail Singh, (2005) 3 Supreme Court Cases 59, in which in paragraph three following is held: -
"3. We have perused the judgment of the High Court. Apart from the other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the Malkhana on 20/5/1995, the Malkhana register was not produced to prove that it was so kept in Malkhana till it was taken over by PW 6 on 5/6/1995. We further find that no sample of the seal was sent along with the sample to the excise laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.
4. We find no error in the judgment of the High Court.
5. This appeal is, therefore, dismissal."
24. The facts of this case are close to the facts mentioned in above citation. It may also be mentioned here that though in the present case a certified copy of the entry in Malkhana register has been produced as mentioned above but it does not show that there was any entry made with regard to the sample of contraband substance and sample seal having been kept in Malkhana. The only mention made is that of the recovered contraband substance (charas) weighing 5.120 grams to have been kept there. Therefore there is no evidence found on record of keeping the sample of the alleged recovered contraband substance, remainder and sample seal in safe custody in Malkhana, till the sample along with sample seal was sent to the Forensic Science Lab and the remainder contraband substance was produced before Court to prove that on it was found seal of SI Ram Pal Yadav at the time of statement of PW 1 in cross-examination, whose seal was affixed on the spot. This leaves gnawing gap in the prosecution's case to prove that the sample of the same contraband substance was sent for being tested to the Forensic Science Lab which was recovered from the accused on the spot.
25. Another important point which has been raised by the learned counsel for the appellant is that the sample sent to Forensic Science Lab as per the forwarding letter which finds mention in the FSL' s report, had mentioned in it the quantity to be 100 grams of suspected charas but when the same reached in the lab, it was found to be 60.50 gram only, which indicates a huge gap and this would again create doubt in the mind as to whether the sample which was sent to the FSL was the same which FSL is reporting to have received.
26. Another point which was argued by the learned counsel for the appellant related to the percentage of resin in the sample of contraband being found to be 35.4 only, hence the same should not have been reported by the Forensic Science Lab to be charas. In this regard it would be appropriate to refer to the definition of charas as provided under the Act. Section 2 (iii) (a) defines charas as follows -
"(a) charas, that is, the separated resin, in whatever form whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;"
27. The above definition nowhere mentioned that there should be certain percentage of resin in the substance before it could be called charas. Hence there was no need to ascertain percentage of resin in the stuff recovered from the accused appellant. This point was dealt with in State of Himachal Pradesh vs Raman Kumar, 2016 SCC online HP 3612 wherein, in Para 9 following is mentioned: -
"It is worth mentioning that a larger Bench of this Court in State of Himachal Pradesh vs Mehboob Khan 2013 (3) Him. L.R. (FB) 1834 has considered the law laid down by the Division Bench in Sunil's case ( supra) and concluded as under: -
a. After taking into consideration section 293 of the Code of Criminal Procedure, section 45 and 46 of the Indian Evidence Act and the law laid down by the Apex Court as well as various high courts discussed in detail herein above, we conclude that on account of non-consideration of the same by the Division Bench, which has rendered the judgment in Sunil's case, correct law on the expert opinion and the reports assigned by the scientific expert after analysing the Exhibit has not been laid down.
b. We further conclude that on account of non-consideration of various reports of the United Nation's office on Drugs and Crime including Single Convention on Narcotic Drugs, 1961 and to the contrary placing reliance on the textbooks, which basically are on medical jurisprudence, the Division Bench, in Sunil's case failed to assign correct meaning to ''charas' and ''cannabis resin', the necessary constituents of an offence punishable under section 20 of the NDPS Act.
c. In view of detailed discussion hereinabove, the Division Bench while deciding Sunil's case supra has definitely erred in making note of the percentage of tetrahydrocannabinol in three forms of cannabis i.e. Bhang, Ganja and Charas, hence, concluded erroneously that without there being no reference of the resin contents in the reports assigned by the chemical examiners in those cases, the contraband recovered is not proved to be Charas, as in our opinion, the Charas is a resinous mass and the presence of resin in the stuff analysed without there being any evidence qua the nature of the neutral substance, the entire mass has to be taken as Charas.
d. There is no legal requirement of the presence of a particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample is that of Charas. The law laid down by the Division Bench in Sunil's case that ''for want of percentage of tetrahydrocannabinol or resin contents in the samples analysed, the possibility of the stuff recovered from the accused persons being only Bhang i.e. the dried leaves of cannabis plant, possession of which is not an offence, cannot be ruled out', is not a good law nor any such interpretation is legally possible. The percentage of resin content in the stuff analysed is not determinative factor of a small quantity, above smaller quantity and lesser than commercial quantity and the commercial quantity. Rather if in the entire stuff recovered from the accused, resin of cannabis is found present on analysis, whole of the substance is to be taken to determine the quantity i.e. smaller, above the smaller but lesser than commercial and commercial, in terms of Notification below section 2 (vii-a) and (xxiii -a) of the Act.
e. We have discussed the Single Convention on Narcotic Drugs, 1961 in detail herein above and noted that resin becomes cannabis resin only when it is separated from the plant. The separated resin is cannabis resin not only when it is in ''purified' form, but also when in ''crude' form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in ''crude' form is also charas within the meaning of the Convention and the Legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis plant. Once the expert expressed the opinion that after concluding the required tests, he found the resin present in the stuff and as charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample.
f. We are also not in agreement with the findings recorded by the Division Bench in Sunil's case that "mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of charas is not an indicator of the entire stuff analysed to be charas" for the reason that the statute does not insist for the presence of percentage in the stuff of charas and mere presence of tetrahydrocannabinol along with cystolithic plant because of cystolithic hair are present only in the cannabis plant. Even after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants. The resin rather must have been obtained from the cannabis plants may be in ''crude' form or ''purified' form. In common parlance charas is a handmade drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for ''charas' under the Act."
28. The next point that this Court would like to take up is whether the prosecution has made compliance of section 57 of the NDPS Act, which required the police party to send a report of arrest of the accused and seizure of contraband substance made from her, to its higher authorities. There is no evidence on record to the effect that any such report was prepared by the police party making arrest of the accused and seizing the contraband substance from her, hence question does not arise of having sent any such report to the higher authorities. The purpose behind this compliance is that no false plantation of any contraband substance be allowed to be made by keeping a check of such kind. While interpreting the provisions of section 57 Supreme Court has held in State of Punjab vs Balbir Singh, (1994) 3 Supreme Court Cases 299: -
"24. Section 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the Criminal Procedure Code. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for the strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by the officers null and void and at the most it may affect the probative value of evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such Non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignored these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the Courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, mere non-compliance or failure to strictly comply by itself would will not vitiate the prosecution."
29. In the case at hand, looking to the fact that at the stage of arrest of the accused, the arresting party was given consent by the accused to be searched by them instead of being searched before Magistrate or Gazetted Officer, hence in such a situation it was more essential for them to send a report to their higher authorities after arrest of the accused and seizure of contraband substance from her for proving authenticity of the arrest and seizure.
30. It may also be mentioned here that the initial burden of proving the recovery of contraband substance is upon the prosecution. Not doing so has certainty caused prejudice to the accused. Only after the prosecution proves recovery of contraband substance from the accused beyond reasonable doubt, the burden shifts on the accused under section 35 and 54 of NDPS Act to disclose as to how he came in possession of the said contraband substance. In the case at hand, due to the prosecution failing to prove the recovery of contraband substance beyond doubt, no burden can be shifted on the accused to prove as to how he came in possession of the same.
31. Another important discrepancy noticed by this Court is that the quantity which is being alleged to have been sent to the Forensic Science Lab, of the sample of contraband was 100 gram, while it is on record that only 60.50 gram suspected charas was found by the Forensic Science Lab. This is indicative of the fact that there is found a huge difference in the quantity allegedly sent for being tested and the quality which is found by the FSL and there is no explanation given by prosecution of this in the entire evidence brought on record. This would lead to suspicion as to whether the same sample was sent of the contraband which the prosecution alleges to have been sealed on the spot.
32. It is also inexplicable as to why the statements of two independent witnesses in support of the prosecution case were not recorded. Nothing has come on record that these witnesses were not available nor that they had refused to depose before Court for any reason. The prosecution has failed to give any justifiable reason not to examine them to substantiate the recovery of the said contraband from the accused appellant because they would be the best witnesses to prove the recovery of charas from the accused appellant.
33. It would be pertinent to mention here that the provisions of section 55 of the Act are merely directory in nature and not mandatory in character. A reading of section 55 of the Act lays down that "an officer in charge of Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that Police Station and which may be delivered to him, and shall allow any officer who may accompany such articles to the Police Station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with the seal of the officer in charge of the Police Station." The object of incorporating section 55 of the Act was to preserve the sanctity of the case property. Before any inference can be drawn in favour of the appellant, it has to be established on the record that there was officer in charge of the police station other than the investigating officer. It may equally be possible that the ceiling officer may himself be the Incharge of the Police Station and in that eventuality it is not necessary for seizing officer to produce the case property before some other Police Officer. The object of section 55 of the Act is to preserve the sanctity of the case property. It's compliance is meant only to reinforce the link evidence regarding safe custody of the case property and non-compliance thereof ipso facto will not vitiate the trial or conviction. In case there is other cogent and reliable link evidence about safe custody of the case property ruling out any tampering therewith, non-compliance of section 55 will have no adverse bearing on the case of the prosecution. In case samples had been taken and seal affixed by the investigating officer before the article is delivered to the police station, the question of the seal of the officer in charge of the station being affixed to the sample does not arise. That is clear from the latter part of section 55 which directs the Station House Officer to allow any officer who had accompanied the articles to affix his seal to such articles and to take samples from them. Only samples so taken shall be sealed with the seal of the officer in charge of the Police Station. Deposit of the seized property in the Police Malkhana amounts to taking charge of the same by the officer in charge of the police station because Malkhana is working under him. The mandate that officer in charge of police station has to affix his seal on articles and samples cannot be insisted upon if the arrested person and the seized articles are forwarded under clause (b) of sub clause (3) of section 52 of the Act to the empowered officer under section 53 of the Act. Despite all this in case of non-compliance of section 55 the accused will have to show as to how he was prejudiced by SHO not putting his seal. In the State of Punjab vs Leela, (2009) 12 SCC 300, it has observed by the Supreme Court that there was no reason indicated as to how the accused had been prejudiced by PW 1 putting his seal instead of the SHO. The provisions are directory and as there was no doubt that there was non-compliance with the requirement of section 50 but the said section had no application as there was no personal search. It was held that the acquittal of the respondent by the High Court was unsustainable and the conviction made by trial court was restored.
34. In the case at hand from the perusal of evidence on record which has been cited above, it is apparent that the evidence has not come on record that the seal of sub inspector Ram Pal Yadav which was affixed on the spot on the contraband was compared with the sample seal at the time of exhibiting the case property and PW 1 admitted in cross-examination that the said case property was bearing no seal. PW 3, the other eye witness admitted in cross-examination that case property was not produced before her. There is nothing on record to indicate that sample seal was sent to Forensic Science Lab, because PW 5, investigating officer has stated nothing regarding ensuring that which sample seal was sent to FSL. PW 5 has stated that there was no entry made of sample of contraband substance having been deposited in Malkhana register. It is not brought on record as to where the sample seal and sample contraband, after its being sealed on the spot remained till it was sent to Forensic Science Lab.
35. The investigation in this case has been done in most superficial manner despite the fact that there was huge quantity of charas being shown recovered from the accused appellant. It is established principle of law, as has been held in various pronouncements made by the Supreme Court as well as high courts that severer the punishment, more meticulous compliance was required to be made of all the mandatory provisions of law to rule out any possibility of false implication. Above-mentioned procedural flaws could have been easily avoided by the prosecution by paying little more attention. The authorities involved in investigation and arrest of the accused ought to have kept in mind that sections 58 and 59 of the Act make it absolutely clear that the police officers empowered to effect search, make seizure and arrest of the accused, must do so after following the mandate of law. It is not only in cases of vexatiously taken proceedings that a person empowered may be prosecuted but even if any officer carries out the functions mentioned in section 58 without reasonable ground of suspicion even the legislature had made it cognizable offence. Similarly, under section 59, if any officer does not carry out the duty imposed on him by law, he can be prosecuted, under section 59 of the Act. For infringement of the rights of the accused and for failing to carry out the statutory duties, a criminal action is contemplated against the defaulting officer and the criminal law can be set in motion and it has been made a cognizable offence except in cases where a complaint is filed by a private person. Therefore this case seems to be a case in which accountability should be fixed by the competent authorities as to who was responsible for not ensuring that the contraband substance was brought before Court for being exhibited in sealed condition with a sample seal to be compared in Court before the case property was got exhibited, how it transpired from the statement of PW 1 that there was no seal on the case property as stated in cross-examination by him. Why the sample seal was not sent to the Court and kept on record on the file and also why the same was not sent along with sample of case property to the Forensic Science Lab for comparison. Why it was not proved beyond doubt that case property, it sample and the sample seal were deposited in Malkhana in safe condition by producing the original Malkhana register before Court. Only because of these lacunae this case is resulting in acquittal of the accused appellant.
36. With all the above-mentioned link evidence being missing it cannot be held beyond doubt that prosecution has been able to prove that the said amount of charas was recovered from the accused, to possess which she did not have valid license. The learned lower Court has not made proper appreciation of evidence on record and has omitted to notice these irregularities/infirmities in the prosecution evidence. In view of this the conviction judgment of the accused appellant may not be sustained. The accused appellant deserves to be acquitted of the charge. Appeal deserves to be allowed.
37. This appeal is allowed. The accused appellant is held not guilty of charges under section 8/23 (C) of NDPS Act. The accused appellant shall be released in this case forthwith if not detained in any other case, subject to the compliance of provisions of section 437 - A of Cr. P.C.
38. The case property shall be destroyed after period of appeal is over or if the law permits otherwise.
39. Let the lower Court record be returned forthwith along with a copy of the judgment of this appeal for compliance.
40. The learned amicus curiae Ms. Seema Pandey shall be paid an amount of rupees 5000/- for assisting this Court in disposing of this appeal.
Order Date: 22.12.2017 AU/h