Allahabad High Court
State Of U.P. vs Shamshad on 13 January, 2020
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 Case :- CRIMINAL APPEAL No. - 722 of 2001 Appellant :- State of U.P. Respondent :- Shamshad Counsel for Appellant :- Govt.Advocate Counsel for Respondent :- R.N.S. Chauhan (Amicus) Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
1. Heard Sri Badrul Hasan, learned counsel for the appellant and perused the record.
2. Needless to mention herein that on behalf of the respondent accused amicus curiae was appointed but he is not present today and keeping in view of age of litigation we proceed to hear the appeal.
3. The present appeal has been filed against the judgment and order dated 10.05.2001, passed by Additional District and Sessions Judge, Court No.4 Sitapur in Sessions Trial (in short ''ST') No.3/1998 (State vs. Shamshad) in Case Crime No.130/97 under Section 8/20 Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''NDPS Act') P.S. Tambor, District Sitapur.
4. Facts of the present case are that, an FIR dated 17.10.1997 (exhibit 2) was lodged under Section 8/20 of N.D.P.S. Act, 1985. After registration of the FIR the investigating officer prepared the site plans (exhibit Ka 4 and Ka 5). Thereafter, the material which was recovered from the respondent was sent for seriologist report. The said report is available on record (exhibit Ka 7).
5. Thereafter, the matter was committed to Sessions, accordingly ST No. 3 of 1998 (State vs. Shamshad Ahmed) arising out of Case Crime No.130 of 1997 under Section 8/20 NDPS Act, P.S. Khambor, District Sitapur, was registered in the court of Additional District and Sessions Judge Court no.4 Sitapur, and charges were framed on 09.12.1999. Thereafter, in order to prove the case the prosecution produced two witnesses namely PW-1/Sant Kumar and PW2/Suresh Kumar Tiwari, and the respondent-accused denied his guilt under Section 313 of the Code Of Criminal Procedure, 1973 ( in short ''Cr.P.C.').
6. Sri Badrul Hasan, learned A.G.A. while challenging the impugned judgment and order dated 10.5.2001, submits that the court below has wrongly interpreted the Section 50 of the N.D.P.S Act, 1985, while passing the judgment of acquittal and in this regard has placed reliance on the judgments given by Hon'ble the Apex Court in the case of State of Punjab vs. Balbir Singh, (1994) 3 SCC 299, and in case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 693.
7. Learned A.G.A. further submitted that the trial Court has also wrongly interpreted the provisions as provided under Section 50 of the N.D.P.S. Act, 1985, holding it as mandatory while passing the impugned judgment under appeal. In this regard he has placed reliance on the judgments given by Hon'ble the Apex Court in the case of State of Punjab vs. Balbir Singh, (1994) 3 SCC 299 and Bahudur Singh vs. State of Haryana (2010) 4 SCC 45 and also Sajan Abraham (supra). Accordingly, learned A.G.A. submitted that the judgment passed by trial court needs consideration and this court may allow the appeal.
8. After hearing learned A.G.A., in order to decide the controversy involved in the present case, we have taken note of Section 50 and 57 of the N.D.P.S. Act, 1985, which reads as under:-
"50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
"57. Report of arrest and seizure.--Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
9. While interpreting the Section 50 of theN.D.P.S. Act, 1985 Hon'ble the Apex Court in the case of Balbir Singh (supra) in paragraph 24 and 25 has stated as under:-
"24. Section 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the Cr.P.C. 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 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 these officers null and void and at the most it may affect the probative value of the 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 ignore 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, a mere non- compliance or failure to strictly comply by itself will not vitiate the prosecution."
25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
10. In the case of Sajan Abraham (supra) in paragraph 10 the Hon'ble Apex Court has held as under:-
"10. In the present case we find the High Court recorded a finding that PW5 informed the appellant about his right as provided under Section 50 of the Act which is established not only by the oral evidence of PWs. 1, 3 and 5, but also by the recitals made in Ext.P1 the seizure mahazar prepared by PW5 and the F.I. Statement given by the respondent (the appellant before us). The submission, however, is communicating orally to the appellant is not a compliance under Section 50. We cannot agree. The aforesaid Constitution Bench upholds oral communication also to be valid under Section 50 of the Act. Hence, this submission has no merit."
11. While interpreting the Section 57 of the N.D.P.S. Act, 1985, Hon'ble the Apex Court in the case of Sajan Abraham (supra) in paragraph 12 has held as under:-
"12. The last submission for the appellant is, there is non- compliance of Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest or seizure. The submission is, this has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court that PW5 has sent copies of FIR and other documents to his superior officer which is not in dispute. Ex.P9 shows that the copies of the FIR along with other records regarding the arrest of appellant and seizure of the contraband articles were sent by PW5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said it has prejudiced the accused. This section is not mandatory in nature. When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. In the present case, we find PW5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of Section 57of the Act."
12. Further in the facts of the present case, while passing the judgment of acquittal dated 10.05.2001, the court below has given the following finding:-
" eSaus bl lEcU/k esa lk{; dk voyksdu fd;k rks ;g ik;k fd VkpZ dh QnZ foospuk drkZ }kjk ugha cuk;h x;h gSA xokgksa us VkpZ dks U;k;ky; ds le{k is'k ugha fd;k gSA vr% VkpZ dh dgkuh lafnX/k izrhr gksrh gSA ,slh fLFkfr esa lk{; ds vHkko esa ;gh ikrk gw¡ fd ekSds ij izdk'k ds vHkko esa vfHk;qDr dks fxj¶rkj fd;k tkuk ;k QnZ dk fy[kk tkuk laHko ugha Fkk vkSj bl rjg vfHk;kstu i{k dh dgkuh lafnX/k gks tkrh gSA lQkbZ i{k dh rjQ ls nwljk rdZ ;g izLrqr fd;k x;k fd izLrqr ekeys esa /kkjk 50 ,u-Mh-ih-,l- ,DV dk vuqikyu ugha gqvk gSA QnZ esa jktif=r vf/kdkjh ds lkeus ryk'kh ysus dh ckr dgh x;h gSA ih0MCyw0&2 lqjs'k dqekj us Hkh jktif=r vf/kdkjh ds lkeus ryk'kh ysus dh ckr dgh gSA vkSj ih0MCyw0&1 us vius c;ku esa ;g dgk gS fd Fkkuk/;{k us vfHk;qDr dks crk;k Fkk fd mldh ryk'kh fdlh jktif=r vf/kdkjh vkSj eftLVsªV ds lkeus yh tk ldrh gS ysfdu ;g ckr mlus U;k;ky; esa igyh ckj dgh gS vkSj /kkjk 161 n-iz-la- ds c;ku esa Hkh ;g ckr mlus ugha dgh gSA vr% /kkjk 50 ,u-Mh-ih-,l- ,DV dk vuqikyu gksuk ugha ik;k tkrk gSA blh lEcU/k esa mudh rjQ ls 1995&bykgkckn fdzeuy fjiskVZ ist 162 fu'kku flag cuke LVsV esa fy;s x;s fu.kZ; ij cy nsrs gq;s dgk x;k fd bl dsl esa dssoy jktif=r vf/kdkjh ds lkeus ryk'kh ysus dh ckr crk;h x;h Fkh vkSj ekuuh; mPp U;k;ky; us bls vkaf'kd vuqikyu ekurs gq;s vfHk;qDr dks nks"k eqDr fd;k x;k FkkA mUgksaus dgk fd ogh ifjfLFkfr bl dsl esa Hkh gSA vr% vfHk;qDr dks nks"kh ugha Bgjk;k tk ldrk gSA मैंने इस संबंध में साक्ष्य का अवलोकन किया तो यह पाया की फरद में, चिपकायी फ आई आर पी डब्लू 2 के बयान में केवल राजपत्रित अधिकारी के सामने तलाशी लेने की बात थानाध्यक्ष द्वारा बताया कहा गया है और पी डब्लू 1 ने धारा 161 द.प्र.स. के बयान में राजपत्रित अधिकारी के सामने तलाशी लेने की बात कहा है और न्यायालय में पहली बार मजिस्ट्रेट और राजपत्रित अधिकारी के सामने दोनों के समक्ष तलाशी लेने की बात बताना कहा जो यह स्पश्ट करता है की न्याययालय में उसने उक्त तथ्य सोच समझकर या वैधानिक राय के बाद बताया है और इस तरह यह स्पश्ट है की इस केस में धारा 50 न.डी.पी.स एक्ट का अनुपालन नहीं हुआ है। अतः अभियुक्त को दोषी करार देने का कोई औचित्य नहीं बनता है।
सफाई पक्ष की तरफ से अगलात के यह प्रस्तुत किया गया की धारा 57 न.डी.पी.स. एक्ट के अंतर्गत यह प्राविधान है की तलाशी लेने वाले अधिकारी तलाशी लेने के ४८ घंटे के अंदर उच्चाधिकारियों को घटना का पूर्ण विवरण भेजेगा मौजूदा केस में कोई सुचना अलग से नहीं भेजी गयी है और सी.ओ. के यहाँ प्रथम सुचना रिपोर्ट 20.10.97 को प्राप्त हुई है जबकि घटना 17.10.1997 की है। अतः रिपोर्ट भी 48 घंटे के बाद भेजी गयी है इसीलिए यह नहीं कहा जा सकता की रिपोर्ट 48 घंटे के अंदर उन्हें प्राप्त हुई है और धारा 57 न.डी.पी.स. एक्ट का अनुपालन न से भी अभियोजन पक्ष का केस संदिग्घ हो जाता है "
13. From the perusal of the record it shows that the story set up by the prosecution is to the effect that on the date of incident i.e. 17.10.1997 at about 11:00 PM in the light of torch the police personnel saw the respondent-accused and after chasing him they caught him and prepared recovery memo in the light of the torch. In this regard the trial court has given categorical finding with respect to the torch, in the light of which the respondent-accused was allegedly seen and caught, that neither any recovery memo was prepared nor any torch was produced in the Court by the prosecution and thereafter observed that in absence of light arrest of the accused and preparing the recovery memo was not possible and thereafter held that the prosecution story is doubtful and improbable.
14. So far as the argument which has been raised by the learned counsel for the appellant is that the trial court has given a categorical finding that in view of the statement given by the PW-1 under Section 161 Cr.P.C., the mandatory compliance of provisions of N.D.P.S. Act, 1985 has not been carried out is concerned, on the basis of provision of N.D.P.S. Act, 1985 and the judgments which have been placed by learned A.G.A. before us in regard to the compliance of Section 50 and 57 of N.D.P.S. Act, 1985, we are of the view that the same is not mandatory. However, if substantive compliance is not carried out then it would vitiate the prosecution case.
15. In regard to the above it would be appropriate to refer the judgment dated 22.12.2017 passed by this Court in Criminal Appeal No.684 of 1997 (Idrish Vs. State of U.P.), the relevant paras are as under:-
"31. In view of above, it is clear that though the non-compliance of Section 57 of the NDPS Act by itself may not be treated mandatory but if its non-compliance has resulted in prejudice to the accused, it will certainly have an adverse effect on the prosecution's case. Therefore, this Court would like to see whether there are other serious infirmities which may point to non-compliance of necessary provisions of law. It may also be pointed out here that the severer the punishment provided under law, stricter compliance of statutory provisions is required to be made & very meticulously.
32. This Court would like to take up next submission of learned counsel for the appellant with regard to sample of contraband substance not being taken on the spot and also there being no conclusive proof from the side of prosecution to the effect that the seal which was used for sealing the sample of contraband substance was sent to the FSL along with sample so as to ensure as to whether the sample was of the same contraband substance which was recovered from the accused on the spot and also whether the remainder of the contraband substance was sealed and the sample seal was produced before the court or not at the time of recording of statement of PW-1 to prove beyond doubt that the contraband substance which were produced before court was the same which had been recovered from the accused-appellant on the spot.
33. In this regard, the argument noted above of the learned counsel for the appellant has enormous force and substance. Record reveals that in the recovery memo no mention has been made of the sample of contraband substance having been taken which finds support from the statement of PW-1, who has also stated in cross-examination that no sample was taken. However, PW-2 (Investigating Officer) has given statement that the sample was taken and the same was sent to the FSL in sealed condition. His statement is in conflict with the statement of PW-1 as well as the contents of recovery memo. The learned court below has lightly explained away the statement of PW-1 saying it to be inadvertent error that he by mistake had stated about no sample being taken. But to this Court, that does not seems to be correct decision because statement of PW-1 finds support from the recovery memo, which also does not contain any reference that the sample was taken of the contraband substance recovered from the accused. It is also on record that the prosecution has failed to produce the seal by which the sample of the contraband substance as well as the remainder was sealed on the spot. The seal which has been found to have been affixed on the sample sent to the FSL is of 'Emblem + Zila Nyayalay Banda Uttar Pradesh' which obviously was not the seal which was affixed on the spot at the time of making recovery of contraband substance from the accused. The prosecution has absolutely failed to establish on record as to how the said seal of 'Emblem + Zila Nyayalay, Banda Uttar Pradesh' came to be affixed on the sample of contraband substance. No link evidence has been provided from the side of prosecution. In this regard, these infirmities may not be taken lightly. They go to the root of the matter. It was primary duty of the prosecution to establish that the contraband substance and its sample was sealed on the spot and were kept at safe place along with sample seal. No register of Malkhana has been produced to prove that when the said material was brought from the place of recovery the same was kept in the Malkhana. It could have been very easily proved by prosecution by placing register of Malkhana before Court and showing entry therein of these articles having been deposited there but all this has not been done, which also creates doubt in the mind as to whether the said articles were actually kept in safe condition or whether at all such kind of recovery had been made from the accused.
34. Most important point relates to the point as to whether, if the statement of PW-2 be believed as regards sending of sample of contraband substance to FSL and if the FSL's report be believed to be correct, as to whether the sample was taken from the contraband substance allegedly recovered from the accused in accordance with the guidelines issued in the form of Standing Instruction No. I/88, by Narcotic Control Bureau, New Delhi which provides as follows:-
"1.5.- Place and time of drawal of sample:- Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search(Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.
1.6.- Quantity of different drugs required in the sample:- The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicates sample also. The seized drugs in the packages/containers should be well mixed to make it homogenous and representative before the sample in duplicates is drawn.
1.7.- Number of samples to be drawn in each seizure case:- (a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container.
(b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hasish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.
(c) Whereafter making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.
(d) If it is 5 or more in case of other drugs and subsistances and 20 or more in case of Ganja and Hasish, one more sample in duplicate may be drawn for such remainder package/containers.
(e) While drawing one sample in duplicate from a particular, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
1.8.- Numbering of packages/containers:- Subject to the detailed procedure of identification of packaes/containers, as indicated in para 1.4 each package/container should be securely sealed and an identification slip pasted/attached on each one of them at such place and in such manner as will avoid easy obliteration of the marks and numbers on the slip. Where more than one sample is drawn, each sample should also be serially numbered and marked as S-1, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial number of the packages and marked as P-1, 2, 3, 4 an so on.
1.9.- It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, panchnama witness and seizing officer and all of them shall be required to put their signature on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the sample.
1.10.- Packing and sealing of samples:- The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the S.No. of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "secret-Drug sample/Test memo" to be sent to the concerned chemical laboratory."
16. Taking into consideration the observations made by this Court in the judgment passed in the case of Indrish (supra) and the evidence on record, we find that the procedure prescribed in the Standing Instruction No.1/88 issued by Narcotic Control Bureau, New Delhi was not followed by the prosecution. It further appears from the letter dated 17.12.1997 of Sessions Judge, Sitapur, addressed to the Chemical Examiner, Mahanagar, Lucknow, that the sample, sealed with the court seal, were sent for examination. Register of Malkhana and official seal of sealing officer were not produced before the Court to establish/prove the prosecution story.
17. In view of the above, it is establish that the prosecution failed to prove that any sample of contraband substance was taken and sealed on the spot and the same sample was sent to the F.S.L. for testing.
18. Keeping in view the infirmities of prosecution, it would not be proper to hold that the prosecution has proved beyond doubt it's case particularly that contraband substance was recovered from the accused and the sample of the same was found to be mixture of Ganjha and Bhang.
19. We further find from the record that the prosecution failed to prove/establish their version based on the light of torch before the trial Court. Before this Court also the learned A.G.A. on the basis of record could not established that findings of trial Court on the facts and story set up by prosecution on the basis of torch is perverse.
20. In the light of the above we are of the view that in the present case there is no substantial compliance of the provisions contained in the N.D.P.S. Act, 1984 read with Standing Instruction No.1/88.
21. Further in the case of Satish Shetty vs. State of Karnataka (2016) 12 SCC 759, Hon'bel the Apex Court has laid down the certain guidelines while entertaining the appeal filed against the judgment of acquittal under Section 378 Cr.P.C. The relevant portion of the said judgment is quoted hereinbelwo:-
"27. The aforesaid case laws do not lay down any proposition of law which may warrant interference with the views of the High Court in the impugned judgment. In the case of Narayanamurthy v. State of Karnataka7 the law was reiterated that if on appreciation of evidence two views are possible then the appellate court should not interfere with the judgment of acquittal in favour of the accused. There is no quarrel with the said proposition. The High Court was aware of such legal principle and keeping the same in mind, it has discussed the evidence for coming to a conclusion that the findings of the trial court leading to acquittal were fully unwarranted and it is not a case where two views are possible. Hence the High Court proceeded to convict the appellant for the offences under Sections 498-A and 306 of the IPC."
22. On the point and issue in the case of Dilip and Another Vs. State of M.P. (2007) 1 SCC 451, Hon'ble Apex Court in paragraph 20 has held as under:-
"20. It is well known that if two views are possible, benefit of doubt should be given to the accused."
23. In the case of Nayankumar Shivappa Waghmare vs. State of Maharastra (2015) 11 SCC 213, Hon'ble Apex Court in paragraph 14 has held as under:-
"14. The learned counsel for the appellant argued before us that since the trial court has acquitted the appellant giving him benefit of reasonable doubt, the High Court erred in law in convicting him as it is settled principle of law that where two views are possible, the finding of the trial court should not be disturbed."
24. Thus in view of the findings given hereinabove and taking into consideration the proposition of the law that if two views are possible and the trial court has taken view in favour of the respondent-accused then the findings of the trial court should not be disturbed, we are of the view that appeal lacks merit and is liable to dismiss. Accordingly, the appeal is dismissed.
25. No order as to costs.
(Saurabh Lavania,J.) (Anil Kumar,J.)
Order Date :- 13.1.2020
A.Dewal