Allahabad High Court
Shakti Dom vs State Of U.P. on 12 October, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 53 Case :- JAIL APPEAL No. - 1087 of 2017 Appellant :- Shakti Dom Respondent :- State Of U.P. Counsel for Appellant :- From Jail, A.C. Rashmi Srivastav Counsel for Respondent :- A.G.A. And Case :- JAIL APPEAL No. - 1093 of 2017 Appellant :- Vikas Ram Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Rashmi Srivastav A.C. Counsel for Respondent :- A.G.A. And Case :- JAIL APPEAL No. - 1091 of 2017 Appellant :- Devendra Ram Respondent :- State Of U.P. Counsel for Appellant :- From Jail, Rashmi Srivastav A.C. Counsel for Respondent :- A.G.A. And Case :- JAIL APPEAL No. - 6908 of 2017 Appellant :- Basant Dom Respondent :- State Of U.P. Counsel for Appellant :- From Jail,(A.C.) Kalpna Singh Counsel for Respondent :- A.G.A. Hon'ble J.J. Munir,J.
1. These are four jail appeals arise out of a common judgment and order of Sri Rakesh Kumar Tripathi, the then Additional District and Sessions Judge, Court no.7, Deoria, dated 08.11.2016 passed in Criminal Case no.8 of 2013, State of U.P. vs. Basant Dom (arising out of Case Crime no.300 of 2012), under Section 8/21, 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'), Police Station G.R.P. Bhatani, District Deoria; Criminal Case no.9 of 2013, State of U.P. vs. Devendra Ram (arising out of Case Crime no.299 of 2012), under Section 8/21, 22 of the Act, Police Station G.R.P. Bhatani, District Deoria; Criminal Case no.10 of 2013, State of U.P. vs. Vikas Ram (arising out of Case Crime no.301 of 2012), under Section 8/21, 22 of the Act, Police Station G.R.P. Bhatani, District Deoria; and, Criminal Case no.11 of 2013, State of U.P. vs. Shakti Dom (arising out of Case Crime no.302 of 2012), under Section 8/21, 22 of the Act, Police Station G.R.P. Bhatani, District Deoria.
2. By the aforesaid judgment and order, each of the four appellants, have been convicted by the learned Trial Judge, of commission of an offence punishable under Section 8/22 of the Act, holding the charges to be proved beyond reasonable doubt, and, for the said offence the appellants, Devendra Ram, Basant Dom and Vikas Ram have been ordered to suffer 10 years Rigorous Imprisonment, besides being ordered to pay a fine of Rs. One lakh each. In default of payment of fine, the concerned appellant has been ordered to suffer one year R.I. Appellant, Shakti Dom has been sentenced to eight years Rigorous Imprisonment, besides being ordered to pay a fine of Rs.80,000/-. In the event of default, the appellant last mentioned, has been ordered to suffer a year's R.I.
3. All the four cases arise out of a common occurrence dated 29.12.2012 based on an alleged recovery of Alprazolam powder, exceeding the commercial quantity, from each of the four appellants. On the basis of the recovery, a common recovery memo was drawn up relating to all the four appellants, leading to registration of four separate crimes, against each of the appellants but founded on a common Chik FIR dated 29.12.2012, culled out from the common search-cum-recovery memo last mentioned. It is needless to say, that relating to each of four crime numbers separately assigned, requisite G.D. entries were made. In the said case crimes, though a common investigation was undertaken, four charge sheets have come to be filed, each giving rise to a separate criminal case on the file of the learned Additional Sessions Judge, as detailed hereinbefore.
4. The four cases aforesaid were consolidated vide order dated 13.03.2014, and, tried together by the learned Additional Sessions Judge, who entered a common judgment and order dated 08.11.2016, convicting and sentencing each of the accused appellants, in the manner hereinbefore indicated. The judgment and order dated 05.11.2016 is hereinafter referred to as the 'impugned judgment and order'.
5. Aggrieved by the impugned judgment and order, each of the four appellants filed four separate jail appeals, as defective appeals with some delay, that in due course, came to be condoned. These appeals have now been numbered as Jail Appeal No.1087 of 2017, Shakti Dom vs. State of U.P., Jail Appeal No.1093 of 2017, Vikas Ram vs. State of U.P., Jail Appeal No.1091 of 2017, Devendra Ram vs. State of U.P., and Jail Appeal No.6908 of 2017, Basant Dom vs. State of U.P. All these appeals not only arise from a common judgment, but trial too has proceeded on the basis of common evidence, recorded after consolidation. The appeals, therefore, have been heard together, with Jail Appeal No.1087 of 2017, Shakti Dom vs. State of U.P. being treated as the leading appeal, on the basis of a single paper book, filed in the said appeal.
6. Heard Ms. Rashmi Srivastav, learned Amicus Curiae on behalf of appellants and Sri Sanjay Sharma, learned Additional Government Advocate on behalf of the State, and, perused the record.
7. The facts giving rise to the present appeals are that on 29.12.2012, a certain Sub-Inspector of Police, Ashwani Kumar Rai, then In-charge, Special Operations Group, Police Station G.R.P., Gorakhpur along with his companion policemen, were on the look out for suspects at Platform no.4/5 of Bhatani Junction Railway Station. There he met the then Station Officer, Police Station G.R.P.-I, B.N. Singh along with his companions, and, the two police teams were discussing matters concerning crime and criminals. The police teams were moving to the eastern end of the Platform, and, as they reached close to the lavatory, they noticed four men standing to the south of the lavatory, who were engaged in a conversation, amongst themselves. Noticing the police party, the four men took to their heels, heading eastwards that aroused the police party's suspicion. The police party chased the four men and apprehended them near the Railway Station Board. It is recorded that those apprehended when asked to disclose their identity, revealed their names as Devendra Ram son of late Akhilesh Ram, resident of Pashchim Pakadiar near Jinn Baba, Police Station Barai, District Kushi Nagar; Basant Dom son of Sri Ram, resident of Village Kharpokhara Pakad, P.S. Bagaha no.1, District Pashchim Champaran, Betia, Bihar; Vikas Ram son of Jawahir, resident of Navaka Tola Banchauri, P.S. Bagaha no.1, District West Champaran, District Betia, Bihar; and, Shakti Dom son of Ashok, resident of Barafkhana, next to Pappu Kabadi, Police Station Rajkot, District Gorakhpur.
8. Upon inquiring from the apprehended persons, the cause for their act in taking to their heels, all four of them said that they had Alprazolam powder in heavy quantity, with them. They confessed that they employ this substance to put unwary passengers on the Platform, and, on Board trains to sleep, after befriending them and mixing it up with some edibles, all for the purpose of stealing their valuables and money. It is recorded in the arrest-cum-recovery memo, that the police upon coming to know that the apprehended persons had Alprazolam powder in heavy quantity, informed them of their right to be searched before a Gazetted Officer or a Magistrate, who could be called there for the purpose of their search. It is recorded that each of the four apprehended persons, with folded hands, acknowledging their guilt and said, that once they had confessed and told the police that they had Alprazolam powder, they had full faith in them, and, that the police may search them. They did not want any Gazetted Officer, or Magistrate to be called in, for the purpose.
9. It is recorded that for the purpose of the search, a memo of consent to be searched by the police was drawn up, and, all in the police party did a mutual search of themselves, to ascertain that none of them was carrying anything incriminating, whereafter the person of all the four apprehended was searched.
10. The search of person of Devendra Ram led to recovery of Alprazolam powder, in heavy quantity, from the righthand side pocket, wrapped in polythene, with an internal wrapping in a newspaper. From the righthand side pocket of his pant a sum of Rs.400/- were recovered. The search of Basant led to recovery of Alprazolam powder, in heavy quantity, also from the righthand side pocket, and, wrapped up in a newspaper, placed inside a polythene bag. Also, from the righthand side pocket of his jacket, a sum of Rs.400/- were recovered. Thereafter, on a search of the person of Vikas Ram, from the lefthand side pocket of his jacket again wrapped in a newspaper, and, placed in a polythene bag, a heavy quantity of Alprazolam powder was recovered, whereas from the lefthand side pocket of his pant, Rs.300/- in cash were recovered. The fourth man to be searched was Shakti, whose search of person led to the recovery of Alprazolam powder, from the lefthand side pocket of his jacket, in heavy quantity, and, to the recovery of a sum of Rs.300/-, in cash, from the lefthand side pocket of his pant.
11. A weighing scale and weights were secured by the police from the nearby market, for the purpose of weighing the recovered Alprazolam powder. The person who lent his scale and weights, did so on condition of maintaining anonymity. It is recorded that on spot, the recovered Alprazolam powder from each of the appellants was weighed, and, it was found to be a recovery 145 grams from Devendra Ram, 130 grams from Basant Dom, 115 grams, from Vikas Ram and 80 grams from Shakti Dom. The recovery memo further indicates that recovered Alprazolam powder was retained in the original wrapping, and, sealed after being placed in a white cloth. Specimens of the seals on each of the four packets were retained. The persons arrested were informed of the offence against them, being one under Section 8/21/22 of the Act, and, disclosing the cause of arrest, they were taken into custody at 2.00 p.m.
12. It is further recorded that on inquiry from the arrested persons, it was revealed that all the four were into the crime of poisoning and stealing from passengers on Railway trains, the proceeds of which they would divide amongst themselves. The money recovered was also proceeds of one of such offence, committed on 02.03.2012 on the Lucknow - Barauni Train, proceeding from Barauni to Lucknow, where the victim was a passenger on Board train, travelling in a general bogie. It was confessed, that the four of them targeted him, and, when the train halted at Bhatani Station, they offered him a cup of tea laced with stupefying powder. As the victim went unconscious, they stole his bag that had nothing except his clothes, which they threw out of the train but the man had a wad of currency of 100 rupee notes, besides some smaller denomination of 10 and 20 rupee notes, of which they relieved him. It was confessed that the money which they had on them, are proceeds of the said theft. It was recorded, that in connection with the said theft, Case Crime no.252 of 2012, under Sections 328, 379 IPC was registered at Police Station G.R.P. Bhatani, which was confessed to by the arrested four. It is recorded that the four of them were taken into custody in connection with the said crime, also.
13. The memo records that during proceedings of recovery and arrest, a multitude had gathered. The police requested some of them to witness the recovery and the arrest, but everyone refused, citing the botheration of having to suffer involvement in court proceedings.
14. On the basis of the aforesaid arrest-cum-recovery memo, a First Information Report was registered at 4.30 p.m. on 29.12.2012, registering four separate crime numbers, on a common chik against the four appellants, already detailed.
15. Charges against the appellants were framed in each of the four cases under Sections 21/22 of the Act, on different dates, by the Trial Judge. In case of the appellant, Shakti Dom the charge was framed on 17.01.2014, and, likewise in the case of the appellant Vikas Ram the charge was framed on 17.01.2014, also under Section 21/22 of the Act for the violation of Section 8 of the Act. In case of the appellant, Basant Dom charge was framed on 07.11.2013 under Sections 21/22 of the Act, for the violation of Section 8 of the Act. Charge against the appellant, Devendra Ram was framed on 07.11.2013 under Sections 21/22 of the Act, for the violation of Section 8 of the Act. In the case of each of the appellants, the appellants denied the charge framed, and, claimed trial.
16. The prosecution have examined the following witnesses:
(i) Ashwani Kumar Rai, first informant and Sub-Inspector of Police, PW-1
(ii) Ashok Kumar, Sub-Inspector of Police, PW-2
(iii) Ashok Kumar Jaiswal, Head Constable, PW-3
(iv) Ravindra Pratap Singh, PW-4
(v) Jai Shankar Rai, Constable, PW-5
17. The following documentary evidence was also filed on behalf of the prosecution:
(i) Memo of Recovery, Ex. Ka-1
(ii) Memo of Consent and arrest papers relating to the four appellants, Exs. Ka-2 to Ka-5
(iii) Chik FIR, Ex. Ka-6
(iv) Extract of GD, Ex. Ka-7
(v) Site plan, Ex. Ka-8
(vi) Charge sheet against Devendra Ram, Ex. Ka-9
(vii) Charge sheet against Basant Dom, Ex. Ka-10
(viii) Charge sheet against Vikas Ram, Ex. Ka-11
(ix) Charge sheet against Shakti Dom, Ex. Ka-12
(x) Four memoranda from Circle Officer (Railway), Gorakhpur addressed to State Forensic Laboratory, Varanasi, all dated 24.01.2013, sent by hand through Constable Jai Shankar Rai, along with the respective sealed gross recovery of Alprazolam powder, together with the specimen of the seal, relating to each of the appellants, Exs. Ka-13 to Ka-16.
(xi) Reports from the Joint Director, State Forensic Science Laboratory, Ram Nagar, Varanasi, all dated 06.03.2013 numbering four, relating to the four appellants, Exs. Ka-17 to Ka-20.
18. Material Exhibits:
(i) Four packets of seized Alprazolam powder with seal intact, produced before the Trial Court that found the seal intact, recovered from each of the four appellants, that was opened under orders of the Trial Court, which the court remarked to be Alprazolam powder, and, was proved by PW-1, the informant, marked Ex. 1 to Ex. 4.
19. Ashwani Kumar Rai, the first informant has been examined on behalf of the prosecution, as PW-1. He stated in his examination-in-chief that the occurrence is one dated 29.12.2012, at 2 O' clock. He was then posted as the In-charge, Special Operations Group, G.R.P. Department, Gorakhpur. He has broadly stood by the prosecution case as set out in the recovery memo, on the basis of which the First Information Report, giving rise to the present occurrence has been registered. He proved the recovery memo, on the basis of which the First Information Report has been registered, stating that it was the same document that was scribed by Ashok Kumar, on his dictation. He identified his signatures on the Recovery Memo-cum- First Information Report, and, those of the scribe. The document was exhibited as Ex. Ka-1. Each of the four packets recovered from the appellants, relating to the respective crime cases, and, the criminal cases registered, were opened before the Trial Court, under its orders. Each of the four packets were identified with his signatures by the witness, leading to the four recovered packets from the appellants, being marked as Exs. Nos.1, 2, 3 & 4, relating to Case Crime nos.299/2012, 300/2012, 301/2012 and 302/2012 respectively, all under Sections 8/21/22 of the Act, Police Station Bhatani, District Deoria. The witness was cross-examined separately, on behalf of Devendra Ram, Basant Dom and on behalf of Vikas Ram and Shakti Dom together, in that order.
20. Sub-Inspector Ashok Kumar was examined on behalf of the prosecution as PW-2. In his examination-in-chief he has supported the prosecution case. He has been cross-examined on behalf of each of the appellants together, except Basant Dom, on whose behalf he was separately cross-examined.
21. Head Constable No.972130763, Ashok Kumar Jaiswal, posted at Police Station G.R.P. Bhatani, District Deoria, was examined as PW-3 on 14.04.2015. In his examination-in-chief, he proved the Chik FIR which he stated to be written in his hand, on the basis of the recovery memo, Ex. Ka-1. The Chik FIR was marked Ex. Ka-6, on the basis of his deposition. He is more or less a formal witness who has proved the registration of the case in the G.D., and, the drawing up of the Chik FIR. He has been cross-examined on behalf of Devendra Ram, Basant Dom, and, on behalf of Shakti Dom and Vikas Ram together, in that order.
22. Ravinder Pratap Singh, Sub-Inspector, P.N. No.802091116, who is the Investigating Officer of the Case, was examined as PW-4 on behalf of the prosecution on 20.01.2016. He was cross-examined on 31.05.2016.
23. Constable No.862761851, Jai Shankar Rai, posted at Police Station G.R.P. Deoria, was examined by the prosecution as PW-5. He was posted at the relevant time, as a Moharrir at the Police Station, and, is the official hand, who was involved in taking out the four packets of seized narcotic powder from the Station Strong Room, as he has deposed in his examination-in-chief, acting on a report of the Investigating Officer, and, took it to the C.O. (Railway), Gorakhpur, where he got a docket of each of them, made. He is the official hand who has conveyed each of the four dockets, to and from, the C.O. (Railway), Gorakhpur. He came back to the Police Station, G.R.P. Bhatani, and, left that day for Varanasi, recording his departure in the G.D., arriving at destination on 28.01.2013, where he has handed over the dockets to the Forensic Science Laboratory, Ram Nagar, Varanasi, together with the specimen seals, for each of the four dockets, where it was received as lot nos.161, 162, 163 and 174, all dated 28.01.2013, with an endorsement made on the dockets. He has stated that he returned on 29.01.2013 to Police Station G.R.P. Bhatani, and, filed four separate reports of submission of the recovered narcotics, relating to each of the appellants with the F.S.L. at Varanasi. He was subjected to a searching cross-examination on behalf of the accused, by their respective defence counsel, that is recorded together as part of a single deposition.
24. At the conclusion of the prosecution evidence, the statements of each of the four appellants were recorded under Section 313 Cr.P.C., all on 28.07.2016. Each of the four appellants in their respective statements generally denied the circumstances of the prosecution case, appearing against them. It would, however, be of particular relevance to refer, to what all the four appellants have said in defence to two circumstances for the prosecution, put to them, through questions nos.5 and 7. As an exemplar of identically worded questions, put to the appellants, in the circumstances appearing against them, in all four cases, it would suffice to refer to the two relevant questions and the relative answers, appearing in the statement under Section 313 Cr.P.C., in Criminal Case no.11 of 2013, State vs. Shakt Dom. It relates to the appellant, Shakti Dom, and, the relevant part of the statement, presented in the form of questions nos.5 and 7, together with the answer/ statement of the appellant, Shakti Dom, is being reproduced below:
"iz'u ua0&5 lk{; esa vk;k gS fd vkids ikl ls cjken dh x;h oLrq fof/k foKku iz;ksx'kkyk esa tkap ds i'pkr ,Yizkstksyke ik;k FkkA bl lEcU/k esa D;k dguk gS\ mRrj & xyr gSA esjs ikl ls dqN Hkh cjken ugha gqvk gSA iz'u ua0&7 D;k vkidks dqN vkSj dguk gS\ mRrj & gkaA eSa xksj[kiqj esa izkbosV lafcnk ij lQkbZ deZpkjh gwWA ckj&ckj ,l-vks-th- ge yksxksa dks fcuk etnwjh fn;s gq, Vk;ysV dh lQkbZ djkuk pkgrs Fks] budkj djus ij xksj[kiqj ls nsofj;k ys vkdj QthZ eqdnek cukdj pkyku dj fn;sA"
25. Ms. Rashmi Srivastava, learned Amicus Curiae appearing on behalf of the appellants has assailed the conviction and sentences in each of the four appeals, recorded by the impugned judgment and order on specific grounds, which for facility of appreciation, may be considered in the manner hereinafter set out.
The violation of mandatory provisions of Section 50(1) of the Act on account of failure of the prosecution to individually inform each of the appellant of his right to be searched before a Gazetted Officer or an Executive Magistrate.
26. The learned Amicus Curiae appearing for the appellants submits, that a joint communication of the right, under Section 50(1) of the Act, vitiates the convictions made, and, sentences awarded. Elaborating her submissions about requirement of the law, which she submits, has been observed in breach, it is argued that in order to register compliance with the provisions of Section 50(1) of the Act, there has to be an individual communication to each of the appellant, about his right to be searched before a Gazetted Officer or a Magistrate, provided under Section 50(1) of the Act. A joint or common communication, does not subserve the requirements of the statute. In support of the proposition, that Section 50(1) of the Act postulates communication individually, to each appellant, of his right to be searched before a Gazetted Officer or a Magistrate, the learned Amicus Curiae has placed reliance on the decision of the Hon'ble Supreme Court in State of Rajasthan vs. Parmanand and another, (2014) 5 SCC 345. The said decision of their Lordships does lay down this principle, but before the said submission, and, the authority in support canvassed on behalf of the appellants is considered, it would be necessary to do a survey of the relevant evidence appearing against the appellants, on the foot of which this submission is advanced.
27. The most important evidence in this regard is the recovery memo, Ex. Ka-1, that is the foundation, even otherwise, of the entire prosecution case. It may be clarified here, that the recovery memo clearly acknowledges the fact, that it is a case where each of the four appellants, before being searched disclosed that they had in their possession, Alprazolam powder, which clearly afforded prior information to the police party, that provisions of Section 50 of the Act would come into play. They also knew, that they intended to search, the person of each of the appellants, as distinguished from their luggage or belongings, that would further make it imperative to adhere to the strict mandate of Section 50 of the Act. The police party were forewarned, and, therefore, forearmed. And, this being so, they did inform the appellants of their right to be searched before a Gazetted Officer or a Magistrate. The manner in which they informed the appellants - each of them - of that right, can be best assessed from the words employed to inform the appellants of that right and reduced to writing in the recovery memo, Ex. Ka-1. The relevant part of the recovery memo reads thus:
"idM+s x;s O;fDr;ksa }kjk crk;s tkus ij fd ,Yizktksyku dk u'khyk ikmMj Hkkjh ek=k esa gS rks mudks vf/kdkj ,oa drZO; crkdj dgk x;k fd rqe yksxks ds ikl ls Hkkjh ek=k esa u'khyk ,Yizktksyku dk ikmMj gS rks rqe yksxks dh tek ryk'kh ds fy, ;gha ij jktif=r vf/kdkjh ;k eftLVªsV dks cqyk;k tk, rks idM+s x;s pkjks O;fDr;ksa us gkFk tksM+rs gq, viuh xyrh dh ekQh ekaxrs gq, dgs fd tc ge yksxks us vki yksxks dks crk gh fn;k gS fd ge yksxks ds ikl ,Yizktksyku dk u'khyk ikmMj gS vki yksxks ij ge yksxks dks iwjk fo'okl gSA vki yksx gh ge yksxksa dh ryk'kh ys yhft,A fdlh eftLVªªsV ;k jktif=r vf/kdkjh dks cqykus dh vko';drk ugha gSA bl tkek ryk'kh QnZ jtkeanh rS;kj dj ge iqfyl okys vkil esa ,d nwljs dh ryk'kh fu;ekuqlkj ys nsdj bRehuku fd;s fd fdlh ds ikl dksbZ voS/k oLrq ugha gS rRi'pkr~ idM+s x;s O;fDr;ksa dh Øe'k% fu;ekuqlkj tkek ryk'kh yh xbZA"
28. The mandatory character, and, the requirement to strictly comply with, not only the letter but the spirit of Section 50 of the Act, have been laid down in no uncertain terms, by the Constitution Bench decision of the Hon'ble Supreme Court in State of Punjab vs. Baldev Singh, (1999) 6 SCC 172. The rigour of the rule as to compliance of the mandate of Section 50(1) of the Act, has been strengthened, and, underlined by another Constitution Bench decision of their Lordship of the Supreme Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609, where in order to fathom the principle laid down by their Lordships, it would be apposite to refer to the question that fell for their Lordships' consideration in Vijaysinh (supra). The question is set out in the opening part of their Lordships' judgment, and, reads thus:
"1. The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to `inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?"
29. The question has been answered, in the following words, in the decision of their Lordships, under reference:
"29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
30. As observed in Re Presidential Poll, in re (1974) 2 SCC 33: (SCC p.49, para 13) "13. .... It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.'"
31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.
32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."
30. The aforesaid decisions of their Lordships in State of Punjab vs. Baldev Singh (supra) and Vijaysinh (supra) lay down in no uncertain terms that the principle of substantial compliance with Section 50 of the Act is not at all the law, but the law mandates strict compliance with the terms of the statute. It is quite another matter that the question whether there is strict compliance done, is an issue to be judged, on the basis of evidence in each case, as held in Vijaysinh (supra). But, about the law the two decisions aforesaid, have eradicated all doubt. Expositing what strict compliance with Section 50(1) of the Act would entail for the investigating agency, their Lordships in State of Rajasthan vs. Parmanand (supra) have evolved a clear rule, depended upon by the learned Amicus Curiae, that mandates individual notice of the right to be searched before a Gazetted Officer or a Magistrate, and, not a joint communication to all the accused - wherever they are more than one, apprehended in the same transaction. This crystallization of the rule is expressed, thus, by their Lordships in State of Rajasthan vs. Parmanand (supra):
"17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma vs. State of Maharashtra, (2001) 1 Crimes 586 (Bom) meets with our approval."
31. Now, turning to the manner of communication to the appellants about their right under Section 50(1) of the Act, a perusal of the relevant part of the recovery memo above extracted shows, that the communication was parole. It was not in writing. The consent to be searched by the Raiding Party/ Police was no doubt taken in writing, and, individually from each of the appellants, through memoranda of consent, all dated 29.12.2012. The Court would revert to the worth of these letters of consent a little later, as these relate to an allied issue that is relevant, but not the one under consideration. The precise words employed to convey to each of the appellants, that the have a right to be searched before a Gazetted Officer or an Executive Magistrate, it is said in the recovery memo (translated into English from Hindi vernacular):
"Upon being told by the apprehended persons that they were in possession of Alprazolam powder in heavy quantity, they were informed about their right and told that since you people have Alprazolam powder in heavy quantity, therefore, you people have a right to a search of your person to be done by a Gazetted Officer or a Magistrate who can be called over. ......."
32. The aforesaid words occurring in the recovery memo, in the entire context of the precise transaction recorded, and, the words employed extracted hereinabove, so far as the recovery memo goes, leave room for little doubt that it was a joint, general, common and omnibus communication made orally to all the four appellants, that they had a right to be searched before a Gazetted Officer or a Magistrate. The relevant words, written in Hindi vernacular, in the original recovery memo read specifically, and, in the context where they are placed, are not in any manner suggestive of an individual communication, to each of the appellants about their right, under Section 50(1) of the Act.
33. Turning to the evidence of PW-1, specific to the point under consideration, it has been said, thus, in the examination-in-chief:
"bu pkjksa dks buds vf/kdkj ds ckcr crk;k x;k fd rqe yksxks ds ikl ;g vf/kdkj gS fd rqe yksx viuh tkekryk'kh fdlh jktif=r vf/kdkjh ;k eftLVªsV ds le{k ns ldrs gks ;fn dgks rks ;gh cqyk;k tk;A pkjks O;fDr;ksa us crk;k fd lkgc ge yksxks us vki yksxks dks igys gh crk fn;k gS fd ge yksxks ds ikl dkQh ek=k esa ,Yizktksyke dk u'khyk ikmMj gSA fdlh cM+s vf/kdkjh ;k jktif=r vf/kdkjh dks vkus dh vko';drk ugha gSA vki yksxks ij gh fo'okl gSA vki yksx gh esjh tkek ryk'kh ys yhft,A"
(Emphasis by Court)
34. The aforesaid words employed to communicate the right of the appellants under Section 50(1) of the Act are clearly indicative of a joint communication, to all the four appellants. In this connection, it is also relevant to refer to the evidence of Sub-Inspector Ashok Kumar, PW-2, who was part of the police team, arresting the appellants. He has stated thus, in his examination-in-chief:
"idM+s x;s O;fDr;ksa ls Hkkxus dk dkj.k iwNk x;k rks crk;k fd ge yksxks ds ikl u'khyk ikmMj gS blfy, iqfyl ds Mj ls Hkkx jgs FksA ge yksx fdlh ?kVuk dk vUtke nsus ds fQjkd esa gSA ge yksx ,uMhih,l ,DV dh /kkjk 50 ds izkfo/kkuksa dk ikyu djrs gq, mDr pkjks yksxks dks crk;k x;k fd vki yksx crk jgs gS fd vki yksxks ds ikl ,Yizktksye dk u'khyk ikmMj gSA vki yksxksa dh ryk'kh fdlh eftLVªsV vFkok jktif=r vf/kdkjh ls djus gsrq cqyk fn;k tk;A bl ij pkjksa yksxksa us crk;k fd ge yksx fdlh eft0 vFkok jktif=r vf/kdkjh ls ryk'kh ysuk ugha pkgrs gSaA vki yksx idM+ fy, gSa rks ryk'kh ys yhft,A"
(Emphasis by Court)
35. A reading of the aforesaid deposition of PW-2, also clearly indicates, that it was a joint communication of the right available to the appellants to be searched before a Gazetted Officer or a Magistrate, and, not an individual communication of that right. The words employed throughout, specifically, and, contextually clearly express a general address to all the accused, through a common communication.
36. Apart from the evidence relevant to the point, in the dock testimony of PW-1 and PW-2, the most important document about the manner of communication, whether it was joint or individual, is the record of the transaction evidenced by the recovery memo, about which this Court has expressed opinion, that communication of the right under Section 50(1) of the Act, was a joint communication to all the appellants.
37. In view of the evidence appearing in the case, this Court is of clear opinion, that the communication of the right to be searched before a Gazetted Officer or a Magistrate, is not at all individual, clear and unequivocal. It is an omnibus communication to all the four appellants who, considering the fact that three of them are absolutely illiterate, and, cannot even sign, with Basant Dom (Basant Ram) signing his name on the consent letter, does not at all meet the mandatory requirements of a clear communication of the right under Section 50(1) of the Act, to each of the appellants. From the entirety of evidence appearing in the case, relating to communication of the appellants' right under reference, this Court is not at all assured, that the appellants were made duly aware of what their right was.
38. This Court feels, that no more than an empty formality about a communication of their right, to the accused was done. It must be added here, that in cases like the one in hand, where the appellants are apparently rustics, illiterate, and, certainly not even scantly educated, the communication of the right under Section 50(1) of the Act should be unimpeachably established by cogent evidence of an individual communication about the right, clearly showing, that each individual, given the poor understanding of his legal rights, on account of poverty and lack of education, has been made aware of his right to make an informed decision. Here, the Court would think that nothing more than a mere formality has been done, to make the appellants barely aware about their right in question. A perusal of the consent letters, on behalf of each of the appellants would indicate, that they have been scribed by one or the other police officer, part of the arresting team, all written in a stereotype language, in identical words to which the appellants, Shakti Dom, Devendra Ram and Vikas Ram, have affixed their left hand thumb impression, whereas Basant Dom, has signed his letter of consent. Certainly, the three appellants who have thumb marked the letters of consent, could not have read the consent. It is not known whether Basant Ram (Basant Dom), who signed, is educated enough to have read the contents of the letter. There is no recital in any of the letters of consent, that the same have been read out and explained to the appellants, as to the character and contents of their respective letters of consent. In the evidence of the prosecution witnesses too, there is nothing said to show, that the contents and character of the letters of consent, were explained to each of the appellants, before they were made to thumb mark/ sign the same. Apart from the legal effect as to what would be the consequence of this kind of a consent, given by illiterate persons like the appellants, coming from a marginalized section of the society, it is a positive index of the fact, that clear and individual notice was not given to the appellants, about their right to be searched before a Gazetted Officer or a Magistrate. Everything appears to have been done, as a matter of paper transaction by the arresting police party.
39. In view of the law laid down by their Lordships of the Supreme Court in the Constitution Bench decisions in State of Punjab vs. Baldev Singh (supra) and Vijaysinh (supra), and, the decision of their Lordships in State of Rajasthan vs. Parmanand (supra), the finding of the Trial Judge that Section 50 of the Act did not apply, because there was no prior information, must be held to be bad in law, and, not sustainable. It is held that Section 50 of the Act applies to the search, that was suffered by the appellants, and, its mandatory provisions carried in Section 50(1) of the Act, were observed in breach, by the prosecution.
The effect of violation - provisions of Sections 52, 55 and 57 of the Act on the prosecution in the present case.
40. Learned counsel for the appellants submits that there is wholesale and gross non-adherence to the provisions of Sections 52, 55 and 57 of the Act, by the Investigating Officer, and, the apprehending police party also. It is her submission that though these provisions have been held to be directory and would per se not vitiate the trial or conviction, but that notwithstanding, non-adherence would effect the probity of the prosecution. It is argued that breach of these salutary provisions, seen in the circumstances of the present case, makes it unsafe to sustain the appellants' conviction.
41. Turning to the particulars and manner of violation of each of these provisions, it is argued by the learned Amicus Curiae that the Officer In-charge of Police Station, G.R.P. Bhatani, has not ensured the recovered narcotic drugs be kept in safe custody, before being dispatched to the Forensic Science Laboratory on 27.01.2013. It is submitted that there is no evidence led by the prosecution, by examining Officer In-charge of the Police Station, or a person from the establishment of the Police Station, before whom the Officer In-charge took charge, and, kept in safe custody, the seized articles/ recovered narcotic substance. There is no evidence of the Officer In-charge, or of the person in whose immediate charge, the narcotic substances were retained in the Station Malkhana, that the same were kept in safe custody throughout.
42. In this connection, here the seized articles/ narcotic substances were taken out of the Police Malkhana, as it appears, not under the orders of the Officer In-charge of the Police Station but on the report of the Investigating Officer, by the Head Moharrir, and, handed over to Jai Shankar Rai, a Constable who has deposed as PW-5. Under orders of the Investigating Officer, going by his assertion in his examination-in-chief, he took the recovered articles from the Malkhana of the Police Station on 24.01.2013, without signing the Malkhana Register. He was handed over, as he says in his evidence, the four packets by the Head Moharrir of the Station that he took to the C.O. (Railways) where dockets of the same were made, each signed by the C.O. (Railways), and, also got signed by Jai Shankar Rai, PW-5. It does not appear clearly from the evidence that after the dockets were made on 24.01.2013, under the signatures of the C.O. (Railways) and till 27.01.2013, when Jai Shankar Rai, took the recovered articles to the F.S.L., Varanasi, where and in what kind of custody, the said articles remained. In his examination-in-chief, Jai Shankar Rai has said nothing about the custody of the articles, after the dockets were made, between 24.01.2013 and 27.01.2013. Most of all, the Malkhana Register was not produced in court to indicate the initial receipt in custody of the seized articles, their subsequent movement to the office of the C.O. (Railways) on 24.01.2013, their receipt, back in the Police Station Malkhana on 24.01.2013, after the dockets were made, their dispatch on 27.01.2013 to the F.S.L., Varanasi, by hand through Constable Jai Shankar Rai; and, the final receipt of the four dockets with the seals intact, in the Police Station Malkhana from the F.S.L., Varanasi. All these could and ought to have been done, by producing the Malkhana Register, about which there is absolutely no mention in the evidence of the concerned witnesses. The seized articles appear to have been kept, not at all in safe custody, but also moved around from the Station Malkhana to the office of the C.O. (Railways), back to the Station Malkhana or not at all, before the same were dispatched to the F.S.L., Varanasi. There appears to be much unrecorded movement and handling of the articles, between 24.01.2013 and 27.01.2013.
43. There also appears to be contradiction between witnesses as to who authorized the seized articles/ narcotics to be taken out of the Malkhana on 24.01.2013, to be taken to the C.O. (Railways) for making of dockets. Going by the mandate of Section 55 of the Act, that authorization could come from the Officer In-charge of the Police Station, and, no one else. Here, according to PW-5, the articles were taken by him to the Circle Officer, on the report of the Investigating Officer, with the articles being taken out and handed over to him by the Head Moharrir whereas according to the Investigating Officer, who had deposed as PW-4, it has been acknowledged in his cross-examination that he had not sent the seized articles for forensic analysis, or even got the docket made.
44. In this connection the statement of the Investigating Officer, Ravindra Pratap Singh, PW-4, recorded on 31.05.2016 during his cross-examination is to the following effect:
"eky tc ijh{k.k ds fy, Hkstk x;k rks esjs lkeus ugha feyk;k FkkA gsM eksgfjZj us fudkyk FkkA eSaus ijh{k.k esa eky ugha HkstkA MkdsV Hkh eSaus ugha cuok;k FkkA"
45. By contrast, Constable Jai Shankar Rai, PW-5 has deposed in his examination-in-chief on 18.07.2016, as follows:-
"mDr fnukad 24-1-13 dks eSa v0la0 300@12] 302@12] 299@12] 301@12] u/s 8@21] 22 N.D.P.S. Act, Fkkuk th-vkj-ih- HkVuh ls lEcaf/kr eky dqy 4 vnn iksVyh Fkkus ds eky[kkus ls fudky dj foospd ds fjiksVZ ij ys tkdj lh-vks- jsyos xksj[kiqj ds ;gka MkdsV rS;kj djk;k FkkA"
46. He further said in his cross-examination:
"foospd }kjk izkFkZuk i= foospd }kjk Jheku lh vks jsyos xksj[kiqj gsrq fn;kA ijh{k.k gsrq fof/k foKku iz;ksx'kkyk jkeuxj] okjk.klh gsrq fjiksVZ Hksth x;h] mlh esa foospd }kjk vafdr fd;k x;k eky o uewuk eksgj dk0 t;'kadj jk; dks nkf[ky djus gsrq Hkstk x;kA"
47. This witness has also given testimony during his cross-examination about the movement of the seized articles/ narcotic substances, between 24.01.2013 and 27.01.2013, that is telltale. He has deposed thus:
"eq>s dksbZ O;fDrxr vkns'k fyf[kr vkns'k eq>dks ugha feyk FkkA eSa fn0 24-1-13 dks lqcg eky[kkus ls e; eky] uewuk eksgj ysdj fudyk Fkk] le; ;kn ugha gSA lqcg dk oDr FkkA Fkkus ds th Mh esa bldk bUnzkt gSA eky [kkus ds eky jftLVj esa eky fudkyus dk esjk gLrk{kj ugha gSA eky[kkus ls gsM eksgfjZj eky fudky dj fn;s FksA mldk uke ;kn ugha gSA"
48. He has further stated in his cross-examination:
"eSa 27-1-13 dks fof/k foKku iz;ksx'kkyk okjk.klh ds fy;s izLFkku fd;kA eky fof/k foKku iz;ksx'kkyk okjk.klh esa fn0 28-1-13 dks izkIr djk;k FkkA fn0 24-1-13 ls 28-1-13 rd eky esjs dCts esa ugha FkkA cfYd 24-1-13 dks MkdsV cuokdj mlh fnu jkf= esa Fkkus nkf[ky dj fn;k tks th Mh esa vafdr gSA fQj iqu% fn0 27-1-13 dks eky[kkus ls eky e; fjiksVZ ysdj fof/k foKku iz;ksx'kkyk esa ysdj x;kA eky 3 fnu rd esjs ikl jgkA bl oDr bl ckr dh rLdhjk i=koyh esa ugha gSA"
49. Likewise, in the ongoing cross-examination it is said by PW-5:
"eky ds lkFk Fkkus esa fdlh izdkj NsM+ NkM+ gS ;k ugha] eSa ugha crk ldrk gwWA"
50. Regarding the manner in which the seized articles/ narcotic substance was sent to the F.S.L., Varanasi, is far from keeping with the mandate of Section 55 of the Act, and, the entire regime of the Act and Rules framed thereunder, designed to ensure fidelity of the gross or the specimen sent for analysis to the F.S.L. It is of equal importance to ensure that what is received back from the F.S.L., and, put in evidence as a material exhibit, is the same sample, or the gross, that was sent to the F.S.L. It is in keeping with the aforesaid object, that the F.S.L. also are required to seal the sample, or gross analyzed by them, and, forward a specimen of their seal also, to be compared with that placed on the specimen, or the gross, when exhibited in the court. In the present case when the gross was exhibited in court, on each of the four packets, the specimen seal of the F.S.L. was not available in the record at all, in regard whereto PW-1 has said thus in his cross-examination at the instance of the appellants, Vikas Ram and Shakti Dom, on 29.10.2014:
"tks eky fof/k foKku iz;ksx'kkyk esa Hksth x;h Fkh mlds ckjs esa Fkkuk/;{k th-vkj-ih- tkurs gSA i=koyh esa uewuk eksgj fof/k foKku iz;ksx'kkyk esa Hksts tkus ds laca/k esa ugha gSA i=koyh esa D;ksa ugha gSA blds ckjs es eSa ugha crk ldrk gwWA"
51. It is also the requirement of law that at the time of seizure of any narcotic substance, it is to be sealed, and, the specimen seal is also to be retained on record, so as to ensure the fidelity of the sample or the gross, whenever it is forwarded for analysis to the F.S.L., or exhibited before the court. In the present case, the narcotic substance that was recovered from the appellants and sealed in four different packets, had specimen seals placed on record, as claimed by the prosecution. However, when the material evidence was exhibited at the trial, the specimen seals used at the time of sealing the gross, of each of the recoveries made from the appellants, were not available on record as would appear from the following deposition of PW-2, Sub-Inspector, Ashok Kumar of G.R.P., Bhatani, in his examination-in-chief dated 05.12.2014:
"?kVuk ds fnu fnukad 29-12-12 le; 14 cts ls 16%30 ds chp QnZ rS;kj fd;k x;k] cjken eky lhy fd;k x;k o fxjQ~rkjh eseks o uewuk eqgj rS;kj fd;kA uewuk ewgj i=koyh esa ugha gSA ;g dguk xyr gS fd ge yksxksa us uewuk eksgj u rS;kj fd;k gSA ;g Hkh dguk xyr gS fd ?kVuk >wBh cukoVh gSA"
52. There is apparently no record, where the specimen seals of those initially placed, at the time of seizure of narcotic substance from the appellants, are to be found. The prosecution have no explanation about it. To ignore all these vital and gaping flaws in the prosecution case as mere non-adherence to directory requirements of the law, would be to draw inference in favour of the prosecution, based on utterly unreliable evidence.
53. Section 57 of the Act requires that whenever any person makes any arrest or seizure, he shall within forty-eight hours next, make a full report of all the particulars of such arrest or seizure, to his immediate official superior. Section 57 of the Act reads:
"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."
54. How much of the mandate of the law, even though directory, has been adhered to, can well be gauged from the deposition of PW-1, S.I. Ashawani Kumar Rai, who is the first informant and the Head of the S.O.G., that figures as part of his cross-examination dated 19.10.2014, done at the instance of the appellant, Basant Dom:
"eS HkVuh {ks= esa ns[kHkky gsrq ,oa ryk'k djus gsrq pys FksA th-vkj-ih- HkVuh ds Fkkuk/;{k o muds vgydkj Fkkus ij FksA th-vkj-ih- nsofj;k ds vgydkj Hkh ekStwn FksA bl ?kVuk ds ckcr ge yksxks dks fdlh us dksbZ tkudkjh ugha fn;k FkkA cfYd Lor% eSaus jsM fd;k vkSj vfHk;qDrx.k dks fxjQ~rkj fd;k FkkA eSaus th-vkj-ih- Fkkuk/;{k HkVuh dks lwpuk ugha fn;k Fkk os IysVQkeZ ij Lo;a fey x;s FksA eSus jktif=r vf/kdkjh ds eksckby ls vFkok Lo;a lwpuk ugha fn;k FkkA ml le; eSa lwpuk nsuk vko';d ugha le>k FkkA eSaus ;g ckr vius QnZ izn'kZ d&1 esa ugha fy[kk gSA bldh dksbZ otg ugha crk ldrk gwWA"
(Emphasis by Court)
55. Non-communication within 48 next after arrest and seizure, both of which were made in this case, with a report of all the particulars of such arrest and seizure to his immediate superior by PW-1, who made the arrest, is clearly in teeth of Section 57 of the Act. The Station Officer, Police Station G.R.P. Bhatani, was certainly not the superior of PW-1, who was part of the S.O.G. Head quartered at Gorakhpur, and, had marked their departure in the G.D. of the Police Lines, Gorakhpur and G.R.P., Gorakhpur. Not only the Head of the S.O.G., PW-1, and the first informant of the present case, who made the arrest failed to make a full report of all the particulars of such seizure, to his immediate official superior at Gorakhpur, a fact admitted to him, but he has no explanation whatsoever to offer, why he failed to do so.
56. The learned Amicus Curiae has argued that wholesome non-adherence to the mandatory requirement of Sections 52, 55 and 57 of the Act, certainly make the entire prosecution case suspect, and, the evidence undependable, whereas the leaned A.G.A., on the other hand, submits that the provisions of these sections are directory, and, all these violations pointed out, would neither vitiate the trial or the conviction.
57. It is trite to say that violation of the provisions of Sections 52, 55 and 57 of the Act, that is in the present case evident, would not ipso facto vitiate the trial. But, it certainly provides the Court, in case of wholesome non-adherence to these statutory provisions, a sound basis to doubt the prosecution case, of course, to be considered together in the penumbra of other evidence on record. The aforesaid question fell for decision of the Hon'ble Supreme Court in Gurbax Singh vs. State of Haryana, (2001) 3 SCC 28, where dealing with the issue of the impact of violation of the directory provisions of Sections 52, 55 and 57 of the Act, their Lordships held thus:
"9. The learned counsel for the appellant next contended that from the evidence it is apparent that the IO has not followed the procedure prescribed under Sections 52, 55 and 57 of the NDPS Act. May be that the IO had no knowledge about the operation of the NDPS Act on the date of the incident as he recorded the FIR under Sections 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW 1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemical analyser. Further, it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the IO, particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW 2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk."
58. Looking to the overall facts, circumstances and evidence on record, the requirement of the law, and, the explanation of the appellants in their statements under Section 313 Cr.P.C., this Court is of opinion that the prosecution have failed to establish the appellants' guilt, beyond all reasonable doubt. The appellants are entitled to acquittal, and, the impugned judgment and order deserves to be reversed.
59. In the result, all these appeals succeed and are allowed. The impugned judgment and order dated 08.11.2016 passed by the Additional District and Sessions Judge, Court no.7, Deoria in Criminal Case no.11 of 2013, State of U.P. vs. Shakti Dom (arising out of Case Crime no.302 of 2012), Criminal Case no.10 of 2013, State of U.P. vs. Vikas Ram (arising out of Case Crime no.301 of 2012), Criminal Case no.9 of 2013, State of U.P. vs. Devendra Ram (arising out of Case Crime no.299 of 2012), and, Criminal Case no.8 of 2013, State of U.P. vs. Basant Dom (arising out of Case Crime no.300 of 2012), all under Section 8/21, 22 of the Act, Police Station G.R.P. Bhatani, District Deoria, is hereby set aside and the appellants, Shakt Dom, Vikas Ram, Devendra Ram and Basant Dom stand acquitted.
60. The appellants are in jail. They shall be released forthwith unless wanted in connection with any other case provided that they furnish bail bonds and sureties complying with Section 437-A Cr.P.C. within a period of one month from the date of receipt of this judgment by the trial court.
61. Before parting with the matter this Court places on record its profound appreciation for the valuable assistance rendered by Ms. Rashmi Srivastav, learned Amicus Curiae in this matter. The learned Amicus Curiae shall be entitled to receive in fee, a sum of Rs.10,000/- as consolidated fee in all the four appeals.
62. Let a copy of this order be certified to concerned court through Sessions Judge, Deoria within a fortnight for compliance. The court concerned shall report the compliance within a month thereafter. Let the lower court records be sent down at once to the trial court.
63. An authenticated copy of this judgment be placed on record of Criminal Appeal Nos. 1093 of 2017, 1091 of 2017 and 6908 of 2017.
Order Date :- 12.10.2018 Anoop