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2. Additional City Sessions Judge, on appreciation of the evidence held that it is amply made out from the evidence on record that the muddamal articles found from the possession of the respondent and seized under the panchnama (Exhibit 7), received in sealed condition by the Forensic Science Laboratory on 15-1-1988, happened to be analysed by the Biological Division, are found to contain botanical material of Cannabis Sativa (charas) and as per the opinion (Exhibit 12), the contents of all the 11 bags are found to contain charas. The learned trial Judge also held that the identity of the muddamal articles found from the possession of the respondent and analysed by the Forenisc Science Laboratory is also duly established by the prosecution and that part of the prosecution case has not been seriously challenged on behalf of the defence. As recorded by the learned trial Judge, the only aspect that was seriously pressed before him was that the prosecution has not satisfactorily proved the aspect of possession much less conscious possession and knowledge on the part of the accused, who happened to be the driver of the authorickshaw, from which four gunny bags were found, wherein there were 11 packets, the contents of which weighed about 105.700 kgs., in the form of balls of uneven shape and size, which, according to the analysis and report of the Forensic Science Laboratory, happened to be narcotic drugs, viz., Cannabis Sativa. Learned trial Judge also observed that the mandatory provisions of Section 42 N.D.P.S. Act were not complied with as the information received by the Police Inspector Shri P. M. Vishen was not reduced into writing and he had not sent the copy of the information to the immediate superior Officer within the requisite time. It appears from the observation that the learned trial Judge referred the judgment in the case of Hakam Singh v. Union Territory 1988 Cri.LJ 528, but did not clearly observe that the mandatory provisions are violated, and therefore, the respondent-accused was entitled to acquittal. The learned trial Judge ultimately observed that for want of mens rea and intention and/or knowledge on the part of the respondent-accused, the offences punishable under Section 20(b)(ii) and 25 of N.D.P.S. Act and Section 66(1)(b) of the Bombay Prohibition Act cannot be said to have been duly brought home beyond all reasonable doubts against the respondent-accused and in view of the nature of the evidence on record, the respondent-accused is entitled to the benefit of doubt. The learned trial Judge, accordingly extended the benefit of doubt to the respondent and acquitted. So far as the finding that the respondent was carrying four gunny bags in the rickshaw without any passenger and the bags contained 11 packets of Cannabis Sativa (charas), having a total weight of 105.700 kgs., and worth Rs. 5,29,000/- is concerned, we agree with the learned trial Judge as that is borne out from the evidence on record and, therefore, we do not think that it is necessary to discuss the evidence extensively. We will, however, narrate, in short, the prosecution case, and discuss evidence.

3. Police Inspector Shri P. M. Vishen was the Inspector in charge of Dariapur Police Station and on January 12, 1988, at about 4.00 p.m., Police Constable Navalsinh informed that charas of one Iqubal Sayedhusen Bappu was to be transported to Shahpur in an autorickshaw and therefore, he called the Police Sub-Inspector Vaghela, Police Sub-Inspector Vania and other Police Constables and all of them, along with the informent Police Constable Navalsinh, took position on the main road from Delhi Darwaja Circle to Shahpur and kept watch. At about 5.15 p.m., the rickshaw was sighted, proceeding from Delhi Darwaja to Shahpur, and in that rickshaw, there was no passenger, but but on the foot-board in the rickshaw, there were gunny bags. On Police Constable Navalsinh giving signal, the rickshaw was intercepted and all the Police Officers surrounded it. As people collected, the rickshaw was taken to Shahpur Police Chowky, at a distance of 200 to 250 paces away from there, and two panch-witnesses were also called. Respondent Abdulrasid was driving the rickshaw No. GTH 3003. All the four gunny bags, which were in the rickshaw, were removed from the rickshaw in presence of the panches to the Police Chowky and they were opened. There were 11 packets in four gunny bags. In the plastic bags there were charas balls and the packets were covered with newspaper, 10 packets contained about 10 kgs., charas each and one packet contained 5,700 kgs. The value of the charas was assessed at Rs. 5,29,000/-. Photographs were taken by the Government Photographer. The respondent was asked about the licence for keeping charas, but he had no licence. On personal search, nothing was found from the respondent. In the rickshaw, there was nothing else except the four gunny bags. The packets containing charas were wrapped with brown paper, tied with thread, paper slip bearing signatures of panches were fixed and sealed with the seal of the Dariapur Police Inspector. The bags, in which the above said packets were kept, were also sealed with the paper bearing the signature of panch-witnesses and seal of Dariapur Police Station. A detailed panchnama was prepared there and the P.S.I. lodged complaint with the Dariapur Police Station. The respondent was arrested and complaint, panchnama and muddamal along with the respondent were sent to the Dariapur Police Station, along with Police Sub-Inspector Vaghela. The letter addressed to the Forensic Science Laboratory was written by the P.S.I. and that was also sent to the Police Station. The Police Station Officer, Dariapur Police Station, registered the offence as Prohibition Crime No. 31 of 1988 and further investigation was carried out by the Police Sub-Inspector Shri Vaghela. During the course of the investigation, P.S.I. Vaghela came to know that Iqubal Sayedhusen and Meheboobbhai Rasulkhan, were also involved in the offence, and the charas belonged to Iqubal Sayedhusen and, therefore, he tried to find them, but they were absconding and, therefore, they were shown as absconding accused in the chargesheet P.S.I. Vaghela personally carried the muddamal bags to the Forensic Science Laboratory and handed over the muddamal to the Laboratory on January 15, 1988. On chemical and biological tests, the Chemical Analyser and the Director of the Forensic Science Laboratory found that all the 11 packets contained Cannabis Sativa (charas). The Senior Scientific Assistant of the Forensic Science Laboratory and the Assistant Chemical Examiner, Government of Gujarat, vide their reports, stated that the contents of all the exhibits were found to be charas. The biological Division of the Forensic Science Laboratory also carried out test and in the report stated that the result of the analysis is that the exhibits contained botanical material of Cannabis Sativa (charas).

41. Reverting to the facts of the instant case, it is clear that the Police Inspector Vishen was in charge of the Police Station and he had affixed the seal and the sealed articles were produced before the Police Station Officer, who took charge of them. The evidence of Police Station Officer Shri Arjansinh is clear on this point and does not require any discussion. It is, however, submitted by Shri Malik, learned Advocate for the respondent, that from the evidence of Head Constable Arjansinh and P.S.I., B. S. Vaghela, it is clear that subsequently from Dariapur Police Station, muddamal articles were taken to the Dudheshwar Crime Branch Police Chowky by Jamadar Narsinhbhai. From the evidence of P.S.I. B. S. Vaghela, it is clear that he had handed over the muddamal and specifically, 11 packets containing charas in sealed condition to Arjansinh who was the Police Station Officer, Dariapur Police Station. On January 15, 1988, he personally carried all the 11 packets produced by him from the Dudheshwar Police Chowky and took them to the Forensic Science Laboratory and delivered them, along with the forwarding letter and secured the receipt for that. It is clear from the evidence of P.S.I. Vaghela that the articles were taken in sealed condition and were delievered in the same condition. In the endorsement on the receipt also, there is no mention that the articles were not in sealed condition. Shri Malik submitted that Jamadar Narsinhbhai, who had carried the muddamal from Dariapur Police Station to Dudheswar Crime Branch Police Choky, was not examined by the prosecution. As such, it was not necessary to examine Narsinhbhai, as it is clear that all the muddamal articles were taken to Dudheswar Crime Branch Police Chowky and subsequently, P.S.I. Vaghela had secured them in sealed condition and handed over to the Forensic Science Laboratory. There was no chance for tampering with the muddamal articles.

43. Mr. Malik, learned Advocate for the respondent, asserting that the provisions of Section 57, N.D.P.S. Act, were not complied with, submitted that even though it was obligatory to make a full report of all the particulars of such arrest or seizure, within 48 hours, to the immediate superior official, no such report in writing was sent by Police Inspector Vishen to his immediate official superior. Police Inspector Vishen, in his cross-examination, stated that he had not sent such information in writing, but had orally reported to his immediate superior, the Superintendent of Police, about it. Section 56, N.D.P.S. Act, does not provide that the report in writing should be submitted within 48 hours. Report', as used in context, means 'make official or formal statement', 'inform against'. As Section 57 provides for making full report of all the particulars of such arrest and seizure, it is desirable to make a report in writing but in absence of specific provision making it obligatory to submit report in writing, it cannot be held that the report should be in writing. Even if it is held that the report is required to be submitted in writing, non-compliance of submitting such report under Section 57, N.D.P.S. Act, by itself, would not vitiate the investigation and the trial. The provisions of Section 57 should not be considered such mandatory, non-compliance of which should be fatal to the prosecution, as such report is to be submitted subsequent to the arrest and seizure and in most of the cases, after filing of the complaint and producing the muddamal before the Police Station Officer. It appears that such provision is made in Section 57, N.D.P.S. Act, with a view to see that the Police Officers or other Officers, who may be authorised to investigate under Section 52, N.D.P.S. Act, may not misuse the power and subsequently create evidence. Normally, the seizure is made under the Panchnama and in presence of panch-witnesses and after that, the complaint is filed and First Information Report is lodged before the Police Station Officer and the muddamal is also normally produced before the Police Station Officer. After the entries are made in the official record, it may not be easily possible to tamper with the evidence or create evidence. The very fact that the First Information Report is made is sufficient security and after that, there may not be any possibility for changing the record. In such circumstances, it should be held that even though compliance of that Section is necessary, non-compliance of it will not be fatal to the prosecution till it is established that it has resulted in miscarriage of justice or prejudice is caused to the accused. When the panchnama is prepared and F.I.R., is lodged and the entry is made in the Police Station Diary or the relevant record and the muddamal is produced before the Police Station Officer, it cannot be accepted that any prejudice is caused to the accused merely because report was not made to the immediate superior in writing within 48 hours.