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TMI Blog2014 (1) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... party proceeded towards the said direction along with the said Informer. On reaching the said place, the informer pointed out towards the said person and left the Jeep. Thereafter the patrolling party stopped the said person at 13:30 p.m. and made an interrogation from him on which he told his name to be Jitendra Singh Rathore son of Lal Singh Rathore resident of Balrampur, police station Mangalpur, District Kanpur Dehat. The patrolling party informed the appellant that they have got an information that he is carrying some contraband article in his bag and if he wishes he may be searched before the nearest Magistrate or Gazetted police officer on which the appellant stated that when he has been arrested by them there is no need to go anywhere and they may take a search of him. On which the informant prepared a memo under Section 50 of the Narcotics Drug and Psychotropic Substance Act (hereinafter referred to as 'the Act') and also got the signature of the appellant on the said memo and thereafter his search was made by the police officers. 3. On search, it was found that the appellant was carrying 29 packets of contraband article, i.e., Charas kept in a white bag. The appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry memo prepared by S.I. Brahmanand and has further deposed that the contraband article recovered from the possession of the appellant was sealed in a bag and also prepared the Namoona Vastu marked as Ex.ka-1 which was prepared in his writing and under his signature. He also proved and identified the recovery memo (Namoona Vastu) Ex.Ka-1. He further stated that he also got a consent memo (memo of search) Ex. Ka. 2 written by S.I. Brahmanand which was signed by the appellant and also got prepared a recovery memo by S.I. Brahmanand which is marked as Ex. Ka. 3. The appellant was also informed about the reason of his arrest and thereafter his family members were also informed about his arrest. The appellant along with the recovered article was taken to the police station where the F.I.R. of the present case was lodged. 8. P.W. 2, S.I. Gajendra Singh, who was a member of the raiding party was examined by the trial court, has also reiterated the prosecution story as has been stated in the F.I.R. as well as by P.W.1 Narsingh Pal. 9. P.W.3 Constable Amar Singh, has deposed that on 24.8.1999, he was posted at police station Akbarpur. He took the sample of the recovered article from the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; "Jab mujhe mukhbiri hui thi, maine wireless dwara ucch adhikariyon ko suchna nahi di thi. Is prakar sahwan 42 NDPS Act ka paripalan nahi ho saka. Mauke par maine charas ko taula nahi tha. Charas bramad kar thana Akbarpur ke tatkaleen Head Moharir ko saop diya tha jinhon ne malkhane me rakha hoga". 15. He submitted that as per the statement of P.W..1, it is clear that the mandatory provisions of Sections 42 of the N.D.P.S. has not been complied with at all, hence the said recovery becomes doubtful and the finding recorded by the trial court on this aspect of the matter is against the established preposition of law, hence the judgment and order passed by the trial court be set aside and the appellant be acquitted . In support of his submission, he has also drawn the attention of the court towards deposition of S.I. Gajendra Singh, who was examined as P.W. 2 which is quoted hereinbelow:- "Mukhbir se suchna milte samay police party mai driver ke 12 logon ki thi. Wireless saath me tha. Mukhbir se suchna milne ke baad is sochna ko lekhbadh nahi kiya gya hai aur na hi wireless se thane ko koi suchn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) to (d) of Section 42 (1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Section 42 (1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplied with and it is stated that the daily report was also not produced by the prosecution before the trial court to show the compliance of Section 57 of the Act and the finding recorded by the trial court regarding compliance of Section 57 of the Act is also bad in the eyes of law, hence the same should be set aside by this Court. 19. The next submission of learned counsel for the appellant is that it has been stated by P.W.1 that after the arrest of the appellant he has sealed the article recovered from him and deposit the same in Malkhana of police station Akbarpur and further entrusted the same to P.W. 4 Daulat Ram Head Moharir of the concerned police station. The attention of the Court was drawn towards the cross examination of P.W.4 Daulat Ram recorded by the trial court on 4.10.2004 which is quoted hereinbelow:- "Daroga ji mulzim ke sath 25 kilo charas laye the. Maine isko sarv mohar halat me apni abhiraksha me liya tha aur usko malkhane me apni abhiraksha me rakha. Is maal me jo mohar lagi thi wah inspector sahab ke naam ki thi, pad ki thi athva thane ki thi. Ye mujhe yaad nhi hai. Mohar ko to maine dekha tha. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul whether the very article that was seized was sent to the Chemical Examiner. Reliance was also placed on the judgment of the Apex Court in the case of State of Orissa vs. Sitansu Shekhar Kanungo reported in JT 2002 (8) SC 292 wherein it was held that non production of the Malkhana register being one of the vital missing links, the other factors highlighted above coupled with the non-production of the malkhana register have given a fatality to the prosecution case. Thus it was submitted that the non production of Malkhana register would go to show that whether the recovered contraband article in question was in a safe custody of Malkhana In-charge, hence there was gross violation of Section 55 of the Act. He has also placed reliance on the judgment of the Apex Court in the case of State of Rajasthan vs. Gurmail Singh reported in [ 2005 (51) ACC 928] wherein it was held that non production of the Malkhana register seizing the contraband article proves to be fatal to the prosecution case and conviction of the accused cannot be sustained. 22. It was then argued that no sample was taken on the spot nor any signature or thumb impression was taken on the sample recovered which also cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns advanced by learned counsel for the parties. 25. The first submission of learned counsel for the appellant that from the evidence of P.W.1 and 2, it is evident that admittedly the appellant was arrested by the raiding party with contraband article though was arrested from a public place but they were having a wireless set with them but they did not make any effort even to partially comply with the mandatory provisions of Section 42 of Act appears to be correct as from the evidence of the P.W. 1 and P.W. 2 it is apparent that they had admitted before the trial court in their evidence that they did not inform the superior officers about the arrest of the appellant with contraband article nor they even tried to incorporate the same in the G.D. of the concerned police station when they had reached with the appellant along with the recovered article at the concerned police station. The instant case appears to be a case of totally non compliance of the mandatory provisions of Section 42 of the Act. As per the various pronouncements of the Apex Court and the case which have been cited by the learned counsel for the appellant, i.e., Kishan Chand (supra), the Apex Court has held there m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article which was produced before the C.J.M. on 23.8.1999 was the same which was in the custody of P.W. 4 or not, hence the contention of learned counsel for the appellant that Section 55 of the Act has not been complied with and non production of the Malkhana register before the court proves fatal to the prosecution case which vitiates the recovery of contraband for the appellant. The Apex Court in the case of the Valasala vs. State of Haryana(Supra) has held that when there is no evidence to show that the article which was sealed or kept in the custody and sent after such a long delay for chemical analysis become highly doubtful, hence the conviction of the appellant cannot be sustained. In this context there is yet another judgment of the Apex Court in the case of State of Rajasthan vs. Tara Singh reported in 2011 (11) SCC 559 wherein it was held in a prosecution relating to the NDPS Act, the question as to how and where the samples had been stored or as to whom they had been dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. Thus on that count also the conviction of the appellant by the trial court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... analysis shows that he has only received one bag sealed in a cloth which was found to be Charas. The prosecution has thus failed to show from the record that how many samples were taken from the contraband article which was recovered from the appellant and sent to chemical analysis. Lastly from the record it transpires that no sample of seal was sent along with the sample to chemical analysis for the purpose of comparing with the seal bearing on the sample, therefore, there is no evidence to prove satisfactorily that the seal found was in fact the same seal as was put on the sample bag immediately after seizure of the contraband. These loopholes in the prosecution case cannot sustain the conviction of the appellant in view of the judgment of the Apex Court in the case of State of Rajasthan vs. Gurmail Singh (Supra). 29. The learned A.G.A. though had tried to justify the conviction and sentence of the appellant but he could not point out to the Court from the record whether the police party had taken the actual weight of the article, i.e., Charas recovered from the appellant, whether the Malkhana register was produced by the prosecution to show that the article which was deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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