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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 ..... 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 is not sustainable in the eyes of law - From the record it is further evident that the alleged sample did not bear any signature or thumb impression of the appellant and the offence under the N.D.P.S. Act is a technical offence and the safeguard in the enactment requires strict compliance. Failure, in the evidence by the prosecution witnesses, to show that when the sample were taken from the same contraband article creates doubt on the authenticity of the prosecution case. In this connection the absence of signature of the accused on the sealed bag raises doubt about the recovery of contraband article from the possession of the appellant. 29 packets have been recovered from a white bag with which the appellant was found sitting and the appellant has stated the contraband article weighed about 25 Kgs. Charas but P.W.1, who had made the arrest and seizure of the appellant did not weighed the contraband article recovered from him and only on the statement of appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was taken into custody and an F.I.R. was lodged on the same day at about 15:10 hrs. at police station Akbarpur in district Kanpur Dehat as Case Crime No. 487 of 1999 under Section 18/20 of the Act which is marked as Ex. Ka-4. The fact about registration of the F.I.R. was also endorsed in G.D. No. 30, a carbon copy of which was marked as Ex. Ka-5. The Investigating Officer prepared a site plan which was marked as Ex. Ka-6. The sample was taken from the recovered contraband article under the orders of the Court and sent for chemical analysis to Forensic Science Laboratory, Lucknow. The report of the Forensic Science Laboratory, Lucknow was received and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers 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 Investigating Officer Ratan Singh and has produced the same before the court and under the order's of the Court he got prepared a docket and took the article and other papers to Forensic Science Laboratory Lucknow in a sealed condition. 10. P.W. 4 H.C.P. Daulat Ram has proved the F.I.R. of the incident and has stated that the same has been written in his writing and he has signed the same which has been marked as Ex. Ka-4. He has also endorsed the F.I.R. in G.D. No. 30 which was produced in carbon copy as Ex. Ka-5. 11. P.W.5 S.I. Ratan Singh, who was the Investigating Officer of the case has stated that he was entrusted with the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 suchna di gayi aur na hi kisi ucch adhikari ko suchna di gayi". 16. On the basis of the said evidence of P.W. 1 and P.W. 2, it was argued that where the police officer does not record the information at all and does not inform the higher officials at all about the recovery of the contraband article amounts to violation of Section 42 of the N.D.P.S. Act. In support of his submission, he has placed reliance on the judgment of the Apex Court towards para-12 of the judgment of Kishan Chand vs. State of Haryana reported in LAWS (SC)-2012-12-55 which is quoted hereinbelow:- "12. In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh (supra). In tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 urgency and expediency. (d) While total non-compliance with requirements of Sub-Sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay delay may result in the accused escaping or the goods or evidence being destroyed or removed not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information ws received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Mohar kiski thi mujhe is samay dhyan nhi thi. Teen mahine tak maine uprokt maal ke apni abhiraksha me rakha tha." 20. It was submitted that in view of the above statement of P.W.4, it is evident that the contraband article remained in the custody of Malkhana Incharge for a period of three months, hence the contraband article which was produced before the C.J.M. on 23.8.1999 was not the same as it was in the custody of Malkhana on that day thus it creates doubt whether the same article was produced before the C.J.M. or not. He has submitted that in view of Section 58 of the Evidence Act no fact need to be proved in any proceedings which the parties thereto or their agents agree to admit at the time of hearing. It was submitted that as per Section 57 of the Act it required that whenever any person makes any arrest or seizure, he shall within 48 hours next after such arrest or seizure make a full report of all the particulars to his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raband 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 creates doubt about the recovery of contraband article from the appellant as from the F.I.R. itself as well as from evidence on record it is not clear whether any sample was taken on the spot. In support of his submission, he has placed reliance on the judgment of the Apex Court in the case of Kuldeep Singh vs. State of Punjab reported in AIR 2011 SC (Supp.) 787 in which it has been held by the Apex Court that non collection of samples at the initial stage of seizure was a defect, which could not have been cured in the manner in which it was done by opening the bags which had been sealed by the I.O. and mixing the contents thereof. In support of his submission he has also placed reliance on the judgment of this Court in the case of Mathura Prasad vs. State of U.P. reported in [2005 (51) ACC 904] and another judgment of this Court in the case of Beni Prasad vs. State of U.P. reported in [2003 (46) ACC 701] wherein it was stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 may cases for partial compliance of Section 42 of the Act and where if that is done by the raiding party then the arrest and seizure would not vitiate the prosecution case but if there has been total non compliance of the provisions of Section 42 (1) and (2) of the Act may prove a fatal to the prosecution case. Thus from the evidence of the present case, it is evident that there has been total non compliance of the provisions of Section 42 of the Act which was impermissible and to show that Section 42 of the Act was not applicable in the present case and the finding recorded by the trial in this respect does not appears to be reasonable, hence the contention of the learned counsel for the appellant finds force that there has been complete non compliance of mandatory provisions of Section 42 of the Act which renders the arrest and recovery of contraband article from the appellant to be doubtful. 26. The next submission of lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is not sustainable in the eyes of law. 27. The contention of learned counsel for the appellant that no sample of the contraband article was taken at the spot nor any signature or thumb impression has taken on the same also appears to be correct as it is apparent from the record that P.W.1 had recovered the article and the arrested the appellant without taking out the sample of contraband article on the spot and had deposited the same in the Malkhana of the concerned police station and entrusted the same to the P.W.4, therefore, it is not proved in what manner the sample was drawn by the police party. From the record it is further evident that the alleged sample did not bear any signature or thumb impression of the appellant and the offence under the N.D.P.S. Act is a technical offence and the safeguard in the enactment requires strict compliance. Failure, in the evidence by the prosecution witnesses, to show that when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 by P.W. 1 in the Malkhana of the concerned police station and entrusted to P.W. 4 was the same which was produced before the court on 23.8.1999 and sent to the chemical analyst. Moreover, he could not also dispute the fact that the sample was not taken from all the 29 packets recovered from the white bag with which the appellant was sitting and only one sample was taken of the contraband article which was sent to chemical analysis. 30. Thus, from the aforesaid discussions and evidence on record, it is apparent that the recovery of the contraband article from the possession of the appellant appears to be doubtful and the prosecution has not proved its case beyond reasonable doubt against the appellant proving the recovery against him in strict compliance of the provisions of N.D.P.S. Act, hence his conviction and sentence by the trial court is not sustainable in the eyes of law. Thus, the impugned judgment and order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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