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TMI Blog2017 (12) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... on record in proper perspective in the light of the latest position of law and according to this Court's view, the prosecution has failed to prove its case beyond reasonable doubt that the accused was found in possession of 500 grams of illegal charas, of which he could not show the license. The appeal is liable to be allowed and is, accordingly, allowed. The judgment of learned court below is set-aside. Accused is held not guilty and is acquitted of the charges levelled against him. Let the accused be released forthwith in this case, if not wanted in any other case. - Jail Appeal No. 4577 of 2014 - - - Dated:- 15-11-2017 - Hon'ble Dinesh Kumar Singh-I, J. For the Appellant : From Jail,Sameer Jain For the Respondent : A.G.A. ORDER 1. This jail appeal has been preferred against the judgment and order dated 29.09.2014, passed by the Additional Sessions Judge, Court No.4, District Maharajganj in S.S.T. No.17 of 2005 (State Vs. Arvind Dubey) arising out of Case Crime No.155 of 2005, whereby the accused-appellant has been awarded punishment under Section 8/20/23 of NDPS Act, P.S. Parsamalik, District Maharajgang of three and half years' R.I., fine of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsamalik where the Case Crime No.155 of 2005, under Section 8/20/23 of NDPS Act was registered against him by Harisharan Tiwari (PW-4) who prepared the Chick FIR (Ex. Ka-3). 5. The recovered contraband was got deposited in Malkhana. The investigation of this case was handed over to S.I., Sri Bipin Bihari Singh (PW-5), who after inspecting the place of occurrence, prepared the site plan at the instance of PW-3 which is Ex. Ka-4. The docket of the said sample of the recovered contraband was sent to Forensic Science Laboratory for being tested, report of which was received on 14.05.2005 by PW-5. It was found in this report that the said contraband was Charas. After having recorded entire evidence, PW-5 submitted charge-sheet (Ex. Ka-6) against the accused under Section 8/20/23 of NDPS Act. 6. The accused was subjected to trial after framing of charge under Section 8/20/23 of NDPS Act on 27.07.2016 to which he pleaded not guilty. 7. Thereafter the prosecution examined Constable Mahendra Kumar as PW-1; Constable Dinesh Chandra Yadav as PW-2; S.O. Bachchoolal Chaudhary as PW-3 who were witnesses of fact. Thereafter statement of Head Constable Harisharan Tiwari (PW-4) and retired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered, but even then the said motorcycle was not seized which was mandatory under law because the said motorcycle was used in concealment of the contraband. It was also not investigated as to whom the said motorcycle belonged. Due to this, the recovery of the contraband may not be attributed to the accused, as no conscious possession thereof can be attributed to him. (d) That there was cutting/overwriting on the date in recovery memo in respect of the date 22.04.2005 . Specific question was asked from PW-5 as to who made cutting/overwriting, but it has not been clarified by him and this would lead to the whole incident/occurrence being doubtful. (e) The plea taken by the appellant that the procedure provided under Section 50 of the NDPS Act was also not followed by the prosecution, has been discarded by the learned court below holding that the same would not be applicable in the present case becuase the recovery was not made from the person of the accused rather the same was made from the dicky of the Motor-cycle being driven by the accused-appellant. 11. In rebuttal the learned AGA has admitted that there is no evidence on record to show as to when the recovered contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which May extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it for the possession of which he fails to account satisfactorily . Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the Legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which he fails to account satisfactorily. 15. Therefore, it shall be heaviest duty on the part of the prosecution to produce beyond shadow of doubt that the contraband was recovered from possession of the accused-appellant and for that it shall certainly be required that the provisions legislated to prove recovery from the accused-appellant under the Act in Chapter V under Sections 41 to to 68 are strictly followed/complied with. It would be pertinent to reproduce hear relevant Sections so as to know as to what procedure was required by the prosecution to prove recovery of contraband from the appellant. Section 41- Power to issue warrant and authorisation- 1. A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and any other person in his company. Explanation- For the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. Section 50- Conditions under which search of persons shall be conducted.- 1. When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. 2. If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). 3. The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. 4. No female shall be searched by anyone excepting a female. 5. When an officer duly authorised under section 42 has reason to believe that it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted officer, at the time ofthe intended search. Courts have to be satisfied at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search was made of motor-cycle, and about 500 grams of charas was recovered by police packed in a polythene of which he could not show license to possess. In above set of facts the question arises as to whether recovery of alleged charas from the dicky of motor-cycle driven by the accused-appellant would be treated to be personal search or not because for application of the provisions of Section 50 of the NDPS Act, the search should be made of a person and not of his separate box, bag etc., being carried by him. 19. In view of law laid down in State of Rajasthan Vs. Parmanand and another, (2014) 5 SCC 345, in case personal search of accused is made simaltaneously with that of any baggage such as box, bag etc., being carried by him then even if no contraband is recovered from his person but the same is recovered from such bag or baggage being carried by him, the provisions of Section 50 shall apply. In the above case law, the Hon'ble Supreme Court has held in paragraph 15 of the judgmet as below:- 15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore sunrise and the PSI should have obtained a warrant or authorization for conducting the search of the vehicle. This plea also is without any merit. The contraband substance, namely the opium, was recovered from the tanker when the usual search of suspected vehicles carrying such contraband was being conducted by the police officials. The police party had no previous information that any contraband substance was being concealed in any building, conveyance or enclosed space and they have to conduct a search pursuant to such information. Then only they would require a warrant or authorization as contemplated under Section 42 of the NDPS Act. If it is a chance recovery, the procedure contemplated under Section 42 cannot be complied with and the evidence of PW-2 would clearly show that it was a chance recovery. 23. Keeping in view the above position of law that in a sudden recovery of contraband substance, the provision of Section 42 of NDPS Act is not applicable, in the case at hand, it is clear that the contraband substance was recovered when the police party was on their usual duty of maintenance of law and order when all of a sudden they came across the accused and recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Norcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search(Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot. 1.6.- Quantity of different drugs required in the sample The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all norcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicates sample also. The seized drugs in the packages/containers should be well mixed to make it homogenous and representative before the sample in duplicates is drawn. 1.7.- Number of samples to be drawn in each seizure case (a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. (b) However, when the package/container ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the S.No. Of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked secret-Drug sample/Test memo to be sent to the concerned chemical laboratory. 27. The Hon'ble Supreme Court in Khet Singh Vs. Union of India (2002) 45 ACC 41 has held in paragraph 10 of the judgment as below:- 10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said contraband from the accused. In recovery memo there is no mention made as to how the same was found to be 500 grams and how 50 grams was out of it and weighed. 30. Next consideration the court would like to make is whether the prosecution has been able to prove that the alleged contraband which was recovered from the accused and the sample taken out of it were kept in safe custody ensuring that there was no possibility of their being tampered. In this regard it would be pertinent to mention hear that in the recovery memo (Exhibit Ka-1) nothing has been recorded as to whose seal was affixed on the contraband at the time of its being sealed and also whose seal was affixed on the sample taken out of it when the same was sealed. All that the recovery memo contains is that the police party reached the Police Station along with recovered articles and got the case registered against the accused. Neither anywhere it has been recorded nor shown by the prosecution that the said recovered contraband and its sample were separately sealed and the seals by which they were sealed, all this was kept at some safe place when they reached the police station. PW-1 has not stated in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... band. This is a huge lacuna left by prosecution in this case. It leads to suspicion that any such recovery has made from the accused. 32. The AGA has relied upon Hardip Singh Vs. State of Rajasthan, 2008 (8) SCC 557 in which it has been held that delay in sending samples of seized opium to Forensic Science Lab has been of no consequence for the fact that the recovery of the said sample from the possession of the appellant stood proved and established by cogent and reliable evidence led in the trial. PW-5 categorically stated and asserted about recovery of opium from possession of the appellant which fact was also coroborated by Higher Officer, namely Deputy Superintendent of Police who was also examined at length during the trial. The said recovery was effected in the presence of Deputy Superintendent of Police, the Senior Police Officer, who also put his seal on the said parcels of opium. Besides, it had also come on evidence that till the date the parcels of samples were received by chemichal examiner, the seal put on the said parcels remained intact. That itself proved and established that there was no tampering with the aforesaid seal on the sample at any stage and the sampl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was wrapped in separate cloth and was sealed properly and sample of seal was also prepared. The said motorcycle was also taken into custody by the police. Recovery memo was prepared on the spot and its copy was provided to the accused. PW-1, Constable Sri Mahendra Kumar has not stated anything in his examination-in-chief whether the said contraband was deposited in the Malkhana or not. In the cross-examination, this witness has stated that he does not recollect that after arrest of the accused with alleged contraband was sealed and recovery memo prepared, whether they had gone to police station or had gone to their area; but he did mention that they had returned to the police station the same day; but he does not recollect the time nor could he say whether it was day or night. PW-2, Constable Dinesh Chandra Yadav has also not stated in examination-in-chief that the said contraband was deposited in Malkhana when they reached police station. PW-3, S.I. Sri Bachchoo Lal Chaudhari also did not state anything regarding deposit of the recovered contraband. PW-4, Sri Harisharan Tiwari has stated in examination-in-chief that the recovered Charas was deposited in Malkhana, but has not menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Singh 2011 (11) SCC 559, in which the Hon'ble Supreme Court has held in paragraphs 5 6 as below: 5. We find, however, that the second aspect on which the High Court has opined calls for no interference. As per the prosecution story the samples had been removed from the malkhana on 26-2-1998, and should have been received in the laboratory the very next day. The High Court has, accordingly observed that the prosecution had not been able to show as to in whose possession the samples had remained from 26-2-1998 to 9-3-1998. The High Court has also disbelieved the evidence of PW 6 and PW 9, the former being the Malkhana Incharge and the latter being the constable, who had taken the samples to the laboratory, to the effect that the samples had been taken out on 9-3-1998 and not on 26-2-1998. The Court has also found that in the absence of any reliable evidence with regard to the authenticity of the letter dated 26-2-1998 it had to be found that the samples had remained in some unknown custody from 26-2-1998 to 9-3-1998. 6. We must emphasise that in a prosecution relating to the Act the question as to how and where the samples had been stored or as to when they had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation. (2) Any narcotic drug or psychotropic substance or controlled substances lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance or controlled substances which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance or controlled substances, materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation. (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance, or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned advocate appearing in support of the appeal, however rather confidently stated that since the provisions of Section 57 of NDPS Act are now settled to be only directory and not mandatory in nature, the question of non-production of the malkhana register though vital, but the success of a case does not and cannot depend upon it. It may be a mere irregularity but cannot go to the root of the prosecution which make the prosecution vulnerable. At the first blush, the arguments seem to be rather convincing but on a closure scrutiny, however, it lost its efficacy by reason of the fact of there being no factual support therefor. The High Court has dealt with the matter purely on the factual score and concluded adversely by reason of non-production of malkhana register coupled with other set of facts, as argued before the High Court. The doubt which sprang up as regards the seizure lists, admittedly cannot be brushed aside. The seizure lists ought to have been prepared before the lodgement of the FIR and as such question of mention of the FIR No. in the seizure lists would not arise at all. But in the contextual facts the indication of the case number in the seizure lists has r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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