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TMI Blog2017 (12) TMI 1508X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accused. Whether the prosecution has been able to prove the recovery of 01kg charas from the accused from the place of occurrence as alleged? - Held that: - the prosecution has failed to establish beyond reasonable doubt that 01kg charas was recovered from accused-appellant, hence without establishing the recovery, the burden under Section 35 & 54 of NDPS Act could not be thrust upon the accused to disclose as to how he came in possession of the said contraband. The court below has failed to take into consideration the infirmities pointed out by this Court in the body of this judgement. It is held that the court below did not make proper appreciation of evidence on record in right perspective particularly with regard to identification of recovered contraband substance (Charas) which is being alleged to have been recovered from the accused on the spot, to be the same, the sample of which has been found by the F.S.L. to be Charas. This being of core importance in this case, the same could not be allowed to be taken lightly. In view of the severe punishment provided under the Act, this aspect ought to have been taken into consideration with all circumspection which appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sealed on the spot. The remaining recovered charas was kept in the same bag (Jhola) and was also sealed. The samples of seals were separately prepared. The people present there were requested to be witness of proceedings but none gave consent. The recovery memo (Ex. Ka-5) having been prepared on the spot, a copy of the same was provided to the accused. 4. The Constable Radhey Shyam Tewari (PW-4) had registered case bearing Case Crime No.297 of 1990, under Section 20 of NDPS Act and made its entry at Report No.15, Time 19:20 hours on 05.07.1990. The investigation of the case was assigned to S.I. Sri Chandra Shekhar Singh (PW-5) on 15.07.1990, who got the docket prepared for examination of the recovered charas under order of court dated 19.07.1990. He made inspection of the place of occurrence, but thereafter because of his transfer he could not complete the investigation. The remaining investigation has been conducted by S.I. Sri Rakesh Kumar Singh (PW-3) who submitted charge-sheet (Ex. Ka-2) against the accused. The F.S.L. report is Ex. Ka-6, site plan is Ex. Ka-4. 5. The charge against the accused was framed on 04.10.1990 to which he pleaded not guilty. 6. The prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant's guilt. 4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution's case must be held to be lacking in credibility. 5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law. 6. The investigation of the case was not fair. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. 10. It would be pertinent to peruse the entire evidence adduced by the prosecution in this case afresh and to see whether the mandatory provisions of the NDPS Act had been followed by it or not. 11. The prosecution's case has been narrated in the recovery memo (Ex. Ka-5) which is that the police party headed by S.I. Sri Vinaya Kumar Singh (PW-1) while busy in crime control activities on the platform, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of alleged charas from the accused he was supposed to follow all the relevant provisions, chiefly among them would be the provision given under Section 57 of NDPS Act, which required him to send a full report of all particulars of such arrest and seizure to his immediate official superior. For the sake of convenience Section 57 of NDPS Act is quoted herein below: 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. 13. Section 57 of NDPS Act has been interpreted succinctly in State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299, in paragraphs 24 25 of which following is held: 24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. 14. In view of above law, it is apparent that although the compliance of provisions of Section 57 of NDPS Act is not mandatory but directory. The compliance may be made even with delay with sufficient explanation therefor. The court conducting trial of an accused under the provisions of NDPS Act has to take into consideration whether non-compliance of this provision has resulted in causing prejudice to the accused. If yes, then certainly the benefit may be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecollect. The 20gm of charas was taken out of the said bag (Jhola) containing charas in a separate dibba and was sealed. The paper related to the sample of seal was sent to Lucknow, and is not on this file. Further he has stated that the bag (Jhola) was closed and was sealed, but he could not say as to whether the sample of seal of the said seal was on the file or not. The sample of seal is annexed with the sealed substance. The sample of seal and the seal affixed on the bag (Jhola) are the same. 17. The other witnesses of fact, PW-2, Constable Sri Collector Prasad Singh has stated in examination-in-chief that 01kg charas was recovered from the bag (Jhola) being carried by the accused in his right hand, out of it 20gm charas was taken by way of sample and was sealed in 'jarde ki dibiya' and the remaining charas was sealed in the bag (Jhola). On the said seal the Sub-Inspector had written in his own hand writing the crime number. In cross-examination he has reiterated the above facts and has further stated that the senior most officer at the time of arrest and seizure was S.I. only and no officer of an Inspector rank is involved in this. 18. In the entire above evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent by court. The recovered substance was brought by him in court; the said substance was taken out by way of sample, which was brought in court and under order of court the same was sent for examination through Sri Ram Yadav and such entry is made by him in the case diary. There is no other document on record other than entry in case diary proving that Sri Ram Yadav had taken the said substace for being examined. 19. From the above statement of the Investigating Officer, it appears that the alleged recovered charas was brought in court which was the substance taken by way of sample and under the order of court, the same was sent for examination to F.S.L. through Sri Ram Yadav. There is no procedure provided under law that for sending sample the approval/sanction of court should be taken. Nothing has come on record to the effect that the said sample of charas was sent by court affixing its own seal or whether the court had approved it to be sent to the F.S.L. It is on record that arrest of the accused as well as recovery of charas is alleged to have been made on 05.07.1990 while the sample of the same has been sent on 19.07.1990 i.e. after about 14 days after the recovery was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to explain. This material circumstance goes against them. Under these circumstances, it could be said that they were in possession of, and in control over the bags, lying in the jeep. Once the possession of the accused, and their control over the contraband was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against them that they were in conscious possession thereof. Thereafter, it was for them to rebut the statutory presumption by leading cogent and convincing evidence. However, the appellants, failed to rebut the said presumption either during the course of cross- examination of the prosecution witnesses, or by leading defence evidence. (emphasis supplied) ................... 16. The appellants were found travelling in a jeep at odd hours in the night and the contraband material was found. Therefore, the question arises whether they can be held to have conscious possession of the contraband substances. 17. This Court dealt with this issue in Madan Lal v. State of H.P. AIR (2003) SC 3642, observing that: 20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872. 22. In State of W.B. v. Mir Mohammad Omar (AIR 2000 SC 2988), this Court held that if the fact is specifically in the knowledge of any person, then the burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. 38. ... Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (emphasis supplied) 22. In view of the above position of law it is apparent that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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