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TMI Blog2017 (12) TMI 1512X X X X Extracts X X X X X X X X Extracts X X X X ..... ormed the superior officer about the same and he ought to have proceeded in accordance with the provisions under the NDPS Act but neither he has informed the superior officer as provided under Section 57 of the Act nor he has followed the provisions of Section 55 regarding taking charge of articles seized and delivered nor there is compliance of provisions of Section 52A of the Act or the Standing Orders issued under the aforesaid Act. Neither the recovered seized articles nor the samples and remaining of the samples sent back by the FSL has been produced before the court nor there is anything to show that it has been kept in Malkhana and there is also nothing on the record in support of the same, neither Malkhana register has been poduced nor Malkhala In-charge has been examined in the present case, which appears to be essential in this case. The trial court has not considered the aforesaid aspect of the matter and only being swayed by evidence of the police officers, coupled with the fact that recovery of opium and the opinion recorded he had convicted the appellant under Section 18(b) of the Act - the impugned judgment of conviction suffers from several inconsistencies, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Forensic Science Laboratory. It also appears that after completion of investigation charge sheet has been submitted. 4. Record further shows that cognizance has been taken and case was numbered as NDPS Case No. 43 of 2010. Similarly, case of Ramanand Patel has been numbered as NDPS Case No. 122 of 2010. Charges were framed against the appellant in NDPS Case No. 43 of 2010 and against co-accused Ramanand Patel in NDPS Case No. 122 of 2010. However, later on both the cases of appellant and the co-accused Ramanand Patel have been amalgamated and has been disposed of by the common judgment and order. 5. During trial four witnesses have been examined on behalf of the prosecution, they are P.W.1, Sanjay Kumar Singh (Informant- cum-Inspector of Police-cum-Officer-in-Charge, Raxaul Police Station), P.W.2, Baneshwar Kishku (Assistant Sub-Inspector of Police), P.W.3, Lalan Prasad (Sub-Inspector of Police and P.W.4, Uma Shankar Singh (Investigating Officer). 6. Apart from that, following documents have also been produced before the court : Ext.1, seizure list, Ext.2, written report, Ext.3, FIR, Ext.4, confessional statement of the appellant, Ext.5, requisition letter dated 29.8.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search is made by the police officer or the concerned authority, upon the prior information. If such a person has reason to believe from personal knowledge or information given by any person and obliged to take down in writing as such the information about the accused having possessed of and dealing with contraband article like charas‟ came to be appraised of by the concerned PSI Mr. K.D.Pandya, LCB Branch of Bharuch Police Station, in course of his investigation of an offence, registered vide CR No. II- 135 of 1995. Therefore, it is settled proposition of law when such an information or intimation or knowledge comes to the notice of the Investigating Officer in course of the regular patrolling or an investigation of some other offence. It is not necessary to follow in all cases the conditions incorporated in Section 42. Similarly in the case of Durgo Bai vs. State of Punjab :AIR 2004 SC 4170 the Hon‟ble Apex Court has held in paragraphs 7 to 9 of the said decision as follows : 7. The next contention raised by the learned counsel for the appellants is about the violation of the mandatory requirements of Sections 42 and 50 of the Act. The learned counsel subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a Gazetted Officer and taking to Gazetted Officer thus would not arise because by then search would have been over. As laid down in Section 50 the steps contemplated thereunder namely informing and taking him to the Gazetted Officer should be done before the search. When the search is already over in the usual course of investigation under the provisions of Cr.P.C. then the question of complying with Section 50 would not arise. 9. It was noted in the beginning of the same paragraph that in the cases before the Court, the Police Officers did not proceed to act under the provisions of the NDPS Act after having necessary information or after entertaining reasonable belief as envisaged by Section 42. It was again emphasized in paragraph 25 that if there is a chance recovery of narcotic drug or psychotropic substance during a search in exercise of the power under the provisions of Cr.P.C., the compliance with Section 50 does not arise. However, the empowered officer should, from that stage, proceed to carry out the investigation in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52, and the conviction so held in that case has been set aside on this ground. 15. Learned counsel for the State, on the other hand, has submitted that in this case there is no necessity for compliance of Section 42 or Section 50 of the Act. It is further submitted that the materials on record show that the seized articles were produced before the court for authorizing a Magistrate for sending the seized articles for chemical examination by the FSL. However, he failed to point out as to where the seized articles were kept before producing it before the court and also failed to explain the delay in sending the articles to the FSL. 16. On close scrutiny of the evidence it appears that P.W.1 has stated that seizure list was prepared at the spot and he has brought accused with seized articles to the Police Station, registered FIR and handed over the investigation to the S.I., Ramashankar Singh. Lower Court record shows that the accused appellant was produced in court on the next day, i.e., 26.8.2010. However, there is nothing on record to show as to where the seized articles were kept. It appears from the evidence of I.O.(P.W.4) that he sent the seized articles for examination by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1 All drugs shall be properly classified, carefully, weighed and samples on the spot of seizure. 2.2 All the packages/containers shall be serially numbered and kept in lots for Sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) 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. 18. In the present case there is absolutely nothing is available to show as to whether direction issued vide Standing Order No. 1 of 1989 or provisions of Section 52A of the Act have been complied or not. The only evidence available that the Investigating Officer has made requisition for sending the articles to the FSL to the Special Judge but as to how and where, it was prepared, before whom it was prepared and signature of seizure witnesses and accused have been taken or not, there is no evidence at all on the record. Further there is nothing available to show as how much quantity was taken from each packet and as whether it was properly sealed prior to sending it t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Bench of this Court in the case of Pratibha Devi vs. State of Bihar and after considering the entire aspects of the matter this Court was of the view that on account of non-compliance of the mandatory provisions of law, the prosecution case was found adequately dented and set aside the conviction and sentence. 21. We are not entering into the details, as to whether provisions of Sections 52A, 55, 57 and compliance of Standing Orders are mandatory in nature or not, but when there is stringent punishment under the Act, prudence demands that procedure prescribed under the Act, be followed, and there should even be a substantial compliance of those provisions, specially when Act provides for reverse burden on accused, i.e., presumption under Sections 35 and 54 of the Act. Aforesaid question has also been considered in a case of Noor Aga vs. State of Punjab as well as in the case of (2008) 16 SCC 417 and on going through the entire judgments we gather that the ratio decided in those judgments is that only when recovery has been made as per procedure established by law, particularly as per provisions under the Act, doctrine of reverse burden shall apply. Hon‟ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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