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TMI Blog2018 (1) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... uja were busy in search of people coming from Nepal as usual. Right then, one lady was seen coming on foot, who was stopped by lady Constable Anita Dhruve and was taken inside an enclosure made by a screen. On being enquired as to what she had hidden beneath her clothes, she stated her name to be Tilisara Rai alias Maya and told that she was carrying packets of charas in a Thaili tied to her body beneath her clothes. She was asked whether she would like to give her search before the Gazetted Officer or a Magistrate or would she like to be searched by a lady Constable of the police party. To this offer, she responded by saying that since she had been caught by them, the police party could take her search. Thereafter, she got the Thaili which was tied to her body, untied by Anita Dhruve, in which there were 6 packets of Nepali charas in rectangular shape and 12 packets of flat oval-shaped charas and all these packets were packed in almond coloured polythene. All these packets were weighed by bringing a balance (electrical weighing machine) from the shop of Ashok and the same was found to weigh 5 KG and 120 grams. After taking out the small quantity of charas from each packet, sample ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proved chick F.I.R. and GD beyond doubt. PW 4, SI Rampal had not conducted fair investigation. Forged sample was prepared and sent to the Forensic Science Lab and because of that only the said report states that the sample was found to contain charas. No independent witness was examined by prosecution. On the other hand the prosecution had argued that it had successfully proved the case of conviction against the accused appellant. Provision of section 50 of the Act was complied with fully. The report of Forensic Science Lab was stated to be authentic proving that the contraband substance recovered from the accused appellant contained charas 9. After having considered the entire evidence on record the learned Court below has held the accused appellant guilty and has awarded the above-mentioned punishment. It has found the compliance of section 50 of the Act to have been made in letter and spirit by the prosecution and found the recovery of contraband substance (charas) proved from the accused appellant, beyond a shadow of doubt. 10. The learned amicus curiae Ms. Seema Pandey has challenged the impugned judgment on following grounds. The quantity of the sample taken out of total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also stated that the prosecution has been successful in proving that the charas recovered from the accused appellant and its sample and sample seal were kept in safe condition in Malkhana and there was no tampering with the sample found to be charas by the Forensic Science Lab, hence in a foolproof manner the prosecution has been able to establish that the accused appellant was found in possession of illegal charas of above mentioned quantity which she did not have licence to possess. Therefore the learned Court below has rightly convicted her. 12. First of all this Court has to see on the basis of evidence on record as to whether the prosecution has been able to prove beyond reasonable doubt that the provision of section 50 of the Act has been complied with? This is a matter of fact which needs to be evaluated in the light of evidence on record. 13. It is evident from the perusal of the recovery memo that when the police party found the accused/appellant coming on foot from the side of Nepal she was stopped by lady Constable Anita Dhruve and was taken to a screened enclosure for search of her person and when she enquired from her as to what had she concealed beneath her clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrested. Thereafter at the instruction of the staff the three lady Constables, which included PW 3 as well, took search. The appellant came out after getting the thaili of cloth detached from her body by lady Constable Anita Dhruve, from which 6 packets of Nepali charas of bigger size and 12 packets of oval-shaped Nepali charas were taken out. From PW 4, Rampal Singh, the investigating officer, the defence has not asked anything regarding non-compliance of section 50 of the Act. 14. From the above it is absolutely clear that PW 1 had clearly apprised the appellant about her legal right that she could be searched in presence of a Magistrate or a Gazetted Officer in case she so desired. It is settled law as laid down in Baldev Singh's case that there was no prescribed format for apprising the accused of his/her legal right of being searched in presence of a Gazetted Officer or a Magistrate. This right could be apprised to him/her orally as well and it was subject matter of fact to be assessed in the light of evidence led by both the sides as to whether the prosecution had been able to establish beyond pale of uncertainty that it had apprised the accused of his/her right to be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice party. During search 18 packets of charas were recovered from her which were weighed in presence of 2 independent witnesses and were found to be 5.120 kilogram. This was signed by ASI Rajkumar, all the three lady Constables and two witnesses of public. Therefore this document also indicates that she was apprised adequately about her right to be searched in presence of a Gazetted Officer, however her right to be searched in presence of a Magistrate has been proved by PW 1 and PW 3 , both witnesses of fact as mentioned above. 15. The next important point which this Court would like to take up is whether the prosecution has been able to prove successfully that the said contraband substance (charas) was recovered from the appellant. This is also a subject matter of fact to be decided on the basis of evidence on record. 16. PW 1 has stated in examination in chief that a weighing machine was procured from a sweets shop of Ashok along with weights which was electronic balance. Weighing was done by him and the recovered charas was found to be 5 KG and 120 grams. A small quantity from each packet was taken out as sample. The recovered charas and the sample charas were separately seale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and other witnesses had also put their signature. The writing work done at police station was done in the handwriting of A S I, Rajkumar. There is no cross-examination made by defence on the point of whose seal was affixed on the recovered charas and its sample. 18. PW 4, the investigating officer has stated that on 27/9/2013 he received a report from Forensic Science Lab and made its entry in his diary which is Exhibit Ka 6 and in it, the sample was found to be charas. In cross-examination this witness has stated that he had not seen the recovered charas before taking over investigation. When the substance was sent for examination, it was not signed by him. It was signed by the circle officer. The recovered contraband substance bore seal of complainant/first informant of the case. He had not taken statement of independent witnesses. He had taken statement of shopkeepers who were having shops nearby but he could not tell their name. He had not seen the recovered substance after opening it, but on recovery memo charas was written and on that basis he had taken it to be charas. Thereafter report of examination was also received stating that it was charas. When the substance was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliminate any doubt that the contraband substance produced before it was the same which prosecution alleged to have been recovered from the accused on the spot and sealed there. 21. Here it would be pertinent to rely upon Valsala vs State of Kerala, 1993 supplementary 3 SCC 665 2 in which following is held in paragraph 4 : - "4. We have seen the report of Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear that it is also noted by both the courts below that the seized article was produced in the Court only on January 14, 1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW 6, the officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the present case are not wholly identical but to a certain extent the benefit of above ruling may go to the accused because it is apparent that in cross-examination PW 1 has clearly admitted that the seal which was used on the spot of SI Ram Pal Yadav was not found affixed on the charas which was produced in Court. PW 3 stated that the said recovered charas was not produced before her when her statement was recorded before Court. PW 4, the investigating officer has stated that recovered charas bore seal of complainant/first informant. These statements would go to show that it cannot be held that the same contraband substance was produced before Court which according to the prosecution's case had been recovered from the accused on the spot. It was essential for the prosecution witnesses to bring on record that the seal which was used at the time of sealing the alleged recovered contraband substance was compared with the seal on the said material when brought before Court for being exhibited and only after the seal was found matching, it could be held that it was the same case property which was recovered from the accused and sealed on the spot. This has not been done and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough in the present case a certified copy of the entry in Malkhana register has been produced as mentioned above but it does not show that there was any entry made with regard to the sample of contraband substance and sample seal having been kept in Malkhana. The only mention made is that of the recovered contraband substance (charas) weighing 5.120 grams to have been kept there. Therefore there is no evidence found on record of keeping the sample of the alleged recovered contraband substance, remainder and sample seal in safe custody in Malkhana, till the sample along with sample seal was sent to the Forensic Science Lab and the remainder contraband substance was produced before Court to prove that on it was found seal of SI Ram Pal Yadav at the time of statement of PW 1 in cross-examination, whose seal was affixed on the spot. This leaves gnawing gap in the prosecution's case to prove that the sample of the same contraband substance was sent for being tested to the Forensic Science Lab which was recovered from the accused on the spot. 25. Another important point which has been raised by the learned counsel for the appellant is that the sample sent to Forensic Science Lab as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which basically are on medical jurisprudence, the Division Bench, in Sunil's case failed to assign correct meaning to ''charas' and ''cannabis resin', the necessary constituents of an offence punishable under section 20 of the NDPS Act. c. In view of detailed discussion hereinabove, the Division Bench while deciding Sunil's case supra has definitely erred in making note of the percentage of tetrahydrocannabinol in three forms of cannabis i.e. Bhang, Ganja and Charas, hence, concluded erroneously that without there being no reference of the resin contents in the reports assigned by the chemical examiners in those cases, the contraband recovered is not proved to be Charas, as in our opinion, the Charas is a resinous mass and the presence of resin in the stuff analysed without there being any evidence qua the nature of the neutral substance, the entire mass has to be taken as Charas. d. There is no legal requirement of the presence of a particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample is that of Charas. The law laid down by the Division Bench in Sun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of charas is not an indicator of the entire stuff analysed to be charas" for the reason that the statute does not insist for the presence of percentage in the stuff of charas and mere presence of tetrahydrocannabinol along with cystolithic plant because of cystolithic hair are present only in the cannabis plant. Even after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants. The resin rather must have been obtained from the cannabis plants may be in ''crude' form or ''purified' form. In common parlance charas is a handmade drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for ''charas' under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to strictly comply by itself would will not vitiate the prosecution." 29. In the case at hand, looking to the fact that at the stage of arrest of the accused, the arresting party was given consent by the accused to be searched by them instead of being searched before Magistrate or Gazetted Officer, hence in such a situation it was more essential for them to send a report to their higher authorities after arrest of the accused and seizure of contraband substance from her for proving authenticity of the arrest and seizure. 30. It may also be mentioned here that the initial burden of proving the recovery of contraband substance is upon the prosecution. Not doing so has certainty caused prejudice to the accused. Only after the prosecution proves recovery of contraband substance from the accused beyond reasonable doubt, the burden shifts on the accused under section 35 and 54 of NDPS Act to disclose as to how he came in possession of the said contraband substance. In the case at hand, due to the prosecution failing to prove the recovery of contraband substance beyond doubt, no burden can be shifted on the accused to prove as to how he came in possession of the same. 31. Another imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g officer to produce the case property before some other Police Officer. The object of section 55 of the Act is to preserve the sanctity of the case property. It's compliance is meant only to reinforce the link evidence regarding safe custody of the case property and non-compliance thereof ipso facto will not vitiate the trial or conviction. In case there is other cogent and reliable link evidence about safe custody of the case property ruling out any tampering therewith, non-compliance of section 55 will have no adverse bearing on the case of the prosecution. In case samples had been taken and seal affixed by the investigating officer before the article is delivered to the police station, the question of the seal of the officer in charge of the station being affixed to the sample does not arise. That is clear from the latter part of section 55 which directs the Station House Officer to allow any officer who had accompanied the articles to affix his seal to such articles and to take samples from them. Only samples so taken shall be sealed with the seal of the officer in charge of the Police Station. Deposit of the seized property in the Police Malkhana amounts to taking charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at severer the punishment, more meticulous compliance was required to be made of all the mandatory provisions of law to rule out any possibility of false implication. Above-mentioned procedural flaws could have been easily avoided by the prosecution by paying little more attention. The authorities involved in investigation and arrest of the accused ought to have kept in mind that sections 58 and 59 of the Act make it absolutely clear that the police officers empowered to effect search, make seizure and arrest of the accused, must do so after following the mandate of law. It is not only in cases of vexatiously taken proceedings that a person empowered may be prosecuted but even if any officer carries out the functions mentioned in section 58 without reasonable ground of suspicion even the legislature had made it cognizable offence. Similarly, under section 59, if any officer does not carry out the duty imposed on him by law, he can be prosecuted, under section 59 of the Act. For infringement of the rights of the accused and for failing to carry out the statutory duties, a criminal action is contemplated against the defaulting officer and the criminal law can be set in motion and it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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