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TMI Blog2017 (12) TMI 1834X X X X Extracts X X X X X X X X Extracts X X X X ..... the culpability and the complicity of any other person is established the supplementary complaint be filed. Indubitably, in this case the NCB has not obtained any further permission for further investigation or even placing on record the supplementary complaint. Therefore, the trial on the basis of such supplementary stands vitiated against the Khekh Ram and once the complaint itself held to be not maintainable, then obviously any conviction and sentence based on such complaint has essentially to be set aside - the appellant is acquitted of the charges framed against him. He is ordered to be released forthwith if not required in any other case - appeal allowed. Smuggling - contraband item - facts brought on record by the NCB falsify the case of the prosecution or not - mere paper work and nothing happened and no such incident took place at any point of time or not - failure to connect the FSL report Ex.PW1/A with the alleged contraband - failure to comply with Section 42(2) of the Act - non-joining of independent witness is fatal to the case of the NCB - NCB case is full of infirmities, discrepancies, embellishments and improvements etc. - Appellant has been wrongly implicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough FAX, which is Ext.PW7/A and the same was received by him on 20.10.2014 around 11:00 p.m. However, when Ext.PW-7/A is perused, the same admittedly is not a FAX message and not even an original copy and, therefore, in the given circumstances, the NCB has withheld the best evidence which calls for an adverse inference. (x) There are no call details of the officials who sent the information under Section 42 of the Act and the person who received the same to substantiate the factum of calling and receiving of calls as alleged by them. (xi) PW-9 even though tried to support the version of PW-7 regarding the sending of the FAX message but has candidly admitted in his cross-examination that Ext.PW- 7/A is not a FAX copy and further admit that the FAX copy has not been placed on record. (xii) As per PW9, the case property was taken by him to Zonal Unit, NCB Chandigarh on 21.10.2014 and was deposited with PW-7, who issued receipt Ext.PW-7/C in this regard. It would also be noticed that in case PW-9 had visited PW-7 on 21.10.2014 then why the information under Section 42(2) of the NDPS Act was not placed before him on 21.10.2014 itself and came to be placed before him subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 2. The parties do not dispute that the case as set-out by the Narcotics Control Bureau (for short the NCB ) has correctly been enumerated by the learned Special Judge, therefore, the same is extracted as such from the judgment. 3. The facts of the case as set-out by the NCB are that on 20.10.2014, a NCB team, consisting of A.C. Malla (PW9), Virender Singh, R.L. Negi, (PW10) Vinay Singh, all Intelligence Officers of NCB, Sub Zone Unit, Mandi, alongwith Sepoy, Surjit and Maheshwar as well as driver, Vijay Kumar were on surveillance duty in Kullu area. At about 6.30 p.m., a secret information was received by PW9, Shri A.C. Malla, who was posted as the Intelligence Officer in NCB Office Mandi, to the effect that on that day at about 8.30 p.m., accused Nilmani was likely to appear near a span owned by one Davinder Nath (PW5), installed at about one kilometer ahead of village Shat, towards Manikaran side. The said information was also to the effect that accused would signal three times with torch light towards other side of span and then, the persons from other side would sent contraband through span in trolley which will be received by accused Nilmani. PW9 Sh. A.C. Malla (I.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Negi (PW10), Intelligence Officer and Surjit Singh (Sepoy) as witnesses, by issuing notice, Ex.PW9/B Ex.PW9/C, to them, respectively. Both the aforesaid witnesses put their signatures on the respective notices and offered themselves to become witnesses to search and seizure. It was pitch dark at the spot and due to security reason, it was not possible to carry out proceedings at the spot. As such, accused Nilmani alongwith material and members of the NCB team were taken to NCB Zonal office, Mandi. 5. On reaching NCB office at Mandi, further proceedings were carried out by the I.O. I.O. first opened the bag, in which, dark brown colour substance, in the shape of biscuits and flat shaped was found. Thereafter BORU was opened, in which, dark brown colour substance, in the shape of flat and biscuit was also found. The substance, in both bag and BORU was wrapped with polythene wrappers. After that, I.O. first took some material from the bag for testing, and on testing, it was found positive of Charas. Likewise, some material was taken from the BORU , which, on testing was also found positive for Charas. I.O. thereafter took half material from the handbag by removing packing m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/N, and then, arrested and intimation qua his arrest was given to his wife vide memo, Ex.PW9/K and jamatalashi of accused Nilmani was taken vide memo Ex.PW9/J. The Investigation Officer moved an application, Ex.PW9/L, for medical examination of accused Nilmani and his OPD slip is, Ex.PW9/M. After medical examination, MLC Ex.PW9/N, was obtained. I.O. also prepared inventory, Ex.PW9/P. I.O. issued notice, Ex.Pw9/P, to witness R.L. Negi, who gave his statement, Ex.PW9/P1, which was also verified by the Investigating Officer. Notice, Ex.PW9/O, was given to witness, Surjit Singh, who gave his statement Ex.PW9/A1, to the I.O. in his own hand, which was signed by him and verified by the I.O. 8. Thereafter, case property was taken by the I.O. Shri A.C. Malla to Zonal unit, NCB, Chandigarh, on 21.10.2014, and it was deposited there with Superintendent/In-charge of NCB Godown, Shri Nirbhay Singh (PW7), vide receipt Ex.PW7/C dated 22.10.2014. Before taking case property to Zonal Unit Chandigarh, I.O. gave information qua the arrest of accused Nilmani to PW7 Nirbhay Singh, vide memo Ex.PW7/B. Thereafter, on the directions of Zonal Director, case file was handed over to Karambir Singh (PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted call details of mobile phone numbers 98167-11354, Ex.PW3/B, 98168-25031, Ex.PW3/D, 98059-49470, Ex.PW3/A and 98165-59297, Ex.PW3/C from Ist October to 31 October, 2014 from PW-3 Davender Verma, Nodal Officer, Bharti Airtel, Kusumpti, Shimla. After supplying aforesaid call details, PW3 Davender Verma (Nodal Officer), also issued certificate, Ex.PW3/E, to the I.O. under Section 65-B of NDPS Act. PW3 Davender Verma also supplied customer application form of mobile No. 98059-49470 with ID proof. He also supplied customer application form, Ex.PW3/F, of mobile No. 98167-11354, having stamp of distributor, M/s Negi Studio and Communication, Sainj, as well as stamp of retailer, Budhi Singh prop. M/s Babloo Communication with ID proof, Ex.PW3/G. PW3 also supplied customer application form, Ex.PW3/H, having stamp of distributor M/ Niraj Enterprises, Gandhinagar, Kullu, and also stamp of retailer Ansuya Store, and ID proof, Ex.PW3/J, of mobile phone No. 98165-59297. He also supplied customer application form, Ex.PW3/K, having stamp of distributor, M/.s Sharma Communication Main Bazar Jari, and also stamp of retailer M/s Davender Thakur Communication, Jari and ID proof, Ex.PW3/L of mobile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber to co accused Khekh Ram. Statement of Davinder Singh, Ex.PW4/D was recorded. During investigation, it came to the notice of PW-9 that main supplier was Ram Lal alias Lalu, who had sent the contraband through span of Davender Nath (PW5). As such, notice Ex.PW9/R alongwith receipt Ex.R1 and notice Ex.PW9/R-1 alongwith receipt Ex.R3 were issued to Ram Lal. Third notice Ex.PW9/R04, alongwith the receipt was also issued to him by I.O. A.C. Malla. 13. On 22.10.2014, four samples i.e. A2, B1, C1 and D1 were handed over to C. Sumit (PW2) by Superintendent, Nirbhay Singh (PW7) alongwith two test memos and covering letter, for taking the same to CRCL Delhi. In the morning of 24.10.2014, C. Sumit (PW2) deposited the aforesaid case property with CRCL, Delhi alongwith covering letter, Ex.PW2/A and obtained receipt of CRCL, Delhi, which was issued by Sh. Gyander Sexena (PW1), who received the case property in CRCL. The receipt was then handed over to Superintendent, Nirbhay Singh by PW2 Sumit, on his return. Shri Gyander Sexena (PW1) on receipt of samples, immediately allotted the same to Ajay Sharma and on the same day, he (PW1) kept the samples in strong room. On 4.12.2014, the samples ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st them and the witnesses had also deposed falsely. One witness was examined in defence by co accused Khekh Ram. 19. The learned Special Judge after evaluating the records convicted the accused as aforesaid, constraining the convicts/appellants to file the instant appeal. We have heard learned counsel for the parties and have gone through the records of the case. 20. The first and foremost issue which comes to the front is whether there is any provision to file a supplementary complaint and if so can the same be filed without obtaining leave of the Court, as admittedly accused Khekh Ram has been convicted only on the basis of the supplementary complaint. 21. Indisputably, the complaint in this case was initially filed only against the accused Nilmani whereas supplementary complaint came to be filed thereafter against accused Khekh Ram. It is also not in dispute that since complaint was filed by a public servant acting in discharge of his official duties, therefore, the recording of preliminary evidence under Section 200 of the Criminal Procedure Code (for short the Code ) was dispensed with and after perusing the complaint and the documents, the learned Special Judge took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. 25. Indubitably, the provisions of the Code of Criminal Procedure, 1973 have been made applicable to the proceedings before the Special Court under the NDPS Act and similar provisions are contained in certain other statute like Central Excise and Salt Act, 1944, Food Adulteration Act, 1954 and Prevention of Money Laundering Act, 2002 etc. 26. In Hemant P. Vissanji and others vs. Mulshankar Shivram Rawal and another, 1991 Cri.L.J 3144 , while dealing with the case where the Magistrate has taken cognizance of the complaint for the second time the Hon ble Bombay High Court held that the same was impermissible in law as the only course open to the Magistrate was to exercise powers under Section 319 of the Code and if satisfied of a prima facie case against the accused, issue process in the said complaint. It was observed as under:- [5] Mr. Vashi then pointed out that in the instant case, not only did the first complaint filed by the complainant against Mahadu Gopal and others vide criminal Case No. 745 of 1984 not disclose the fact that there were other unkn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought in, the only procedure known to law is by taking recourse to Section 319 of the Code by invoking the said provision at the appropriate stage. It is relevant to produce observations as contained in para-5, which reads thus:- 5.At the outset, the procedure adopted by the learned Magistrate in permitting the additional accused to be brought in by way of what the complainant calls supplementary complaint is to be found fault with. Here was the original complaint against two accused filed under Section 200 of the Criminal Procedure Code by the respondent. Learned Magistrate took cognizance. Complaint being from a public servant acting in discharge of his official duties, in view of Clause (a) of the proviso to Section 200 of the Criminal Procedure Code, complainant was not examined. On perusal of the complaint and the documents produced, learned Magistrate found sufficient ground to proceed and a direction issued to issue process against two accused, namely, ITC and Ashok Bhatia for offences under Sections 9 and 9-AA of the Act. Thereafter, if any more accused were to be brought in, the only procedure known to law in a proceeding like the one that was there before the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the complaint under Section 7 read with Section 16(1) (1A) of the Act was filed, of which cognizance was taken by the learned Magistrate and notice was issued to the three respondents, namely, Madan Lal of M/s.Popular Store, vendor-cumproprietor or M/s.P.K.Agency supplier and National Diary Development Board, manufacturer. It was further contended that it was not open to the learned Magistrate to entertain the second complaint in respect of the same incident and issue notices to the accused persons afresh. 14. I find myself in agreement with the contentions raised by the learned counsel for the petitioner. The cognizance of an offence can be taken only in terms of Section 190 of Cr.P.C. One of the modes for taking cognizance is on the basis of a complaint. It may be also pertinent here to mention that a cognizance of an offence can be taken only once, therefore, once the complaint is filed under the Act, in the instant case, being the first complaint against the three accused, namely, Madan Lal of M/s.Popular Store, vendor-cum-proprietor or M/s.P.K.Agency supplier and National Diary Development Board, manufacturer, the second complaint was totally barred and accordingly th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made a party in the first complaint itself. Moreover, under the Prevention of Food Adulteration Act only one complaint is filed by the Department against all the accused persons whether they are vendors, suppliers, distributors or manufacturers. There is no provision in Cr.P.C. for filing of a second complaint which may be akin to the filing of a supplementary charge-sheet in a police case. Therefore, I feel the reasoning given by the learned Magistrate as well as the learned Sessions Judge in this regard was totally erroneous. I am of the view that only the first complaint against the petitioner was sustainable. 29. In Vinod Gupta vs. Haryana State Pollution Control Board, 2016(1) RCR (Cri) 206 , the learned Single Judge of Hon ble Punjab Haryana High Court chose to follow the view taken by the Hon ble Karnataka and Delhi High Courts, as would be evident from the following observations which reads thus:- 12. Coming to the impugned summoning order (Annexure P- 3), it has been found that the learned Magistrate failed to appreciate the abovesaid material aspect of the matter, about the non-maintainability of the additional complaint (Annexure P-1). The learned Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opment Board, manufacturer, the second complaint was totally barred and accordingly the cognizance of the second complaint or the second offence in the second complaint against the new accused persons could not have been taken. The cognizance of the offence against the new accused persons in such an eventuality could be taken only during the course of trial in pursuance to Section 319 Cr.P.C. in case the evidence would have come up against them. 30. However, the Hon ble Jharkhand High Court in Narendra Mohan Singh Anr. vs. Directorate of Enforcement, Cr.MP No. 2686 of 2013, decided on 22.03.2014 , while dealing with the case under the Prevention of Money Laundering Act, 2002, where the Magistrate had taken cognizance of the offence upon supplementary complaint held that the complaint referred to under Sections 44(1)(b) and 45 of the PML Act, it never prevents of filing of supplementary complaint as the reference of a complaint has been made in those provisions in the context that whenever a complaint filed by an authority authorized, court may take cognizance over it. 31. It was further held that in such situation it can be said that the supplementary complaint can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislature. 32. Likewise, a learned Single Judge of the Hon ble Calcutta High Court in Amit Banerjee vs. Shri Manoj Kumar, Assistant Director, Enforcement Directorate, 2016 (2) JCC 1034 , in case under Prevention of Money Laundering Act, 2002, while dealing with the issue of filing of supplementary complaint held that the same could be filed after leave had been granted by the Court to conduct further investigation. It is apt to reproduce the relevant observations, which read thus:- 21.Coming to the issue of filing of the supplementary complaint, I find that the said complaint was presented before the Special Court pursuant to the leave granted by the Special Court to conduct further investigation. Although the power to conduct further investigation is envisaged in Section 173(8) of the code relating to Police investigation under Chapter XII of the Code, the said powers would extend to investigation of a crime, cases where investigations are conducted under the special law conducted by any other agency under a special statute, namely PML Act, in view of the fact that investigation as defined in Section 2(h) of the Code is to include investigation conducted by oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution. ii) Documents on record show that it was a mere paper work and nothing happened and no such incident took place at any point of time. iii) NCB has miserably failed to connect the FSL report Ex.PW1/A with the alleged contraband. iv) Respondent has failed to comply with Section 42(2) of the Act. v) Non-joining of independent witness is fatal to the case of the NCB. vi) NCB case is full of infirmities, discrepancies, embellishments and improvements etc. vii) Appellant has been wrongly implicated while the real culprits let off by the respondents. viii) Non-interrogation of the appellant casts serious doubt on the NCB story. Point No. I. 38. It would be noticed that the case set-up by the NCB is that on 20.10.2014, PW9 S/Shri A.C Malla alongwith PW10 Roshan Lal Negi, Maheshwar Barwal, Varinder Singh, Vinay Singh and Surjeet Singh were on surveillance duty in Kullu area where when at about 6:30 p.m., PW 9 received an information that at about 8:30 p.m. one person, namely, Neelmani (herein after referred to as accused) was likely to appear near span situated at about 1 km from Shat village and would signal with torch light and thereafter the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court as PW- 10 is perused, it would be noticed that these witnesses are silent about the receiving the alleged information and transmitting the same to PW-7 Superintendent, NCB at 6:30 p.m. 43. It is the case set-up by the NCB that these officials alongwith PW-9 Sh. A.C. Malla were present at Kullu area in routine surveillance and travelling to place Shat. It is further the admitted case of the NCB that officials of the NCB had already received information regarding the alleged contraband which they, in turn, had transmitted to PW-7. Then why these witnesses in their statements under Section 67 of the NDPS Act have no uttered a single work about the receiving or transmitting the said information. This casts serious doubt on the story of the NCB. Point No. II 44. As per the case set-up by the NCB that no proceedings were conducted on the spot because it was dark and the accused was taken to Zonal Office, Mandi where search and seizure proceedings were conducted. PW-9 claimed to have issued two notices Ext.PW-9/A, the option given to the appellant under Section 50 of the NDPS Act and Ext. D-2, notice given to the appellant under Section 67 of the NDPS Act. In D-2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint, seal used for sealing the bulk and samples was NARCOTICS CONTROL BUREAU-4 . The samples were deposited in the godown vide receipt Ext.PW-7/C were having the seal NARCOTICS CONTROL BUREAU-4 . 52. Whereas the register maintained in the godown is placed on record Ext.PW-7/D also shows that case property sealed with seal NARCOTICS CONTROL BUREAU-4 . 53. The samples were sent to laboratory through NCB forms annexed with report Ext.PW-1/A and NCB Ext.PW-9/E and the seal mentioned therein which was allegedly tallied by PW1 is different from the seal and bear impression of seal was NARCOTICS CONTROL BUREAU-CHD-4 for which the report has been given. 54. There is no explanation on record as to how the impression of seal was changed. 55. It is only in the Court that it was claimed that the seal of CHD-4 was used but when PW10 was confronted on this aspect by the defence, he admitted in his statement Ext.PW-9/P-1, that he had not mentioned the word CHD-4 while mentioning the seal. 56. That apart, there is no mention of affixing the seal with impression CHD-4 in the statement of Sh. Roshan Lal Negi recorded under Section 67 of the NDPS Act Ext.PW9/P-1 of the Sh. Rosha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CB for intercepting the accused. 61. We may at this stage notice in the following facts and circumstances of the case, which create serious doubt in the case of the NCB: a) the information Ex.PW-7/A is dated 22.10.2014 and not 20.10.2014 and releasing this discrepancy, PW-7 while entering witness box improved his version qua receiving of the information and introduced another story by stating that the said information was received through FAX, which is Ext.PW7/A and the same was received by him on 20.10.2014 around 11:00 p.m. However, when Ext.PW-7/A is perused, the same admittedly is not a FAX message and not even an original copy and, therefore, in the given circumstances, the NCB has withheld the best evidence which calls for an adverse inference. b) There are no call details of the officials who sent the information under Section 42 of the Act and the person who received the same to substantiate the factum of calling and receiving of calls as alleged by them. c) PW-9 even though tried to support the version of PW-7 regarding the sending of the FAX message but has candidly admitted in his cross-examination that Ext.PW-7/A is not a FAX copy and further admit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncealed 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 and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act; PROVIDED that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of Sub-In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. This Court in State Of Punjab vs Balbir Singh, 1994 3 SCC 299, in paragraph 15 has made the following observations: 15.The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial. 10. To the similar effect are the observations of this Court in Saiyad Mohd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 V-A 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 and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and (d) detain and search, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court in coming to the conclusion that there was breach of Section 42(2). 14. Another aspect of non-compliance of Section 42(1) proviso, which has been found by the High Court needs to be adverted. Section 42 (1) indicates that any authorised officer can carry out search between sun rise and sun set without warrant or authorisation. The scheme indicates that in event the search has to be made between sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, there is no case that any ground for belief as contemplated by proviso to sub-section (1) of Section 42 or Sub-section (2) of Section 42 was ever recorded by Station House Officer who proceeded to carry on search. Station House Officer has appeared as PD-11 and in his statement also he has not come with any case that as required by the proviso to Sub-section (1), he recorded his grounds of belief anywhere. The High Court after considering the entire evidence has made following observations : S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 25. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance of requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance of Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in paragraph 5. The present is not a case where insofar as compliance of Section 42(1) proviso even an arguments based on substantial compliance is raised there is total non- compliance of Section 42(1) proviso. As observed above, Section 43 being not attracted search was to be conducted after complying the provisions of Section 42. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, how could I have associated these persons in such circumstances. 68. Likewise PW5 Davinder Nath has candidly admitted the availability of independent witness at or near the place of occurrence, as would be evident from his statement, relevant portion of which extracted below:- There is abadi of about 50-60 families in village Shat. It is correct that there are 2-3 houses below the span and one house is on upper side, but none is residing in the house. However, 2-3 houses below the span are occupied by the persons. Houses are visible from the road at the point of span. Towards Manikaran, Chhinjra village is also situated from span. Chhinjra village is having good population. At a distance of 100 meters away from span, there is abadi towards Jari. I used to come Bhunter bazaar. Bhunter bazaar is situated towards both sides of river. Hathithan is just adjoining to Bhunter and Hathithan bazaar runs in 1 km area. At place Bhunter, there is police station and Tehsil headquarters. In October, apples season is in full swing and day and night transportation of apple cartons through span takes place including ration and other articles. 69. From the aforesaid statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncere efforts on the part of the Investigating Officer to solicit the participation of independent witnesses in the apposite proceedings at the site of occurrence, sequels an apt deduction that the Investigating officer was goaded by an oblique motive to do so or he intended to smother or hide the truth qua the genesis of the prosecution version which hence stands flawed as well as vitiated. 14. Reinforcing strength to the aforesaid inference as derived from the factum deposed by PW-1 that despite existence of habitation in close proximity or vicinity of the site of occurrence, the Investigating Officer having willfully omitted to join inhabitants thereof in the apposite proceedings at the site of occurrence as such rendering the genesis of the prosecution version emaciated, is lent by the further factum as exists in the cross-examination of the Investigating Officer of his omitting to join independent witnesses in the apposite proceedings at the site of occurrence despite existence of a village in close vicinity to the site of occurrence. As a sequitur the inference as has hereinabove ensued on a discerning appraisal of the evidence of PW-1 C. Sohan Lal and the evidence exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or letting off the real culprits which fact has been candidly admitted by both the I.Os. PW8 in his cross-examination has correctly stated that it was correct that inquiry was done regarding money transaction done to let off real culprits. Likewise PW-9 also stated that Inquiry was done by the department regarding some allegations of money transactions having taken place allegedly letting off real culprits. 77. Apart from above, there is no explanation forthcoming as to why the accused was sent to judicial custody on the same day of his arrest without any efforts by the NCB official to interrogate him on any aspect of the case. PW9 in his statement has admitted that no inquiries were made qua this aspect of the case, as is evident of the statement which is extracted below:- I do not enquire about the settlement amount of the contraband. I did not inquire who made the payment. I did not inquire to whom payment was made and on which date. I did not inquire at what place settlement was made. I did not inquire with whom settlement was made and what transpired during settlement. I moved application Ext.D-1 for judicial custody of accused. 78. Additionally and more import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under Cl. (a) with imprisonment for a term which may extend to six months or with fine or with both (2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person, Explanation- (1) For the purposes of this section small quantity means such quantity as may be specified by the Central Government by the notification in the Official Gazette. In general possession of any narcotic drug or psychotropic substance has been prohibited by S. 8 of the Act and any person found in possession of the same contrary to the provisions of the Act or any rule or order, made or permit issued thereunder is liable to be punished as provided thereunder to imprisonment for a term which shall not be less than 10 years and shall also be fined which shall not be less than ₹ 1 lac. S. 27 of the Act, however, is an exception whereby lesser punishment is provided for illegally possessing any smaller quantity for personal consumption of any narcotic drug or psychotropic substance. Under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king material. The averments made by the appellant in the application and as extracted by the trial Court would themselves show that it was meant for his personal consumption. The above surrounding circumstances under which it was seized also confirm the same. The appellant is a foreigner and as a tourist appears to have carried this substance for his personal consumption. We are aware that the menace of trafficking in narcotic drugs and psychotropic substance has to be dealt with severely but in view of the provisions of S. 27, we are unable to hold that the small quantity found with the appellant was not meant for his personal consumption and that on the other hand it was meant for sale or distribution. Therefore the appellant is liable to be punished as provided under S. 27 of the Act. 81. Thus, what can be deduced from the aforesaid discussion is that:- (i) Even though the specific case set-up by the NCB is to the effect that the accused had been apprehended at about 8:30 p.m. on 20.10.2014 and as per PW-10 he was not allowed to go anywhere till 21.10.2014 at 2:00 a.m. and had not contacted anyone on his mobile phone nor he receive any call. However, the call details cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and receiving of calls as alleged by them. (xi) PW-9 even though tried to support the version of PW-7 regarding the sending of the FAX message but has candidly admitted in his cross-examination that Ext.PW- 7/A is not a FAX copy and further admit that the FAX copy has not been placed on record. (xii) As per PW9, the case property was taken by him to Zonal Unit, NCB Chandigarh on 21.10.2014 and was deposited with PW-7, who issued receipt Ext.PW-7/C in this regard. It would also be noticed that in case PW-9 had visited PW-7 on 21.10.2014 then why the information under Section 42(2) of the NDPS Act was not placed before him on 21.10.2014 itself and came to be placed before him subsequently on 22.10.2014. (xiii) It is the case set-up by the NCB that the apprehension, search and seizure were conducted after sun set and before sun rise. Therefore, as per the mandate of law, PW-9 was required to write his reasons of believe in the said information as to why warrants could be obtained without affording the opportunity, however, no such reasons find mention in Ext.PW7/A. (xiv) The entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 gram ..... X X X X Extracts X X X X X X X X Extracts X X X X
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