TMI Blog2017 (12) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... Control Bureau, New Delhi has not even remotely been followed. The five packets which were allegedly recovered of heroin/smack each weighing little more than 01kg, were not weighed separately nor was it established as to from which particular packet the sample was taken, therefore, the recovery of the said quantity would be doubtful. The cumulative effects of all these infirmities found by this Court appears to have escaped attention of the lower court or it may be said that the lower court did not make proper appreciation of the evidence on record. Thus, the prosecution has failed to establish its case of recovery of 05kg and 150gm heroin/smack or even of little more than 1 kg heroin as held by court below from the accused-appellants beyond shadow of doubt. Both the appeals are allowed. The judgment and order under challenge of the court below is set aside and the accused-appellants are held not guilty of charge under Section 21(ii)(C) of NDPS Act. They be released in this case forthwith, if not detained in any other case. - Criminal Appeal No. 3976-3958 of 2014 - - - Dated:- 30-11-2017 - Hon'ble Dinesh Kumar Singh-I, J. For the Appellant : B. G. Singh, Brij Raj Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e siting inside. When it was asked from them as to why they were trying to flee, they told that they had illegal smack/heroin in their vehicle because of which they were trying to flee from there. When it came to the knowledge of police party that they had smack, they were told whether they would like to be taken before a Gazetted Officer? They said, yes. Thereafter the Circle Officer was informed by telephone and names of all the three persons were enquired. They disclosed their names as Kamlesh Kumar Yadav son of Sri Krishna Kumar Yadav, Shan Mohammad son of Sri Jameel Ahmad and Anwar Husain son of Sri Abdul Samad respectively and further told that all of them together indulge in smuggling of psychotropic substances and whatever earning they have out of it they share among them. Today also they were going to Bihar with psychotropic substance. Further it was told that their patron was Hafeez Pyarul son of late Badkadeen who is a resident of Barabanki and who makes smack available to them for being taken to the destination and also provides money and for this business he has got maruti car (U.P. 32 B.R.-2365) transferred in the name of accused Kamlesh Kumar Yadav. All three of them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ]. Thereafter the investigation was transferred to other Investigating Officer Sri Sadanand Singh (PW-2), who after conducting further investigation and recording statements of all the relevant witnesses and taking into consideration the reprot of F.S.L. (Paper No.16-Ka) dated 16.06.2012 submitted charge-sheet (Ex. Ka-3) against the accused-appellants. 6. The charge against all the three accused was framed on 19.10.2012 under Section 8/21 of NDPS Act to the effect that on 16.05.2012 at 14 hours, 05kg and 150gm heroin was recovered from all of them within Village Bahadurpur, P.S. Taraya Sujan, District Kushinagar, to possess which they did not have any licence. They pleaded not guilty and claimed to be tried. 7. The prosecution produced witnesses of fact namely, S.I. Sri Pawan Kumar Singh (PW-1), Constable Sri Rajesh Singh Yadav (PW-5) and the formal witnesses namely Constable Sri Deen Bandhu Tiwari (PW-4), first Investigating Officer S.I. Sri Vikas Yadav (PW-3), second Investigating Officer S.H.O. Sri Sadanand Singh (PW-2) and also the documentary evidence namely the arrest memo (Ex. Ka-2); recovery memo (Ex. Ka-1); Chick F.I.R. (Ex. Ka-4); G.D. (Ex. Ka-5); site plan (Ex. Ka- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence before the court below on Ashfaq Vs. State of U.P., 2008 (2) ACR 1404 (Criminal Appeal No.636 of 1995), concerning their arguments that no independent witness was taken and also on the State of Punjab Vs. Bhola Singh 1999 (1) A.Cr.R. 889 and on the point of departmental bias reliance was placed on the law laid down in Shyam Kumar Vs. State of U.P., 2008 (1) JIC 666 (All). 12. A perusal of the judgment of the court below reflects that because the recovery of the alleged contraband substance was made from the open place from a car in which accused were sitting, the court below held that it could not be disbelieved because such a huge quantity could not have been planted. The plea of departmental bias was also negated. The plea of sending of sample with delay has also been repelled on the ground that the occurrence took place on 16.05.2012 while sample was taken on 22.05.2012 and the report was received from F.S.L. on 23.05.2012 which was within seven days of the date of occurrence, hence the same was not treated to have been sent with delay. Cuttings and overwritings were also not found creating suspicion. It is also held that there was no violation of the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to which the same was found to be heroin and the accused were unable to show the licence/authority to possess the same. Further the court below has observed that the Investigating Officer and other co-witnesses had stated that the recovered contraband substance was kept in five packets, each weighing little more than 01kg. It is noteworthy that the sample was taken from only one packet and no sample was taken from the other four packets, hence it could be held that a little more than 01kg of heroin/smack was recovered from the accused persons which is established beyond doubt. It is further mentioned in the judgment that the commercial quantity of heroin/smack is 250gm and as the quantity recovered from the accused persons was more than 01kg, therefore, the provisions of Sections 35 and 54 of NDPS Act would shift the burden upon the accused to prove as to how the said contraband substance came in their possession. No clear explanation has emanated from the accused as to how the said contraband substance was found in their possession. Therefore, they are guilty of illegal possession of contraband substance. Further it is held by the court below that the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... car of the accused persons, of which sample was taken, the same was sent to the F.S.L., hence the said lab's report should also be taken as doubtful. 14. The attention is drawn towards statement of PW-4 who has stated that before the sample of contraband substance recovered was sent to the F.S.L., the same remained at police station for about two months, then how it could be possible that the report was prepared by F.S.L. within seven days of the receipt of sample of contraband substance. It is also pointed out that this witness has stated that sample of seal was not in the file at the time of recording of his statement nor the entry was made in G.D. of its description. 15. It is also argued that the police party had not taken their own search prior to conducting the search from the dicky of the vehicle, which was necessary to eliminate any chance of false planting. 16. Lastly, learned counsel for the appellants has also relied upon Section 42 of NDPS Act and argued that the provisions of the said section would also be attracted to the present case because the police party had been pre-informed by informer that vehicle would be coming from the side of Gorakhpur and wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, to avoid harm to innocent persons and to avoid abuse of the provisions by the Officers, certain safeguards are also provided which have to be observed strictly. The Supreme Court in State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299 has made the following observations in paragraph 15: 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. 21. To the similar effect the Supreme Court in Saiyad Mohd. Saiyad Umar Saiyed Vs. State of Gujrat, (1995) 3 SCC 610 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer 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 in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tacle 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 if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. 23. It is also pertinent to refer to the law laid down in G. Sriniwas Goud Vs. State of A.P., (2005) 8 SCC 183, which deals with the point as to whether sending of information taken down in writing to immediate official superior, is mandatory. It was held in this case that the Officers of the Gazetted Rank were not requiured to comply with the said requirement. The said requirement is confined to cases where the action is taken by the Officers below the Rank of Gazetted Officers without authorisation. The relevant paragraphs of the judgment are quoted herein below: 9. It will be seen from Section 41(2) that it refers to only officers of gazetted rank and it is such officers who can authorise their subordinates, not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement of sending information to superior officers under sub-section (2) of Section 42 cannot be insisted upon in their case. There is no bar in the statute to functions of arrest, search and seizure being carried out by the officers of the gazetted rank themselves. When they act on their own, they do not have to report to their seniors on such things. 24. First of all, the point as to whether the provisions of Section 42 of NDPS Act would be applicable in the present case is being taken up. 25. Now in the light of the above position of law, the facts of the present case have to be analysed and it has to be seen whether the provisions of Section 42 of NDPS Act would be applicable in the present case or not. According to the prosecution version the police party headed by S.O. Pawan Kumar Singh, received a secret information that a grey coloured maruti car would be coming from Gorakhpur and would proceed towards Bihar with illegal weapons and articles in it and believing this information to be correct he waited for the said car to arrive and when the same approached there, it was directed to stop but when it did not stop, the same was got stopped at police barrier which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 01kg and it was not possible for them to state as to from which particular packet the 50gm smack was taken out as sample. In the impugned judgment the lower court itself has observed that the prosecution has failed to establish that the sample was taken from all the five packets allegedly recovered from the accused persons rather the same was taken from only one packet, but from which one particular packet the sample was taken, they have failed to prove. Based on this evidence, the court below has taken it as proved that it shall, at least, be held proved that more than 01kg smack was recovered from them which was much above commercial quantity and accordingly the accused were held guilty. The ground for holding them guilty has also been given that once it was established by the prosecution that they were found in possession of illegal contraband (heroin) little more than 01kg, the burden would shift upon them under Sections 35 and 54 of NDPS Act to disclose as to how they came in possession of the said quantity of heroin, which they failed to discharge, hence they were held guilty. 28. The evidence in this regard has been gone through by this Court, PW-1 has stated in exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as for sealing the recovered contaband substance. Only driver could tell about the location of seal; he did not provide the seal to either Investigating Officer or Head Moharrir. He did not show that seal to the Investigating Officer. 29. In this regard the other witnesses of fact PW-5 has stated that the recovered smack was 05kg and 150gm and 50gm sample was taken out of it and sealed, while 05kg and 100gm was separately sealed. In cross-examination this witness has stated that in all, five bundles were recovered; what was weight of each, he could not tell; from which particular bundle the sample was taken, he could not tell; the said recovered substance was not before him today in court; he also could not tell as to what mark was there which existed on the sample seal. 30. The Investigating Officer (PW-2) has stated, in this regard, that the seal used on the recovered substance was checked by him, but he does not recollect as to what was written thereon. He could not tell what was written on sample seal. During investigation when he received the substance, he had seen the seal on it, but he did not make entry of the same in case diary. The docket of substance sample was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owhere in the said report has it been mentioned that the said seal which was found used on the sample of substance matched with the seal which was sent to F.S.L. as sample seal. The prosecution/Investigating Officer ought to have mentioned in case diary as to which seal was used for sealing the recovered contraband as well as on the sample taken out of it and where they were kept safely before production of the recovered substance before the court as well as for being sent to the F.S.L. for being tested. This shows huge lacuna in conducting of investigation by police party despite the fact that this was a case of the great significance as huge quantity is alleged to have been recovered which is much higher than the beginning level of commercial quantity. The benefit of all this must go to the accused. 32. It would be pertinent to refer to provisions of law in regard to taking sample. The Norcotic Control Bureau, New Delhi by issuing standing Instructions No. I/88 has laid down the standards of procedure to be followed in the matters of recovery of contraband substances and taking of their samples. These instructions have been issued with a view to bring uniformity of approach in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duplicate may be drawn for such remainder package/containers. (e) While drawing one sample in duplicate from a particular, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 1.8.- Numbering of packages/containers:- Subject to the detailed procedure of identification of packaes/containers, as indicated in para 1.4 each package/container should be securely sealed and an identification slip pasted/attached on each one of them at such place and in such manner as will avoid easy obliteration of the marks and numbers on the slip. Where more than one sample is drawn, each sample should also be serially numbered and marked as S-1, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial number of the packages and marked as P-1, 2, 3, 4 an so on. 1.9.- It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, panchnama witness and seizing officer and all of them shall be required to put their signature on each sample. The official seal of the seizing officer should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. 34. Although the above procedure is very detailed one which is laid down only with a view to ensuring that absolute caution is observed in heavy recovery cases and looking to the heavy quantum of punishment provided under law, but in the case at hand the prosecution has not taken even this much precaution that they take the sample out of the recovered contraband substance and seal the same properly with seal of a particular description. Even if the entire procedure narrated above was not followed at least, it must have come on record that the seal with which the sample of the contraband substance as well as the substance which remained after taking the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill have application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 37. Thus, it is clear from the above that in a situation where a search is made of the person/accused pursuant to an information or on his revealing that he possessed some contraband substance, and simultaneously the search is also made of any bag, box or some other such container being carried by him, in which ultimately the contraband substance is recovered, the compliance of Section 50 of NDPS Act shall have to be made even if contraband substance is not found from the person of the accused. 38. In view of the above position of law the evidence on record in the case at hand has to be appreciated/evaluated. 39. It would appear from the recovery memo that the police party had received an information about the grey coloured maruti car coming from Gorakhpur and heading towards Bihar wherein illegal weapons and artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40. It is not that the prosecution did not attempt to make compliance of Section 50 of NDPS Act because it is recorded in the recovery memo itself that soon after learning about the accused persons being in possession of smack/heroin, they were apprised that they could give their search in presence of a Gazetted Officer and thereafter the Gazetted Officer, Sri D.K. Singh who is a Circle Officer was called by mobile phone in whose presence the search was made. It is absolutely clear that nowhere in this recovery memo has it been mentioned that the accused persons were also apprised about their rights that if they desired, they could be taken before a Magistrate for being searched in his presence. 41. It would be pertinent to mention here that the learned counsel for the appellant has placed reliance on C. Ali Vs. State of Kerala (1999) 7 SCC 88 in paragraph 2 of which the follwing is held: 2. The appellant had contended before the High Court that the mandatory requirement of Section 50 of the Act was not complied with in this case. We do not find any clear finding recorded by the High Court on this point. As the deposition of the Circle Police Inspector (P.W. 5) was reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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