TMI Blog2017 (12) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... de & very meticulously. It is apparent that not only it is on record that the prosecution has failed to follow these guidelines in detail but even broadly the prosecution has failed to establish that any sample of contraband substance was taken and was sealed on the spot and the sample of the same was sent to the FSL for being tested - it would not be safe to hold that the prosecution has proved beyond doubt that the contraband substance (500 grams, Ganja) was recovered from the accused and the sample of same was found to be Ganja as has been held by the court below. These infirmities coupled with non-compliance of Section 57 of the NDPS Act would make a huge dent in the prosecution's case - the prosecution has failed absolutely to prove beyond doubt that any recovery of contraband substance (Ganja) was made from him - appeal allowed. - Criminal Appeal No. 684 of 1997 - - - Dated:- 22-12-2017 - Hon'ble Dinesh Kumar Singh-I, J. For the Appellant : V. S. Chauhan, P. S. Tewari, V. B. Shukla For the Respondent : Govt. Advocate ORDER 1. This Criminal appeal has been filed against the judgment and order dated 4.4.1997 passed the then Sessions Judge, Banda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery memo (Ext.Ka-1) was prepared on the spot in the light of torch at the dictation of PW-1 by Constable Ramdas Suman. The same was read out to the accused and thereafter his signature and the signature of police companions were obtained thereon and a copy of the same was provided to him. The police party, thereafter, came to police station along with accused, the recovered contraband substance and recovery memo and a Case Crime No. 183 of 2003 under Section 8/20 of NDPS Act was registered and Chick F.I.R. (Ext. Ka-2) was prepared at P.S. Badausa on 9.8.2013 at 12:30 pm and its entry was made in G.D. dated 9.8.2013 (Ext. Ka-4) at report No. 26 at about 22:30 hours. The investigation was assigned to S.I. Varijalal (PW-2), who inspected the spot and at the instance of PW-1 prepared site plan (Ext. Ka-5). Ater having taken statements of all the relevant witnesses and taking into consideration the report of FSL (Ext. Ka-7), he submitted charge-sheet against the accused appellant. The charge against the accused-appellant was framed on 3.8.1985 under Section 20 of NDPS Act to which he pleaded not guilty. 3. In support of the prosecution version, Kamlesh Singh Yadav, S.O. was examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pond in the village had no water. This argument was also repelled by holding that in the month of August, it could be possible that there would have been no water in the pond particularly in Banda District, which is one of the hottest Districts in the U.P. 9. It was held by learned court below that prosecution had succeeded in establishing the guilt of the accused by producing best possible evidence, most natural witnesses and the compliance of all the legal provisions which were mandatory under the NDPS Act, had been complied with and accordingly, it held the accused-appellant guilty under Section 8/20 of NDPS Act and awarded him aforementioned punishment. 10. Learned counsel for the appellant has made following submissions:- 11. The prosecution has produced sole police witness PW-1, although the other witnesses of fact namely Constable Ramdas Suman, Constable Om Prakash and Constable Suraj Prasad had also accompanied him at the time of recovery of contraband substance from the accused. No reason has been given, as to why, any of them had not been examined. Therefore, there is no corroboration made of the statement of PW-1 in support of prosecution's case. No weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clause 1.6 that in case of Ganja, the minimum quantity to be sent to FSL for being tested should be 24 grams. In the case at hand, it is not proved by the prosecution as to whether the requirement of taking sample of minimum 24 grams of Ganja was complied with in this case or not. 14. The prosecution has failed to prove seal of which officer was affixed on the contraband substance as well as on its sample on the spot and whether the sample of said seal was prepared; whether the contraband substance, its sample and seal were taken to the Malkhana for being kept in safe custody until the sample was transmitted to the FSL for being tested and the remainder contraband substance was produced before court for being exhibited. It was essential that the sample of seal ought to have been sent to the FSL along with sample of contraband substance so that the same could be matched by the FSL to ascertain that the said sample was the same, which was collected on the spot from out of the recovered contraband. Also the seal affixed on the spot should have been compared by the court at the time of exhibiting of the contraband substance recovered from the accused, after comparing the seal aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance of the provisions of Section 57 of NDPS Act has been made, which requires a complete report of arrest of accused and seizure of contraband to be sent to the Higher Authorities within 48 hours of the said arrest of the accused and seizure of the contraband substance. 18. In rebuttal, learned A.G.A. has admitted that only one police witness PW-1 has been examined but no evidence has been brought on record as to why other three police witnesses, or any one of them, who were accompanying PW-1, were/was not examined to corroborate the statement of PW-1. 19. As regards non weighing the contraband substance on the spot, it is submitted that the same was not required under unamended NDPS Act as there was no provision for awarding punishment proportionate to the amount to the recovery of contraband substance. 20. As regards, discrepancy in the statement of PW-1, PW-2 and the recovery memo with regard to sample not being taken on the spot, it is stated that, that was due to inadvertance, although it was argued that the sample was taken by PW-1 who has proved it by his statement. 21. As regards, the seal which was affixed on the spot and there being different seal being fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free. 26. In this judgment, the Supreme Court has held that a bag, brief case or any such article, container etc. under no circumstances be treated as a body of human being. They are given a separate name and are identifiable as such. They cannot even remotedly be treated to be a part of the body of human being depending upon the physical capacity of a person. He may carry any number of items like a bag, a brief case, a suit case, a big box, a thaila, a jhola, a gathri, hold-all, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by hand or hung on the shoulder or back or placed on the head. In common parlance, it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, bag or head etc. Therefore, it is not possible to include these articles within the ambit of the word 'person' occurring in Section 50 of the Act. 27. In view of above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. 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, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 57 of the NDPS Act by itself may not be treated mandatory but if its non-compliance has resulted in prejudice to the accused, it will certainly have an adverse effect on the prosecution's case. Therefore, this Court would like to see whether there are other serious infirmities which may point to non-compliance of necessary provisions of law. It may also be pointed out here that the severer the punishment provided under law, stricter compliance of statutory provisions is required to be made very meticulously. 33. This Court would like to take up next submission of learned counsel for the appellant with regard to sample of contraband substance not being taken on the spot and also there being no conclusive proof from the side of prosecution to the effect that the seal which was used for sealing the sample of contraband substance was sent to the FSL along with sample so as to ensure as to whether the sample was of the same contraband substance which was recovered from the accused on the spot and also whether the remainder of the contraband substance was sealed and the sample seal was produced before the court or not at the time of recording of statement of PW-1 to prove beyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng entry therein of these articles having been deposited there but all this has not been done, which also creates doubt in the mind as to whether the said articles were actually kept in safe condition or whether at all such kind of recovery had been made from the accused. 35. Most important point relates to the point as to whether, if the statement of PW-2 be believed as regards sending of sample of contraband substance to FSL and if the FSL's report be believed to be correct, as to whether the sample was taken from the contraband substance allegedly recovered from the accused in accordance with the guidelines issued in the form of Standing Instruction No. I/88, by Narcotic Control Bureau, New Delhi which provides as follows:- 1.5.- Place and time of drawal of sample:- Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search(Panch) witnesses 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. 1.6.- Quantity of different drugs required in the sample:- The quantity to be drawn in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the sample. 1.10.- Packing and sealing of samples:- The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the S.No. of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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