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TMI Blog2021 (2) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... t huge quantity of ganja was stored in the house of appellant, after informing his higher officers, at about 2.40 p.m. conducted a raid along with his staff and panch witnesses on the house of the appellant situated near Sadakibawadi and Secab School at Vijayapur. On seeing the raiding party, the appellant, who was allegedly present near the house and was loading ganja bags in a car bearing No.KA-03/MB-4261 ran away from the spot. From the car, seven blue colour carry bags containing 2 kilograms of ganja each and a white colour urea bag containing 15 kilograms of ganja was seized. Inside the house, the raiding party found a concrete tank in which 98 blue colour carry bags containing ganja was found. All the contraband articles were seized by the complainant under a panchanama and after returning to the office with the seized articles, a case was registered on the basis of his complaint, in Vijayapura Excise Police Station in Crime No.32/2015 for the offences punishable under Sections 8(b) and 8(c) read with Sections 20 and 25 of the NDPS Act. After investigation, charge sheet was filed against two persons. The second accused/Rajesh M.Pachchapur was allegedly the owner of the Tata I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded under Section 161 of the Code found along with the charge sheet are dated and therefore, it is not known as to on what date, the said statements have been recorded. He further submits that statement of the complainant, who is the star witness of the prosecution, under Section 161 of the Code has not been recorded and accused is taken by surprise during trial and this has seriously prejudiced the case of the accused. He submits that Investigation Officer has recorded statements under Section 161 of the Code belatedly and admittedly the Investigating Officer has not maintained the case diary. He also submits that panch witness PW-2 is a stock witness of the prosecution and there is material on record to show that he has been used as a panch by the Department of Excise in other cases also. He also submits that there is an inordinate delay of two months in forwarding the sample contraband articles to the FSL for examination and this again throws a serious doubt with regard to the credibility of the case of the prosecution. In support of his case, he has relied upon the judgments in the following cases: 1. Rajinder Singh -vs- State of Haryana (2011) 8 SCC 130 2. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be affected for not recording statement of the witnesses under Section 161 of the Code. Under the circumstances, he prays to dismiss the appeal. 7. I have carefully considered the arguments advanced on both sides and also perused the entire oral and documentary evidence available on record. The point that arises for consideration in this appeal is: "Whether the conviction of the appellant by the trial court for the offence under Section 8(c) which is punishable under Section 20(b)(ii)(C) of the NDPS Act is just and proper, having regard to the oral and documentary evidence available on record?" 8. The prosecution in all examined ten witnesses in support of its case, but none of them can be said to be independent witnesses, except PW-6 who is the wife of accused and she was treated as a hostile witness. 9. PW-1/Abubakar, who was working as an Excise Inspector, is the complainant in this case. He has also conducted the investigation to a considerable extent before handing over further investigation to PW-9. It is relevant to mention here that statement of this witness under Section 161(3) of the Code was not recorded in this case. 10. PW-1 has deposed that on 26.02.2015 when h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared by him is marked as Ex.P10. Exs.P12 to P15 are also marked through him to establish that the house from which ganja was seized belonged to the wife of the accused. He has also stated that on 29.09.2015 on credible information he went to the house of the accused and had arrested him. 12. From the evidence of this witness, it is clear that immediately after he received the credible information, though he was in his office, he has not reduced such information into writing. He has also not forwarded the said information to his higher officers in writing and obtained any permission from them. He has stated that he has informed his higher officers, but no document is produced before the court to show that the said information was in writing. According to him, the accused after seeing the raiding party, ran away from the spot. Thereafter wards he has prepared Ex.P1/search report and carried on the search and seizure in the car as well as inside the house of the accused. Though in Ex.P1 he has stated that since he had no sufficient time to obtain search warrant from the court of jurisdictional Magistrate, and therefore, as provided under Section 42 of the NDPS Act he has proceede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... near the house of the accused when the raid was conducted but they had refused to be the panch witnesses. But he has admitted that he has not issued any notice to the said persons asking them to be panch witnesses in the case. 15. The document issued by the Tahsildar to show that in the khata extract of the house from where ganja was seized, the name of the wife of the accused is not mentioned, was marked through PW-1 as Ex.P17. He has admitted that the khata of the said property does not stand in the name of the wife of accused. He has stated that the samples were forwarded to the Forensic Science Laboratory, Bangalore, through PW-7 on 24.04.2015. 16. PW-2 is the panch witness who had accompanied the raiding party on 26.02.2015. He has stated that immediately after reaching near the house of accused, one of the Excise Officers has prepared the search report/Ex.P1 and his signature in the said search report is marked as Ex.P1(d). After preparing the search report, they all went near the house of the accused and on seeing them, he ran away and escaped. He speaks about subsequent seizure of ganja packets from the car and from the house. According to him, 50 grams of ganja is taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.9.2015. According to this witness, after the accused escaped from the spot, the search report/Ex.P1 was prepared. He speaks about the seizure of the ganja packets and also with regard to the samples that were collected from each bag and packed separately and thereafter wards sealed with the office seal bearing No.540 and over the seal, paper with the signature of PW-1 and the panch witnesses was sticked. This witness has stated that his statement was recorded by the Investigating Officer J.H. Muddebihala on 29.9.2015 and he has admitted that his statement recorded by the Investigating officer does not bear any date. 20. PW-6 is the wife of accused. She has not supported the case of the prosecution and even during her cross-examination, nothing material has been elicited from her by the prosecution. 21. PW-7 is the Excise Inspector who has forwarded the sample material objects to the Forensic Science Laboratory at Bangalore through PW-8 on 24.4.2015. 22. PW-8 is the Excise guard who has stated that as per the instructions of PW-7 on 24.4.2015, he has carried 19 sample material objects to the Forensic Science Laboratory at Bangalore and obtained acknowledgement from them and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a position to answer the same because he had not brought his spectacle to the court. He has admitted that name of Shamshad Begum, wife of accused is not found in Ex.P17/khata extract of the house in question and more importantly he has admitted during the course of cross-examination that in respect of the investigations held by him, he has not made any entries in the case diary, which is a mandatory requirement under Section 161(3) of the Code. 24. PW-10 is the Deputy Superintendent of Excise, the higher officer who is said to have accompanied PW-1 and the raiding party on 26.2.2015. He has spoken with regard to preparation of Ex.P1 after the accused escaped from the spot and also about the subsequent seizure, panchanama, etc. He has admitted that from the perusal of Ex.P2, the entries made in the said document are not visible. He has also stated that name of Shamshad Begum is not found in the said document. According to him, since the raiding party were in the uniform, number of people had gathered there. Though this witness was the higher officer, who had accompanied the raiding party along with PW-1 on 26.2.2015, surprisingly his statement has been recorded belatedly on 30.9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material and information collected by him during the course of investigation. Sections 161 & 162 of Cr.PC read as under: " "161. Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records: Provided that statement made under this sub-section may also be recorded by audio-video electronic means: Provided further that the statement of a woman against whom an offence under section 354, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has made a statement underSection 161(3) of the Code is a right guaranteed to the accused under Section 162 of the Code. Even without recording the statement of a witness under Section 161(3) of the Code, the said witness can be examined before the court, but the evidence of such a witness has to beappreciated very carefully and evidence of such witness shall carry less value and credibility. 27. In the case of Gopal Krishna -vs- State AIR 1964 ALLAHABAD 481 at para-22 it is held as under: "22. It is obvious that though the police are not bound to make a record of the statement of the witnesses under S.161 as a matter of obligation, itis their duty to do so when the witness is a material witness for unfolding the prosecution story. It is also clear that a failure on their part to comply with the requirements of Section 161(3), though does not render the subsequent statement of the witness at the trial inadmissible, it does greatly impair the value of the evidence of that witness. I fully agree with this view. It is the duty of an Investigating Officer to record the statement of eye-witnesses and of other material witnesses. In a case like this where there is a solitary eye-witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent could be used for any inquiry or trial, except for the purpose as provided under the said section. Therefore, the accused has an indefeasible right to use the statement under Section 161(3) of the Code to shake the credibility of the witness. 31. The statement of a witness, who is not examined under Section 161(3) of the Code, is likely to seriously prejudice and affect the case of the accused and evidence of such witness in the absence of valid reasons by the Investigating Officer for not recording his statement must be viewed with suspicion, otherwise it would result in miscarriage of justice. In the case on hand, statement of PW-1 under Section 161(3) of the Code is not at all recorded. In the complaint lodged by him, the particulars of the credible information, raid, compliance of Section 42, procedure followed during search and seizure, etc., are not found. Under the circumstances, the evidence of this witness loses its credibility and unless it is corroborated by an independent witness, the same cannot be based for holding the accused guilty of the alleged offences. 32. The contention of the prosecution that though statement of PW-1 under Section 161(3) of the Code is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore conducting search and seizure in the car and the house allegedly belonging to the accused, PW-1 could have complied the requirement of Section 42 of the NDPS Act by obtaining necessary search warrant from the jurisdictional Magistrate. 35. The Hon'ble Supreme Court of India in the case of State of Rajasthan -vs- Jagraj Singh alias Hansa (2016) 11 SCC 687 has held as follows: "13. The High Court has come to the conclusion that there is breach of mandatory provisions of Section 42(1) and Section 42(2) and further Section 43 which was relied by the Special Judge for holding that there was no necessity to comply Section 42 is not applicable. We thus proceed to first examine the question as to whether there is breach of provisions of Section 42(1) and Section 42(2). The breach of Section 42 has been found in two parts. The first part is that there is difference between the secret information recorded in Exh. P-14 and Ex.P-21 and the information sent to Circle Officer, Nohar by Exh. P-15. It is useful to refer to the findings of the High Court in the above context, which is quoted below: "From the above examination, it is not found that Exh. P-14 the information which is st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conducted any proceedings in regard to compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof has been sent to the senior officials. Shishupal Singh could be the best witness in this regard, who has not stated any fact in his statement regarding compliance of proviso to Section 42(1) and Section 42(2), sending of copy of reasons to believe recorded by him to his senior officials." 36. In the case of Sarju alias Ramu -vs- State of U.P. AIR 2009 SC 3214 the Hon'ble Supreme Court at para-17 has observed as follows: "17. We must, however, notice that recently a Constitution Bench of this Court in Karnail Singh v. State of Haryana [2009 (10) SCALE 255] in view of difference of opinion in Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513] opining that compliance of Section 42 of NDPS Act is mandatory in nature and in Sajan Abraham v. State of Kerala [(2001) 6 SCC 692] holding the said principle to be directory, opined as under: "(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001." Even, admittedly, Shrikant Mishra had no authority to make search. Nothing has been brought on record to show that the provisions of Section 42 of the NDPS Act were substantially complied with." 37. In a judgment in the case of Bal Mukund (supra), the Hon'ble Supreme Court at para-28 has observed thus: "28. Where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance of the statutory provisions must be insisted upon. While considering a case of present nature where two persons may barely read and write Hindi, are said to have been used as carrier containing material of only 1.68% of narcotics, a conviction, in our opinion, should not be based merely on the basis of a statement made under Section 67 of the Act without any independent corroboration particularly in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001." 39. This High Court in the case of Subramanyam (supra) in paragraphs-6, 7 and 21 has observed thus: "6. Point No. 1: CW-18 - Rajanna was working as a PSI in Nandagudi Police Station from July 2011 to September 2012. He is stated to have received a credible information at about 7.30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred judgments, it is very clear that in the case on hand, the prosecution has failed to establish that there is compliance of the requirement of Section 42(1) and 42(2) of the NDPS Act. Even delayed compliance as per Ex.P-16 cannot be considered because PW-10 has not stated he has received Ex.P-16 and because of the delay of seven months in recording this witnesses statement, his evidence looses credentiality. 41. Learned counsel for the appellant has also made a submission that delay in forwarding the sample has not been explained. Though PW-1 has made an attempt to explain the said delay on the ground that since he was in-charge of another post, he could not send the sample articles to the FSL within time, the said evidence cannot be believed having regard to the evidence of PW-7, who has stated that the sample articles were forwarded by him through PW-8 to FSL for the purpose of obtaining report. 42. PW-9 is the person who has completed the investigation and filed the charge sheet. He has clearly stated that he has not shown any reason in the charge sheet for having belatedly sent the samples to the FSL. There is also no material available on record to show that the seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reads as under: "55 - Police to take charge of articles seized and delivered An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station." PW-7 did not testify as to which of the bags seized had been sent for analysis. No statement had been made by him that the bags produced were the bags in question which were seized or the contraband was found in them." 44. In the case on hand, the prosecution has failed to show that the materials were kept in safe custody as required under Section 55 of the NDPS Act and they have also failed to explain the inordinate delay of nearly two months in sending the sample articles to the FSL. Having regard to the manner in which investigation is conducted in the case, foul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either belonged to the accused or his wife. It has come on record that the car belonged to accused No.2 and the prosecution has admitted that they have no record to prove that the house stands in the name of wife of the accused. The contraband articles were seized in the absence of the accused. A presumption under Section 54 of the NDPS Act can only be raised after the prosecution has established that the accused was found in possession of the contraband articles in a search conducted in accordance with the mandate of law and illegal search does not entitle the prosecution to raise such a presumption under Section 54 of the NDPS Act. The prosecution has neither conducted the raid in accordance with law nor have they proved the contraband articles were seized from the possession of the accused. 48. On re-appreciation of the entire evidence on record, this Court is of the considered opinion that the trial court was not justified in convicting the appellant for the offence under Section 8(c) which is punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Suffice to say in view of the legal irregularities, infirmities and factual inconsiste ..... X X X X Extracts X X X X X X X X Extracts X X X X
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