TMI Blog2021 (2) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... s, arrest of accused, recovery, etc., and this part of investigation is covered under Sections 161 and 162 of the Code and the credibility of the witnesses, who are examined before the court, depends largely on this part of investigation - Statement under Section 161 of the Code forms a part of the charge sheet and this statement can be used by the accused for the purpose of contradicting thewitnesses in the manner as provided under Section 145 of the Evidence Act and the right of accused to cross-examine the witness, who 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. It is a settled principle of law that non-recording of statement under Section 161(3) of the Code or delayed recording of statement under Section 161(3) of the Code or improper recording of statement under Section 161(3) of the Code is a serious irregularity which is incur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-compliance of mandatory requirements of Section 42 of the NDPS Act and there is an unexplained delay in forwarding the samples to the FSL. The prosecution has failed to establish that the car and the house from where the contraband articles were seized 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 - 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. Appeal allowed - decided in favor of appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation, the appellant was arrested on 29.09.2015. Charges were framed against him for the offences under Section 8(c) which is punishable under Section 20(b)(ii)(C) and since the accused did not plead guilty and claimed to be tried, the case was posted for trial. During the course of trial, the prosecution in order to establish the guilt of the accused had examined 10 witnesses as PWs-1 to 10 and marked25 documents as Exs.P1 to P25. In support of its case, the prosecution haD also marked M.Os.1 to 20. After completion of prosecution evidence, the statement of the appellant/accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) was recorded. No defence evidence was led nor any document was marked in support of the defence. 4. The trial court thereafterwards heard the arguments of the learned counsel appearing on both sides and by means of the impugned judgment and order has convicted the appellant for the offences punishable under Section 20(b)(ii)(C) of the NDPS Act. 5. Learned Counsel appearing for the appellant/accused contends that the judgment and order of conviction and sentence is highly illegal and the same is passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 161 4. State of U.P. -vs- Kapil Deo Shukla (1972) 3 SCC 504 5. Subramanyam -vs- State of Karnataka 2016(4) KCCR 3526 6. Per contra, learned High Court Government Pleader arguing in support of the impugned judgment and order of conviction and sentence contended that the trial court has rightly convicted the appellant for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act and the impugned judgment and order of conviction and sentence does not suffer from any irregularity or illegality, which calls for interference at the hands of this court. He submits that there is no irregularity in compliance of the requirement of Section 42 of the NDPS Act and having regard to the fact that the complainant had an apprehension that the appellant/accused was likely to escape with the contraband goods from the spot, the complainant without reducing the information into writing, had hurried to the spot. He submits that the very fact that the higher officers of the complainant were part of the raiding party, would go to show that information was given by the complainant to his higher officers and therefore, there is sufficient compliance of Section 42 of the NDPS Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of ganja in the house of accused. He has stated that he received the said information at about 1.30 p.m. According to him, he orally informed about this information to his higher officers and thereafter wards at about 2.15 p.m. he along with his higher officers, staff and panch witnesses went near the house of the accused. On seeing the officers, accused, who was loading his car with some plastic carry bags, ran away from the spot and inspite of all the efforts made by the officers to apprehend him, he managed to escape. Thereafter wards, a search report was prepared by him as per Ex.P1, which has been signed by his higher officer/PW-10 and also by PW-5. After preparing Ex.P1, he searched the car and found seven plastic carry bags which contained ganja weighing 2 kilograms each. He also recovered one Urea bag from the dickey of the car which contained 15 kgs. of ganja. After that, the raiding party entered the house and in a concrete tank inside the house, they found 98 plastic carry bags containing ganja. Out of 98 bags, 30 grams of sample ganja was removed from 11 bags and they were packed separately and sealed and these 11 bags are marked as M.Os.1 to 11 before the trial court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken note of here that admittedly accused had escaped before Ex.P1 was prepared by the complainant/PW-1. Therefore, there was no urgency in the matter so as to invoke the powers provided under Section 42 of the NDPS Act and proceed further to search the car and house of the accused without obtaining a search warrant from the jurisdictional Magistrate. 13. PW-1 has admitted in his cross-examination that in Ex.P8/complaint, he has not mentioned anything about the credible information received by him or about he informing the same to his higher officers or about he conducting raid along with his higher officers, staff and panch witnesses and about seizure of carry bags from the car and house of the accused after he running away from the spot. Though in the cross-examination he has stated that after receiving the credible information he has reduced the same into writing in the raid register maintained in the office, the said raid register is not produced before the court. For a specific suggestion that he had no authorization from his higher officers to conduct the raid, he has answered that the higher officers themselves have participated in the raid along with him. Therefore, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pot panchanama and his signature in the said document is marked as Ex.P3(b). He has also admitted his signature in Ex.P5 which is a specimen seal document and his signature in the said document is marked as Ex.P5(b). He has stated that he does not know as to how many samples were taken from the carry bags seized from the concrete tank inside the house. He has admitted that he often accompanies Excise officials when raid is conducted by them and he has stated that he does not know in how many cases he has accompanied or he has gone along with the Excise officers for raid. According to this witness, Ex.P1 was prepared immediately after reaching the spot and before accused ran away from the spot and this evidence contradicts the evidence of PW-1 insofar as preparation of Ex.P1 is concerned. In the absence of any corroboration, it is not safe to rely upon this witness. 17. PW-3 is the Excise Guard who had accompanied the raiding party. He states that the panch witnesses were brought to the office by him, to whom panch witness notices were issued by PW-1. He also speaks with regard to the seizure of contraband articles and Ex.P2/electricity bill. He states that his statement was reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015, on the instructions from the Excise Inspector, he had gone to the Forensic Science Laboratory, Bangalore and on 6.5.2015, he has reached back to Vijayapura along with the reports and the samples and handed over the same to the Excise Inspector. The said sample report is marked as Ex.P20. During the course of his cross-examination, he has stated that his statement was recorded by the Investigating Officer on 26.04.2015 and he admits that his statement does not bear any date. 23. PW-9 is the Sub-Inspector of Excise and he has carried on the further investigation in the case after taking over the same from PW-1 on 6.9.2015. He has recorded the statement of Basavaraj Sandeegwad, Sathish Kagale, S.S.Vodeyar, Prakash Makonda, Ananda Nagoora and B.S.Thadakal - Officers of the Excise Department on9.6.2015. He has also stated that on 30.9.2015, PW-1 and PW-10 had produced the accused before him. He thereafter wards has clarified that on 29.9.2015 the accused was arrested by PW-1 and produced before the court and on 30.9.2015 he has recorded the statement of PW-10, PW-5, PW-3 and PW-4 and subsequently he has filed the charge sheet on 28.12.2015. He has admitted in the cross-examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter. This witness has not stated anything about receipt of Ex.P-16 which prosecution relies upon heavily to establish that requirements of Section 42 of the NDPS Act is complied. This material witnesses statement has been recorded after a delay of seven months which is totally not explained and additionally the said statement does not bear any date and admittedly no case diary is maintained by the investigating officer, and therefore, Ex.P-16 cannot be cooked into for the purpose of considering compliance of Section 42 of the NDPS Act. This witness has also stated that since the raiding party had gone in uniform, many people had gathered near the house and the said statement contradicts PW-1's statement, who has stated that not many people had gathered near the house and only 3-4 persons came there and even they refused to be the panch witnesses in the case. Having regard to belated recording of Section 161(3) statement of this witness and the manner in which he has deposed before the court, a serious doubt arises with regard to his participation in the raid and it appears that only to get over the requirement of Section 42 of NDPS Act, prosecution has shown him as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-D, section 376, section 376-A, section 376-AB, section 376-B, section 376-C, section 376-D, section 376-DA, section 376-DB, section 376-E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer. 162. Statements to police not to be signed: Use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever for not recording his statement and the conduct of the Investigating Officer in the absence of any plausible explanation must be viewed with suspicion. 28. The High Court of Madhya Paradesh in the case reported in Panna Fodaliya -vs- The State of Madhya Pradesh 1970 Cri.l.J.1180 at para-10 has held as follows: 10. By not recording the statement of Jagdish during investigation the appellant has been denied a very valuable opportunity of testing the veracity of the witness with reference to his earliest version, and, therefore, it is difficult to attach any weight or value to the statement of Jagdish in court. 29. It is a settled principle of law that non-recording of statement under Section 161(3) of the Code or delayed recording of statement under Section 161(3) of the Code or improper recording of statement under Section 161(3) of the Code is a serious irregularity which is incurable. This irregularity gives rise to infer that prosecution has procured such statement to suit their case and therefore, such statement loses its credibility. When delay in recording statement under Section 161 of the Code itself casts cloud of suspicion on the case of the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is on record which can be used for the purpose of contradicting the witness, is without merit. The complaint or FIR is not a statement hit by Section 162 of the Code because the same is not made during the course of investigation. Therefore, it cannot be considered as statement under Section 161(3) of the Code. In addition to the same, the complaint in this case lacks any material particulars and therefore, for any reason, the complaint cannot be substituted for a statement of the complainant under Section 161(3) of the Code. 33. In the case on hand, non-recording of statement of PW-1 under Section 161(3) of the Code and non-mentioning of the date of recording of statement under Section 161(3) of the Code of all other witnesses is fatal to the case of the prosecution. For an offence punishable under the provisions of the NDPS Act, compliance of the requirement of law has to be scrutinized in a higher pedestal because the penalties imposed under this statute are very severe. The manner in which the investigation has been conducted in this case vitiates the entire investigation and resultantly it also affects the trial of the case. The order of conviction, therefore, cannot bere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived from the informer under Section 42(2) of Act or Exh. P-21, the information given by the informer which is stated to be recorded in the Rozanamacha, copy whereof has been sent to C.O. Nohar, who was the then Senior Officer, Rather, Exh. P-15, the letter which was sent, it is not the copy of Exh. P-14, but it is the separate memo prepared of their own. From the above examination, it is not found in the present case that section 42 (2) of Act, 1985 is complied with. 14. What Section 42(2) requires is that where an officer takes down an information in writing under sub-Section (1) he shall sent a copy thereof to his immediate officer senior . The communication Exh. P-15 which was sent to Circle Officer, Nohar was not as per the information recorded in Exh. P 14 and Exh. P 24. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2). 15. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior . c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oboration particularly in view of the fact that such statements have been retracted. 38. In the case of Karnail Singh -vs- State of Haryana (2009) 3 SCC (Cri) 887, the Hon'ble Supreme Court at para-35 has observed as follows: 35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effectof the two decisions was as follows : (a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to have received a credible information at about 7.30 a.m. when he was in police station to the effect that in one bus Madhusudhan proceeding from Madanapalli to Bangalore, poppy straw (husk) was being illegally transported. He is stated to have reduced the same into writing. Ex.P12 is the copy of the Station House Diary relating to the receipt of information. Of course, Station House Officer has to maintain Station House Diary and credibility of Ex.P12 cannot be found fault with. 7. What is further deposed by him is that he informed the jurisdictional Circle Inspector of Police and Deputy Superintendent of Police over phone and obtained information. Specific suggestions have been put to him stating that he did not inform the Circle Inspector of Police or the Deputy Superintendent of Police, in any manner and therefore statutory provisions of Section 42(2) of the Act have not been complied with. Ex.P12 copy of the Station House Diary speaks only about the receipt of credible information received by him in regard to the transportation of poppy straw (husk) on the top of a bus proceeding from Madanapalli to Bangalore. But Ex.P20 is a written information stated to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FSL. There is also no material available on record to show that the seized articles and the sample articles were kept in a safe place. The Hon'ble Supreme Court of India in the case of State of Gujarat -vs- Ismail U.Haji Patel and Another (2003) 12 SCC 291 in paragraphs-5 and 6 has observed as follows: 5. We find that there was really no material brought on record to show as to where the seized articles were kept. The High Court after analysing the evidence on record came to hold that the identity of the articles sent for analysis was not established and it was not established that the articles seized were in fact sent for chemical examination. In view of the judgment of this Court in Valsala v. State of Kerala 1993 Supp 3 SCC 665 the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper form and the samples sent to the Chemical Analyst related to the seized articles. 6. Further, there was nothing brought on record to show as to under whose directions the samples were sent for chemical examination. The High Court relied on Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le articles to the FSL. Having regard to the manner in which investigation is conducted in the case, foul play cannot be completely ruled out. 45. The contention of the learned counsel for the appellant that the evidence of PW-2 should not be believed because he is a stock witness cannot be accepted having regard to the material available on record. The mere fact that PW-2 has accompanied the Excise officials on certain occasions during raid and that he has deposed as a panch witness in one case is not sufficient to term this witness as a stock witness . However, this witness has made contradictory statement with regard to time of preparation of Ex.P1. In the absence of any corroborative evidence, it would not be safe to entirely believe this witness. 46. On overall appreciation of the oral and documentary evidence available on record, it is evident that for the reasons stated hereinabove, the investigation in the case is vitiated for improper recording and non-recording of statement of the witnesses under Section 161(3) of the Code, who have been examined in the court. The Investigation Officer has admittedly not maintained a case diary, wherein such statements are required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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