Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 57 - The non-compliance of Section 57 could be held to be detrimental only when there were large number of other lacunae, cumulative effect of which could be to disbelieve the recovery.
Evidence Law - the prosecution witness (police witness) have to be given equal respect, no less than the witness of public.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon'ble Dinesh Kumar Singh-I, J.
22.02.2018
CRIMINAL APPEAL No. - 1592 of 2014
Appellant :- Pankaj And Anr.
Respondent :- State Of U.P.
Counsel for Appellant :- Rahul Chaturvedi,Arvind Agrawal,Bakhteyar Yusuf,Sumit Daga
Counsel for Respondent :- Govt. Advocate
1. This criminal appeal has been directed against judgement and order dated 22.3.2014 passed by the then Additional Sessions Judge, Court No.6 Special Judge, NDPS Act, Meerut holding consolidated trial due to common recovery memo, in criminal case No. 41 of 2011 (State vs Pankaj) arising out of crime No. 24/2011 and in criminal case No. 40/2014 (State vs Sardar Ali) arising out of crime No. 25/2011, both under Section 20 (b) (ii) (C) of NDPS Act, P.S. Lal Kurti, District Meerut, whereby both the accused appellants have been held guilty and awarded punishment under Section 20 (b) (ii) (C) of NDPS Act, of 10 years rigorous imprisonment, fine of Rs. 1,000,00/- and in default of payment of fine one year's additional simple imprisonment, each.
2. In brief the facts of the case are that on 31.01.2011, A.S.I. Om Veer Singh (P.W. 1) along with S.I., Brijpal Singh (P.W. 2), Constable Jugal Kishore and Constable Rajendra Singh had started from P.S. Lal Kurti at report no. 40, time 22.30 hours, in search of wanted criminals by Official Jeep. When they reached near Tank intersection they met S.I., Vineet Singh of S.O.G., Constable Ram Prasad Singh, Head Constable Sunil Sharma, Constable Jarrar Hussain, Constable Sateesh Kumar, Constable Manoj Kumar, Constable Pravesh Kumar and Constable Dharmendra Singh, Constable Vikas Sharma and driver Ashok Tewatia, also who were also performing checking work in their Tata Sumo, right then one motor-cycle came there with 2 persons on it, who after seeing police personnel started moving back towards Mal Road. The police party became suspicious and directed them to stop but they did not stop. The police after chasing arrested them about 15 steps away from that intersection about 23.05 hours. After being arrested, they divulged that they were in possession of illegal charas and hence due to apprehension of arrest, they were trying to flee. A.S.I. and his companions told them that they could give their search in presence of a Magistrate or a Gazetted Officer. On this, both of them stated that since they had already been arrested, police party itself could take their search as they had full faith in them, thereafter, the consent letters were prepared. One of them disclosed his name to be Pankaj, who was carrying a floral ''thaila', which was opened, and inside it were found three packets of charas wrapped in polythene, out of which in one, two ''batti' type and in another one ''laddoo' type charas was found. The other accused disclosed his name as Sardar Ali, and from a piggybag strapped to his waist, two packets were recovered, out of which in one packet "batti" type charas and in other "Laddoo" type charas was found. A.S.I., Om Veer Singh had been sent for bringing weighing machine and the recovered contraband was weighed on the spot which turned out to be 4 kilogram illegal charas in each of the five polythenes. From each of the 5 polythene, 100 grams each was taken out as sample, which were kept in separate polythenes and all the 5 samples were kept in separate polythenes and were sealed and the samples of seals were prepared. Both the accused were apprised about having committed offence under section 18/20 of NDPS Act and were taken into custody. Both of them disclosed that the said charas was to be delivered to their companion Mahesh Kumar and one Ram Baran. The recovery memo (Exhibit Ka 3 ) was dictated by S.S.I. to S.I. Brijpal who prepared the same in the light of torch. The said recovery memo was read out and signatures of both the accused and the witnesses were taken thereon and the arrest memo was prepared. The papers of the motorcycle were demanded, which could not be shown. Due to it being night time, the witnesses of public could not be available. The information about arrest was given to their family members. On the basis of the recovery memo, Case Crime No. 24/11 was registered against Pankaj and Case Crime No. 25/2011 was registered against Sardar Ali, both under Sections 18/20 of N.D.P.S. Act at P.S. Lal Kurti on 1.2.2011 at 1.30 hours, Chick F.I.R. of which is paper number 4 Ka (Exhibit Ka 13) and its entry was made in G.D. (Exhibit Ka 14) of the same date at report No. 3 time 1.30 hours. The investigation was handed over of both the crime Nos. to S.I. Shri Shyam Lal (P.W. 6) who prepared the site-plan (Exhibit Ka 19) at the instance of S.I. Brijpal Singh. On 13.2.2011, he sent the sample of contraband substance to Forensic Science Lab for being tested through constable Vir Bhan Singh and the report was received back on 28.4.2011 indicating that the sample was found to contain charas. The F.S.L. report pertaining to accused Pankaj is Exhibit Ka- 22 and the report of F.S.L. pertaining to accused Sardar Ali is Exhibit Ka-23. He submitted charge- sheet (Exhibit Ka-20) against Pankaj on 28.4.2011 and against Sardar Ali on the same date which is Exhibit Ka - 21. Head constable Dev Pal Singh has proved Malkhana register of the year 2011 in which entries were made with regard to depositing the recovered contraband substance, which are Exhibit Ka-16 and Exhibit Ka-17. The consent letter prepared under section 50 of NDPS Act of both the accused appellants are Exhibit Ka-1 and Exhibit Ka-2. The investigating officer filed separate charge sheets against both the accused. P.W. 1 has proved arrest memo, information memo and medical examination memo of accused Pankaj which are Exhibit Ka-4, Exhibit Ka-5 and Exhibit Ka-6 respectively and the same documents relating to accused Sardar Ali are Exhibit Ka-7, Exhibit Ka-8 and Exhibited Ka-9 respectively . Both the files were consolidated vide order dated 29.3.2013 and the file of case number 41/11 was made the leading file/case.
3. On the basis of evidence on record the final charges were framed against both the accused under Section 20 C of NDPS Act to which they pleaded not guilty and claimed to be tried.
4. Prosecution examined S.S.I. Om Veer Singh as P.W. 1, S.I. Brijpal Singh as P.W. 2, Constable Veerbhan Singh as P.W. 3, head mohorrir, H.C.P. Satyanand as P.W. 4, Head Constable Dev Pal Singh as P.W. 5 and S.I. Shyam Lal as PW 6 (I.O.).
5. Thereafter evidence of prosecution was closed and the statement of accused persons under section 313 Criminal Procedure Code were recorded. Both the accused appellants denied any recovery to have been made from them of any contraband substance and took the plea of false implication and further stated that they were filing written statements which would be treated their statements under section 313 of Cr. P.C.
6. After considering the entire evidence the learned court below has held the accused appellants guilty of the aforesaid charge. A perusal of the judgement of learned lower court would show that before it, an argument was made that the accused appellants were prejudiced because they were not provided copies of the incriminating documents relied upon by the prosecution in compliance of section 207 Cr.P.C., regarding which the court held that at the time of framing charge no such objection was made from their side, to which they pleaded not guilty and thereafter number of dates were fixed but on none of these dates ever any application was moved to the effect that they had not been provided the documents. Moreover the record revealed that the file was sent for preparation of the copies and the copies of the documents were prepared also, where after they were not found on record and hence it was a proof that they were delivered to the accused and that simply because no endorsement was found to be there on record of the copies having been received, would not mean that the same were not given to the accused. Hence the said objection was held to be meaningless.
7. The next argument before the court below was made that the search of the accused persons was not made in front of any Gazetted Officer or a Magistrate and the consent letters which are alleged to have been prepared, were prepared after the search had been made, by pointing out that the witnesses of the prosecution have admitted violation of the provisions of section 50 of NDPS Act and the witness P.W. 1 has admitted in his statement that the consent letter was prepared after their search had been made. The P.W. 2 has admitted that no entry was made in G.D. about obtaining consent from the accused appellants, which would show that the recovery memo was prepared after preparation of consent letters, because if the consent letters were prepared on the spot, they would certainly find mention in the recovery memo. In support of their version the learned counsel for the appellants had placed reliance upon Suresh and Others Vs. State of M.P., 2013 (80) ACC 994 (Supreme Court); Ramjan Vs. State of U.P., 2011 (72) ACC 105 (Allahbad High Court); Sirajul Ansari Vs. State, 2005 (53) ACC 271 (Allahabad High Court - Lucknow Bench); Gurjant Singh alias Janta Vs. State of Punjab, 2013 (2) S.C.Cr.R. 2123; Myla Venkateswarlu Vs. State of A.P., 2012 (2) AAR 688 (SC); Shyam Kumar Vs. State of U.P., 2008 (1) L.Cr.R. 527 (HC); State of U.P. Vs. Subhash Kumar Singh Tomar, (2009) 12 SCC 713. A meticulous analysis has been made of the statements of prosecution witnesses by the learned court below and has opined that it was wrong to say that the consent letters were not prepared on the spot. However, it is also held by it that the aforementioned rulings would not be applicable in the present case because in the case at hand there was no prior information with the police party that accused appellants were carrying with them charas, rather it was a sudden arrest on public place by police party in which charas has been recovered, in which case provisions of Section 50 of N.D.P.S. Act would not be applicable as has been laid down by the Hon'ble Supreme Court in Bharatbhai Bhagwanji Bhai Vs. State of Gujarat, 2003 Criminal Law Journal page 65. It is also mentioned in the judgement that the learned counsel for the defence had also taken this plea that when the accused appellants had disclosed that they were possessing charas, in that condition the said information was required to be given in writing and for arresting the accused, warrant of arrest was required to be obtained from higher authorities, hence mandatory provision of section 42 N.D.P.S. Act was not complied with which makes the accused entitled to be acquitted. In support of this it was pointed out by the defence counsel that the P.W. 6 in his statement at page five in second paragraph has admitted that he has not made mention in the charge-sheet of any order or notification which might have authorised S.S.I., Om Veer Singh and S.I. Brijpal Singh to take search of the accused and seize contraband substance from them and that this witness has also admitted on page six that prior to the arrest, no information was sent to the higher authorities. In this regard reliance had been placed by the defence counsel on Ramdas vs State of U.P., 2005 (52) ACC page 418 and Rajendra vs State of Haryana, 2012 (1) CCSC page 288 (Supreme Court). The above arguments were thrown out by the learned court below on the ground that the provisions of Section 42 N.D.P.S. Act would be applicable in a case where any specific information is received by police that the accused, to be arrested, was carrying the contraband substance, which could be recovered from him and relying upon the law laid down in Babubhai Odhavji Patel & Ors. Vs. State of Gujarat, 2005 (8) SCC 725, the said argument was not found by him to carry any weight. Further it is recorded by the learned court below that in the case at hand the citations relied upon by the learned counsel for the defence would not be applicable because the contraband substance which was recovered from the accused, was recovered at public place after a sudden arrest, hence in accordance with the law laid down by Supreme Court in Sayar Puri vs State of Rajasthan (1998) 7 SCC 441, the provisions of 42 NDPS Act would not be applicable nor in such type of the cases, there would be necessity of preparing site plan because of the sudden arrest from a public place of the accused. Next, it was argued by the defence before the Court below that the person who had been instructed to bring the weighing machine and the weighing units had not been examined nor seizure memo of them was prepared which is detrimental for the case of prosecution , but the said argument has been nullified by holding that there was no such provision of preparing a seizure memo of such articles.
8. The next argument made before the court below was that no public witness was taken and that there was no source of light to prepare the recovery memo. Further it was argued that the seal was not compared with the sample seal before sending the sample of contraband substance to Forensic Science Lab because P.W. 1 and P.W. 2 have admitted that sample seals were not produced before them in court and in this regard reliance has been placed by defence upon Beni Prasad vs State of U.P., 2003 (46) ACC page 701, (Allahabad High Court) and State of Rajasthan vs Gurmail Singh, 2005 (51) ACC page 928 Supreme Court. The learned Court below has discarded these arguments on the ground that the said lacunae left by the investigating officer, would not be allowed to demolish the case of prosecution and that the police witnesses who have proved such huge recovery of contraband substance, which is not possible to be planted, could not be discarded in the light of law laid down by the Supreme Court in Kashmiri Lal vs State of Haryana (2013) 6 SCC 595, in which it is held that it cannot be presumed that the police witnesses are not believable. Next, it was also argued that investigation in this case was assigned to the officer who was Junior to the arresting officer, hence investigation could not be held to be fair, but the same was discarded in the light of law laid down by the Supreme Court in State Vs. Jayapaul, (2004) (5) SCC page 223 in which it is laid down that the accused could not be acquitted only because the complainant himself had done investigation in the case. Next, it was argued that provisions of section 57 of NDPS Act were not complied with and in this regard reliance is placed on Ramdas Vs. State of U.P., 2005 (52) ACC 418, but this argument has been demolished by relying upon the law laid down by Delhi High Court in Sunil Kumar Vs. State, 1990 Criminal Law Journal, 414, wherein it is laid down that where, after arrest and seizure of contraband substance, an information is sent to the office of Circle Officer and higher authorities, the compliance of section 57 of NDPS Act would be held to have been made. Further it is held that PW 1 has proved that the information of arrest of the accused and seizure of contraband substance was passed on to the Circle Officer on wireless. Next, it was argued that FSL's report was not got proved, to which it was replied by the Court below that as per the law laid down in Criminal Appeal No. 635 of 1996, Tasawwar Ansari Vs. Union of India decided on 31/07/1997 by the Allahabad High Court, (1998 Cri. L. J. 3356) it has been held that FSL's report was not required to be proved and the same was admissible in evidence under section 293 Cr.P.C. and it was also held that PW 5 had proved that the sample of the said contraband substance was sent to Forensic Science Lab. Next, it was argued before the Court below that no report was called for from FSL regarding content of resin in the recovered contraband substance, but the same was discarded in the light of law laid down by the Supreme Court in Harjit Singh Vs. State of Punjab, (2011) 2 SCC (Cri) 286, wherein it is held that the quantity of whole recovered contraband substance has to be taken into consideration rather than the content of pure drug. Thus holding the accused guilty of aforesaid charge both the accused have been awarded above mentioned punishment.
9. Heard the arguments of learned counsel for the appellants, Shri Arvind Agrawal, learned AGA and perused the record.
10. The learned counsel for the appellants submitted that the motorcycle which is alleged to have been used in transportation of the contraband substance was not seized nor any seizure memo has been prepared. No entry has been made in general diary of the consent letters. The copies of recovery memos which were provided to the accused appellants were not found at the police station. Calling for the weighing machine and the weight units is doubtful because the person who was sent for bringing them, has not stated, as to from where he had brought them, because Rajendra who is alleged to have brought the weighing machine and the weight units has not been examined. Two days' time in sending samples to the Forensic Science Lab, Meerut is alleged to have been taken, which is unusual. According to the record, at 2 P.M. the sample of the recovered contraband substance was taken out from Malkhana while entry in GD regarding the same being sent for being tested, is of 19.40 hours on 3.02.2011, which shows that there was approximately 7.40 hours time gap since its collecting from the, Malkhana and sending to the FSL for being tested, which was sufficient time for its being tampered. The compliance of section 50 of the NDPS Act was not made because P.W. 1 Omvir, S.I. has stated that the right of being searched in presence of the Magistrate or a Gazetted Officer was apprised to the appellants however the same was their 'legal' right, was not brought to their notice as the word ''legal' was not used while apprising the accused appellants about their right. There is no mention made of the consent letters in the general diary that such consent letters were prepared. P.W. 2, Brijpal Singh has stated that by his seal entire recovered contraband substance was sealed, which would indicate that no correct entry was made in this regard in G.D. P.W.1 has stated that the sample of seal was not on file nor was the same produced in Court. Further, it is stated by him that seal of S.I. B.P. Singh was used, while, P.W.1 states that his seal was used in sealing the contraband. On the report of Forensic Science Lab, the seal of B.P. Singh is found affixed. The P.W.5 , Head Mohorrir has stated that no seal was found affixed on the contraband substance nor the signature of accused were found on the bundles, which is in conflict with the statement of P.W.1. P.W. 2 has stated that accused Pankaj had signed on the recovery memo in Hindi, while his signature is found in English. It is also argued that personal search of the police team was essential to be taken before making search of the accused appellants so as to eliminate chances of any false plantation of contraband substance, which was not done in this case as is evident from the statement of P.W. 1 and P.W. 2. In violation of the provision of section 57 of the Act, no information was sent to the senior officers within 48 hours of making the recovery of contraband substance. No independent witness was sought to be taken to fortify recovery which is evident from the statement of P.W.1 which merely says that due to it being odd hours, witnesses of public could not be found, while P.W.2 says that many people had come there who were told to be witness of the recovery but they went away. On the spot there was no source of light, hence the recovery memo could not have been prepared.
11. First of all the point of non-compliance of Section 50 N.D.P.S. Act is being taken up. In this regard in the recovery memo (Exhibit Ka-3), it is mentioned that both the accused were directed to stop by police because after seeing police, they tried to turn back and run away, thereafter, they were chased and ultimately arrested. After arrest, when inquired why they were fleeing away, they disclosed to the police party that they had 'charas', hence they were trying to run away. At this police party told them that since they had 'charas' in their possession, if they wanted, they could be searched in presence of a Magistrate or a Gazetted Officer as they had right to be searched before them, but both accused stated that since they had already been arrested, the search could be taken by the police party itself as they had full faith in them. Pursuant to their saying so, consent letters of both the accused were prepared and thereafter their personal search was made. Upon making search from jute bag being carried by accused Pankaj, three packets, wrapped in polythene containing 'charas', were recovered, in which in two 'pannis', 'Battinuma' and in one 'panni' 'Laddu' shaped 'charas' was recovered, besides other items i.e. mobile and some currency notes. From the other accused Sardar Ali, who was driving the motor-cycle, from a piggy bag, two packets in 'pannis' were recovered, one containing 'Battinuma' charas and other 'Laddu' shaped charas. In this regard P.W.1 has stated the same which has been mentioned above, found written in the recovery memo, except that he has clarified that they were asked as to whether they wanted to be searched in presence of a Magistrate or a Gazetted Officer as it was their legal right, both of them stated that since they had already been arrested, they were ready to be searched by the police party. P.W.2, who is also a witness of fact, has stated in this regard that if they opted, they could be taken before Magistrate or a Gazetted Officer for search as it was their legal right. In consent letters Exhibit Ka-1 and Exhibit Ka-2 of accused appellants Pankaj and Sardar Ali respectively, question No.2 put to them says that "You possess illegal charas, if you want, your search can be taken in presence of a Magistrate or a Gazetted Officer. It is your right". From the above evidence on record, it is apparent that both the accused appellants were apprised of their legal right that if they wanted, they could be taken before a Magistrate or a Gazetted Officer for being searched but both of them decided to be searched by the arresting party itself, reposing faith in them. It was argued by the learned counsel for the appellants that the appellants were not apprised of their 'legal' rights that they could be taken before a Magistrate or a Gazetted Officer as the same is not found written in the recovery memo nor in the consent letters. The said argument does not sound appealing because it is not mandatory for compliance of Section 50 of the N.D.P.S. Act to obtain written consent of the accused that they had legal right to be searched in presence of above mentioned authorities, if they so opted, nor is there any prescribed proforma provided for that. It has to be gathered by court on the basis of evidence whether the compliance has been made of the said provision in the letter and spirit or not. The statements of P.W.1 and P.W.2 cited above clearly mention that both the accused had been apprised about their legal right that they could be taken before above mentioned authorities in case they so opted because they had told them that they were having 'charas' in their possession. Therefore in the opinion of this Court, there was sufficient compliance of Section 50 of N.D.P.S. Act made by the prosecution. It may be pointed out that the court below has held otherwise by holding that in the case at hand there was no need for making compliance of section 50 of the Act because it was a case of sudden arrest where police had no prior information that the accused were carrying contraband substance, hence, in the light of law laid down in Bharatbhai Bhagwanji Bhai Vs. state of Gujarat (supra), there was no need to comply provision of Section 50 of the Act. The said view of the learned court below is erroneous in the sense that the facts of the said case are not comparable with the facts of the present case. In the said case Police Inspector accompanied by some other police personnel who were on patrolling duty on Bus Stand while on the said duty, they noticed that accused on seeing the police started running. Due to the curiosity of such undue movement, they intercepted the accused and searched their persons in presence of two 'panchas'. The search led to the disclosure of small size plastic bag containing 'charas' of about 12 gram in weight. In these circumstances, the court had held that Section 50 categorically suggests that if search is to be conducted by an officer duly authorized under Section 42 and the search is about to be conducted under the provisions of Sections 41, 42 or 43, the officer concerned does owe a duty to intimate the person to be searched that if he so requires, he would be taken to the nearest Gazetted Officer for the purpose of having been searched. But in the event of a situation that the person, on seeing the patrolling party started running which creates suspicion in the mind of the officer concerned, but thereafter inspected him and then in presence of 'panchas' effect his search, the compliance with the safeguards as provided under Section 50 of the Act would not arise. In the case at hand, the facts are totally different in the sense that both the accused had disclosed that they had 'charas' in their possession and since police had knowledge that the accused were possessing 'charas', from that point onward, they were duty bound to make compliance under Section 50 of the N.D.P.S. Act i.e. before they could proceed to take search of the accused persons, they ought to have apprised them about their legal right that if they so desire they could be taken for the search to be made in the presence of a Magistrate or a Gazetted Officer. This has been carried out by the arresting party in this case. It would be pertinent to refer here the law laid down in this regard by the Supreme Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 wherein, in para 25, following is held:
25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or 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 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 prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course 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."
12. Thus, in the light of above position of law, since the point, the accused disclosed they had 'charas', the arresting party has followed the provisions of Section 50 of the Act.
13. The next argument which has been made by the learned counsel for the appellants relates to non production of sample seals before court which according to him would lead to suspicion that the alleged recovery of contraband substance was made from the accused. In recovery memo, it is mentioned that from out of three packets recovered from Pankaj and two packets recovered from second accused Sardar Ali which were weighed on the spot and were found to contain 4 Kg. 'charas' each, 100 gram 'charas' were taken out from each by way of sample and were separately sealed while the remainders were separately sealed. The sample seals were prepared on the spot. In this regard, P.W.1 who is witness of fact has stated in examination-in-chief that all the three packets recovered from accused Pankaj were brought before court in sealed condition for being exhibited and the two packets recovered from other accused Sardar Ali were also brought before court in sealed condition and were exhibited and were opened before him and thereafter only they were exhibited. In cross-examination, this witness, though has admitted, that before opening these bundles, the seals put there-on was not compared with the sample seals because no sample seal was presented in court, neither was found kept on file. Further he has stated in cross-examination that it is wrong to say that the seal after having been affixed on the contraband substance was kept with himself and that is the reason why the same was not found on record. Further he has stated that on the spot he had affixed the seal on he contraband substance where-on 'B.P.S.' was written. The seal of S.H.O. was not affixed on the contraband substance. On the sample of the seal, he himself and Omveer Singh had put their signatures but the signatures of the accused persons were not taken there on. P.W.3, Veer Bhan Singh has stated in examination-in-chief that under the orders of I.O., the five bundles of samples were collected by him from in-charge, Malkhana and had gone to F.S.L. again on 3.2.2011 for handing them over for being tested. The papers with regard to depositing these samples in F.S.L. were in front of him on the file and the proof of their receipts at F.S.L. dated 5.2.2011 is also on record. The document related to accused Pankaj is exhibit Ka-10 while related to Sardar Ali is Exhibit Ka-11. He had gone to the F.S.L. by making entry in G.D. at report No.44 time 19:40 hours on 3.2.2011. The original G.D., he had brought with himself and its copy was filed by him after comparing the same with original, which is Exhibit Ka-12. In cross-examination, this witness has stated that on Exhibit Ka-10, he had not put his signatures in presence of accused or his counsel. Both the papers i.e. Exhibit Ka-10 and Ka-11 were given to him by I.O. on 3.2.2011 at the police station. He had put his signatures thereon in presence of C.O. where he had been taken by I.O. The contraband substance was also taken to C.O. The sample of contraband was taken out at about 2 p.m. but he does not have knowledge as to whether any entry was made in that regard in G.D. by I.O. or not. He had not deposited the said sample of substance back in Malkhana. His statements was recorded by I.O. regarding the fact that he had taken the sample of contraband to the F.S.L. On the said bundle containing sample of said contraband, the seal 'B.P. Singh' was affixed. P.W.4, 'head mohorrir' has stated in examination-in-chief that the case property was handed over to him by S.S.I. Om Veer Singh which was in turn handed over by him to 'Malkhana Mohorrir'. P.W.5, Head Constable, Dev Pal Singh has stated in examination-in-chief that on 1.2.2011, three big bundles and three small bundles in sealed condition along with sample of seals were deposited through entry in G.D. No.3 related to Case Crime No. 24 of 2011 under Sections 18/20 N.D.P.S. Act, versus Pankaj and two big bundles and two small bundles in sealed condition along with sample seals and one motor-cycle No. 'DL AT-5-A-D: 4178' (unclear) and the currency received in personal search along with mobile related to crime No. 25 of 2011 under Sections 18/20 N.D.P.S. Act, versus Sardar Ali were deposited by making entry in Malkhana register by him at serial Nos. 5 and 6 through G.D. No.3 dated 1.2.2011. He had brought with him the original Malkhana register of the year-2011 which was in his hand writing and photo-copies of the same he was depositing which was Exhibit Ka-16 and Exhibit Ka-17 and the substance/articles found in personal search were entered in G.D. No. 3 dated 1.2.2011 at serial No. 2 which was prepared by him in his hand writing. The photo-copy of the original register after being certified by him was being deposited as Exhibit Ka-18. In Cross-examination, this witness has stated that ten seals of samples related to both the cases were handed over to him, entries of which were not made by him in Malkhana register. By seals of sample he meant red 'lakh' affixed on paper. On the bundles of the contraband substance and on their samples, the seal of 'S.I. B.P. Singh U.P.P.' was affixed. The description of the fact as to whose seal was affixed on the contraband substance and whether the same was in sealed condition, was not recorded by him in Malkhana register and thereafter he himself further stated that all this is recorded in G.D. The G.D. of institution of this case was in front of him but it does not contain the description of the same, nor does it contain as to whose seal was affixed on the contraband substance. Whatever material was there related to these cases, was received by him but it contained signatures of all the police officials and that of accused persons as well. In report of F.S.L. concerning appellant Pankaj (Exhibit Ka-22), it is recorded that three packets containing 'charas', 98.1 gram, 91.4 gram, 84.5 gram each were received in F.S.L. on 5.2.2011 with seal of 'B.P. Singh', S.I. U.P.P., which after being analyzed were found to be 'charas'. Similarly in F.S.L. report (Exhibit Ka-23) related to other accused appellants Sardar Ali, it is recorded that the two bundles containing suspected 'charas' 99 grams and 96 grams were received on 5.2.2011 which had a seal of "B.P. Singh, S.I. U.P.P." and after analysis of them, they were found to contain 'charas'. From the above-mentioned evidence on record, it is crystal clear that consistently all the witnesses have stated that the recovered contraband substance as well as its sample were bearing seal of 'B.P. Singh', S.I. U.P.P. The same seal was found to have been affixed by F.S.L. as well. It is also clear from entries in the Malkhana register that the contraband substance and their samples were deposited in Malkhana as the entries clearly indicate that they were deposited. However, the samples of seals were not found deposited in the Malkhana. It is definitely a lapse on the part of prosecution, such as mentioned above. But only due to this lapse, the entire case be treated to be a concocted one and not believable would be unjustified. It may be taken a single lapse which would not be allowed to demolish the other evidences collected by the investigation agency against the accused on record. The above-mentioned evidence shows that the prosecution has taken meticulous care in collecting the samples from the recovered contraband substance and both i.e. contraband substance (remainders) as well as samples thereof, were separately sealed and the samples were sent to the F.S.L. for being tested which were also found perfectly sealed and same seal has been found to have been affixed by the F.S.L. which is being alleged by the arresting party to have been affixed on the spot by them. There is no discrepancy with regard to the seal. These evidence are pointing towards the fact that the said contraband substance was recovered from the accused appellants regarding which they could not show any license to possess. The learned lower court has rightly held in this regard that the single lapse on the part of the prosecution may not be allowed to impact the case of prosecution adversely.
14. There are several other minor points which have also been raised during the arguments such as non examination of the witness who had brought the weighing machine and the weight units for weighing the contraband substance on the spot. This point is not very material because it is the discretion of the prosecution to examine only such witnesses in support of their case which they consider to be necessary for proving the case. No adverse inference would be drawn only because the said witness has not been examined by the prosecution, in the light of other evidence which has already come on record, being enough against the accused appellants.
15. The next point raised is that samples of contraband substance were sent in the F.S.L. with delay. In this case, recovery is alleged to have been made from the accused on 31.1.2011 while the samples of the said substance were deposited in the F.S.L. on 3.2.2011. This could not be taken to be delayed transmission of the samples. Further it may be clarified that it is well proved by the prosecution that the contraband substance as well as their samples were kept safely in sealed condition in Malkhana, hence, even if little delay is found on the part of the prosecution that would not adversely affect the case of the prosecution. The other point raised relates to the fact that the signature of accused appellant Pankaj is found on the recovery memo in English while P.W.2 states that he had put his signatures in Hindi. This is very insignificant discrepancy which is being pointed out.
16. It is also argued that the police did not allow themselves to be searched before search of the accused made so as to eliminate any chance of false plantation. This point also is not very significant looking to the fact that quantity which is recovered from the accused of contraband substance is too huge to be planted.
17. Next point relates to non-compliance of Section 57 of the Act. In this regard P.W. 1 has stated in cross-examination that he had not sent information to the higher authorities in respect of the search made of the accused persons on the place of occurrence. When he had reached the police station, he had given information about the occurrence on wireless and R.T. Set to the C.O. Further he has stated that a written information was given by him to his higher authorities by which he meant that this information was given in form of Daily Crime report which is given about each case after having reached the the police station. All the papers related to these cases were not given by him to the munshi at police station. P.W. 2 in this regard stated in cross-examination that after the accused had disclosed that they had 'charas' with them, he had not given its information to his higher authorities. No information with regard to this occurrence was given to higher authorities rather the information was passed on through R.T. Set only.
18. From the statement made above, it is apparent that the information which was required to be transmitted to higher authorities within 48 hours of the arrest of the accused and seizure made of the contraband substance, was not passed on to the higher authorities as per provision of Section 57 of the Act.
19. For the sake of convenience, the said section is reproduced herein below:
"57. Report of arrest and seizure. Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
20. Various interpretation have been made in this regard by the Hon'ble Courts and for the sake of convenience, in para Nos. 24 of State of Punjab Vs. Balbir Singh (supra), following has been held:
"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 these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution.
21. In view of above law, it is apparent that although the compliance of provisions of Section 57 of NDPS Act is not mandatory but directory. The compliance may be made even with delay with sufficient explanation therefor. The court conducting trial of an accused under the provisions of NDPS Act has to take into consideration whether non-compliance of this provision has resulted in causing prejudice to the accused but it was also required to be mentioned that non-compliance of Section 57 by itself is not to be detrimental unless there are other infirmities in the prosecution's case. It would not be out of place to refer the position of law laid down in Dilbagh Singh Vs. State of Punjab (2017) 11 SCC 290 in which Supreme Court has made interpretation of this Section that the Compliance of Section 57 was not mandatory in nature so much so that if a substantial compliance thereof is made, it would not vitiate the case of the prosecution.
22. The relevant paras of this judgment mentioned in para Nos. 14 and 15 are quoted below:
"(14) The decision in Mohinder Kumar Vs. State (1998) 8 SCC 655 not only is distinguishable on facts, as the search therein was of the petitioner's premises, the investigation was afflicted as well by several other omissions on the part of the authority conducting the same. Though in this rendering, it was observed that in State of Punjab vs. Balbir Singh - (1994) 3 SCC 299 the provisions of Sections 52 and 57 of the Act had been held to be mandatory in character, it is pertinent to note that this Court in Sajan Abraham vs. State of Kerala - (2001) 6 SCC 692 had exposited that Section 57 was not mandatory in nature so much so that if a substantial compliance thereof is made, it would not vitiate the case of the prosecution. Incidentally the decision rendered in Balbir Singh (supra) was rendered by a Coram of two Hon'ble Judges whereas the one in Sajan Abraham (2001) 6 SCC 692 was by a three Judge Bench.
(15) In Balbir Singh (supra), a Bench of two Hon'ble Judges of this Court had enunciated, adverting to Sections 52 and 57 of the Act that these provisions contain certain procedural instructions for strict compliance by the officers, but clarified that if there was none, such omission by itself would not render the acts done by them 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. That the non-compliance had caused prejudice to the accused persons and had resulted in failure of justice was necessary to be demonstrated, was emphasised. It was ruled that these provisions, which deal with the steps to be taken by the officers after making arrest or seizure under Section 41 and 44 are by themselves not mandatory and if there was non-compliance or any delay was involved with regard thereto, then it has to be examined, to ascertain as to whether any prejudice had been caused to the accused and further whether, such failure would have a bearing on the appreciation of evidence regarding arrest or seizure as well as on the merits of the case."
23. It has come in evidence that the information with regard to the arrest of the accused appellants as well as recovery of contraband substance from them was informed by the arresting party to the higher authorities by R.T. Set which is, though, not recognized method of informing as per the provision of Section 57 of the Act as it was required to be sent in writing in the form of a report, yet it should be held that part compliance of the aforesaid provision has been made. Object of sending this information is that no false implication be made of the innocent which may be precluded by keeping informed the higher authorities, hence, in this case in the opinion of this Court, no prejudice would be taken to have been caused to the accused particularly when substantial credible evidence has been provided from the side of prosecution, of huge recovery of 'charas' having been made from them which has been duly proved.
24. The non-compliance of Section 57 could be held to be detrimental only when there were large number of other lacunae, cumulative effect of which could be to disbelieve the recovery but such is not the case here. These are only minor discrepancies pointed out by appellants' learned counsel which are ignorable.
25. Next important point raised by the learned counsel for the appellants is that no public witness was taken by the prosecution/arresting party to prove the recovery from the accused appellants. In this regard in the recovery memo, it is mentioned that due to it being time of night no public witness could be available. P.W.1 has stated in this regard that he had given this statement to the I.O. that due to it being time of night public witness could not be available. Similarly P.W.2 repeated the same reason why the public witness could not be taken. In cross-examination, he has stated that they had tried to stop many passers-by and had requested them to be witness of the recovery of contraband but none was ready because that would entail visiting "court-kutcheri" frequently exposing them to harassment and, hence, they refused. He was confronted with the statements that he had given in the examination-in-chief that there was no pubic witness due to it being a time of night while on the other hand he has stated that effort was made to ask the passers-by to be a witness but he made it clear that both the statements were correct.
26. In statement of P.W.6, it has been mentioned in cross-examination that he could not give any explanation of the fact as to why he did not confront the witnesses with regard to the discrepancy in their statements that it being the time of night, no public witness was available and that the witnesses declined to be witness on the occurrence.
27. In this regard the view taken by the Supreme Court would be pertinent to mention here in Ram Swaroop Vs. State (Govt. of N.C.T. Of Delhi), (2013) 14 SCC 235, the relevant para of which i.e. para Nos. 7 and 10 are quoted below:
"7. To appreciate the first limb of submission, we have carefully scrutinized the evidence brought on record and perused the judgment of the High Court and that of the trial Court. It is noticeable that the evidence of PW-7, namely, Ritesh Kumar, has been supported by Balwant Singh, PW-5, as well as other witnesses. It has come in the evidence of Ritesh Kumar that he had asked the passerby to be witnesses but none of them agreed and left without disclosing their names and addresses. On a careful perusal of their version we do not notice anything by which their evidence can be treated to be untrustworthy. On the contrary it is absolutely unimpeachable. We may note here with profit that there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh 1989 SCC (Cri) 48, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
"10. Keeping in view the aforesaid authorities, it can safely be stated that in the case at hand there is no reason to hold that non- examination of the independent witnesses affect the prosecution case and, hence, we unhesitatingly repel the submission advanced by the learned counsel for the appellant."
28. It is absolutely clear that the prosecution witness (police witness) have to be given equal respect, no less than the witness of public. It is also clear that in the case at hand, the effort was made by the prosecution to procure independent witness but they could not be available. The prosecution may rely upon police witness, if they are trust worthy, their testimony ought to be believed by the trial court and should not discard simply because they happen to be police witness. In the case at hand from the evidence reproduced above, it is clear that the time was of night of about 23:05 hours, hence, there was hardly any substantial number of public witnesses available but the possibility of few witnesses being there could not be ruled out. It is admitted that there are few discrepancies in the statements of prosecution witnesses with regard to there being no public witness available due to night time, while on the other hand it has also been stated that some passers-by were requested to be witness but they did not agree because of subsequent harassment, which could be faced by them due to being summoned by court. No doubt that it is difficult to get public witness due to incurring enmity. In these circumstances, this Court finds that the prosecution did make an effort to procure public witnesses but despite best effort, could not obtain any and, hence, only police witness have been relied upon. These eye-witnesses are police witnesses of fact, who have strongly proved the recovery from the accused appellants which is so huge that it is difficult to plant said quantity, hence, there is no reason to disbelieve them only on the ground that they could not get independent public witness to prove the recovery of contraband substance.
29. One more argument which has been made by the learned counsel for the appellants is that there was no source of light on the spot, hence, it was not possible to prepare the recovery memo on the spot. Mentioning this, it was tried to show that there were discrepancies in the statements of witnesses with regard to sufficient light being there on the spot. These are minor contradictions which do not require to be given serious consideration.
30. The rest of the arguments are not found to be significant enough to require consideration. These points have been well considered by the court below and the adequate replies have been given therein.
31. In the light of the above analysis, this Court is of the view that the prosecution has been successful in proving the case against the accused appellants to the hilt and that there is no infirmity found in the judgment of the lower court, except which are cited above, and the same are not found serious enough.
32. This appeal deserves to be rejected and is, accordingly, rejected.
33. Let the lower court record be sent back to the court below along with the copy of the judgment for necessary compliance.
Comments
Post a Comment