Pandav Sarkar vs State Of U.P.
2011 Latest Caselaw 3771 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Criminal Appeal No.8090 of 2007
 
Pandav Sarkar.......................................Appellant
 

 
Versus
 

 
State of U.P................................Opposite Party.
 

 
Hon'ble Vinod Prasad, J.

Appellant Pandav Sarkar, has challenged his conviction under Section 20 (b)(ii)(c) N.D.P.S. Act (hereinafter referred to as the Act) and imposed sentences of 10 years R.I. with fine of Rs. one lac, the default sentence being two years further R.I. recorded by Additional Session's Judge, court No.5, Pilibhit, in S.S.T. No. 1 of 2000, State of U.P. Verses Pandav Sarkar, U/S Section 20 N.D.P.S. Act, PS Madho Tanda, in this appeal.

According to prosecution allegations, S.I. Surendra Kumar Tyagi of Border Security Force along with constables Munesh Kumar and Khushhal Prasad were on routine beat petrol on 30.9.1999 and they left border out post Naujalia towards village Kutia Kavar and when they were proceeding on nature trail/ footpath (Pagdandi) then at 8.30 a.m., in between village Bodhi Bhur and Kutia Kavar, they witnessed a man approaching towards them from no man's land having a bag in his right hand. From a distance of hundred paces approaching person turned towards east and hide himself in the high bushes besides nature trail/ footpath(Pagdandi). Suspecting his manoeuvres S.I. and accompanying constables doubled up towards him and found him sitting in the bushes with a plastic bag carried in his hand. On interrogation by the picket party and asking reasons for his hiding that the person disclosed his identity as the appellant Pandav Sarkar S/O Jai Chand Sarkar, resident of Kutia Kavar, Naujalia No.2, P.S. Madhav Tanda, District Pilibhit and also disclosed that he was carrying Opium (charas) in his bag brought from Nepal for selling. On disclosure of possession of narcotic contraband apprehending party brought him on nature trail/footpath and there observed compliance of section 50 of the Act by intimating him that he had a right of being searched before a Gazetted Officer. Appellant however expressed confidence in the security forces and permitted them to search him. On search of the appellant from a plastic bag carried in his hand two polythene packets,of white and pink colours were recovered. In the white polythene packet, 34 sticks of black colour sticks and from the pink polythene packet, 35 sticks of black colour sticks were recovered. On smelling, those sticks were found to be Opium(Charas) approximately two Kgs in weight. Border security personnels also informed the appellant that if he desires his family members may be intimated about his arrest but that offer was declined by the appellant to save faux pas. Seizure memo Ex. Ka-1 was prepared, which was scribed by S.I. Surendra Kumar Tyagi and was got signed by the two constables Munesh Kumar and Khushhal Prasad. Intimating cause for his arrest, appellant was arrested at 11.30 A.M. The seized contraband narcotic was sealed in the same polythene and seal impression was prepared. No independent witness could be joined with the said recovery and seizure because of sudden search. From the scene of the incident/place of seizure, accused and petrol party came to police out post Naujalia and from there they came to police station Madhav Tanda were a FIR was got registered as crime no. 218 of 1999, under Section 20/23 N.D.P.S. Act the same day at 2.30 P.M. after covering a distance of twenty five kilometres.

P.W. 3 clerk constable Geetam Singh of P.S. Madhav Tanda, on the basis of recovery memo Ex. K-1 prepared chik FIR Ex. K-2 and GD entry Ex. K-3. P.W. 5, S.I. Brij Pal Singh commenced investigation into the crime recorded statement of Munesh Kumar conducted spot inspection and prepared site plan Ex. Ka-6. He thereafter interrogated other witnesses and dispatched the drawn sample to the Forensic Science Laboratory, Agra. He has also proved Ex. Ka-7, which is the sample sending letter from S.P. Pilibhit to Forensic Science Laboratory, Agra dated 23.10.99. Further investigation was conducted by S.I. Hira Lal Chaudhary P.W. 4, who also proved Ex. Ka-4, which is analyst report from Forensic Science Laboratory. Concluding investigation,PW4 laid charge sheet Ex. Ka-5 against the appellant on 31.12.99 for offences under Section 20/23 N.D.P.S. Act.

Sessions Judge, Pilibhit, on the basis of the charge sheet, took cognizance of the offence on 5.1.2000 and registered Special Session's Trial No.1 of 2000, State of U.P. Vs. Pandav Sarkar, which subsequently was transferred to the court of Special Judge, EC Act/ Additional Sessions Judge, Pilibhit, who after perusing material contained in the case diary, charged the appellant under Section 20 of NDPS Act on 7.7.2000, which charge was read out to the accused-appellant, who denied the same and claimed to be tried.

To substantiate the charge and bring home appellant's guilt, prosecution in all examined six witnesses out of whom PW-1 Khushal Singh, PW-2 Inspector S.K. Tyagi were fact witnesses. PW-3 Constable Clerk Geetam Singh had registered FIR and had prepared Chik FIR, PW-4 is SI Hira Lal Chaudhary, second Investigating Officer, who had submitted charge sheet against the appellant, whereas PW-5, S.I. B.P. Singh is the first Investigating Officer who had proved site plan and Ext.Ka-7. PW-6 is Constable Anand Swaroop who had carried the sample to Forensic Science Laboratory. Report of forensic science laboratory is Ext. Ka-7.

In his statement under Section 313 Cr.P.C., accused denied any recovery having being made from his possession and took the defence of his false implication. How ever he did not examine any defence witness.

Additional Sessions Judge, court no.5, Pilibhit, vide its impugned judgement of conviction and sentence dated 30.10.2007 found the case of the prosecution established to the hilt beyond any shadow of doubt and, therefore, convicted the appellant under Section 8 read with Section 20 (b) (ii) (c) NDPS Act and sentenced him to undergo ten years RI with fine of Rs.1,00,000/- and in default of payment of fine, to undergo two years additional RI. Aggrieved by the aforesaid conviction and sentence, appellant has approached this Court in the instant appeal.

I have heard Sri A.K. Srivastava and Sri A.R. Dubey, learned counsel in support of this appeal and perused evidences of witnesses, exhibits and impugned judgement of conviction.

Assailing impugned judgement learned counsel for the appellant submits that there is no compliance of section 42 of the Act in as much as information received from the appellant was not taken down in writing, no attempt was made to enjoin any independent witness with search and seizure and consequently no compliance of provisions of NDPS Act and section 100 Cr.P.C. was made. No actual weighment of recovered article was made at all. Compliance of section 57 of the Act was abjured in as much as no intimation of recovery and seizure was given to the Higher Police Officers by the seizing party within forty eight hours of the seizure. They further submitted that sample of contraband was tampered with as according to the prosecution version only ten grams of opium was taken out as sample but when the sealed packet was unsealed in Forensic Science Laboratory, it was detected that the same contained double the quantity ie: twenty grams. It was, therefore, suggested that the sample dispatched to Forensic Science Laboratory was not of the alleged contraband of narcotic recovered from the appellant. Half hearted compliance of section 50 NDPS Act was done and hence the said provision was breached. No opportunity of being searched before the Magistrate was ever offered to the appellant and hence there is no compliance of section 50 NDPS Act. Castigating impugned judgement further it was contended that the trial Judge wrongly concluded that there was full compliance of section 50 NDPS Act. Attour, Forensic Science Laboratory report was never put to the appellant in his examination U/S 313 Cr.P.C. and trial Judge completely ignored this very important aspect of trial procedure and it wrongly relied upon the analyst report. Supplementary submission is that since sample was tampered with putting of the analyst report to the appellant was an un-eschewable requirement, which having not being done, conviction of the appellant is unsustainable. No evidence for compliance of section 57 NDPS Act was led by the prosecution. Appellants counsel relied upon various unnatural and improbable conduct of the petrol party and that of the appellant to raise argument that entire prosecution version does not inspire any confidence and therefore is to be dismissed as untruthful. They relied upon certain decisions to farther their contentions. Concluding their submissions, they pleaded that prosecution has miserably failed to bring home guilt of the appellant and, therefore, appeal must succeed and appellant be acquitted of the charges levelled against him.

Sri Pantanjali Mishra, learned AGA per contra refuted all the arguments and submitted and it is a recovery which was made in day time, there was no reason for the Border Security Force Personnel to falsely implicate the appellant in a false case. He further submitted that Section 57 of NDPS Act is directory in nature and its non-compliance will not vitiate conviction and effect credibility of testimonies of fact witnesses and their evidences. Prosecution has anointed appellants guilt convincingly and, therefore, appeal lacks merit and be dismissed. Learned AGA relied upon decision of this Court in the case of Ashok Vs. State of U.P. 2003 (1) JIC 866.

I have considered arguments of both the sides and have cogitated and summated over it.

According to prosecution case, on 30.9.1999 P.W.1 and P.W.2 accompanied with Constable. Munesh Kumar witnessed the appellant coming from no man's land on India Nepal boarder with a bag in his right hand while they were on petrol duty in between villages Bodhi Bhud and Kutia Kavar, who hide himself in the bushes on the east side of footpath at a distance of hundred paces. The three security personnel sprinted towards appellant and after reaching close by they interrogated him on which they were informed by the appellant that he was carrying opium(charas) in his plastic bag. On such a disclosure he was brought on the footpath (Pagdandi) and there, it is alleged that, he was searched after intimating his right U/S 50 NDPS act to be searched before the Gazetted officer. On such facts scenario, it does not stands to reason as to why the appellant never ventured to get rid of the contraband, which he was carrying illegally in the plastic bag held in his hand and threw it in the bushes so that he be not apprehended with illegal narcotics. In this respect, when the testimony of P.W.1 is analysed, he categorically stated that appellant was hiding himself in the bushes but he does not remember what was the species of the bushes. He further deposed that the recovery was made at the footpath as the accused was brought there from the bushes. P.W.2 further disclosed that at the time of his arrest, appellant had kept on holding his bag and had not thrown it away and he was apprehended on the footpath (pagdandi). This conduct by the appellant is incompatible with the normal course of human conduct and creates a doubt on the prosecution story. In this respect according to P.W.1, appellant accused was apprehended inside the bushes whereas according to P.W.2 vide page 4 of his deposition appellant was apprehended on footpath. It is noticeable that presence of the appellant in that area was not unnatural as he is a resident of close by village Nauzilia. Being resident of same vicinity he must have been acquainted with dangers of narcotic trade. From his conduct also this aspect is clear as he tried to hide himself in the bushes. Why then he will keep on clinging to narcotic drug when he had ample opportunity to get rid of it in the bushes. This creates a doubt on the prosecution version.

Turning to another argument regarding non-compliance of Section 42, there is absolutely no evidence to that effect led by the two fact witnesses that prior to search of the appellant, the intimation received from him was taken down in writing. To establish guilt of the accused and bring home the charge was the responsibility of the prosecution agency. Each and every steps required to be observed by the searching and raiding party has to be brought before the Court by admissible and reliable evidences stated by prosecution witnesses. In the present case, for observing compliance of Section 42(1) and (2), no evidence was led by the prosecution. Learned AGA contended that since the information was furnished by the accused himself and he himself had disclosed regarding possession of narcotics, therefore there was no necessity of taking down that information in writing. The objection by learned AGA seems to be attractive but in fact is devoid of merit. Section 42 does not create any distinction between information received from an accused or from an informer. It nowhere provides that information given by the accused for possessing and carrying narcotic be not taken down in writing. Above precaution is enacted in the statute to lend credence to the information received by the searching and raiding party and attach authenticity to search and seizure. Non observance of the said requirement creates a doubt on the genuineness and veracity of the prosecution case. In this respect, it will be apt to refer to section 42 itself which provides as follows:-

42. Power of entry, search, seizure and arrest without warrant or authorisation:-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset ;

(a) enter into and search any such building, conveyance or place,

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act;

Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

Aforesaid section ordains that in between sunrise and sunset if the persons mentioned in the aforesaid Section authorised by general or special order has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, regarding which an offence has been committed under the Act or any document for commission of any offence under the Act is brought to his knowledge then such officer may search and seize any person, building or place etc.

In the aforesaid provision, words 'any person and taken down in writing does not admit any exception. "Any person" includes even an accused and therefore information furnished by him about any offence being committed under the Act has to be taken down in writing, unless of course there is cogent and acceptable reason for it's eschewing. The scope of the words 'any person' cannot be squeezed only to mean any body other than a person to be searched. As soon as the searching and raiding party receives information from any person regarding commission of any offence under the Act, it has to proceed thereafter only in accordance with the provisions of the Act. Once a penal statute lays down a procedure to be observed in matter of investigation or crime detection, then either that procedure be observed and things be done in that manner or not at all. In the present appeal when picket party was informed by the appellant regarding commission of offence under the Act, there was no scope for the picket party not to follow rest of the action in accordance with provisions of NDPS Act and hence it was a must for them to take down in writing the information received from the appellant, which admittedly they did not do. Section 42 is mandatory in character and hence it's non- observance is fatal to the prosecution case and makes it suspect. Some of the exemplar decisions upholding same opinion are referred to below:-

In State of Rajasthan versus Shanti: AIR 2010 SC 43 it has been held as under:-

"Nevertheless, there has been non-compliance with the requirement of Sec. 42(2) as recorded both by the trial Court and the High Court. That being so there is no merit in this appeal."

In Sarju versus State of U.P. AIR 2009 SC 3214 it has been held by the apex court as under:-

"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 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 information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, 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."

In Dilip versus Sate of M.P. :AIR 2007 SC 369 it has been held by the apex court as under:-

"14. Ms. Vibha Datta Makhija, learned Counsel appearing on behalf of the State, however, would support the judgement of the High Court contending that this Court in State of Punjab vs. Balbir Singh [(1994) 3 SCC 299] categorically held that an illegal search may not have any direct impact on the prosecution case. This Court therein opined as under :

"The questions 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 Cr.P.C. 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 Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165, Cr.P.C. 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 Cr.P.C. namely Sections 100 and 165, Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. 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 Section 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."

In State of West Bengal Versus Babu Chakraborty : AIR 2004 SC 4324 it has been held as under:-

"15. We have given our thoughtful consideration to the submissions made by both the learned counsel appearing on either side on facts and also on law. In the instant case, the respondent was charged for the offence under Section 21 of the Act for the illegal possession of 3 gms and 25 mgs of Diacotyl Morphine, which is commonly known as Heroin in contravention of Section 8(c) of the Act. The case of the prosecution was that PW-4, Additional S.P., received secret information and to work out the secret information, he along with PW-2, S. K. Dutta, went to the house of the respondent on 5-5-1989 and conducted a search of the house of the accused. What is important to notice is that the information was not taken down in writing, as required under law and as rightly contended by the learned counsel for the respondent. The search conducted at 9.45 p.m. after sunset and before sunrise was without complying with the proviso to Section 42(1). Section 42(1) and the proviso to Section 42(1) and Section 42(2) is reproduced hereunder :

"42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from persons knowledge or information given by any person taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between surprise and sunset,-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act :

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."

16. In view of the above, Section 42(2) also stood violated. The proviso to Section 42(1) requires that where an officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time before sunset and sunrise after recording the grounds of his belief.

17. We have perused the evidence led in, in this regard. Neither PW-4 nor PW-2 deposed that they had complied with the procedure under Section 42(1) and the proviso to Section 42(1) and Section 42(2) before they conducted the search. It is alleged by them that on search certain Polythene Bags containing Heroin were recovered. According to them, two independent witnesses of the locality Swapan Kumar Samanta and Ramkaran Prasad were taken and they witnessed the search. But unfortunately, these witnesses were not examined and no attempts were made to summon them at the trial. In fact, PW2-S. K. Dutta, on a specific question in cross-examination, deposed that no search memo was prepared and, PW-4 K. L. Meena said he does not remember if any search memo was prepared. Further, it is alleged that they came to Memari P.S. at 11.30 p.m. and Ex.1 G.D. Entry was prepared. This G.D. Entry shows that the seized articles were recovered from the bed room of the accused. The accused was also arrested on 5-5-1989. Thereafter, the case was made over to PW-3 and after receiving the report from the Central Public Health and Laboratories, the accused was sent up for trial. The trial Court convicted the accused and punished the respondent for offences under Section 21 of the Act and sentenced him to undergo 10 years' R.I. and pay a fine of Rs. 1 lakh.

18. The accused filed an appeal in the High Court and the High Court, after finding violation of Section 42(1), proviso to Section 42(1) and 42(2) of the NDPS Act and after finding several discrepancies acquitted the respondent and awarded compensation of Rs. 1 lakh. Strictures have also been passed on PW-4 and PW-2 and direction to the Magistrate to prosecute PW-4 and PW-2 was ordered.

19. As noticed earlier, the views of the High Court on Section 42 of the Act finds support from a large number of judgements of this Court.

20.In the case of State of Punjab v. Balbir Singh, (1994) 3 SCC 299, a Bench of two-Judges of this Court observed as under :

"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."

21 .In the case of State of Punjab v. Baldev Singh (1999) 6 SCC 172, a Constitution Bench of this Court observed in paragraphs 9 and 10 as under : -

"Sub-section (1) of S. 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that 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 he may do so without recording his reasons of belief.

The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of S. 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of S. 43 and S. 42 is that whereas S. 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure. Section 43 does not contain any such provision and as such while acting under S. 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful."

22. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. This Court also held that failure to comply with S. 42(1), proviso to S. 42(1) and S. 42(2) would render the entire prosecution case suspect and cause prejudice to the accused."

It will be pertinent to note at this juncture that trial Judge while convicting the appellant completely eschewed analysing prosecution case from the above angle and hence it's conclusions are not infallible. This now takes me to another aspect of the appeal regarding non compliance of provisions of Section 50 of the N.D.P.S. Act. Trial Judge opined that section 50 NDPS Act has been complied with in full. This conclusion by the trial Judge, is against merits of evidence on record. From the seizure memo till the evidence in court, it is the categorical case of the prosecution without any ambiguity that personal search (jama talashi) of the appellant was conducted. It will be pertinent to reproduce/ refer evidences in this respect. In the recovery memo Ex. K-1, it is mentioned "iski jama talashi per dahine hath me latke ............."

Transliteration of the aforesaid sentence is that on personal search from the bag carried in right hand. During trial, P.W. 1, the first fact witness, deposed in examination-in-chief as follows;-

"that person told that I have faith on you and you may search me then we searched him and then a bag hanging from his right hand .................".

Above deposition of P.W. 1, which is at page 1 of his testimony, unerringly indicate that personal search of the appellant was also conducted. It was because of this reason that searching party gave option to the appellant of being searched before Gazetted Officer. If raiding party had no intention of conducting personal search of the appellant there was no reason for it to give an offer to the appellant accused in compliance with section 50 of NDPS Act. The offer was given to the appellant as informant intended to take personal search of the appellant accused which in fact they did. It is no where stated by the witnesses or recorded in the documents that only bag carried by the accused was searched. Further what is noticeable is that P.W. 2 evidenced in his examination in chief as follows:-

" Who on witnessing us from 100 paces concealed himself in east side bushes and reaching nearby when inquired about cause of hiding then he intimated that he had Charas and he had purchased it for sale. On this I told him that he was carrying Charas, therefore, he had authority that he be personally searched before a Gazetted Officer or Magistrate."

This deposition by P.W. 2 in his examination-in-chief has not been challenged by the accused in his cross-examination. From prosecution version and evidences of fact witnesses it is sufficiently clear that in the recovery memo an option only to be searched by a Gazetted Officer was given to the appellant and no option of being searched before the Magistrate was offered. P.W. 1 and 2 during trial however, embellished their earlier statements and deposed that option of search being conducted before a Gazetted Officer or by Magistrate was given. But when cross- examined, PW1 admitted that option for being searched before the Magistrate is not mentioned in the recovery memo. PW2 also admitted in his cross examination that he had not mentioned in the recovery memo about the option being searched before the Magistrate was given to the appellant. He however, gave an unconvincing explanation that every Magistrate is a Gazetted Officer, and therefore, he has not mentioned Magistrate, separately. He further admitted that he cannot divulge the reason as to why aforesaid aspect was not stated by him in his 161 Cr.P.C. statement to the I.O. P.W. 2 further admitted that in respect of confidence being reposed by the appellant in them no document was executed and/or scribed. In such a view, it is difficult to conclude that any offer of being searched before the Magistrate was given to the appellant by the searching party. Half offer without intimating complete right to the accused is negation of his right which entails penal consequences. The fall out of the absence of an offer of being searched before the Magistrate is that prejudiced was caused to the appellant and hence prosecution case becomes disproved and it is difficult to sustain conviction. In this respect, the opinion by the trial Judge that section 50 of the Act was complied with is not sustainable. Section 50 of the Act has been held by a catena of decisions to be mandatory in character and therefore it's noncompliance by the searching party makes the conviction of the appellant unsustainable.

In support of above view some of the exemplar decisions having close proximity are referred to below:-

In Union Of India Versus Shah Alam and others : AIR 2010 SC 1785 it has been observed by the apex court as under:-

"9. The legal proposition advance by Mr. Terdal, based on the distinction between search of someone's person and the baggage carried by him/her is unexceptionable but his submission is not supported by the facts of this case. We have carefully gone through the records of this case. From the evidence of the complainant, PW1 and

the seizure memo (Fard Baramdegi) Ext Ka 2 it is evident that the two respondents were subjected to a body search in course of which packets of heroin were found in the shoulder bags carried by them and were recovered from there. The facts of the case in hand are very close to another decision of this Court in Dilip and Another v. State of M.P. (2007) 1 SCC 450 : (2006 AIR SCW 6246) where it was observed in paragraphs 12, 15 and 16 as under.

"12. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with."

"15. Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case."

"16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done."

10. On the facts of the case we find that the alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the Act. Apart from this the non-examination of the two independent witnesses of the search and recovery was another grave omission by the prosecution. It is significant to note here that a formal petition for discharge of the two witnesses was filed by the prosecution before the trial court and it is not that they were simply not produced before the court."

As is clear that another apex court decision on this aspect is Dilip Versus State of M.P.(Supra).

Yet another unsatisfactory character of prosecution case is non compliance of section 57 of the NDPS Act, which provides that whenever any person is arrested or any seizure made under this act, within 48 hours next after arrest or seizure, the arresting and seizing person will make a full report of particulars of seizure to his immediate superior officials. In this connection testimony of P.W. 2 arresting officer S.I. Surendra Kumar Tyagi, at internal page 6 of his deposition is noticeable. He had deposed that he had given intimation on telephone and wireless but has not made any entry in that respect in GD. No document has been produced by prosecution to lend credence to such a statement by P.W. 2. In the absence of any documentary evidence mere ipse dixit P.W. 2 is not sufficient to conclude that compliance of section 57 was done in the present case. No superior officer was produced nor interrogated to substantiate such a claim by PW2. Prosecution would have done well to bring on record some document containing recital in respect of such compliance. No doubt section 57 of the Act is directory and non compliance of the same by itself is in- sufficient to set aside the conviction but at the same time it's non compliance and non observance diminishes credibility of testimonies of prosecution witnesses and when scanned with other surrounding circumstances may make prosecution version unsubstantiated. In the present case, non observance of section 42 and 50 of NDPS Act as held here in above, coupled with no document regarding compliance of section 57 affects authenticity of prosecution case to a large extent. More over there is no public witness attached with the search and seizure. An unconvincing and weak explanation was offered by the fact witnesses that the recovery was sudden and therefore, independent witness could not be procured prior to search and seizure. This explanation does not appeal at all for the reason firstly, that it is not a case of sudden search as search was conducted after receiving of intimation regarding possession of narcotic contraband and secondly it was never the case of prosecution that at 11.30 a.m. public witnesses were not available at the scene of the incident to join the arrest and seizure. According to deposition of PW-2 star prosecution witness, because of sudden search and lonely place independent persons were not available but later on he admitted that because of sudden search, no attempt was made to call independent witnesses. In the following sentence, he had also admitted that a hamlet is at the distance of 200 meters from the pace of arrest and seizure. He further admitted that at the time of preparation of seizure memo also, no independent witness was called and it took near about half an hour to complete the formalities. In view of the aforesaid deposition by PW-2, on preponderance of probabilities, it can safely be concluded that arresting officer did not at all make any endeavour to attach independent witness with search and seizure and this lapse on the part of the arresting officer is significant.

Coming to another important aspect of the whole trial, it is to be noted that according to the prosecution case, only 10 grams of contraband was taken out as a sample and was sealed in a packet which was got deposited with Forensic Science Laboratory, however, when the same packet, in Forensic Science Laboratory, was opened, the same contained 20 grams of contraband. Analyst was conscious enough to make a note in it's report dated 23.3.1999 vide Ext. Ka-4 that quantity received according to communication letter is not correct. At what time and in what manner contraband was tampered with and double the quantity was put is not known. It was the duty of the prosecution to lead evidence in that respect. Accused could not have any knowledge regarding the same. In this respect, opinion by the trial Judge that at the time of drawing of sample, the same was not weighed and, therefore, it became double and it does not create any doubt in the prosecution version, in my humble opinion is not correct.

PW-6 Anand Swaroop had stated that it was Geetam Singh Constable Clerk who had handed over packet containing contraband to him and in his presence, the same was not sealed. He further deposed that packet was not weighed in his presence but on the bundle only 10 grams was scribed. Because of his aforesaid deposition, trial Judge concluded that the sample was not weighed. That is only one part of the side. It was for the person who had drawn the sample to have entered into the witness box and explain how much sample he had drawn and how there was discrepancy in it's quantity. Since I am of the view that sample which was drawn was tampered with no credence can be attached to the prosecution version.

Another disturbing feature of prosecution case is that report by Forensic Science Laboratory was never put to the appellant in his examination U/S 313 Cr.P.C. This is a grave lapse on the part of the prosecution. Without putting contents of the report to the appellant, it could not have been used against him. Trial Judge had also not considered this important aspect of the case. It is trite law that incriminating evidence not put to the accused cannot be utilised against him to fasten the guilt. If trial Judge wanted to rely upon report by Forensic Science Laboratory, it should have afforded an opportunity to the appellant in statement under Section 313 Cr.P.C. to rebut. That having not been done, it is too late in the day to rectify that mistake. In this respect, I am of the view that prejudice certainly has been caused to the appellant has his defence is that of total denial. If report had been put to the appellant, he would have offered an explanation of sample not being of that article which the prosecution alleged to have recovered from his possession especially looking to the fact that quantity alleged to have been drawn as sample was added by twice when seal was opened in Forensic Science Laboratory. Trial Judge, therefore, wrongly relied upon Forensic Science Laboratory report. Since 313 Cr.P.C. statement is being considered, I may point out that other questions also framed by trial Judge were not in conformity with law. Regarding evidence of fact witnesses only this much was asked that accused-appellant had heard depositions of those witnesses and what he had to say about it. Besides this, there are mentions of various exhibits. Every question is lengthy and in fact is no questioning of the accused regarding incriminating circumstances. Every incriminating circumstances appearing against the accused in the statement of the prosecution witnesses has to be put separately one by one and accused has to be given an opportunity to accept or negate the same. That having not been done, statement of the accused under Section 313 Cr.P.C. is very unsatisfactory. Hon'ble Apex Court has time and again held that non-compliance with provisions of Section 313 Cr.P.C. in tune with its legislative intent will be sufficient to abjure conviction of the accused. In this respect, some of the binding precedence are referred to below:-

In State of Punjab versus Hari Singh: AIR 2010 SC 1966 it has been held by the apex court as under:-

" When the accused was examined under Section 313 Cr. P.C., the essence of accusation was not brought to his notice, more particularly, that possession aspect, as was observed by this Court in Avtar Singh and Ors. v. State of Punjab (2002 (7) SCC 419). The effect of such omission vitally affects the prosecution case."

In Ganesh Gogoi versus State of Assam : AIR 2009 SC 2955 apex court has been pleased to observe as under :-

"28. It does not appear that any witness has deposed that the appellant is a member of ULFA. Therefore, it is a very unfair question. The Court has allegedly convicted the appellant under Section 3(2)(i) but the ingredients of the Section 3(2)(i) were not been put to him. Therefore, there has not been a fair examination under Section 313 of the Cr.P.C. at all. The provisions of Section 313 are for the benefit of the accused and are there to give the accused an opportunity to explain the "circumstances appearing in the evidence against him". In Basavaraj R. Patil and others v. State of Karnataka and others - (2000) 8 SCC 740, this Court held that those provisions are not meant to nail the accused to his disadvantage but are meant for his benefit. These provisions are based on the salutary principles of natural justice and the maxim 'audi alteram partem' has been enshrined in them. Therefore, the examination under Section 313 has to be of utmost fairness. But that has not been done here. This is also a factor vitiating the trial."

In Ranvir Yadav versus State of Bihar: AIR 2009 SC (Suppl) 1439 it has been observed by the apex court as under:-

"10. It is true as contented by learned counsel for the appellant that no incriminating materials were put to the accused under Section 313 of the Code. There is no accusation specifically put in question during examination as quoted above. It only refers to victim of kidnapping. So far as the question No.3 is concerned same relates to PW 10. He did not say that he had seen gun fired by the appellant.

11. Above being the position the appeal deserves to be allowed. It is a matter of regret and concern that the trial court did not indicate the incriminating material to the accused. Section 313 of the Code is not an empty formality. There is a purpose behind examination under Section 313 of the Code. Unfortunately, that has not been done. Because of the serious lapse on the part of the trial court the conviction as recorded has to be interfered with. Conviction recorded by the High Court is set aside. Bail bonds executed to give effect to the order of bail dated 8.1.2002 shall stand cancelled because of the acquittal."

On an overall analysis and critical appreciation of facts and circumstances of the case, I am of the view that prosecution has failed to anoint appellant's guilt successfully and there by rendering his conviction and sentence unsustainable. The residue is that instant appeal deserves to be allowed.

The appeal is allowed. Conviction and sentence of the appellant recorded by Additional Session's Judge, court No.5, Pilibhit, in S.S.T.No. 1 of 2000, State of U.P. Verses Pandav Sarkar, U/S Section 20 (b)(ii)(c) N.D.P.S. Act and imposed sentence of 10 years R.I. with fine of Rs. one lac are hereby set aside. Appellant is in jail. He shall be set at liberty forthwith unless wanted in any other case.

Let a copy of this judgement be intimated and certified to the trial court.

Dt. 16.8.2011

AKG/-