Suraj Prasad vs State Of U.P.
2017 Latest Caselaw 7688 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 10.11.2017
 
Delivered on 06.12.2017
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 1160 of 1991
 

 
Appellant :- Suraj Prasad
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ravindra Rai,Atul Srivastava,Faujdar Rai,Pratap Kanchan Singh,U.B.Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. This criminal appeal has been filed challenging the judgment and order dated 03.05.1991, passed by III Additional Sessions Judge, Varanasi in S.T. No.142 of 1990 (State Vs. Suraj Prasad) whereby the accused-appellant has been convicted and awarded punishment of ten years' R.I., fine of Rs.1,00,000/- and in default of payment of fine five years' additional R.I., under Section 20(b)(ii) of NDPS Act. The facts in brief of this case are as follows:

2. On 05.07.1990, S.I. Sri Vinaya Kumar Singh (PW-1) alongwith Head Constable Sri Collector Prasad Singh (PW-2) were present on G.R.P. Chauki, Chandauli. When they came to know that 127 U.P. Manduadih, Moghalsarai Passenger Train was about to come on platform, Constables Shri Kant Yadav and Radhey Shyam Tewari (PW-4) who were present in front of the Chauki were directed that they will undertake crime control proceedings by being on the move. When the train arrived on the station at about 17:50 hours the police party headed towards the east from their Chauki and noticed a person getting down from the last bogi and started heading towards east swiftly. Being suspicious, he was directed to stop, he ignored the direction and started moving at faster pace. He was caught at about 17.52 hours near a tree of Jamun near cemented bench. When enquired, he disclosed his name to be Suraj Prasad. When personal search was made, charas was found from him weighing about 01kg which was kept in a soiled bag and started apologizing.

3. He was apprised that he had committed an act punishable under Section 20 of NDPS Act and was taken into custody. From the recovered charas, about 20gm quantity was taken out as sample, which was kept in a 'jarde ki dibiya' and after wrapping the same in a cloth was sealed on the spot. The remaining recovered charas was kept in the same bag (Jhola) and was also sealed. The samples of seals were separately prepared. The people present there were requested to be witness of proceedings but none gave consent. The recovery memo (Ex. Ka-5) having been prepared on the spot, a copy of the same was provided to the accused.

4. The Constable Radhey Shyam Tewari (PW-4) had registered case bearing Case Crime No.297 of 1990, under Section 20 of NDPS Act and made its entry at Report No.15, Time 19:20 hours on 05.07.1990. The investigation of the case was assigned to S.I. Sri Chandra Shekhar Singh (PW-5) on 15.07.1990, who got the docket prepared for examination of the recovered charas under order of court dated 19.07.1990. He made inspection of the place of occurrence, but thereafter because of his transfer he could not complete the investigation. The remaining investigation has been conducted by S.I. Sri Rakesh Kumar Singh (PW-3) who submitted charge-sheet (Ex. Ka-2) against the accused. The F.S.L. report is Ex. Ka-6, site plan is Ex. Ka-4.

5. The charge against the accused was framed on 04.10.1990 to which he pleaded not guilty.

6. The prosecution examined S.I. Sri Vinaya Kumar Singh as PW-1, Head Constable Sri Collector Prasad Singh as PW-2, S.I. Sri Rakesh Kumar Singh as PW-3, Constable Radhey Shyam Tiwari as PW-4 and S.I. Sri Chandra Shekhar Singh as PW-5.

7. The accused in his statement recorded under Section 313 Cr.P.C. has denied any such recovery of contraband substance to have been made from him and has stated that he has been falsely implicated due to enmity. However, he has not examined any witness in defence to prove the same.

8. The court below, in its finding, has recorded that there was no serious material contradictions in the statements of PW-2 and PW-4 (witnesses of fact) and also mentioned that such a huge quantity of charas could not be planted and on the basis of evidence on record has found the case proved against the accused and awarded him punishment as mentioned above.

9. The learned amicus curiae Sri U.B. Singh has argued that the prosecution has failed in proving the recovery of alleged charas from the accused beyond reasonable doubt on the basis of evidence adduced because there are a number of discrepancies in the statements of witnesses, the contraband substance allegedly recovered from the accused-appellant was not produced before the court at the time of statement of witnesses nor has it been established that the seal with which the contraband substance as well as its sample were sealed on the spot were kept safely and that the seal which was affixed on the sample of contraband was found to be the same sample by F.S.L. which was affixed on the spot, when the alleged sample was opened for testing by them. Therefore, the cumulative effect of all these infirmities in this case should create enough doubt regarding recovery of the alleged charas from the accused. He has relied upon Noor Aga Vs. State of Punjab & another, 2010 (71) ACC 575, in which in paragraph 161 following has been held:

"161. Our aforementioned findings may be summarized as follows:

"1. The provisions of sections 35 and 54 are not ultra vires the Constitution of India.

2. However, procedural requirements laid down therein are required to be strictly complied with.

3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant's guilt.

4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution's case must be held to be lacking in credibility.

5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law.

6. The investigation of the case was not fair."

We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly."

10. It would be pertinent to peruse the entire evidence adduced by the prosecution in this case afresh and to see whether the mandatory provisions of the NDPS Act had been followed by it or not.

11. The prosecution's case has been narrated in the recovery memo (Ex. Ka-5) which is that the police party headed by S.I. Sri Vinaya Kumar Singh (PW-1) while busy in crime control activities on the platform, all of his sudden found the accused to be a suspect due to his conduct and when he was apprehended about 01kg charas was recovered from bag being carried by him in his right hand. Therefore, it is evidenct that it was a chance recovery of contraband from accused, because of which the provisions of Section 50 of NDPS Act were not applicable in the light of law laid down by Supreme Court in State of Himachal Pradesh Vs. Sunil Kumar, (2014) 4 SCC 780, the relevant paragraph 11 of which is quoted herein below:

"11. The relevant extract of paragraph 25 of Balbir Singh reads 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."

12. From above citation it is apparent that the position of law is that if during search and arrest in normal course of investigation into a suspected offence the police comes across recovery of a narcotic drug or psychotropic substance, the plice officer, who is not empowered, should inform the empowered officer, who should thereafter proceed in accordance with provisions of NDPS Act. If he himself happens to be empowered officer, then from that stage when recovery has already been made, he should carry out the investigation in accordance with the other provisions of NDPS Act. In the case at hand, the recovery of contraband substances is allegedly made by PW-1, S.I. Sri Vinaya Kumar Singh who is covered under the category of empowered officer as provided under Section 42 of NDPS Act being an officer superior in rank to a 'peon' 'sepoy' or 'constable'. But once he had made the recovery of alleged charas from the accused he was supposed to follow all the relevant provisions, chiefly among them would be the provision given under Section 57 of NDPS Act, which required him to send a full report of all particulars of such arrest and seizure to his immediate official superior. For the sake of convenience Section 57 of NDPS Act is quoted 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."

13. Section 57 of NDPS Act has been interpreted succinctly in State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299, in paragraphs 24 & 25 of which following is 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.

25. 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 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."

14. 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. If yes, then certainly the benefit may be given to the accused. From the record it apparent that the prosecution has not made compliance of Section 57 of NDPS Act as nothing has come on record indicating that any such arrest and seizure report was prepared in respect of charas having been recovered from him which might have been sent to the higher authority within 48 hours or with delay with any explanation therefor. Hence, this Court is of the view that this certainly would cause prejudice to the accused.

15. The next point being taken for consideration is whether the prosecution has been able to prove the recovery of 01kg charas from the accused from the place of occurrence as alleged. In this regard it is apparent that in recoery memo no mention is made as to how the said contraband substance was weighed and found to be 01kg and how 20gm out of it was taken and separately weighed and thereafter both these quantity were separately sealed and whose seal was affixed thereon and how the samples of seals were prepared.

16. There is no mention found of any weighing machine to have been procured on the spot for weighing the aforesaid quantities. The PW-1, S.I. Sri Vinaya Kumar Singh has stated in examination-in-chief that from the bag carried by the accused in his right hand a piece of paper wrapped in 'Gamchha' further covered by a momia (polythene) was recovered from accused wherein charas weighing 01kg was kept, out of this 20gm charas was separated as sample and the same was wrapped in white polythene and was kept in 'Jarde ki Dibiya' and the same was covered by a cloth and sealed. The remaining charas was sealed in the same packet in which it was recovered. Further he has stated that the said recovered substance was in front of him in court in sealed condition upon which the Case Crime No.297 of 1990, under Section 20(b)(ii) of NDPS Act, Vs. Suraj Prasad dated 05.07.1990 was endorsed. On the sealed bag (Jhola) the name of accused Suraj Prasad and his address was endorsed which was written by him in his hand writing, which is material Ex.1. In cross-examination this witness has stated that the recovered substance was 01kg as per his guess. Accused (Mulzim) had also told him that the said contraband substance's weight was 01kg; he had not weighed the same. The sample was taken in 'Dibba' which was procured from the market by sending a constable whose name he does not recollect. The 20gm of charas was taken out of the said bag (Jhola) containing charas in a separate dibba and was sealed. The paper related to the sample of seal was sent to Lucknow, and is not on this file. Further he has stated that the bag (Jhola) was closed and was sealed, but he could not say as to whether the sample of seal of the said seal was on the file or not. The sample of seal is annexed with the sealed substance. The sample of seal and the seal affixed on the bag (Jhola) are the same.

17. The other witnesses of fact, PW-2, Constable Sri Collector Prasad Singh has stated in examination-in-chief that 01kg charas was recovered from the bag (Jhola) being carried by the accused in his right hand, out of it 20gm charas was taken by way of sample and was sealed in 'jarde ki dibiya' and the remaining charas was sealed in the bag (Jhola). On the said seal the Sub-Inspector had written in his own hand writing the crime number. In cross-examination he has reiterated the above facts and has further stated that the senior most officer at the time of arrest and seizure was S.I. only and no officer of an Inspector rank is involved in this.

18. In the entire above evidence recorded before the court below nothing has been stated by either witness of fact that when the alleged charas was recovered from the accused, the same was sealed on the spot after taking out sample from it, which was separately sealed and the samples of both the seals were prepared; they had come to the police station and had got the said material deposited in Malkhanan in sealed condition and samples of seals were also kept there intact. Both the witnesses had not made clear as to whose seal was affixed on the sample of contraband recovered as well as on the remaining charas. The Ex.1 (alleged recovered substance) was not presented before the court at the time when statement of PW-2 was being recorded, but was presented only when the statement of PW-1 had been recorded. In the report of F.S.L. (Ex. Ka-6) the seal on the sample of charas sent for examination by F.S.L., bore "R.S. Maurya, U.P.P." in which it is recorded that a tin box with aforesaid seal was received by F.S.L. on 20.07.1990 containing suspected charas, which was found to be charas after its analysis. Nothing has been recorded in this F.S.L. report that a sample of seal bearing "R.S. Maurya, U.P.P." was also sent to them, which was compared with the seal which was found affixed on the sealed sample substance sent to them and was found intact and matching. Therefore, the link evidence that the seal of "R.S. Maurya, U.P.P." was used for sealing Ex.1 (recovered substance) on the spot and also on the sample taken out of it and both these were deposited in Malkhana and thereafter sample was taken out of Malkhana and sent to the F.S.L. has not been established. It has also not come on rercord that when the Ex.1 was placed before court at the time of recording of statement of PW-1 and PW-2, it bore seal of "R.S. Maurya, U.P.P." and the same was found in intact condition. It would be pertinent to also refer to the statement of PW-5, S.I. Sri Chandra Shekhar Singh (Investigating Officer) who has stated in examination-in-chief that on 19.07.1990 under the order of court he had got the docket prepared of the recovered substance which was to be sent for being tested by F.S.L. In cross-examination he has stated that earlier also the paper work for sending the recovered contrabad substance was done by him, he had not sent any letter for examination of the recovered substance directly rather the same was sent by court. The recovered substance was brought by him in court; the said substance was taken out by way of sample, which was brought in court and under order of court the same was sent for examination through Sri Ram Yadav and such entry is made by him in the case diary. There is no other document on record other than entry in case diary proving that Sri Ram Yadav had taken the said substace for being examined.

19. From the above statement of the Investigating Officer, it appears that the alleged recovered charas was brought in court which was the substance taken by way of sample and under the order of court, the same was sent for examination to F.S.L. through Sri Ram Yadav. There is no procedure provided under law that for sending sample the approval/sanction of court should be taken. Nothing has come on record to the effect that the said sample of charas was sent by court affixing its own seal or whether the court had approved it to be sent to the F.S.L. It is on record that arrest of the accused as well as recovery of charas is alleged to have been made on 05.07.1990 while the sample of the same has been sent on 19.07.1990 i.e. after about 14 days after the recovery was made and thereafter the report from the F.S.L. has been sent on 12.10.1990 i.e. after about 02 months and 22 days, which is a long delay and no reason has been indicated about such a long delay. Even the quantity which was recevied by the F.S.L. has not been mentioned in its report, therefore, from this report also it is not established that the prosecution had sent 20gm quantity of charas by way of sample for being tested.

20. This was extremely essential to establish beyond reasonable doubt that the charas allegedly recovered from the accused on the spot was the same which was deposited in Malkhana and a part of it by way of sample was sent to F.S.L. so that the entire quantity recovered from the accused could be taken as charas.

21. Now it has to be also taken into account as to whether it was burden upon accused appellant to prove that how he came in possession of the said charas recovered from him. In this regard reliance has been placed upon the law laid down by the Supreme Court in Gian Chandra & others Vs. State of Haryana, (2013) 14 SCC 420 of which relevant paragraphs 11 & 16 to 22 are quoted below:

"11. The High Court dealt with the issue elaborately regarding knowledge i.e. conscious possession, and held as under:

"There were only three occupants in the jeep, at the relevant time. As many as 10 bags, each containing 41 kg poppy husk were lying in the jeep. It was not a small quantity of poppy husk ... and could escape the notice of the accused. It was a big haul of poppy husk. ... The accused were having special means of knowledge, with regard to the bags containing poppy husk lying in the jeep. It was for the accused to explain, as to how the bags, containing poppy husk were being transported. Not only this, the conduct of the accused, is also relevant, in this case. They instead of stopping the jeep, when the signal was given, by the policy party, accelerated the speed thereof and sped away towards Village Keharwala. It was only after hot chase given by the members of the police party in their jeep, that the driver of the jeep got nervous, could not properly negotiate the turn and lost control, as a result whereof, the said jeep struck against the wall and stopped. In case, there was no contraband, in the jeep, and the accused were not in the knowledge of the same then what was the necessity of speeding away the jeep was for them to explain. This material circumstance goes against them. Under these circumstances, it could be said that they were in possession of, and in control over the bags, lying in the jeep."

Once the possession of the accused, and their control over the contraband was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against them that they were in conscious possession thereof. Thereafter, it was for them to rebut the statutory presumption by leading cogent and convincing evidence. However, the appellants, failed to rebut the said presumption either during the course of cross- examination of the prosecution witnesses, or by leading defence evidence.

(emphasis supplied)

...................

16. The appellants were found travelling in a jeep at odd hours in the night and the contraband material was found. Therefore, the question arises whether they can be held to have conscious possession of the contraband substances.

17. This Court dealt with this issue in Madan Lal v. State of H.P. AIR (2003) SC 3642, observing that:

"20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences and penalties for possession of such articles."

Undoubtedly, in order to bring home the charge of illicit possession, there must be conscious possession. The expression "possession" has been held to be a polymorphous term having different meanings in contextually different backgrounds. Therefore, its definition cannot be put in a straitjacket formula.

"23. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.

24. ... possession in a given case need not be actual physical possession and may be constructive i.e. having power and control over the article in case in question, while the person to whom physical possession is given holds it subject to that power or control."

18. The Court further held as under: (Madan Lal case), (2003) 7 SCC 465

"26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.

27. ... It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act."

19. From the conjoint reading of the provisions of Section 35 and 54 of the Act, it becomes clear that if the accused is found to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise.

20. Thus, in view of the above, it is a settled legal proposition that once possession of the contraband articles is established, the burden shifts on the accused to establish that he had no knowledge of the same.

21. Additionally, it can also be held that once the possession of the contraband material with the accused is established, the accused has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872.

22. In State of W.B. v. Mir Mohammad Omar (AIR 2000 SC 2988), this Court held that if the fact is specifically in the knowledge of any person, then the burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.

"38. ... Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."

(emphasis supplied)

22. In view of the above position of law it is apparent that in the present case the prosecution has failed to establish beyond reasonable doubt that 01kg charas was recovered from accused-appellant, hence without establishing the recovery, the burden under Section 35 & 54 of NDPS Act could not be thrust upon the accused to disclose as to how he came in possession of the said contraband.

23. It is apparent from the above analysis made by this Court that the court below has failed to take into consideration the infirmities pointed out by this Court in the body of this judgement. It is held that the court below did not make proper appreciation of evidence on record in right perspective particularly with regard to identification of recovered contraband substance (Charas) which is being alleged to have been recovered from the accused on the spot, to be the same, the sample of which has been found by the F.S.L. to be Charas. This being of core importance in this case, the same could not be allowed to be taken lightly. In view of the severe punishment provided under the Act, this aspect ought to have been taken into consideration with all circumspection which appears to be lacking.

24. In view of above, the appeal deserves to be allowed and is, accordingly, allowed.

25. The appellant is held not guilty of charges under section 20(b)(ii) of NDPS Act. He be released from jail forthwith in this case, if not detained in any other case.

26. The case property/recovered contraband (charas) be destroyed in accordance with rules after the period of appeal, provided if any, expires or if the law provides otherwise.

27. The record of this case be transmitted to court below forthwith with a copy of this judgment and order for compliance.

28. Sri U.B. Singh, learned amicus curiae shall be paid Rs.7,500/- for assisting the Court in deciding the appeal.

Order Date :- 06.12.2017

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