Ram Asre vs State Of U.P.
2017 Latest Caselaw 7956 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 13			                                 						A.F.R.
 
			    Reserved on 13.11.2017
 
		                     Delivered on 14.12.2017
 

 
Case :- JAIL APPEAL No. - 894 of 2015
 

 
Appellant :- Ram Asre
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail, Daya Shanker Mishra (A.C.)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. This Criminal Appeal has been filed against the judgement and order dated 31.03.2008 passed by Additional Sessions Judge, Fast Track Court No. 2, Siddharth Nagar in Special Sessions Trial No. 66 of 2007 (State Vs. Ram Asre) arising out of Case Crime No. 501 of 2007 P.S. Dhebarua, District Siddharth Nagar whereby the accused appellant has been convicted and awarded punishment under Section 20(b) (II) of the N.D.P.S. Act with 12 years R.I. and fine of Rs. 1,20,000/- and in default of payment of fine, the same shall be realized from the accused in accordance with the provisions under Section 70 I.P.C. read with Section 421 Cr.P.C.

2. In nutshell, the facts of the case are as follows:

3. On 6.9.2017, the in-charge of Police Station, Dhebarua, Ram Dhyan (P.W.1) along with constable Anghad Singh was going to Kasba Bathni on patrolling duty and to check suspects for stopping the smuggling in an official jeep with its driver Ram Bhujarat Chaudhary. Right then near Pachpedwa tri-junction, S.I. Brajesh Kumar Yadav (P.W.3) along with constable Asgar Ali and constable Faiz Khan were also taken along after having been told the purpose and the entire police party reached Kallan Dehewa. The jeep was left in that village with driver and thereafter this police party proceeded towards north of Kallan Dehewa where there was no man's land border. The entire police party started waiting in a temple which was adjacent to no man's land. Soon they found that one person at 15:00 hours was coming from the side of Nepal with a plastic bag in his hand and had crossed the no man's land. The person, after having seen police party, all of a sudden started running back towards no man's land at a faster pace. Looking to his suspicious conduct, he was directed to stop and was ultimately arrested 15 steps away towards north of the temple in the no man's land. He was then enquired the reasons why he tried to run away but he avoided reply. Looking to his suspicious conduct, his name was enquired. He disclosed his name to be Ram Asre Kahar son of Babu Ram Kahar resident of Chamrauli P.O. Chmauli P.S. Azgain, District Unnao. When his search was made, from inside the bag (jhola) in his right hand, three plastic 'pannis' (Polythenes) were recovered wrapped in Gamcha of Terricot. He disclosed that the said 'pannis' contained Charas. When a license was required to be shown by him, he could not show the same. Thereafter, he was apprised that he had committed an offence punishable under Section 8/20 N.D.P.S. Act and was taken into custody. Thereafter constable Asgar Ali was sent to village Kallan Dehewa for bringing a balance (weighing machine) and the entire 'Charas' was weighed which was found to be 1.6 kg., out of which 100 grams 'Charas' was taken out as sample and was kept in a separate plastic polythene, then it was wrapped in white cloth and was sealed. The remaining 1.5 kg., in the form of three plates of 'Charas' were wrapped in a towel and were sealed in a plastic bag separately and the sample of seal was prepared. Due to sudden arrest of the accused and the place being lonely, no public witness could be available. The accused disclosed that the said 'Charas' was being brought by him from the hills near 'Dang' in Nepal which was being taken to Kanpur where he could get good amount for it. He had met a person in Kanpur whose name he did not know. The recovery memo (Exhibit Ka-1) was prepared at the dictation of P.W.1, Ramdhyan, by S.I. Brajesh Kumar Yadav (P.W.3) and thereafter the same was read out to the accused and his signatures were obtained thereon. The price of the recovered 'Charas' in International market must have been around Rs. 1,60,000/-. A copy of this recovery memo was provided to the accused.

4. The recovered contraband substance, accused and the recovery memo were all taken to the police station where Chick F.I.R. (Exhibit Ka-3) was prepared and the Case Crime No. 501 of 2007 under Section 8/20 of the N.D.P.S. Act was registered against the accused appellant and its entry was made in G.D. (Exhibit Ka 4) at report No. 29 at 17:00 hours on 6.9.2007. The recovered contraband substance, its sample, the sample seal, all were deposited in Malkhana at serial No. 43 on 6.9.2007, which is Exhibit Ka-12. Thereafter, investigation of this case was handed over to S.I. Ram Chandra Bharti (P.W.4) who prepared the site plan (Exhibit Ka 9) at the instance of the first informant. The sample of the recovered contraband substance was brought to the court and its docket (Exhibit Ka 5) was prepared which was sent to the F.S.L. through constable Anand Kumar Prajapati (P.W.2) which was got received by him in F.S.L. on 11.9.2007. The report of F.S.L. (Exhibit Ka 11) was made available to the Investigating Officer in which the sample was found to contain 'Charas' and on the basis of the evidence collected by I.O., he submitted charge-sheet (Exhibit Ka 10) against the accused under Section 8/20 of the N.D.P.S. Act.

5. The accused was provided copies of the incriminating evidence and thereafter charge was framed against him under Section 20 (b) (ii) (c) of N.D.P.S. Act 1985 to which he pleaded not guilty and claimed to be tried.

6. The prosecution examined S.I. Ramdhyan as P.W. 1, constable Anand Kumar Prajapati as P.W.2, S.I. Brajesh Kumar Yadav as P.W. 3, S.I. Ram Chandra Bharti as P.W.4 and Head Constable Rosh Nath Ojha as P.W.5. Out of these witnesses, P.W.1 and P.W.3 are witnesses of fact and rest of the witnesses are formal witnesses.

7. Apart from the above oral evidence, the prosecution has produced following documents also in evidence:- Recovery memo (Exhibit Ka 1), arrest memo (Exhibit Ka 2), chick F.I.R. (Exhibit Ka 3), carbon copy of G.D. (Exhibit Ka 4), the docket prepared by the court of the sample of recovered contraband material to be sent to F.S.L. Ramnagar Varanasi (Exhibit Ka 5), photocopy of G.D. of P.S. Dhebarua (Exhibit Ka 6 to Ka 8), site plan (Exbhibit Ka 9), charge-sheet (Exhibit Ka 10), F.S.L. report (Exhibit Ka 11), attested copy of register of Malkhana regarding depositing the recovered contraband substance in Malkhana of P.S. Dhebarua (Exhibit Ka 12).

8. After the conclusion of entire evidence of prosecution, the evidence of the prosecution was closed and the statement of accused under Section 313 Cr.P.C. was recorded on 25.3.2008, in which the accused appellant has stated that the recovery memo and the arrest memo were false; regarding rest of the documents, he showed ignorance; he stated that all the witnesses had given false statement and police had submitted false charge-sheet against him; in fact he had come to Bus Stand Barhani from the fete of Prabhunath where he felt dizzy and got stranded as his companions had left. When police interrogated him, they took him to the police station Dhebarua and there, he was challaned falsely in this case. He has not produced any evidence in defence.

9. Learned court below after having taken into consideration the entire evidence produced by the prosecution, believed the evidence of prosecution and held the accused guilty under Section 8/20 of N.D.P.S. Act and awarded him the aforementioned punishment. In the judgment, the lower court has mentioned that it did not find any discrepancy in the statements of witnesses of fact. It also expressed its satisfaction that there was sufficient explanation given by the prosecution of not getting any public witness because the place of occurrence was a desolate place and the discrepancy in regard to availability of independent witnesses found in the statement of P.W.1 and P.W.3 was explained away by mentioning that the entire statement of witnesses may not be discarded on the principle that the statement found to be true to a certain extent has to be taken to be believable while the remaining part may be discarded as being untrue. As regards the compliance under Section 50 N.D.P.S. Act, it is stated that provisions of Section 50 of N.D.P.S. Act would not be applicable here because the search was made of the bag which was being carried by the accused in hand and that his personal search was not made, therefore, in the light of the law laid down by Supreme Court in State of Haryana Vs. Ranbir @ Rana (2006) 5 Supreme Court Court 167 and in State of Rajasthan Vs. Babu Ram 2007(6) Supreme Court Cases 55 in respect of Section 50 of N.D.P.S. Act, the provisions of the said Section would not be applicable.

10. The compliance of Section 57 of N.D.P.S. Was found adhered to by the learned court below because it was found that a copy of the first information report was made available to the Circle Officer within 48 hours and P.W.1 had given clear statement that he had informed the higher authorities of the police through R.T. Set about this occurrence which was also supported by the statement of P.W.3. Lastly the court below held that it was well proved by the prosecution that the recovered contraband material was weighed on the spot and its sample, which was sent to the F.S.L., was found to contain charas which proved beyond doubt that the accused was found in illegal possession of 1.6 kg. charas for which he did not have any license to keep and accordingly he was held guilty.

11. Heard the argument of Sri Daya Shankar Mishra, Amicus Curiae and learned A.G.A. and perused the entire record.

12. Learned Amics Curiae has made following arguments:-

13. It is stated that the learned court below has awarded more than minimum punishment prescribed under law which is in violation of Section 32 (B) of the N.D.P.S. Act which provides that if court deems it proper to award higher punishment then it should take into consideration the factors provided under the said section in sub-clause (a) to (f). In the case at hand, the learned lower court has not taken into consideration any of the factors provided under Section (a) to (f) of Section 32 (B) of N.D.P.S. Act and yet has gone on to award more than minimum punishment of 12 years R.I. and Rs. 1,20,000/- as fine. In this regard reliance has been placed by the learned Amicus Curiae on the judgment of this Court in Criminal Appeal No. 1037 of 2003 (Mukhtar Islam Vs. State of U.P.) in which the Court had found that the trial court, while sentencing the appellant, had not recorded any finding that any of the factors enumerated under Section 32(B) existed or not and went on to award punishment in excess of the minimum punishment prescribed under law, solely on the ground of quantity of Heroin recovered from the appellant. Hence, according to learned Amicus Curaie, the learned lower court should not have awarded punishment of more than 10 years imprisonment and fine of Rs. 1,000,00/- in this case without assigning any reason as was required under Section 32(B) sub section (a) to (f).

14. It is argued that the prosecution has not disclosed as to whose seal was affixed on the recovered contraband and on its sample taken, while sealing them on the spot. On the contraband material recovered from the accused sent to the F.S.L., the seal of District Judge, "U.P. S.D.R." was found to have been affixed, hence, it was doubtful that the sample of the contraband material sent to F.S.L. was the same which was recovered and sealed on the spot.

15. It is argued that the learned lower court has failed to take into consideration the percentage of 'Charas' found in the contraband recovered from the accused and has awarded punishment on the basis of total quantity of recovered contraband instead of percentage of Charas found in the said total quantity. In this regard, he has further relied upon the same ruling i.e. Criminal Appeal No. 1037 of 2003 (Mukhtar Islam Vs. State of U.P.) in which the Court had found that the punishment was not awarded on the basis of quantity of heroin calculated on the basis of percentage of the 'Heroin' found in the total recovered contraband substance rather it was awarded on the basis of total recovered contraband substance. In addition to the above ruling, learned counsel has also relied upon the law laid down by Hon'ble Supreme Court in Harjit Singh Vs. State of Punjab, 2011 Law Suit (SC) 277.

16. It is argued that neither any public witness has been examined nor any effort was made to take any public witness at the time of alleged recovery.

17. It is argued that the compliance of Section 50 N.D.P.S. Act was not made which makes recovery of the alleged contraband doubtful.

18. It is further argued that no compliance has been made of Section 52 (A) N.D.P.S. Act because the empowered officer who had made arrest, did not prepare inventory of such Narcotic Drugs and Psychotropic Substance containing such details with regard to their description, quality, quantity, mode of packing, marks, numbers etc.

19. No compliance of Sections 55 and 57 of N.D.P.S. Act has been made.

20. Next, it is argued that it is not clarified by the prosecution as to where the remaining quantity of the recovered contraband substance i.e. 1.5 kg. was kept and by whose seal it was sealed and where these things were kept in safe custody including the 100 grams sample of the recovered contraband substance. A large number of rulings have been cited by learned Amicus Curiae on each point of not only Supreme Court but also of the High Court to substantiate his argument which would be referred at relevant places.

21. Learned A.G.A. in rebuttal has argued that there is no requirement for the Court while awarding punishment under the N.D.P.S. Act, where minimum punishment is provided and the Court wants to award higher punishment than that, to mention the specific reasons as provided under Section 32 (B) of the N.D.P.S. Act, because mentioning such reasons is discretionary in nature and court, if wants to impose more than minimum punishment, then, it may consider the factors which have been provided in sub-section (a) to (f) of Section 32(B) N.D.P.S. Act.

22. The police witness, when they perform their duty in ordinary course, their conduct is to be believed and it is not to be taken that when any evidence is given by them regarding some wrong committed in their ordinary course of duty then the same would be doubted to be creditworthy. Hence, even if, the public witnesses could not be produced regarding the recovery of contraband substance from the accused and only the police witnesses have given their statement, they should not be disbelieved only on the ground that they were interested witnesses unless some bias was proved by the defence side.

23. As regards non compliance of Section 50 of the N.D.P.S. Act, it is argued that in case where sudden recovery/ chance recovery of contraband substance is made, in such a case Section 50 of N.D.P.S. Act would not be applicable.

24. As regards the sample of the contraband having been sent to the F.S.L. not being proved, it is stated that the same is absolutely proved beyond doubt. Whatever contraband substance was recovered from the accused on the spot and sample taken, therefore, were kept in Malkhana in safe condition and thereafter from there it was taken to court and from court, the sample of the contraband substance was again sealed and the same was sent to F.S.L. for being examined/tested. Nothing on record has emerged showing that the said substance was not sent in sealed condition to F.S.L. or the same was tampered with.

25. It is also stated that the prosecution has successfully proved the accused to have been found in possession of contraband substance (Charas) without any license, hence, the burden had been shifted on the accused under Sections 35 and 54 of the N.D.P.S. Act to prove as to how the said contraband substance came in his possession in the case at hand. The accused has not discharged the said burden and hence he has been rightly convicted. From the side of learned A.G.A., number of rulings have been cited which would be referred at appropriate places.

26. First of all, the point of non compliance of Section 50 of N.D.P.S. Act is being taken up. According to the learned Amicus Curiae, in this case the police party has not made compliance of provisions of Section 50 in letter and spirit and violation of that would result in the recovery of contraband substance being found not proved. In this regard the reliance has been placed by him on para 3 of Mohinder Kumar Vs. State of Goa (1998) 8 SCC 655 In this case following has been held here:-

"3. In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effected the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panchas and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the grounds to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the proviso to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh case, it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted."

27. Citing the above paragraph, it has been argued that in the present case also, Section 50 of the N.D.P.S. Act would be applicable because in the above mentioned case, there was sudden recovery / chance recovery of the contraband substance from the accused yet it was found by the Apex Court that the provisions of Section 50 of NDPS Act were required to be adhered to and for want of that the accused was acquitted in that case. In the present case of chance recovery, the provisions of Section 50 of NDPS Act ought to have been followed by the raiding party.

28. In rebuttal from the side of learned A.G.A., reliance has been placed upon State of H.P. Vs. Sunil Kumar (2014) 4 SCC 780. In this case, the question before the Supreme Court was that whether the accidental or chance recovery of Narcotics Drugs during a personal or body search would attract the provisions of Section 50 of the N.D.P.S. Act. This question was replied by the Supreme Court in para 18 to 21 of the judgment which are as follows:

" 18. It is true that Sunil Kumar behaved in a suspicious manner which resulted in his personal search being conducted after he disembarked from the bus. However, there is no evidence to suggest that before he was asked to alight from the bus, the police officers were aware that he was carrying a narcotic drug, even though the Chamba area may be one where such drugs are easily available. At best, it could be said the police officers suspected Sunil Kumar of carrying drugs and nothing more. Mere suspicion, even if it is 'positive suspicion' or grave suspicion cannot be equated with 'reason to believe'. Joti Parshad V. State of Haryana 1993 Supp (2) SCC 497 : 1993 SCC (Cri) 691 and Sheo Nath Singh V. CIT, (1972) 3 SCC 234. These are two completely different concepts. It is this positive suspicion, and not any reason to believe, that led to the chance recovery of charas from the person of Sunil Kumar.

19. Similarly, the positive suspicion entertained by the police officers cannot be equated with prior information. Bharatbhai Bhagwanjibhai V. State of Gujarat, (2002) 8 SCC 327 : 2003 SCC (Cri) 4. The procedure to be followed when there is prior information of the carrying of contraband drugs is laid down in the Act and it is nobody's case that that procedure was followed, let alone contemplated.

20. We are not in agreement with the view of the High Court that since the police officers had a positive suspicion that Sunil Kumar was carrying some contraband, therefore, it could be said or assumed that they had reason to believe or prior information that he was carrying charas or some other narcotic substance and so, before his personal or body search was conducted, the provisions of Section 50 of the Act ought to have been complied with. The recovery of charas on the body or personal search of Sunil Kumar was clearly a chance recovery and, in view of Baldev Singh, (1999) 6 SCC 172, it was not necessary for the police officers to comply with the provisions of Section 50 of the Act.

Conclusion:

21. Under the circumstances, we set aside the judgment and order passed by the High Court and uphold the decision of the trial court convicting Sunil Kumar for an offence punishable under Section 20 of the Act. Necessary steps be taken to apprehend Sunil Kumar to serve out the remainder of his sentence."

29. It is evident from the above citation which has been presented by the learned A.G.A. that the law laid down in Sunil Kumar's case (Supra) is of subsequent period, hence it shall prevail over law of earlier period and according to this decision, correct position of law is that if any sudden recovery of contraband substance is made during ordinary search proceedings, the provisions of Section 50 N.D.P.S. Act would not be applicable, however, once the recovery of contraband substance has been made, from that point onwards subsequent provisions of Section 50 of N.D.P.S. Act shall be observed by the empowered/ authorized officer.

30. Now it has to be seen in view of above position of law that whether the provisions of Section 50 of N.D.P.S. Act would be applicable in the present case or not for which evidence on record has to be seen.

31. In the recovery memo (Exhibit ka-1), it is recorded that the police patrolling party had come across the accused at 3 p.m. on 6.9.2007 when it was busy in checking of suspected persons and for taking necessary steps to stop smuggling of Manure. When accused having seen the police party, all of a sudden, started moving in the reverse direction then the police got suspicious about him and pursuant to that he was arrested. After that his personal search was made and the alleged contraband (charas) was recovered from the plastic bag, which he was carrying in his right hand.

32. P.W.1, in examination in chief, has stated in this regard that he along with other police personnel were waiting near the temple of Shiv Ji. Thereafter, at about 3 p.m., one man was found (having bag in his hand) crossing the no man's land from the side of Nepal, who after seeing the police, all of a sudden, turned back, whereon he was directed to stop but he tried to run away and, hence, he was caught. On his personal search from the bag in his right hand, the contraband substance (charas) was recovered.

33. The other witness of fact P.W. 3, S.I. Brajesh Kumar Yadav has also made the same statement.

34. It is apparent from the above evidence on record that the alleged contraband was recovered from the accused all of a sudden by the police party and after the recovery having been made, the police came to know about the same being charas from its smell and on being told by the accused about it. There was no prior information to the police that the accused would be carrying charas, pursuant to which his arrest might have been made. Hence, in the light of the law laid down by Supreme Court in Sunil Kumar's case (supra), the provisions of section 50 of N.D.P.S. Act would not be applicable.

35. The argument of learned Amicus Curiae, in the light of law laid down in Mohinder Kumar's case, (Supra) is that even in case of chance recovery/ sudden recovery, provisions of Section 50 of N.D.P.S. would be applicable, does not sound reasonable.

36. The learned lower court in this case has arrived on a right conclusion that provisions of Section 50 of N.D.P.S. Act would not be applicable, however, for a different reason that it was not a personal search of the accused rather it was a search of the bag being carried by the accused. The said reasoning is not applicable here because as per the case of prosecution, the personal search of the accused was also made but the recovery of contraband was made not from his person but from the bag being carried by him? In such a case it is settled law that provisions of Section 50 of N.D.P.S. Act would be applicable as has been held in State of Rajasthan Vs. Parmanand and Anr., (2014) 5 SCC 345.

37. The next point to be taken into consideration is whether the prosecution has been able to prove beyond reasonable doubt that the contraband material which was recovered from the accused and subsequently seized was the same, out of which the sample was taken and sent to the F.S.L. for determining whether the same was charas or not.

38. Learned Amicus Curiae's version is that the prosecution has failed to prove that the seal which was used at the time of recovery of the contraband from the accused on the spot and which was also used at the time of sealing the sample taken out of it on the spot, was not disclosed by the prosecution and the seal which is found affixed on the sample of the contraband sent to the F.S.L. is found to be of district judge "U.P. S.D.R." It is also stated that there is a story built up by the prosecution to prove its version by saying that the seal which was used on the sample of the contraband substance which was taken on the spot, was subsequently opened before sessions judge and the sample of the contraband substance was again sealed by the seal of the court, thereafter, the docket was prepared to be sent to the F.S.L. for the examination of the said substance. There was no legal provision for placing the sample of contraband substance before court for permission to be sent to the F.S.L. This creates doubt about the sample of the contraband substance taken on the spot and sealed by the arresting party.

39. In this regard, the evidence has to be taken into consideration to see whether the prosecution has been able to prove beyond reasonable doubt that the contraband which was recovered from the accused on the spot and was sealed and also the sample of the contraband substance which was taken on the spot and was sealed there, both were safely kept in Malkhana and whether the sample seal by which contraband substance was sealed was also sent to the F.S.L., with the sample of contraband, for being tested or not. In this regard the recovery memo contains the fact that three plates-like charas which were recovered from the accused and were weighed on the spot and the same was found to be 1.6 kg. Out of it 100 grams Charas was taken out as sample and was kept in a plastic polythene after being wrapped in white cloth and was sealed, while the remaining 1.5 kg. Charas (3 plates), were wrapped in a towel and were sealed in plastic bag and the separate sample seals were prepared by the police. In this regard P.W.1 has stated in examination-in-chief that all the three plates were weighed together and were found to be 1.6 kg., out of which, 100 grams sample was taken out and was sealed and the remaining Charas was simultaneously kept in the bag and was also sealed and the samples of seal were prepared. Recovered contraband substance, the sample of the said substance in the sealed condition were got deposited in Malkhana and the accused was lodged in lockup. Further in cross examination, he has stated that the contraband substance in sealed condition related to Crime No. 501 of 2007 was presented by Parokar in court and the same was opened under the orders of court. Out of one plastic bag which had two tags on each side for being held, therein, one jacket (sadari), Gamchha with checks and wrapped in Panni 3 plates of Brown coloured Charas were taken out and from the corners of all the three plates, a chunk was taken out by way of sample. This statement was given by this witness on 6.9.2007. This witness has further stated that these were the same bag, gamchha and Charas which were recovered from accused Ram Asre Kahar. Charas was exhibited as Exhibit-1, polythene/ bags was exhibited as Exhibit-2 and Gamcha was exhibited as Exhibit-3, Sadari was exhibited as Exhibit-4 and the bag was exhibited as Exhibit-5. It was also stated that on the said bag impression of the accused's thumb was available. In cross-examination, no question had been put to him with regard to the fact as to where the sample of the contraband substance, which was collected on the spot, was kept and whose seal was affixed there-on, nor has it been asked as to whether the fresh sample was taken before court on 3.1.2008 or the sample which was sent to the F.S.L. was the same which had been taken by police on the same day when the accused was arrested on the spot.

40. The other eye witness P.W. 3 in this regard stated in examination-in-chief that from all the three plates of Charas, about 100 grams Charas was taken out as sample and was separately kept in a polythene and thereafter wrapped in a cloth and the remaining 3 plates of Charas were kept in a packet and were sealed separately and the sample of the seal was prepared. No question has been put to this witness in cross-examination concerning the fact of sealing the contraband substance and its sample on the spot or whether the sample of contraband was taken in court.

41. P.W.2 , Constable Anand Kumar has stated in examination-in-chief that on 10.9.2007 he was posted at P.S. Dhebarua. On the said date the contraband substance related to case crime No.501 of 2007, its sample and the seals of sample, all were dispatched with him to Sadar vide G.D. report No. 17 time 9:30 hours. The said articles in sealed condition were taken out from Malkhana and were presented before the court of Sessions judge. He (Sessions Judge) had compared the seal of the sample of the contraband substance with the sample seal and the said sample of contraband substance was got sealed by him by the seal of his court and again sample seal was got prepared; docket was signed by him and was verified. The said docket was presented before him in court as Exhibit Ka-5. The said sample along with docket with S.I. Ram Chandra vide G.D. report No. 38 time 2:20 hours was returned to police station and there he deposited the original recovered substance in Malkhana and the sample of recovered substance, sample seal and other papers were taken by him by the same G.D. to F.S.L. Ramnagar Varanasi, where on 11.9.2007 at lot No. 2142 of 2007, the sample of the contraband substance along with its seal and docket in sealed condition were deposited and its receipt was obtained on the docket. His return is recorded in G.D. dated 15.9.2007 at report No.3, time 00:15 hours. He had brought G.Ds. with him, the photocopies of the certified copies of these G.Ds. have been presented by him which are Exhibits Ka-6, Ka-7 and Ka-8. For whatever period, the sample of contraband substance remained with him, the same remained in absolute safety and its seal remained totally intact. This witness has been cross-examined by the defence counsel in which he has stated that he was not present at the time of recovery of the contraband substance from the accused. The sample of the recovered contraband material was in one packet only and not in several packets. The weight of the sample of contraband substance was 100 grams. The sample of the contraband substance had been brought by him which was kept in 'Markin' cloth. Docket was got prepared by him and it was weighed also, hence he remembers that it was 100 grams and docket was only one.

42. PW 5, Head Constable Rosh Nath Ojha has stated in examination-in-chief that at serial number 43 of the Malkhana register of the year 2007, the entry is concerned with the case property of crime number 501 of 2007 which includes Charas, sample Charas and sample seal, all in sealed condition, photo copy of the original of which has been attested by him and has been filed as Exhibit Ka-12. In cross-examination this witness has stated that this entry was made in front of him by Head Muharrir, Rai Dayal and he only had kept these articles in Malkhana. No cross-examination has been made from this witness with regard to the sample seal as to whose seal was put on the Charas and sample Charas.

43. In the light of above evidence, the learned Amicus Curiae has put forth the argument that it is not established by prosecution that the sample of contraband substance (Charas) recovered from the accused and sealed on the spot was the same which was sent to the FSL because the sample contraband was found by F.S.L. sealed with seal of "District Judge U.P. SDR". It is not brought on record that the seal of "District Judge U.P. SDR" was affixed on the sample of contraband taken on the spot out of the recovered contraband Charas. It is further argued that the statement of PW 2 quoted above shows that on 10/9/2007 the recovered material, its sample and sample seal were taken out by PW 2 from Malkhana and were presented before the Sessions Judge, who compared the seal affixed on both the articles with the sample seal and thereafter got the sample contraband sealed with his Court's seal and prepared sample contraband again and signature of PW-2 on the docket were also attested by him. It indicates that a separate sample of contraband was prepared by the Court of Sessions Judge, which was sent to FSL, then what happened to the earlier prepared sample of contraband, has not been clarified. He further argued that if the Sessions Judge had put his Court's seal on the sample contraband, then on the sample of contraband received by FSL, 2 seals ought to have been found, which is not the case here and this creates suspicion about the sample of contraband recovered as to whether it was the same sample which was taken on the spot or was it some other contraband substance. It's benefit must be given to the accused and the recovery of the alleged contraband substance should be held doubtful.

44. This Court is not in agreement with the argument raised by the learned Amicus Curiae because PW-5 has clearly stated that there was entry found at serial number 501 in Malkhana register of 2007 of the recovered contraband, sample of contraband Charas and also the sample of seal (all the 3 articles ) having been deposited in sealed condition there. Thereafter the prosecution has clearly brought on record through PW-2 that on 10/9/2007 all these 3 articles were taken out by him from Malkhana in sealed condition and were presented before the Court, whereafter, after the comparison of the seals with the sample seal, the sample of contraband was again sealed by the seal of the Court and its sample was also prepared and the same was sent to Forensic Science Lab on 11/9/2009. This statement is corroborated by the report of Forensic Science Lab, in which it is recorded that this sample of contraband was received by it on 11/9/2007 which was having seal of "District Judge U.P. SDR". It could be possible that only one seal of "District Judge U.P. SDR" was found by FSL because the earlier seal which was found in intact condition by the Sessions Judge might have been broken there and a fresh seal of the Court might have been affixed. Nowhere it has come on record that the seal which was affixed on the recovered contraband substance, its sample and the sample seal was found in broken condition/tampered at any stage. It was duty of the learned counsel for the defence to seek clarification in cross-examination as to whose seal was initially put on the recovered contraband and its sample and also when the Court's seal was affixed on the sample of contraband, the defence counsel ought to have clarified by putting questions in this regard in cross-examination if there was any doubt about the same, which has not been done by the defence. In this regard the learned District Judge has rightly relied upon Gian Chand and Others Vs State of Haryana (2013) 14 SCC 420, in which the Supreme Court has laid down as follows in paragraph 14 and 15: -

"14. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by this Court in Laxmibai v. Bhagwanthuva, AIR 2013 SC 1204 observing as under: (SCC p. 114, Para 40)

"40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses." (Emphasis supplied) (See also: Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of Haryana, JT (2013) 8 SC 181.

15. The defence did not put any question to the Investigating Officer in his cross-examination in respect of missing chits from the bags containing the case property/contraband articles. Thus, no grievance could be raised by the appellants in this regard."

45. Therefore it is proper to hold that in the case at hand the prosecution has been able to prove that 1 kilogram and 600 grams of illegal Charas was recovered from the possession of the accused, to possess which he did not have licence. Once the recovery of Charas from the possession of the accused was established, the burden would stand shifted to the accused under section 35 and 54 of the NDPS Act to disclose as to how said Charas came into possession of the accused. The learned AGA has relied upon Gian Chand's case (supra) wherein, in Para 16, 17, 18, 19, 20, 21 and 22 following is held: -

"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: (SCC p. 472, Para 20)

"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.'' (SCC p. 472, paras 23-24)

18. The Court further held as under: (Madan Lal Case (2003) 7 SCC 465, SCC p. 472, paras 26-27)

" 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 the 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." (Emphasis supplied)

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 (hereinafter referred to as `the 1872 Act').

22. In State of West Bengal 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 the 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." (SCC p. 393, para 38) (emphasis supplied)

46. In the present case, it was duty of the accused to disclose as to how he came in possession of the contraband Charas. He has simply denied the recovery of such substance and has taken the plea that he has been falsely implicated by police, in statement under section 313 of the Criminal Procedure Code. Why the police has falsely implicated him and what was enmity of police with him, has not been brought on record by examining any witness. It would not be out of place to mention that the quantity recovered from the accused is huge, which is difficult to be planted looking to its value in the International market.

47. The next argument made by the learned Amicus Curiae is that no independent witness has been obtained and hence the prosecution's case should be held to be doubtful. It may be mentioned here that in the recovery memo itself it has been recorded by the raiding party that because of the sudden arrest of the accused in a lonely place, no public witness could be found. The learned lower Court however has found that there was discrepancy in the statement of PW-1 and PW-3 because according to PW 3 there was no public witness available because of the place of arrest being a lonely one, while PW 1 has stated that there were public witnesses available, but the learned lower Court has found the statement of PW 1 to be not reliable in this regard, however remaining part of his statement has been found believable and for this number of rulings have been cited to substantiate that the position of law is that a witness' s statement may be taken as partly believable while the remaining part of the statement may be held to be unbelievable if it is so found. This Court would go a step further and would refer here to the law laid down in Gian Chand's case (supra) relied upon by the learned AGA in which this question has been dealt with at length. In paragraph 30, 31, 32, 33 34, 35, 36, 37 and 38.

Following has been held which would be pertinent for the present case as well: -

"30. In the instant case the issue relating to non-compliance with the provisions of Section 313 Cr.P.C. has not been raised before the High Court, and it is raised for the first time before this Court. The learned counsel for the appellants could not point out what prejudice has been caused to them if the fact of "conscious possession" has not been put to them. Even otherwise such an issue cannot be raised in the existing facts and circumstances of the case wherein the burden was on the accused to show how the contraband material came to be found in the vehicle which was driven by one of them and the other two were travelling in that vehicle.

31. The next question for consideration does arise as to whether it is necessary to examine an independent witness and further as to whether a case can be seen with doubt where all the witnesses are from the police department.

32. In Rohtash Kumar v. State of Haryana 2013 14 SCC 434, this court considered the issue at length and after placing reliance upon its earlier judgments came to the conclusion that where all witnesses are from the police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under:

"Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon."

(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi, AIR 1999 SC 1315; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449; and Ravindran v. Superintendent of Customs, AIR 2007 SC 2040).

33. In State (Govt. of NCT of Delhi) v. Sunil (2001) 1 SCC 652, this Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that: (SCC p.662, para 21)

"21. ... it is an archaic notion that actions of the police officer should be approached with initial distrust. ... At any rate, the court cannot [begin] with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around."

The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

34. In Appabhai v. State of Gujarat AIR 1988 SC 696, this Court dealt with the issue of non-examining the independent witnesses and held as under: (SCC pp. 245-46, para 11)

" 11. ... the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties."

35. The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.

36. In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness.

37. Section 114 of the 1872 Act gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed.

38. In view of the above, the submissions of the learned counsel for the appellants in this regard, are held to be without any substance."

48. In view of above provision of law it is held by this Court that the statement of police witnesses recorded by the prosecution in this case cannot be disbelieved only because they were police witnesses, in absence of any public witness being available. These witnesses did arrest the accused with alleged contraband substance in the normal course of duty harboring no enmity towards him, hence it cannot be held that they might have given false statement against the accused only to ensure that the charge sheet submitted by police stands vindicated.

49. Next important point which has been raised by the learned Amicus Curiae is that no compliance has been made of section 57 of NDPS Act in the present case. Reliance is placed by the learned Amicus Curiae on Shri Ram Pal Vs State Of U.P., 2005 (52) ACC 458, wherein following is held in paragraph 11: -

"11. Learned counsel for the appellant has further pointed out that after such a heavy recovery of charas from the possession of the appellant, when the recovery officer (PW-1) along with his police party came back to the Police Station, the occasion for compliance of provisions of section 57 of the Act arose, which in the present case is not shown to have been proved by the prosecution. Section 57 of the Act requires that whenever there is arrest and seizure of contraband, the arresting officer, within 24 hours next after search and seizure, shall make full report of all the particulars of arrest and seizure to his immediate officer superior. In the present case, there is no evidence either in the statement of PW-1 or even in the statement of PW-3 to show that any such compliance of the requirement of section 57 of the Act has been done. It is true that the compliance under the aforesaid provisions of the Act is just directory but non-compliance does effect the bona fide of the arrest and seizure. It may be said that non-compliance may not vitiate the trial and may not prejudice the accused but it is definite requirement of law and if it has not been observed in letter and spirit, it will be presumed by the Court that an important peace of evidence, which could have been in furtherance to the other proof of the alleged recovery, has not been produced by the prosecution. If the compliance of the provisions of Section 57 of the Act was made, a copy of this report should have been filed. It would have been a better proof of the fact that the recovery officer made this recovery of the seized articles after arrest of the accused. As such, in the aforesaid view of the matter and also since there is no proof of compliance to the requirements of section 57 of the Act on record, the prosecution has to suffer for it."

50. Further reliance has been placed upon Mahesh Nai vs State of U.P. 2006 (1) ACR 60 to point out as to what is the law on the point of non-compliance of section 55 and 57 of the NDPS Act.

In Para 13, 14 and 15 of this judgment following is held: -

"13. ...... Section 55 of the Act provides as below:

"Police to take charge of articles seized and delivered.-- An officer in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."

14. It is the duty of prosecution in such cases in view of the aforesaid procedural obligations laid down under the Act to discharge its obligations quite meticulously and in case the same has not been done, the probative value of the prosecution evidence is treated to be reduced to such an extent that the same is not found worth acceptance for recording conviction.

15. The other point of argument regarding compliance of the procedural requirement of Section 57 of the Act is advanced by the learned Amicus Curiae. The provision itself contemplates about making a report by the seizure officer under the Act to his immediate official superior within 48 hours next after search, arrest or seizure. A non observance of such procedural requirement has though, been held to be only an irregularity in the case of State of Punjab Vs. Balbir Singh (supra) and it may not render the act of seizure and recovery as null and void but at the same time it also does affect the probative value of the evidence regarding arrest and seizure. In some cases of such arrest or search, the non compliance of such statutory instructions may also cause prejudice to the accused and those may result in failure of justice. This provision cannot be ignored by the officers and in case it is found that there is total ignorance the conviction recorded may be held to be bad in law. In this context a reference has been given to the case of Thandi Ram Vs. State of Haryana, 2000 Supreme Court Cases (Cr) 189 and also to a case of Bombay High Court in case of Gangaram Rama Gundkar and another Vs. State of Maharashtra, 2002 Cr.L.J. 2578  and a decision of this court given by me in case of Irshad Ahmad alias Shekhu Vs. State decided on 21.7.2005."

51. In rebuttal of above rulings the learned counsel for the appellant's AGA has relied upon Dilbag Singh vs State of Punjab, 2017 (98) ACC 686 (Supreme Court), in paragraph 14 , 15 and 16 of which following is held: -

"14. Qua the imputation of non-adherence of the requisites of Section 57 of the Act, suffice it to note that both the Courts below, on an analytical appreciation of the evidence on record have concurrently concluded that the Investigating Officer at the site, had after the arrest of the accused persons and or seizure of the contraband forwarded the information with regard thereto to his higher officer, namely, Deputy Superintendent of Police without any delay and that the related FIR with the necessary endorsements therein had reached the Ilaka Magistrate on the same date i.e. 28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by the learned counsel for the petitioner to either contradict or decimate this finding based on records. In this view of the matter as well, the assertion of non-compliance of Section 57 of the Act does not commend for acceptance. In our view, having regard to the facts available, the requirements of Section 57 of the Act had been duly complied with as well.

15. The decision in Mohinder Kumar (supra) 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 (31) ACC 351 (SC), 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 (43) ACC 528 (SC) 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 (supra) was by a three Judge Bench.

16. 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."

52. In the case at hand, it would be seen that PW-1 in his statement has clearly deposed that after getting the contraband substance, its sample and sample of seal having been deposited in Malkhana and the accused having been lodged in lock-up, information was given to higher authorities through RT set and telephone about the arrest and recovery of contraband substance. No cross-examination has been made by the defence as regards the said statement to further clarify as to whom the information was passed on by him. Similarly PW-3 has also stated that higher authorities were separately sent information about arrest of the accused. From this witness also no cross-examination has been made so as to elicit that no such information was sent to the higher authorities although it is true that no written report is filed by the prosecution on record which was sent to the higher authorities. Giving benefit of not making the full compliance of section 57 N.D.P.S. Act by the prosecution to the accused, in the light of the law laid down in the Dilbagh Singh's case (supra), would not be proper because its compliance is not mandatory. The accused would have to show what prejudice was caused to him by such non-compliance. In the case at hand it is already held that the prosecution has proved recovery of the contraband substance (Charas) from the accused on the basis of evidence on record. The compliance of section 57 could only have adverse impact on the probative value of the evidence of the prosecution, in case the prosecution had led weak evidence in regard to recovery from the accused. But that is not the case here. Therefore, the argument of the learned Amicus Curiae in this regard could not be held of much significance.

53. The next point raised by the learned Amicus Curiae is with regard to non-compliance of the provisions of section 32 B of the NDPS Act and also that punishment ought to have been awarded not on the basis of the total recovered contraband substance (heroin) rather on the quantity of heroin calculated on the basis of percentage of heroin found in the recovered substance, proportionately. For the sake of convenience Section 32 B is reproduced herein below: -

"[32B. Factors to be taken into account for imposing higher than the minimum punishment.-Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:-

(a) the use or threat of use of violence or arms by the offender;

(b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence;

(c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence;

(d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities.;

(e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences; and

(f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence.]"

54. Referring to above section, it is argued that in the case at hand the learned Court below has awarded punishment of 12 years rigorous imprisonment and a fine of rupees 1,20,000/- under section 20 (b) (ii) (C) of NDPS Act while the minimum punishment prescribed under this section is 10 years imprisonment and fine of Rs. 1,000,00/- which is in violation of the provision quoted above because the Court ought to have taken into consideration the grounds mentioned in above subsections (a) to (f) of the above section which has not been done. Further, it is argued that this Court in Criminal Appeal No. 1037 of 2013 Mukhtar Islam vs State of U.P. has held as follows : -

"I have very carefully gone through the impugned judgment and I find that the trial court after convicting the appellant under Section 8/21 of Act proceeded to sentence him to 15 years rigorous imprisonment and a fine of Rs.8,00,000/- and in default of payment of fine to undergone further imprisonment of two years, total 17 years imprisonment which is in excess of the minimum sentence prescribed under the Act for the offence under Section 8/21 Act i.e. 10 years and fine which may extend upto Rs.2,00,000/-. There is nothing in the impugned judgment which may reflect consideration of any of the factors enumerated in Section 32B of the Act by the trial court while sentencing the appellant to a term of imprisonment in excess of the minimum sentence prescribed under the Act for the offence under Section 8/21 of the Act. There is also no evidence on record showing that any of the factors enumerated under Section 32A of the Act exist in the present case. The only factor which apparently appears to have weighed with the trial court while awarding sentence in excess of the minimum sentence prescribed in the present case was the quantity of the heroin recovered from the appellant and the price it could have fetched in the national and international market which in my opinion, cannot justify the imposition of imprisonment higher than the minimum period of imprisonment prescribed under the Act inasmuch as the quantity of heroin recovered from the appellant is not so huge as to warrant imposition of imprisonment higher than the prescribed minimum period of imprisonment. There is further no evidence on record except the alleged statement of the appellant made by him before the police officer at the time of his search as mentioned in the recovery memo indicating that the price of the seized heroin was Rs.50 lacs in the national market and Rs.1 Crore in the international market. At this stage it may also be noticed that from the perusal of the report of the chemical analyst of the sample which was drawn from the substance allegedly recovered from the appellant it transpires that the sample was not subjected to quantitative test so as to ascertain the exact percentage of heroin contents in the sample which would have helped the court to give a finding with regard to the exact weight/ quantity of heroin present in the substance recovered from the appellant and which would have been an extremely relevant factor for deciding whether the offence committed by the appellant involved commercial quantity or small quantity and accordingly the punishment would have been awarded to the appellant on the said basis depending upon the actual quantity of heroin recovered from him. The report of the chemical analyst merely shows that the sample contained heroin. It does not disclose the percentage of heroin contents in the sample. The fine of Rs.8,00,000/- which has been imposed upon the appellant also seems to be unwarranted and cannot be sustained. The court below has failed to give any reason as required by proviso to Section 21(c) of the Act while imposing fine upon the appellant exceeding Rs.2,00,000/-. It is neither the case of the prosecution nor there is any material on record showing that the appellant has any criminal history or he has amassed huge wealth by indulging in illicit trafficking of drugs.

For the aforesaid reasons, I am of the opinion that the sentence awarded to the appellant cannot be sustained and deserves to be altered and the ends of justice will be met, if the sentence awarded under the impugned judgment to the appellant is substituted by the minimum punishment prescribed under the Act for committing an offence under Section 8/21 of the Act i.e. 10 years and fine of Rs.1,00,000/-. In default of payment of fine the appellant shall undergo further imprisonment of eleven months. The period of two years and one month of imprisonment undergone by the appellant during the trial shall be included in the total period of imprisonment which the appellant is required to undergo under the altered sentence."

55. Further the learned Amicus Curiae has also relied upon Harjit Singh Vs. State of Punjab, (2011) 4 SCC 441, in which illegal possession of 7.5 Kgs. opium was found to have been recovered which was of commercial quantity, in the form of co-regulated juice of opium poppy. The conviction was made under section 18 of the Act which was upheld by the High Court. It was held that the case was squarely covered under clause (a) of section 2 (xv) of NDPS Act and clause (b) thereof was not attracted for simple reason that Substance recovered was opium in the form of coagulated juice of the opium poppy and not a mixture of opium with any other neutral substance; there was no preparation to produce any new substance from said/ coagulated juice. For purpose of imposition of punishment, if quantity of morphine in opium is taken as a decisive factor, entry number 92 becomes totally redundant. Thus as the case falls under clause (a) of section 2 (xv), no further consideration is required on the issue. More so, opium derivatives have to be dealt with under entry number 93, so in case of pure opium falling under clause (a) of section 2 (xv), determination of quantity of morphine is not required. Entry number 92 is exclusively applicable for ascertaining whether quantity of opium falls within the category of small quantity or commercial quantity. There was no dispute that material recovered from appellant was opium, which was of commercial quantity and could not have been for personal consumption of appellant. The conviction was upheld and the appeal was dismissed. In this case the judgment in E. Michael Raj Vs Intelligence Officer, Narcotic Control Board, 2008 5 SCC 161 was not found applicable, wherein the Court dealt with the case of recovery of heroin from a carrier and held that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance (s), for the purpose of imposition of punishment, the total weight of substance allegedly recovered from the accused would not be seen rather only the percentage content of heroin translated into weight would be taken.

56. In the case at hand the recovery of 1 kilogram and 600 grams of Charas has been found and not of heroin. In table related to sub-clause (vii-a) and (xxiii-a) of section 2 of the Act at serial number 56, heroin is entered, the small quantity of which is 5 gram and commercial quantity is 250 grams while in the same table Charas is shown at serial number 23, small quantity of which is mentioned to be 100 grams and commercial quantity is mentioned as 1 KG. Therefore it is clear that for both the items i.e. heroin and Charas there are separate entries. The case of E. Michael Raj (supra) related to heroin and not Charas, hence in this case no benefit can be drawn by the appellant of the principles laid down in E. Michael Raj's case.

57. As regards the application of section 32 B, the learned AGA in rebuttal has placed reliance upon the judgment dated 27/11/2015 passed in Criminal Appeal No. 4301 of 2008 Krishna Murari Pal vs State of U.P., in which in Para 13 following is held: -

"13. The trial court has awarded the sentence of 12 years' rigorous imprisonment and fine of Rs.1 lac to the accused appellant under Section 8/20(b)(ii)(c) of the NDPS Act on the ground that huge quantity of the said contraband (Ganja) has been recovered from the possession of the accused appellant. There is nothing on record to show that the accused appellant had committed any act which may lie under any of the clauses of Section 32-B of the NDPS Act hereinbefore mentioned. But that does not mean that the Court cannot award the sentence more than the minimum sentence in the absence of any of the above conditions mentioned in clauses (a) to (f) because these conditions are in addition to the factors as the Court may deem fit in awarding higher punishment to the accused. In the case at hand, there is nothing on record to show that the accused appellant had previous criminal history or he is a previous convict and that the appellant is now advanced in years and is aged about 56 years as mentioned in the supplementary affidavit filed on behalf of the accused appellant. Undisputedly the accused appellant had licence of the retailer shop of Bhang. Thus, regard being had to all the facts and circumstances of the case I think that reduction of sentence of 12 years' rigorous imprisonment awarded to the appellant to the period of imprisonment already undergone by him and in default of payment of fine, reduction of sentence of one year imprisonment to six months' simple imprisonment would meet the ends of justice."

58. Further learned AGA has also placed reliance upon judgment dated 31/7/2017 passed in Jail Appeal No. 783 of 2008 (Aquil Ahmad vs State), in which following is held : -

"The trial court has awarded the sentence of 20 years' rigorous imprisonment and fine of Rs.1,00,000/- to the accused appellant under Section 21(c) of the NDPS Act mainly on the ground of quality and quantity of the contraband recovered from his possession. There is nothing on record to show that the accused appellant had committed any act which may lie under any of the clauses of Section 32-B of the NDPS Act hereinbefore mentioned. But that does not mean that the Court cannot award the sentence more than the minimum sentence in the absence of any of the conditions mentioned in clauses (a) to (f) because these conditions are in addition to the factors as the Court may deem fit in awarding higher punishment over and above the minimum punishment provided under the provisions of Section 22(c) of the NDPS Act."

59. Therefore it is apparent that in the judgments relied upon by the learned AGA, the Court has expressed opinion that it is not mandatory while awarding punishment under sections of NDPS Act, wherein minimum punishment is provided, to award higher punishment than the minimum prescribed without taking into consideration the grounds which are mentioned in sub section (a) to (f) of section 32 B of NDPS Act. Therefore, it is apparent that these are judgements of subsequent dates of this very Court which have given opinion in respect of above Section which is in conflict with the opinion given in the judgement relied upon by the learned Amicus Curiae. In opinion of this Court, if the said section be read with greater attention, it would reveal that the words used in it are "it may deem fit", therefore word 'may' would indicate that it would be discretionary for the Court to take the grounds into consideration which are mentioned in sub-section (a) to (f) of the said section, while awarding punishment higher than the minimum prescribed. Therefore there is no force found in the argument in this regard made by the learned amicus curiae that in the case at hand the punishment awarded needs to be curtailed keeping in view that the lower Court did not take into consideration the above factors. The Court should not be oblivious of the fact that post-amendment of the Act in the year 2001 the criteria for awarding punishment has been proportional to the amount of recovery. Therefore in case the Court considers awarding higher punishment keeping in view the higher quantity of contraband substance, it should not be treated to be arbitrary. Although it is a different matter that this Court would like to consider reducing substantive punishment on other grounds, if found suitable.

60. It may be mentioned here that a large number of rulings have been relied upon by the learned Amicus Curiae on various points, all of which have not been referred here but it would be pertinent to mention here that each of these rulings has separate set of facts in which the judgements have been pronounced on them following certain principles. Those principles may not be applicable in the present case due to there being different set of facts. In this regard the learned AGA has placed reliance upon Gian Chand's case (supra) in which in Para 24 & 25 following is held:-

"24. So far as the judgment in Avtar Singh (supra) is concerned, it has been considered by this Court in Megh Singh v. State of Punjab (2003) 8 SCC 666. The Court held that the circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based.

25. In Avtar Singh (supra), the contraband articles were being carried in a truck. There were several persons in the truck. Some of them fled and it could not be established by evidence that anyone of them had conscious possession. While the accused was examined under Section 313 Cr.P.C. the essence of accusations was not brought to his notice, particularly with respect to the aspect of possession. It was also noticed that the possibility of the accused persons being laborers of the truck was not ruled out by evidence. Since the decision was rendered on special consideration of several peculiar factual aspects specially noticed in that case, it cannot be of any assistance in all the cases. ...."

61. Next important argument made by the learned Amicus Curiae is that in this case the investigation has been made by an officer who is subordinate of the officer who was part of the arresting team and who had lodged the FIR. In support of this he has relied upon Raghubir Vs State of U.P. 1995 UP Cr R 57 in which it has been held by this Court that a subordinate officer cannot do justice to the case. Being a subordinate, he was not in a position to come to an independent finding. Such an investigation can be termed as tainted and no reliance can be placed upon it. Investigation regarding acts of senior officer should not be done by junior.

62. The learned Amicus Curiae has drawn attention to para 18 of the said judgment in which following is held:-

" 18. The most glaring feature of the case is that the investigation in this case has not been fair. Sri Verma was the highest police officer at the police station. He was the S.H.O. of that P.S. Sri Geetam Singh. I.O. was his subordinate. It was under the direction of Sri Verma that investigation was entrusted to Sri Geetam Singh. It is difficult to believe that a subordinate officer like Sri Geetam Singh would do justice to this case. Being subordinate to Sri Verma, he was not in a position to come to an independent finding. Therefore, such an investigation can be termed as tainted and no reliance can be placed upon it. Investigation regarding the acts of senior officer should not be done by junior officer."

63. He has also placed reliance upon another judgment of this Court i.e. Ram Jatan & Ors. Vs State, 1995 Cr L.J. 3904, in which it is held that there was a glaring mistake in the prosecution's case because the investigation was entrusted to a subordinate officer. Attention has been drawn to paragraph 12 of this judgment which is as follows:-

"12. Now coming to the other limb of arguments that investigation was entrusted to a subordinate officer, Sri Gopi Chand, Sub Inspector. It has been laid down by Hon'ble Judge of this Court in the case of Raghubir and others V. State of U.P. (Supra) that if the investigation of the case has been entrusted to a subordinate officer by the station officer of the said police station, the investigation in such a case cannot be fair. Being a subordinate he is not in a position to come to an independent finding and such an investigation can be treated as tainted and no reliance can be placed upon it. According to his Lordship investigation regarding acts of senior officer should not be done by junior officer. This is another glaring mistake and lacuna in the prosecution case which makes this case a doubtful one."

64. In rebuttal, it is mentioned that in State of Karnataka Vs K. Yarappa Reddy, AIR (2000) Supreme Court 185/ (1999) 8 SCC 715, it has been laid down that it is well neigh settled that even if the investigation is illegal or even suspicious, the rest of the evidence must be scruitinized independently of the impact of it, otherwise the criminal trial will plummit to the level of the investigating officers ruling the roost.

65. Apart from above, reliance may also be placed upon State of West Bengal Vs Mir Mohammad Omar and Others 2000 (8) SCC 382 in which in para 41 following is held:-

"41. Learned Judges of the Division Bench did not make any reference to any particular omission or lacuna in the investigation. Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit the accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above."

66. In view of the above it is clear that any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in the evaluation of evidence. A defective investigation cannot be fatal to prosecution when ocular testimony is found credible and cogent. This view has also been reiterated in several other cases. In view of the above position of law, it has to be seen as to whether due to the lacuna in conducting the investigation because of the same having been assigned to an officer junior to the first informant or arresting witness, as contended by the learned Amicus Curiae, any benefit would go to the accused in this case.

67. In the case at hand, PW 1 who had made arrest of the accused and had seized contraband substance from him, is in-charge of Police Station Dhebarua while the investigating officer PW 4, Ram Chandra Bharti had made investigation in this case. It is probably for this reason that the learned Amicus Curiae has raised this point that P.W.1 being in-charge of the Police Station was in a senior position to the P.W.4 and therefore P.W.4 could not have conducted investigation freely and must have filed charge-sheet under pressure from P.W. 1. There is no such suggestion given by the defence counsel in cross-examination of P.W.4 that he had filed charge-sheet under pressure from P.W.1. It is, therefore, merely a figment of imagination of learned Amicus Curiae that the charge-sheet might have been filed against the accused under influence of P.W.1. Moreover, in the light of above position of law even if we take for argument's sake that P.W.4 was junior to P.W.1, that sole factor would not necessarily lead this Court to disbelieve the other evidence collected by prosecution on record.

68. This Court has already held that the prosecution has been successful in proving the recovery of contraband substance from the accused, of which he could show no license to possess, on the basis of entire evidence, therefore, this view of the Court may not be upset only because of the above mentioned lacuna being pointed out in investigation.

69. Now it would be significant to assess as to whether the accused has been rightly awarded punishment of 12 years R.I. and fine of Rs. 1,20,000/- or not. It has already been held in analysis given above that there was no compulsion for the Court to take into consideration the factors which are mentioned in sub section (a) to (f) of Section 32 (B) N.D.P.S. Act while awarding punishment higher to the minimum which was prescribed under law because that was discretion of Court.

70. Taking into consideration the entire facts, it is apparent that the lower court appears to have taken the view that since the accused had been found in illegal possession of 'charas' which was little above the commercial quantity, hence, the punishment little above minimum i.e. 12 years and fine little above minimum i.e. 1,20,000/- would be proportionate. But nowhere it appears that the court below had taken into consideration the fact that this was the first offence committed by the accused as he was not shown to have any previous criminal history. It is also on record that he comes from a poor background, therefore, this Court is of the view that since the recovery of the contraband substance is not so high that it was mandatory for the lower court to award punishment more than minimum prescribed. It would meet the ends of justice if the punishment is reduced to 10 years R.I. and fine of Rs. 1,000,00/- in the present case.

71. In the discretion of this Court, it is found reasonable that interest of justice would be met if the accused is awarded 10 years R.I. and fine of Rs. 1,000,00/- and in default of payment of fine, he may be directed to undergo 3 months further simple imprisonment.

72. This Appeal is, accordingly, allowed partly. The conviction of the accused appellant is upheld but his punishment is reduced to 10 years R.I., fine of Rs. 1,00,000/- and in default of payment of fine, he shall further undergo S.I. of three months. It is further mentioned here that, in case, the accused has already served out the above period, he shall be released from jail in this case forthwith, if not detained in any other offence.

73. The case property shall be destroyed after period of Appeal is over or in case the law provides otherwise.

74. Let lower court record be returned forthwith along with a copy of the judgment of the Appeal for compliance.

75. In deciding this appeal, the contribution made by Sri Daya Shanker Mishra, learned Amicus Curiae is enormous and highly appreciated because he provided legal assistance on each and every point involved in this appeal and provided copies of the judgment also relied upon by him. He did not desire to be compensated for rendering such assistance in terms of money. Sri Ankit Srivastava, learned A.G.A. has rendered commendable assistance.

Order Date :- 14.12.2017

A. Mandhani