Guddu Kumar Gupta vs State Of U.P.
2017 Latest Caselaw 8245 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						         			         A.F.R.
 
						         Reserved on- 12.12.2017
 
				 		         Delivered on-22.12.2017
 
Court No. - 13
 
Case :- CRIMINAL APPEAL No. - 2150 of 1995
 
Appellant :- Guddu Kumar Gupta
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.K. Singh,B P Singh,S.N. Singh,Suresh Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. This Criminal Appeal has been filed against judgment and order dated 13.12.1995 passed by Additional Sessions Judge, Varanasi in Criminal case No. 297 of 1991 (State of U.P. Vs. Guddu Kumar Gupta) whereby the accused appellant Guddu Kumar Gupta has been convicted and awarded punishment under Section 8/20 N.D.P.S. Act of 4 years R.I., fine of Rs. 10,000/- and in default of payment of fine, 6 months additional R.I.

2. In brief the facts of prosecution are that accused appellant Guddu Kumar was sitting in a bus with a bag in his hand and when his personal search was taken, 3 kg. Illegal 'ganja' was recovered from him for which he had no license to possess and the said recovered 'ganja' was tested on the spot in presence of the witnesses and was found to be 'ganja'. The search of the accused was made by Sri C.B. Singh in front of the witnesses. The witness of recovery was Sri R.S. Mishra (P.W.1), an officer of enforcement team, who was excise inspector of district Varanasi. Recovery memo (Exhibit Ka 1) which is on a prescribed proforma 'D-19 A' has been prepared by P.W.1. The signatures of the above officers with some others were obtained on the recovery memo and a copy of the recovery memo was provided to the accused appellant. It is also recorded in the recovery memo that after testing the recovered 'ganja' on the spot in presence of the witnesses, the same was sealed on the spot in a cloth and thereafter was kept in the same bag from which it was recovered and was sealed. Record reveals that the charge was framed against the accused appellant on 28.02.1992 under Section 8/20 N.D.P.S. Act to which he pleaded not guilty.

3. The prosecution examined Sri R.S. Mishra, Excise Inspector as P.W. 1 and Sri Bhanu Pratap Singh, Excise Constable as P.W.2 and both these witnesses are witnesses of fact. Thereafter prosecution evidence was closed and statement of accused under Section 313 Cr.P.C. was recorded in which he denied any such recovery to have been made from him and took the plea of false implication. It is further stated by him that he had had an altercation with Majlu Mehta, Chaukidar of Excise Office, Varanasi. He had got him arrested by getting him implicated in this case falsely. He was taken away from his house at 12 noon to the house of Officer of Excise Department and from there at about 8-9 p.m., he was taken to the police station.

4. The learned court below on the basis of evidence on record has held that the recovery of 3 kg 'ganja' was proved for which he could not show license to possess and accordingly he has been awarded the aforementioned punishment. Besides above, the prosecution had produced documentary evidence which is as follows:- Recovery memo as Exhibit Ka-1, site plan as Exhibit Ka-2, charge sheet as Exhibit Ka-3, F.S.L. report paper No. 20 ka and the bag from which the contraband substance was recovered is material Exhibit 1, recovered 'ganja' is material Exhibit 2 and the white cloth in which it was kept is material Exhibit 3.

5. Learned counsel for the appellant, Sri. B.P Singh, has argued that neither any evidence has been taken of the conductor and driver to corroborate that the said recovery was made from the accused appellant nor any public witness has been taken. The Arresting Officer and the Investigating Officer are the same person in this case; no search warrant was taken before arrest was made; the contraband substance which is alleged to be 'ganja' was in fact found by the Forensic Science Laboratory to contain 'bhang' as well. There is no separate quantity mentioned in the report as to what was the quantity of 'ganja' and what was the quantity of 'bhang' in the said recovered contraband substance. The Office of the Excise Department is located about 1 km from the house of the accused and from there at a distance of 500 meters, this recovery is alleged to have been made which supports the defence of the accused that he was picked up from his house for being falsely implicated in this case.

6. On the other hand learned AGA has stated that prosecution has proved its case beyond reasonable doubt against the accused appellant and he has been rightly convicted and awarded abovementioned punishment.

7. This Court first of all would like to take into consideration the evidence on record in respect of the recovery made of contraband substance and its sample taken, in the light of the statutory provisions and arrive on the conclusion, as to whether the procedure for taking sample and sending sample of contraband substance along with seal to the Forensic Science Laboratory was adopted by the Arresting Officers or not, to prove the recovery of the alleged contraband from the accused beyond reasonable doubt. PW-1 R.S. Mishra has stated in examination-in-chief in this regard that search of Guddu Kumar was made by him and from the bag which he was carrying in his hand was also checked, wherefrom illegal 'ganja' was recovered, which was got weighed and was found to be 3 kg. One sealed bag (material exhibit 1) was opened before court and out of it 'ganja' (material Exhibit 2) and white cloth, in which the same was kept (material Exhibit 3), was identified by him, to be the same bag from which contraband substance was recovered from the accused Guddu Kumar Gupta. The weighing machine was brought by the constable but he does not recollect his name. The Ganja which was recovered in a bag was opened on the spot and was weighed. He did not recollect whether he had written anything over the bag, but the name and address of the accused were written on a form which was pasted thereon. He had not taken any signature or thump impression thereon, of the accused appellant but soon after he stated that he does not recollect whether his signature or thump impression was taken or not? He further stated that the label which was pasted on the said bag was in torn condition which bore signatures of the witnesses but because of its being torn, the thump impression of the accused was not visible and because of that he could not state whether his thump impression was taken or not? It did contain the signatures of Assistant Commissioner, Excise which were visible. The name of the accused 'G. Gupta' appeared written on that and rest of the bag was torn. The seal which was affixed on the said bag was broken before court and the same was sealed there partly.

8. In this regard P.W.2, Bhanu Pratap Singh has stated in examination-in-chief that about 3 kg 'ganja' was recovered from the bag which accused Guddu Kumar Gupta was carrying in hand. The same was got weighed and sealed and its sample was also taken. The recovery memo and other papers were prepared on the spot and copy of the recovery memo was given to the accused. In cross examination, it is stated that weighing machine was brought from a sweet shop and he does not know the name of owner of the shop. The said shop must have been around 50 gaj away on the road leading to Ghajipur. The bag was of white colour. No specific identification mark of bag could be told. The said recovered 'ganja' and the bag were not available before him at the time of recording of his statement before court. The weight of bag was taken along with 'ganja' and the said 'ganja' was sealed with its bag. Nothing was written on the bag. He had made signatures on three papers on the said date which were on file. After recovery of 'ganja' and the same having been sealed, they had taken the accused along with 'ganja' to court around 12 noon. At that time there was also present Devtadeen, Excise Constable but thereafter he stated that the accused was taken to police station. The recovered contraband substance was taken to court. The accused was lodged in police station around 12 noon. The recovered substance was deposited in 'malkhana' of 'kutchery' under order of court at about 4 p.m in the evening. After depositing the said contraband at about 5 p.m, the paper relating to depositing the same was given to Excise Inspector at Excise Office in 'Chaukaghat'. He has denied that the said contraband substance was deposited at police station at 6 p.m. by him. After having prepared the recovery memo and sealing the contraband substance, the accused was handed over to police station and because of there being no 'malkhana' at police station, the recovered contraband substance was taken to kutchery.

09. From the statements cited above of both the two witnesses who are witnesses of fact, it is evident that nowhere they stated that the sample was taken out of the alleged contraband substance which was separately sealed for being sent to the F.S.L. It is also not made clear as to whose seal was affixed for sealing the contraband substance and also its sample and whether the said contraband substance and its sample and the sample seal were kept in Malkhana in safe condition and when the entry of these articles was made in 'malkhana'. That could be possible only by producing the relevant register of 'malkhana' by showing entry therein of these articles. The F.S.L. report paper No. 20 Ka has mention of one small container (dubba) wrapped in cloth bearing seal of Additional Sessions Judge, Varanasi affixed on the sample sent to F.S.L. for being tested which was received there on 22.06.1992, which was found after analysis to contain mixture of 'ganja' and 'bhang'. There is no mention made in this report as to what quantity was received by F.S.L. for being tested. As per standing instruction No. 1/88, Narcotic Control Bureau, New Delhi, the minimum quantity of sample to be sent to F.S.L. for being tested has been fixed as 24 grams in case of ganja, opium and charas.

10. It would be pertinent to refer to provisions of law in regard to taking sample. The Narcotic Control Bureau, New Delhi by issuing Standing Instructions No. I/88 has laid down the standard procedure to be followed in the matters of recovery of contraband substances and taking of their samples. These instructions have been issued with a view to bring uniformity of approach in such matters and also to provide for a secure system of handling of drugs' samples which is to standardize the procedure with regard to drawing forwarding and testing of samples.

The relevant portions of the said instructions are being reproduced herein below:-

"1.5.- Place and time of drawl of sample:- Samples from the Norcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.

1.6.- Quantity of different drugs required in the sample:- The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicates sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicates is drawn.

1.7.- Number of samples to be drawn in each seizure case:-

(a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container.

(b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hasish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. 

(c) Whereafter making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. (d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hasish, one more sample in duplicate may be drawn for such remainder package/container. 

(e) While drawing one sample in duplicate from a particular, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

1.8.- Numbering of packages/containers:- Subject to the detailed procedure of identification of packaes/containers, as indicated in para 1.4 each package/container should be securely sealed and an identification slip pasted/attached on each one of them at such place and in such manner as will avoid easy obliteration of the marks and numbers on the slip. Where more than one sample is drawn, each sample should also be serially numbered and marked as S-1, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial number of the packages and marked as P-1, 2, 3, 4 an so on.

1.9.- It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, panchnama witness and seizing officer and all of them shall be required to put their signature on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the sample.

1.10.- Packing and sealing of samples:- The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the serial No. of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "secret-Drug sample/Test memo" to be sent to the concerned chemical laboratory."

11. The Hon'ble Supreme Court in Khet Singh Vs. Union of India (2002) 45 ACC 41 has held in paragraph 10 of the judgment as below:-

"10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody."

12. In view of the above, it is apparent that in this case, there is no evidence on record proving that minimum quantity of 24 grams of 'ganja' was sent to F.S.L. for being tested which was recovered from accused. It is also not made clear as to whose seal was affixed on the said sample taken from the recovered contraband Ganja and on the remainder and also there is no evidence to the effect that such sample seal was sent to the F.S.L. for being compared to ascertain that the material sent for being tested was the same which was sealed on the spot after recovery of the same from the accused. It is apparent that on the F.S.L. report, seal of Additional Sessions Judge has been found to be affixed which could not be the seal to have been used at the spot in sealing the contraband substance and its sample. How this seal of Additional Sessions Judge, Varanasi came to be affixed on the sample sent to F.S.L., in this regard no link evidence has been given by the prosecution. It appears that the contraband substance which was sealed on the spot and the sample which was taken on the spot were taken to the said court and from where the said seal may have been affixed for sending the sample contraband to the F.S.L. for being tested. This link should have been made absolutely clear by the prosecution by adducing evidence in this regard which is lacking here.

13. This Court would like to take up the point as to whether the mandatory provision of Section 50 N.D.P.S. Act has been complied with or not in this case?

14. The prosecution's case is that the team of officers of Excise Department headed by Inspector Sri R.S. Mishra (P.W.1) were checking the buses and during that they found bus No. U.P. 65 B 1413 coming from the side of Ghazipur which was stopped by them and when checking was made of the passengers, from accused Guddu Kumar Gupta, the recovery of 'charas' was made. It is evident that there was no prior information that the accused would be carrying Ganja with him and he could be arrested by them. Both the witnesses have deposed that it was a sudden recovery, therefore, the provision of Section 50 of N.D.P.S. Act would not be applicable here in the light of law laid down in Bharatbhai Bhagwanjibhai vs State of Gujarat, Manu/SC/0893/2002 in Para 8 of which following is held: -

"8. Admittedly, on perusal of the evidence as is available on records, it is clear that there was no prior information to the police officer that the accused is likely to come with narcotic substance, neither the inspector had any reason to believe from his personal knowledge or information that the accused is likely to be in the area from where he was found with the contraband item. As a matter of fact, even at the time of effecting search, there was no knowing that an offence under Chapter IV of NDPS Act has been committed by the accused. The inspector merely suspected the commission of an offence by reason of the fact that the accused started running on seeing the patrolling party. The evidence on the score is clear and categorical to the effect as discussed here in before. Though the Panchas have given a slightly different version of the search and seizure, but that does not by itself take away the primary evidence as regards the search and subsequent discovery of charas in the possession of the accused and the resultant seizure thereof. The contextual facts thus depict a situation not covered within the purview of section 50. In this context, the observation of the Constitution Bench of this Court in State of Punjab vs Baldev, 1999 (6) SCC 172 also lends credence to the above statement of law. In paragraph 12 of the report, this Court stated as below:

"12. On its plain reading, section 50 would come into play only in the case of search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of section 50 of the Act are not attracted."

15. But, it would be pertinent to mention here that it is settled legal position that the moment, the said contraband substance was recovered thereafter all the remaining provisions of the N.D.P.S. Act would be applicable as per a State of Punjab vs Balbir Singh , (1994) 3 Supreme Court cases 299 in which following is laid : -

"24. Section 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the Criminal Procedure Code. 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 the 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 the officers null and void and at the most it may affect the probative value of 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 ignored 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, mere non-compliance or failure to strictly comply by itself would will not vitiate the prosecution ."

Thus, the most important provision in such a situation is given under Section 57 N.D.P.S. Act which provides that as soon as any accused is arrested with contraband substance and seizure is made thereof, a report shall be prepared by the arresting party and shall be sent within 48 hours next to the senior officers, so as eliminate chances of any false implication. In this case, no evidence has come on record to the effect that any such report was prepared by the arresting party. Though, the said non compliance by itself would not vitiate conviction but if other important infirmities are also found along with non-compliance of section 57 of the NDPS Act, the cumulative effect of such factors would have detrimental effect on the prosecution's case.

16. The next argument which is made above by the learned counsel for the appellant is that both the witnesses are of Excise Department and they have admitted in evidence that there were driver and conductor available on the spot and a large number of passengers were also sitting in the bus next to the accused appellant but they did not give their consent to be witnesses of recovery. The statement of such a witness would certainly have substantiated the recovery of contraband substance from the accused. It is stated by P.W. 1 that he had asked one or two persons who were sitting in the bus, to be the witness of recovery but they refused to put their signatures on the recovery memo and when their names were asked they did not disclose the same. It is difficult to believe this version of the prosecution, that not a single person's name could be remembered who was asked to be a witness, and on his refusing, when his name was asked, he would not even tell his name. Hence, it may be concluded that P.W.1 and P.W.2 both did not make effort to take any witness of public who could corroborate their version of recovering contraband substance from the accused appellant.

17. The learned counsel for the appellant next argued that the prosecution case is that 3 kg. 'ganja' has been recovered from the accused but as per the F.S.L. report, the same could not be held proved. It is submitted that the sample was found to contain 'bhang' also. There is no evidence on record to the effect, as to how the prosecution could reach this conclusion that the entire recovered contraband was only 'ganja' which amounted to 3 kg. because as per report of F.S.L., there was 'bhang' also in it. Therefore, it could certainly be concluded that in the alleged recovered contraband substance some quantity of 'bhang' must have been there.

18. Learned A.G.A. has not been able to explain as to how the prosecution could reach the conclusion that 3 kg of Ganja was recovered from the accused appellant.

19. A perusal of the learned lower court's judgment shows that it has not taken into consideration the above mentioned vital points before holding the accused guilty and has held the recovery of 'ganja' proved from the accused. Particularly the non production of the sample seal, which was used in sealing the contraband substance as well as its sample on the spot and non-disclosure as to which seal was sent to F.S.L. along with sample for being compared; non compliance of provision of Section 57 N.D.P.S. Act which mandated sending a report prepared of arrest and seizure to the higher authority within 48 hours, all these being necessary requirements, this is found to be a fit case where accused appellant deserves to be acquitted of the charge. The prosecution has failed to prove the charge of 8/20 of N.D.P.S. Act to the hilt.

20. Accordingly, the Appeal deserves to be allowed and it is allowed. The accused appellant is held not guilty of charge under Section 8/20 N.D.P.S. Act. The accused shall be released in this case if he is not detained in any other offence, forthwith.

21. Let a copy of this judgment be transmitted to the Court below along with record of the lower Court for necessary compliance promptly.

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

Order Date :- 22.12.2017

A. Mandhani