Mohd. Idrish & Another vs State Of U.P.
2017 Latest Caselaw 1698 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

    AFR
 

 
Court No. - 40
 
Case :- CRIMINAL APPEAL No. - 7031 of 2008
 
Appellant :- Mohd. Idrish & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ali Hasan,Ishtiyaq Ali,Kirtikar Pandey,Ravi Sinha
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Bala Krishna Narayana,J.

(By the Court)

1. Heard Sri Sangam Lal Kesarwani, Amicus-curiae for the appellants, Sri Saghir Ahmad, Sri Rajeev Gupta learned AGAs for the State and Smt. Manju Thakur, State Law Officer.

2. This criminal appeal has been filed by the appellants Mohd. Idrish and Madhu Sudan Pandey against the judgment and order dated 15.9.2008 passed by Additional Sessions Judge/FTC Court No. 3, Jaunpur in Special Sessions Trial No. 68 of 2008 (State Vs. Mohd. Idrish and another) under Section 20 of the NDPS Act, Police Station Gaurabadshahpur, District Jaunpur connected with Session Trial No. 336 of 2008 (State VS. Mohd Idrish) under Section 25 of the Arms Act, Police Station Gaura Badshahpur, District Jaunpur by which both the appellants have been convicted and sentenced to 10 years rigorous imprisonment and a fine of Rs. 2 lakhs each and in default of payment of fine additional imprisonment of 2 years each under Section 20 of the NDPS Act and appellant no. 1, Mohd. Idrish has been further convicted and sentenced to 7 years rigorous imprisonment and a fine of Rs. 25,000/-, in default of payment of fine 1 year additional imprisonment under Section 25 of the Arms Act.

3. Before I hear upon the merits or otherwise of the contentions, it will be appropriate for the Court to fully narrate the facts resulting in the conviction of the appellants. On 18.12.2007 while SHO Param Hans Tiwari was on patrol duty in Village Banarhiyabag along with Constables Kailash Nath Pandey, Harish Chandra Gautam and Bhagwat Ram in a government jeep which was driven by one Raj Bahadur Singh he met probationary S.I. Sanjay Kumar Rai, Constable Durg Vijay Singh, Yashwant and Jai Prakash who were also on patrol duty. On meeting each other they stopped and started discussing crimes and criminals. In the meantime PW1 Param Hans Tiwari received a secret information through police informer that an assignment of Ganja was being transported in a jeep bearing Registration No. UP52G 1527 which was coming from the side of Gaurabadshahpur and going towards the Jaunpur and unless prompt action was taken the carrier may escape with the assignment. PW1 Param Hans Tiwari disclosed the aforesaid information to the police personnel present there and they immediately proceeded to Village Bithar and on reaching there they took position in the petrol pump and put a road block. After few minutes they saw a jeep coming from the side of Gaurabadshahpur in the light of the petrol pump and torch which was signaled by the police informer to the jeep by which contraband articles were being transported. The members of the police party promptly stopped the jeep in which two persons were found seated, one on the driver's seat and the other on a gunny bag put in the rear portion of the jeep. After stopping the the jeep they got it parked on the roadside. Both the occupants of the jeep remained seated. On being quizzed by the police the person sitting on the driver's seat disclosed his name as Mohd. Idrish son of Mohd. Lagan Sai resident of Village Panchpatra, Police Station Revealganj, District Chapra Bihar. His search led to recovery of one country made pistol with one loaded live cartridge from the left pocket of his trouser which he was wearing at the time of his search. One square shape bundle which was covered with a blanket was found lying on the floor of the jeep near its controls in the front portion of the jeep. Mohd. Idrish disclosed that ganja was packed in the bundle and he had kept it as a sample. The person sitting on the gunny bag in the rear portion of the jeep told the patrol party that his name was Madhusudan Pandey @ Baba son of Shivshankar Pandey Village Revealganj, District Chapra Bihar. He confessed that since the police party had caught them no useful purpose would be served in hiding anything. He disclosed that apart from the gunny bag kept in the rear portion of the jeep on which he was sitting, he had concealed 17 other bundles of Ganja in the specially designed secret cavity in the jeep. He further confessed that both he and Mohd. Idrish were involved in the business of illegal drug trafficking which was their only source of livelihood and they were carrying the assignment of ganja in their jeep for selling the same in Sultanpur. Both the accused were informed by the searching officer that they would be searched before a magistrate or a gazetted officer as per the provisions of NDPS Act on which they expressed their willingness to be searched by the members of the police party and thereafter gunny bag on which accused Madhusudan Pandey @ Baba was sitting was opened and it was noticed that the smell emanating from the substance which was packed in the gunny bag appeared to be that of ganja. The search of the specially designed secret cavity in the jeep led to recovery of 17 other bundles of ganja. Total number of 19 bundles of ganja were recovered from the jeep, each bundle was marked serially and weighed separately. Upon weighment the individual weight of each bundle was found to be as here under :

Bundle No. 1 : 10 kg and 35 gm

Bundle No. 2 : 10 kg and 35 gm

Bundle No. 3 : 10 kg and 75 gm

Bundle No. 4 : 10 kg and 500 gm

Bundle No. 5 : 10 kg and 600 gm

Bundle No. 6 : 10 kg and 600 gm

Bundle No. 7 : 10 kg and 400 gm

Bundle No. 8 : 10 kg and 500 gm

Bundle No. 9 : 10 kg and 300 gm

Bundle No. 10 : 10 kg and 500 gm

Bundle No. 11 : 10 kg and 500 gm

Bundle No. 12 : 10 kg and 500 gm

Bundle No. 13 : 10 kg and 500 gm

Bundle No. 14 : 10 kg and 500 gm

Bundle No. 15 : 10 kg and 500 gm

Bundle No. 16 : 10 kg and 400 gm

Bundle No. 17 : 10 kg and 500 gm

Bundle No. 18 : 10 kg and 500 gm

Bundle No. 19 : 10 kg and 500 gm

Two samples of 500 gms each were drawn from bundle no. 1 and bundle no. 19 and packed in a golden brown colour plastic, sealed and seized on the spot. The samples were sent to the forensic expert for chemical examination. The report of the forensic expert dated 3.3.2008 indicating that the samples contained ganja was brought on record as Ext. Ka6. Impression of specimen seal was prepared on the spot. The country made pistol with one live cartridge in its barrel recovered from Mohd. Idrish was packed and sealed. The accused were required to produce the licence for possessing Ganja and when they admitted that they had no such licence they were informed that they had committed an offence under Section 8/20 of the NDPS Act. The accused's jeep and the contraband articles recovered therefrom and the country made pistol and live cartridge recovered from the appellant no. 1, Mohd. Idrish were also seized. Although a huge crowd had gathered on the road side at the time of the search of the vehicle but none agreed to witness the recovery. On being requested by the police personnel they walked away without disclosing their names and addresses. Memo of search, recovery and arrest of the appellants was prepared on the spot by S.I. Sanjay Kumar Rai on the dictation of PW1 Param Hans Tiwari in the light of the petrol pump and torch and signatures of the accused were obtained thereon. Carbon copies of recovery memo were given to the accused and the information regarding their arrest and recovery of contraband articles from the jeep and its seizure was given to the higher official through mobile. On the basis of the aforesaid recovery case crime no. 773 of 2007, under Section 8/20 of the NDPS Act (State Vs. Mohd. Idrish and Madhusudan Pandey) was registered against both the accused-appellants while case crime no. 774 of 2007, under Section 3/25 of the Arms Act (State Vs. Mohd. Idrish) and case crime no. 775 of 2007, under Section 3/181/197/207/192 M.V. Act (State Vs. Mohd. Idrish) were registered against the accused-appellant Mohd. Idrish alone at Police Station Gaurabadshahpur, District Jaunpur on 19.12.2007 at 00:15 hours. Chek FIR Ext. Ka2 and necessary GD entry Ext. Ka3 were prepared by Constables Tanveer Ahmad and Ram Ashish Yadav respectively. The investigation of the case was entrusted to S.I. Hari Nath Tripathi who visited the place of occurrence and after inspecting the same prepared its site plan Ext. Ka4. He obtained sanction for prosecuting the appellant Mohd. Idrish under Section 25 of the Arms Act from District Magistrate Jaunpur Ext. Ka8. After completing the investigation he submitted charge sheet against both the accused under Section 20 of the NDPS Act Ext. Ka6 and a separate charge sheet against Mohd. Idrish under Section 3/7/25 of the Arms Act.

4. Learned Additional Sessions Judge/Fast Track Court No. 3, Jaunpur before whom Sessions Trial No. 68 of 2008 and 336 of 2008 were made over for the trial of the accused-appellants, on the basis of the material on record and after hearing the prosecution as well as accused on the point of the charge, framed charge under Section 20 of the NDPS Act against both the accused-appellants while a separate charge under Section 25 of the Arms Act was framed against the accused appellant Mohd. Idrish. Both the accused abjured the charge and claimed trial.

5. The prosecution in order to prove its case examined PW1 S.I. Param Hans Tiwari and PW2 Hari Nath Tripathi, Investigating Officer of the case. The prosecution also adduced documentary evidence comprising of recovery memo Ext. Ka1, Chek FIR Ext. Ka2, Carbon copy of the GD entry Ext. Ka3, Site plan of the incident Ext. Ka4, copy of the receipt issued by forensic lab, Ramnagar, Varanasi of receiving the sample Ext. Ka5, charge sheet under Section 20 of the NDPS Act Ext. Ka6, report of the forensic lab Ext. Ka7, permission obtained for prosecuting the appellant Mohd. Idrish under Section 25 of the Arms Act Ext. Ka8, charge sheet submitted against the appellant Mohd. Idrish under Section 25 of the Arms Act Ext. Ka9.

6. Both the accused in their statements recorded under Section 313 Cr.P.C., denied the prosecution case and alleged false implication, they denied that they were involved in any business of illegal drug trafficking. Learned Additional Sessions Judge/Fast Track Court No. 3, Jaunpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record convicted both the appellants under Section 20 of the NDPS Act and appellant Mohd. Idrish under Section 25 of the Arms Act and awarded aforesaid sentences to them.

7. Sri Sangam Lal Kesarwani, Amicus-curiae appearing on behalf of the appellants has submitted that the FIR in this case is clearly ante-timed. The prosecution has miserably failed to prove by any cogent and reliable evidence that any recovery of country made loaded pistol from Mohd. Idrish appellant no. 1 or contraband articles was made from the jeep in which the appellants were allegedly traveling at the time, place and manner as spelt out in the recovery memo and the chek FIR. He further submitted that since the alleged search and recovery of contraband articles was made by the police patrolling party from a jeep which is covered by the definition of conveyance as defined in Section 2 (b) (viii) of the NDPS Act in the exercise of his power under proviso of Sub-Section 1 of Section 42 of the NDPS Act on previous information, after sunset without obtaining any search warrant he was bound to comply with the mandatory requirement of Sub-Section 2 of Section 42 of the NDPS Act. There is no evidence on record proving that Sub-Section 2 of Section 42 of the NDPS act was complied by the searching officer and hence the conviction of the appellants recorded by the Trial Court on the basis of the search and recovery made by the police party which is vitiated on account of complete non compliance of Sub-Section 2 of Section 42 of the NDPS Act cannot be sustained and is liable to be set aside. He also submitted that since it is the admitted case of the prosecution that out of 19 bundles of ganja which were allegedly recovered from the appellants' jeep, samples were drawn only from bundle no. 1 and bundle no. 19, no samples having been drawn from the remaining 17 bundles there cannot be any presumption that those bundles also contained ganja on the basis of the chemical analyst's report of the samples drawn from bundle nos. 1 and 19 which weighed 10 kg 35 gm and 10 kg 500 gm. He also submitted that there is no compliance of Section 57 of the NDPS Act which has further vitiated the appellants' conviction. He lastly submitted that such being the state of evidence neither recorded conviction of the appellants nor sentence awarded to them can be sustained and are liable to be set aside.

8. Per contra Sri Saghir Ahmad, learned AGA has made his submissions in support of the impugned judgment and order and submitted that there was full compliance of all the mandatory provisions of the Act. The prosecution has succeeded in proving by cogent evidence that the recovery, arrest and seizure had taken in the manner and at the time and place as spelt out in the FIR and there is nothing on record indicating that either the FIR or the recovery memo are ante-timed. The appeal lacks merit and is liable to be dismissed.

9. The first ground on which Sri Sangam Lal Kesarwani, learned Amicus-curiae has castigated the prosecution story is that the recovery memo Ext.Ka1 and the chek FIR Ext.Ka2 in this case are both ante-timed documents. Record shows that although in the recovery memo Ext.Ka1 no time of search of the appellants' vehicle and recovery of contraband articles from specially designed secret cavity in their jeep has been mentioned in the same but in the chek FIR Ext.Ka2 and the G.D. entry Ext.Ka3 the time of occurrence has been mentioned as 21:30 hours. PW1 Param Hans Tiwari, the officer in whose presence the contraband articles were allegedly recovered from the appellants' jeep has although in his examination-in-chief on page 18 of the paper book has deposed that the search of the jeep and recovery of the contraband articles was made by him at 21:30 hours but he in his cross-examination on page 22 of the paper book has categorically deposed that he had left the police station after 12 in the midnight and he did not remember the exact time of his departure from the police station. The G.D. entry regarding his departure from the police station has not been brought on record. Although PW1 in his cross-examination on page 27 of the paper book tried to salvage the situation by deposing that he had returned to the police station at about 12:15 hours and then got the case registered against the accused-appellants but strangely the G.D. entry of his arrival at the police station with the accused and the seized contraband articles has also not been filed. The aforesaid fact has been admitted by PW1 Param Hans Tiwari on page 27 of the paper book in his cross-examination. Contable Tanveer Ahmad who had prepared the chek FIR Ext.Ka2 and Constable Ram Ashish Yadav who had made the necessary GD entry Ext.Ka3 who would have been the best witnesses to prove that the FIR in this case was registered at the time mentioned in the chek FIR and the G.D. entry Ext.Ka3 at 00:15 hours on 19.12.2007 were not produced by the prosecution during the trial thus depriving the defence of it's right to cross-examine them on the aforesaid aspect of the matter.

10. Thus upon a critical scrutiny of the evidence of PW1 Param Hans Tiwari and the other documentary evidence on record and considering the fact that two material witnesses Constable Tanveer Ahmad and Constable Ram Ashish Yadav who had prepared the chek FIR Ext.Ka2 and the G.D. entry Ext.Ka3 were withheld by the prosecution during the trial and relevant G.D. entries were suppressed deliberately, I have no option but to hold that the prosecution has failed to prove by any cogent and reliable evidence that the FIR in this case was lodged at the time mentioned in the chek FIR Ext. Ka2 and the G.D. entry Ext. Ka3 and the same appear to be ante-timed.

11. Since the FIR in this case has been held by me to be ante-timed, it logically follows that the entire prosecution story as set up by the prosecution in the recovery memo and the chek FIR that the appellants were apprehended by PW1 Param Hans Tiwari and the members of the police patrolling party after intercepting their jeep on receiving secret information that the appellants were carrying illicit ganja in their jeep bearing Registration No. UP52G 1527 had searched their jeep and both the appellants at 9:30pm on 18.12.2007 and the search of the jeep had led to recovery of 19 bundles of ganja from the specially designed secret cavity in the jeep and that of appellant no. 1 Mohd. Idrish to recovery of one country made pistol becomes doubtful and untrustworthy in the absence of any corroboration by any other evidence.

12. Learned Amicus-curiae has next contended that the Sub-Section 1 of Section 42 of the NDPS Act provides that where an authorized/empowered officer has reason to believe from personal knowledge or information given by any person and taken down in writing that narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or any other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place may between sunrise and sunset enter into and search any such building, conveyance or place. He next submitted that the proviso of Sub-Section 1 of Section 42 of the NDPS Act stipulates that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. He next submitted that Sub-Section 2 of Section 42 of the NDPS Act further provides that where an officer takes down any information in writing under Sub-Section 1 or records grounds for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior. But since in the present case PW1 Param Hans Tiwari had searched the appellants' vehicle which is covered by the definition of conveyance as provided under Section 2 (b) (viii) of the NDPS Act, after sunset without any search warrant on information given to him by the police informer that illicit ganja was being carried by the appellants in their jeep, he was under a mandatory obligation to have taken down the information received by him from the police informer regarding carrying of illicit ganja by the appellants in their jeep in writing and since he had intercepted the appellants' vehicle and searched the same without any search warrant after sunset, to have recorded grounds for his belief under the first proviso to Sub-Section 1 of the Section 42 of the NDPS Act and to have forwarded a copy thereof to his immediate official superior within 72 hours. Since there is no evidence on record proving that PW1 Param Hans Tiwari had complied with the mandatory requirements of Sub-Sections 1 and 2 of Section 42 of the NDPS Act, the recorded conviction of the appellants based on such tainted recovery of alleged contraband articles from them cannot be sustained.

13. After very carefully scanning the evidence of PW1 Param Hans Tiwari, I find that PW1 has merely deposed that he had given information about the recovery, arrest and seizure of contraband articles to his superior officers without disclosing any date and time. Apart from the aforesaid vague statement made by PW1 Param Hans Tiwari in his statement there is no evidence on record showing that PW1 had either taken down in writing the information received by him under Sub-Section 1 of Section 42 of the NDPS Act or recorded grounds for his belief under proviso (1) of Sub-Section 1 of Section 42 of the NDPS Act or he had send a copy thereof to his immediate official superior within 72 hours.

14. Sub-Sections (1) and (2) of Section 42 are mandatory and are not directory. Once there is no compliance of these mandatory provisions, the appellants are entitled to acquittal. In this regard, Sri Sangam Lan Kesarwani, Amicus-curiae appearing on behalf of the appellant has relied upon the judgment of the Apex Court in the case of Rajinder Singh Vs. State of Haryana 2011 8 SCC 130 and the Constitution Bench judgment in the case of Karnail Singh Vs. State of Haryana 2009 8 SCC 539. The issue whether the provisions of Sub-Sections (1) and (2) of Section 42 are mandatory or directory is no longer res-integra. The controversy has been set to raise and answered by a Constitution Bench Judgment of the Apex Court in the case of Karnail Singh (supra). In that judgment the Court in a very opening paragraph noticed that in the the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat 2000 (2) SCC 513, a three Judge Bench of the Apex Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate officer superior may cause prejudice to the accused. However, in the case of Sajan Abraham (supra), again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But, if there is a delay, whether it was undue or weather the same was explained or not, will be a question of fact in each case. The Court in paragraph 35 of the judgment held as under :

35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations,the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non- sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received,or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.

Following the above judgment, a Bench of this Court in the case of Rajinder Singh (supra) took the view that total non-compliance of the provisions of sub-Sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with a satisfactory explanation for delay can, however, be countenanced.

15. Coming back to the facts of the present case, I have already noticed that from the evidence of PW1 it is proved that in this case there was no compliance of the provisions of Sub-Sections (1) and (2) of Section 42 of the NDPS Act. While dealing with the similar issue the Apex Court in paragraph 16 of its judgment Kishan Chand Vs. State of Haryana (2013) 2 SCC 502 has held as here under :

16. Reverting to the facts of the present case, we have already noticed that both the Trial Court and the High Court have proceeded on the basis of substantial compliance and there being no prejudice to the accused, though clearly recording that it was an admitted case of total non-compliance. The statement of PW7 puts the matter beyond ambiguity that there was ''total non-compliance of the statutory provisions of Section 42 of the Act'. Once, there is total non-compliance and these provisions being mandatory in nature, the prosecution case must fail.

Reliance placed by the learned counsel appearing for the State on the case of Sajan Abraham (supra) is entirely misplaced, firstly in view of the Constitution Bench judgment of this Court in the case of Karnail Singh (supra). Secondly, in that case the Court was also dealing with the application of the provisions of Section 57 of the Act which are worded differently and have different requirements, as opposed to Sections 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to ''pre-search'. The question of sending it immediately thereafter does not arise in the present case, as it is an admitted position that there is total non-compliance of Section 42 of the Act. The sending of report as required under Section 57 of the Act on 20th July, 2000 will be no compliance, factually and/or in the eyes of law to the provisions of Section 42 of the Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Sections 42, 50 and 57 of the Act. They are neither inter-linked nor inter-dependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases.

16. There has been a total non compliance of Sub-Sections (1) and (2) of Section 42 of the NDPS Act in this case which are mandatory in nature.

17. Further there is no evidence on record proving that PW1 Param Hans Tiwari after arresting the accused-appellants and seizing contraband articles from their vehicle within 48 hours next after such arrest or seizure had made a full report of all the particulars of such arrest or seizure to his immediate official superior as required by Section 57 of the NDPS Act. Although the recovery memo Ext. Ka1 contains a recital that PW1 had informed his immediate superior officers about the arrest of the appellants and seizure of the contraband articles from their jeep on phone but no evidence was led during the trial by the prosecution for proving the aforesaid fact.

18. Another very interesting aspect of the case is that the appellants have been convicted in this case for having committed an offence under Section 20 of the NDPS Act involving commercial quantity. The prosecution case is that 19 bundles allegedly containing ganja, each weighing above 10 kg were recovered from the specifically designed secret cavity in the appellants' jeep but admittedly samples were drawn only from bundle no.1 and bundle no.19 and sent for chemical examination and according to the chemical examiner's report Ext.Ka7, samples were found to contain ganja. No samples having been drawn from bundle nos. 2 to 18 it cannot be held on the basis of the chemical examiner's report pertaining to the samples drawn from bundle no.1 and bundle no.19 that the substanace packed in bundle nos. 2to18 was also ganja. The total weight of bundle no.1 and bundle no.19 together with the weight of the packing material is about 20 kg 535 gm which is slightly above the commercial quantity of ganja as specified by the Central Government by notification in the official gazette, which is above 20 kg. Since there is no evidence proving that the remaining 17 bundles also contained ganja, the appellants cannot be fastened with the guilt of having been found in possession of 190 kg illicit ganja. At the most it can be held that the appellants were found to be in possession of about 20 kg and 535 gm illicit ganja which is slightly above the commercial quantity. Since the aforesaid weight includes the weight of the packing material also it is doubtful whether the offence, if any, committed by the appellants under Section 20 of the NDPS Act involves commercial quantity.

19. Thus in view of the foregoing discussion, I find that the FIR in this case is ante-timed. The prosecution has failed to prove by any reliable evidence that the arrest, recovery and seizure were made in the manner narrated in the recovery memo Ext. Ka1. It is further proved that there was no compliance of Sub-Sections 1 and 2 of Section 42 as well as Section 57 of the NDPS Act by the searching officer and hence the conviction of the appellants recorded on the basis of alleged recovery of contraband articles which is vitiated by total non compliance of Sub-Sections 1 and 2 of Section 42 of the NDPS Act cannot be sustained and is liable to be set aside.

20. Accordingly this appeal succeeds and is allowed.

21. The impugned judgment and order dated 15.9.2008 passed by Additional Sessions Judge/FTC Court No. 3, Jaunpur is hereby set aside. The appellants are acquitted of all the charges framed against them. The appellants are reported to be in jail since 19.12.2007. They shall be released forthwith unless they are wanted in some other criminal case subject to their complying with Section 437-A Cr.P.C.

22. There shall be however no order as to costs.

Order Date :- 14.6.2017/SA