Munna vs State Of U.P.
2017 Latest Caselaw 1396 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 332 of 1996
 
Appellant :- Munna
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sanjiv Ratan,Begam S.Kamal,Km. Ainakashi Sharma,R.S. Komal,Rajarshi Gupta Amicus Cur,Shweta Pandey Amicus Curi
 
Counsel for Respondent :- A.G.A.,Sanjai Kumar Singh,Surya Prakash Kesarwani
 
......................
 
Hon'ble Bala Krishna Narayana, J.

Hon'ble Arvind Kumar Mishra-I, J.

(Delivered by Honble Bala Krishna Narayana, J)

1. Present appeal is preferred against the judgment and order dated 14.2.1996 passed by Sri S.K. Ratoori Ist Additional District Judge, Siddharthnagar convicting the sole appellant Munna under Section 20 (B) (2) and Section 23 of Narcotic Drugs and Psychotropic Substance Act (in short N.D.P.S.) Act sentencing him to 15 years' rigorous imprisonment and a fine of Rs. 1,00,000/- and further in default of payment of fine rigorous imprisonment for 2 years.

2. This criminal appeal was allowed by another Division Bench of this Court vide judgement and order dated 19.7.2002. The aforesaid judgement and order was challenged by Union of India before the Apex Court in Criminal Appeal No. 956 of 2004; Union of India Versus Munna and another (arising out of S. L. P. (Crl) No. 4126 of 2003), which was allowed by the Apex Court vide judgement and order dated 27.8.2004 and the Apex Court remitted the matter back to this Court for fresh adjudication with the following directions:

"We find that the High Court has not analysed the evidence in it proper perspective and has acted on surmises and conjectures. It has also acted on irrelevant materials leaving out of consideration relevant matters. The fact that there was admission of the accused before the Custom authorities has not been dealt with by the High Court. Such admission is not hit by either Section 25 or Section 26 of Indian Evidence Act, 1872 (in short the 'Evidence Act'). The effect of such admission was a relevant factor. Additionally, the effect of Section 54 which raises presumption from possession has not been considered and on the contrary, burden has been placed on the prosecution and it has been held that prosecution was to establish that the possession was conscious. The effect of the evidence relating to dispatch of information to the superior authorities has also not been considered.

In view of the unsatisfactory analysis of evidence and erroneous approach to the statutory prescriptions, we consider it to be a fit case which needs to be adjudicated afresh by the High Court. We remit the matter to the High Court for fresh adjudication in accordance with law taking into account the evidence on record and applicable provisions of the governing statute."

3. In brief, the case of the prosecution is that on 17.10.1994 at about 6.30 P.M. Inspector Custom Sri B.K. Srivastava, Incharge Custom Station Khunwa, District Siddharthnagar, received an information that a person carrying Charas from Nepal shall be passing through Kakrahwa check point. Consequently Sri B.K. Singh P.W.1, complainant, summoned two independent witness and took position near the barrier to apprehend the culprit. At about 7.00 P.M. jeep No. 5560 was seen coming from Nepal side and when it reached near the barrier the Custom Officer stopped the Jeep for its checking. Accused appellant who was the sole occupant of the Jeep stopped the vehicle immediately. The Custom Officer in presence of the witnesses told the accused that search of his person and the Jeep is to be taken because there is information that charas is concealed in a cavity in his Jeep. He was also informed that if he so desires he could be taken before a Gazetted Officer for the search. At this the accused said that the Officer may himself search him and there was no necessity to take him before any Gazetted Officer. The Officer along with witnesses on inspection of the Jeep were satisfied that the Jeep contained a cavity. Subsequently, the Jeep along with the accused was brought to the custom office and in the presence of witnesses the cursory search of the Jeep resulted in the discovery of a cavity and in which charas was cleverly concealed, became evident by its smell. The Officer immediately sent Sepoy Sri Saghir Ahmad to Badhni with a request that superintendent custom Badhni may come immediately for the search of seized jeep which had a cavity in which charas was concealed. The Superintendent came from Badhni early in the morning at 7 A. M. next day and in his presence the search of the Jeep was conducted and charas weighing 100 kg., of the value of Rs. 10,00,000/- was recovered from the cavity. Samples were taken out, sealed in separate packets which contained signatures of the accused, witnesses and the officer and the remaining charas was duly sealed. Since recovery of charas was in violation of Section 8 of N. D. P. S. Act and the Jeep containing the charas was also seized.

4. Memos of the said recovery, interrogation and seizures were prepared at the spot which were signed by the accused, witnesses and the custom officer.

5. The case was investigated by P. W. 4 Mantra Prasad who after completing the investigation filed a complaint being Criminal Case No. 68 of 1994 Union of India through Mantra Prasad, Inspector Custom Khunwa, Siddharth Nagar against the appellant.

6. According to the complaint, statement of the accused recorded by him and the superintendent are voluntary statements and are not hit by section 25 and 26 of the Evidence Act and are clearly admissible in evidence.

7. In his voluntary statements recorded on 17/18.10.1994 and 10.10.1994 the accused clearly admitted the time, place and mode of recovery of the seized charas which was cleverly concealed in the Jeep driven by him. The statements are Exts. Ka 2 and Ka 5 on the record.

8. After being satisfied the Custom Officer duly arrested the accused on 18.10.1994 and produced him before the competent court. Throughout the night he was kept at the custom office. One of the packet of the sealed sample of this charas was sent to chemical examiner for analysis and a report from the chemical examiner was received along with the envelope in which the sample was sent to him. The report and the envelope were attached with the complaint and are Exts. Ka 3 and Ka 4. They are proved by P. W. 1. The report clearly establishes that the article recovered from the possession of the accused was charas.

9. The prosecution in court has examined P. W.1 Sri B. K. Srivastava Inspector, Custom Station Khunwa, P. W. 2 Mahendra Singh is Custom Superintendent Badhni who had come to the scene of occurrence on the next day to supervise the recovery. P. W.3 Sita Ram alias Laddu is the witness of recovery and P.W.4 complainant Mantra Prasad is the Inspector Custom Khunwa. He was authorised by an order dated 10.11.1994 by his superior officer to conduct the investigation in the case and prosecute the accused.

10. The learned trial court after considering the submissions advanced before it by learned counsel for the parties and scrutinizing the evidence on record convicted the appellant and awareded the aforesaid sentences to him.

11. Hence, this appeal.

12. We have heard Ms. Shweta Pandey, Advocate amicus curiae appearing for the sole appellant and Sri S. K. Singh learned Counsel appearing for Union of India as well as Sri J. K. Upadhyay, learned A. G. A. assisted by Smt. Manju Thakur, State Law Officer appearing for the State.

13. Ms. Shweta Pandey, learned amicus curiae submitted that it is proved from the facts and circumstances of the case and evidence on record that the accused was not in conscious possession of the contraband concealed in the vehicle which was handed over to him by its owner for taking two persons from Lucknow to Kathmandu and bringing them back and hence presumption under Section 54 of the N. D. P. S. Act was not attracted. She further submitted that the search and recovery of the contraband articles allegedly recovered from the specially designed cavity hidden in the vehicle which was driven by the appellant, it seizure and the arrest of the appellant was made clearly in violation of the provisions of Section 42 of the N. D. P. S. Act and the conviction of the appellant recorded by the trial court on the basis of such vitiated recovery and seizure cannot be sustained and is liable to be set aside. She also submitted that the failure of the sole independent witness of the search, recovery, seizure and arrest to support the prosecution case during trial as spelt out in the recovery memo (Ext. Ka 1), creates doubt about its truthfulness and trustworthiness. She has lastly submitted that there was no compliance with the provisions of Section 57 of the N. D. P. S. Act.

14. Per contra, Sri Sanjay Kumar Singh, learned counsel appearing for the Union of India has submitted that the presumption under Section 54 of the N. D. P. S. Act was clearly attracted to the facts and circumstances of the present case. The search, recovery and seizure of the contraband articles and the arrest of the accused-appellant stood fully proved from the evidence of P. W. 1 and P. W. 2 and the failure of the independent witness of the search and recovery of the contraband articles from the vehicle allegedly driven by the accused-appellant to support the prosecution case during the trial would not in any manner adversely affect the veracity of the prosecution case. There was full compliance with the provisions of Sections 42 and 57 of the N. D. P. S. Act , hence, this appeal lacks merit and is liable to be dismissed.

15. We have carefully examined the statement of P. W.1 who in his evidence in Court has stated that on 17.10.1994 at 6.30 P.M. he received information that a Jeep was going to pass through the Khunwa check post and in that Jeep there is a cavity and in that cavity charas is concealed. The sole occupant of the Jeep was the present appellant and after having come to know that there is a cavity and there was possibility of charas being concealed in the jeep P.W.1 informed the appellant that he wanted to search the vehicle and if the appellant so desires he could be produced before a Gazetted Officer for the search of his person and his vehicle. The accused told P.W.1 that he may himself search him and there was no necessity of taking him to any Gazetted Officer. The said vehicle was brought to custom office and an information was sent to the custom superintendent who came there in the morning of 18.10.1994 at about 7.00 a. m. When the superintendent of custom arrived there in his presence and in the presence of said Sita Ram alias Laddu and Juggan, the search was made and contraband article and the jeep were seized by P.W.1. Recovery memo (Ext. Ka 1) was prepared. He took the signatures of Juggan and Sita Ram on it and since the appellant could not sign, his thumb impression was obtained. The Charas which was duly seized, weighed about 100 Kg and was valued at Rs. 10,00,000/-. The charas was kept in the cavity in 2 bags. 4 samples were drawn and duly sealed in separate packets. Signatures of the accused and the witnesses were taken on these samples. One sample of charas was sent to chemical examiner for analysis and the report of the chemical examiner was received. The report of the chemical examiner is Ext. Ka.4 on the record. It was proved by P.W.1 B.K. Srivastava. In his complaint P.W.1 has said that the recovered article was clandestinely smuggled from Nepal to India. He has not deposed in court as to how it could be presumed that the appellant was possessing any conscious knowledge of the charas being kept in the cavity of the jeep. He recorded the statement of the appellant on 17/18.10.1994, which is Ext. Ka 2. The appellant has stated that he did not know anything regarding the charas. On 13.10.1994 when he met the owner of the vehicle, he introduced the appellant to two persons and told him that he had to take them to Kathmandu. On 16.10.1994 the persons whom the appellant had taken to Kathmandu stayed there in a Hotel and disappeared with the jeep and when they returned in the night they told the appellant that they had to go back to Lucknow. He drove the jeep for Lucknow. They accompanied him upto Buthwal and at Buthwal both said that they will stay at Buthwal and he had to take the vehicle to its owner, Mr. Shiv Prasad. The owner of the vehicle had employed the appellant just 15 days before the incident on a monthly salary of Rs. 1500/-. He owns a wood shop at Lucknow. The appellant in Ext. Ka.2 had stated that he did not know anything about the cavity in the jeep and the article kept in its cavity.

16. It is pertinent to mention here that the facts that Shiv Prasad was the owner and that two persons who were alleged to be the acquaintance of Shiv Prasad were never interrogated by the Custom's Investigating Officer. P.W.1 never cared to enquire about the veracity and truthfulness of the statement of the appellant recorded by him, which is Ext. Ka.2. P.W.1 started preparation of the recovery memo on 17.10.1994 but it was completed on 18.10.1994. On 17.10.1994 he had not taken the signatures of any of the witnesses or the accused, when he concluded the recovery on 18.10.1994 the signatures of the witnesses, accused and the superintendent of custom were taken on the recovery memo. He did not remember how much of this statement was recorded by him on 17.10.1994 and what was recorded on 18.10.1994. This clearly means that no proceedings were conducted on 17.10.1994. Evidence regarding 17.10.1994 to this end is perse false. It has also come in his statement that when the jeep was intercepted the appellant immediately stopped it. He did not make any attempt whatsoever to flee from the spot. He extended full co-operation. The accused was kept in the custody by P.W.1 from 17.10.1994 to 18.10.1994. He has further admitted in the statement that he received the information at about 6.30 P.M. on 17.10.1994. This information was recorded by him, but in court he did not produce its record. According to him it was not noted in any register. No such register is maintained. He further admitted that the said information which he had reduced in writing was kept by himself and its copy was never sent to any higher official. Whatever information he had sent to senior officer he never got any information about its receipt from the higher authorities. He further stated that it was dispatched by post but no evidence of its dispatch was produced in court. The contents of such information was neither proved nor even disclosed by this witness in court in his evidence even.

17. The case was investigated by Mr. Mantra Prasad who was appointed by the Assistant Collector, Gorakhpur to investigate the case. It was admitted by him that he had detained the accused for more than 24 hours, but when in cross examination it was put to him that how he came to know about the participation of the appellant in the above noted case, he said that since the accused was the driver of the vehicle which was having a cavity so on that basis he drew the conclusion that the appellant had knowledge about the Charas being kept in concealment in the vehicle. He further said that the driver was having Rs. 150/- in his pocket. In his cross examination he has admitted that one of the witness, Sita Ram alias Laddu appeared as witnesses of the department as in few other cases also. They were made the witnesses of recovery. The presumption, therefore, follows that they are not independent. Juggan was not produced in court and no reason for withholding the said witness was given by P.W.4. P.W.3 Sita Ram has a tea shop in the vicinity. Tea was supplied by him to the department.

18. P. W. 2 Mahendra Singh was the Custom Superintendent, Basti posted at Badhni. He after having received information from one constable Saheed reached the custom office on 18.10.1994 at about 7.00 a.m. He stated that cavity of the jeep was opened in his presence and from this cavity Charas was recovered. Four samples were drawn and kept in separate sealed covers and on every sample signature of the appellant was also taken. He has further stated that the statement of the accused was recorded. It was not written by him but was written by wireless operator Khunwa on his dictation. On this statement signature of accused Munna was obtained. In his cross examination P.W.2 has admitted that Saheed Sepoy had reported to him orally. He has further stated that the seized charas is not before the court when his statement was being recorded. The specimen was also not placed before the Court. He has not disclosed any reason as to why the statement of the accused was not recorded by him in his own hand writing and why no such endorsement was made over it. A suggestion was given to him by learned counsel for the defence that the appellant driver was illiterate and he had taken advantage of his illiteracy in implicating him in this case. P.W.3 Sita Ram alias Laddu is admittedly a pocket witness of the custom authorities as has been admitted by P.W.1. His testimony cannot be relied upon so far as the recovery and interception of the jeep is concerned. He has admitted that by the side of the custom office he runs a tea shop. He used to supply tea to the officers there. On the date of incident he was provided food by the custom officer. He further stated that no charas was taken out from the cavity on 17.10.1994. Cavity was opened and again bolted. He stated in his cross examination that he does not know anything about statement of accused being recorded by the superintendent, but he had admitted that the recovery memo was signed by him. This witness being pocket witness of the custom officer having deposed in many cases as a recovery witness for the custom department and the fact that he owns a tea shop and the tea shop is situated near the custom office and that he used to supply tea to custom officials as well renders this witness's testimony highly unreliable. He was offered food by the customs authority and was kept in confinement there from 17th evening to 18th till recovery was made. So far as his evidence is concerned, no confidence can be placed on his testimony and was rightly disbelieved by the Trial Judge. He is not in any sense an independent witness. He was actually under the direct influence of customs authorities and since his earning of his bread was dependent on this department he is fully amenable to their presence.

19. The last witness examined by the prosecution is P.W.4 Mantra Prasad, Inspector custom, Khunwa. He stated that on 11.11.1994 he was handed over the investigation. He started the investigation on 12.11.1994. He had recorded the statement of P. W.1 and prepared the site-plan. He proved it as Ext. Ka.6. On 15.11.1994 he had recorded the statement of P.W.3 Sita Ram alias Laddu and statement of Juggan who was not produced in court. On 2.12.1994 he recorded the statement of Custom Superintendent Mahendra Singh and has also recorded the statement of Saghir Ahmad. He also recorded the statement of accused while he was in custody on 19.11.1994. After he concluded the investigation the complaint was filed in court. In his cross examination P.W.4 has admitted the most crucial thing that during investigation he had not seen the recovered article that is charas. He further admitted that when he was making the statement in court the seized article is not before him. When he was interrogated on the point as to why the statement of superintendent custom was taken so late, he replied no reason for the same was disclosed by him in the C.D. The Investigating Officer has acted in a most cursory, casual and irresponsible manner and the act of the Investigating Officer is deplorable because he did not enquire from P. W.1 B. K. Srivastava as to why he did not prepare any document himself. He did not even examine the said jeep which was carrying the recovered contraband. He did not verify the documents of the vehicle. He did not even care to know as to how much fuel was in the tank of the vehicle. He did not initiate any action against the owner of the jeep. He made no attempt to verify about the period the employment of the appellant and the veracity of the facts deposed by him in his statement. His failure to do so would certainly have bearing upon the conviction of the appellant.

20. After a careful examination of the statements adduced by the prosecution in court it has become clear that so far as the participation of the accused in the offence is concerned P. W.1 has admitted himself that since he was the sole occupant of the jeep in question, therefore, he was convinced regarding his active participation in the above noted case. This fact is to be examined as has rightly been pointed out by the learned amicus curiae that the prosecution has to prove the conscious possession of the recovered contraband against the appellant either by cogent direct evidence or by circumstantial evidence. In the present case the prosecution has not examined the owner of the vehicle although his address was given to the prosecution by the appellant.

21. We next proceed to examine the evidence on record in the light of the observations made by the Apex Court in its judgement and order dated 27.8.2004 while remitting the matter back to this court with the object of ascertaining whether the accused-appellant had made any admission before the custom authorities that he was aware about the fact that illicit charas had been concealed in the specially designed secret cavity in the jeep which was being driven by him and whether such admission is hit by Section 25 or 26 of the Indian Evidence Act and whether the effect of such admission was a relevant factor and also the effect of Section 54 of N. D. P. S. Act which raises presumption from possession.

22. The record of this appeal shows that the statement of the appellant was recorded under Section 101 of the Customs Act on 18.10.1994 and the same is on record as Ext. Ka 2. The appellant Munna in his statement, which was recorded in question answer form, has after disclosing his name and address stated that the jeep bearing registration No. U. T. D. 5560 was stopped and searched by the custom officers on 17.10.1994 at about 19.00 hours which led to recovery of 'charas' (Nepali) from specially designed cavity in the jeep. On being quizzed by the custom officer with regard to the identity of the persons to whom the charas belonged, he expressed his ignorance and stated that he was required to deliver the car to its owner Shiv Prasad, S/o Sri Chhotey Lal at Charbagh, Lucknow who was the registered owner of the vehicle and who worked in a wood shop at Naka Hindola, Lucknow. He further disclosed that he had been working as driver for the last 14-15 days preceding the incident on a salary of Rs. 1500/- per month and before leaving for Kathmandu, he was paid a sum of Rs. 200/- as an advance with the promise that the remaining amount shall be paid to him on his return. When the custom officers inquired from the accused about the place and the identity of the persons who had given him 'charas', he replied that the owner of the jeep called him on 13.10.1994 and told him that he had to take two persons to Kathmandu. He had left for Kathmandu on the same day and reached Kathmandu-via-Kakrahwa border on 14.10.1994 at about 9.00 P. M., where the aforesaid two persons, whose names he did not know, had stayed in a hotel. Next day they had borrowed the vehicle from him and gone somewhere and had returned on 16.10.1994 in the night and instructed him that they would leave for Lucknow next morning. On 17.10.1994 they left for Lucknow but for some reason they stopped at Buthwal and got down from the vehicle and asked him to hand over the vehicle to its owner. They did not disclose their names. However, he would be able to identify them in case, they were brought before him. On the question being asked by the custom officer whether he was aware about of the fact that there was charas in his vehicle, he categorically denied that he was having any knowledge that charas was hidden in his vehicle. He further stated that he came to know about the charas in his vehicle only after the same was recovered on his vehicle being searched by the custom officers.

23. Thus, we do not find that the appellant in his statement recorded under Section 101 of the Customs Act, made any admission that he was aware or conscious of the fact that any charas had been hidden in the specially designed cavity in the vehicle which admittedly did not belong to the appellant. We do not find anything in his statement which may even remotely suggest that the appellant was conscious about charas being hidden in his vehicle.

24. The Investigating Officer has also not cared to enquire about those two persons who had accompanied the appellant from Nepal to Buthwal and were entrusted to him by the owner of the seized vehicle. Failure of the Investigating Officer to interrogate the owner of the jeep in this connection further strengthens the presumption favourable to the appellant. Presence of a cavity in the jeep strongly establishes the complicity of the owner in the transport of the contraband narcotic substances to India from Nepal. It astonishes us as to why this simple equation did not occur to the customs official who investigated this case. It clearly shows that the custom officials were also hand in glove with these transporters of narcotic substances. This appellant probably was used as an scapegoat for allowing a much larger consignment to pass through easily from the above check post immediately afterwards.

25. The second statement of the accused-appellant was recorded on 19.11.1994 by P. W. 4 Mantra Prasad after the appellant had been arrested on 18.10.1994. Since the second statement of the accused-appellant was recorded while he was in police custody and not in the immediate presence of the magistrate, confession or admission regarding his guilt, if any, made by him in his second statement is clearly hit by Section 25 of the Evidence Act and Section 26 of the Evidence Act is not attracted to facts and circumstances of the present case.

26. It is true that Section 54 of the N. D. P. S. Act stipulates that in trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance; any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily for the purpose of presumption. However, in the present case after very carefully appraising the facts and circumstances of the present case and evidence on record, we find that the accused-appellant had satisfactorily accounted for the presence of 100 kg. Charas recovered from the specially designed secret cavity in the jeep which was being driven by the accused-appellant at the time of it being intercepted and searched by the custom officers, owner whereof was one Shiv Prasad who had employed accused-appellant as his driver and had handed over the vehicle in question to him with clear instructions to take two persons, whose identities were never disclosed by Shiv Prasad to the appellant from Lucknow to Kathmandu and then bring them back from Kathmandu to Lucknow. The prosecution having failed to prove by any cogent and reliable evidence that it was within his knowledge that 100 kg. of charas was concealed in the specially designed secret cavity in the vehicle in question, it cannot be legally presumed that the appellant had committed any offence under the N. D. P. S. Act. Learned amicus curiae in this regard placed reliance on the decision reported in ACC 2000 Page 710 Karnail Singh Vs. State of Rajasthan. In para 11 of the said judgment the Apex Court has held that it is mandatory on the part of the prosecution to prove that accused was transporting the contraband with conscious mind and full knowledge. All ingredients of the offence for which he was convicted and sentenced were to be proved by the prosecution to the satisfaction of the Court.

27. In the present case failure to investigate the case against the owner of the vehicle further worsens the prosecution case. No explanation was tendered by the prosecution as to why the information on which the appellant was arrested was not forwarded to the higher authorities further damages its case beyond repair.

28. Learned amicus curiae has further placed reliance on the judgment of the Apex Court reported in S.C.C. (Criminal) 2000, Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat. The Apex Court has laid the emphasis on the compliance of requirements under Section 42 of N. D. P. S. Act. It requires the officer making the recovery to take down in writing the information received and send a copy thereof to the immediate official superior to him. Non-compliance will affect the veracity of the prosecution case, because it is difficult to place any reliance on any unrecorded information merely on the basis of the statement of the witness. It would become suspect and will cause prejudice to the accused, it would further ipso facto vitiate the trial. The Apex Court in Rajendra Singh Versus State of Haryana; 2011 (8) SCC 130 and in Karnail Singh Versus State of Haryana; 2009 (8) SCC 539 (Constitutional Bench) has taken a view that sub-sections (i) and (ii) of Section 42 are mandatory and are not directory and once there is no compliance of these mandatory provisions, the appellants are entitled to acquittal. In the instant case, the information received by P.W.4 was not recorded by him. The driver of the vehicle had admitted that two persons had accompanied him upto Buthwal and was asked by them to hand over the vehicle to the owner at Lucknow and none of these unknown persons who would throw proper light on the conveyance of the narcotic substance and bolstered the prosecution case against the appellant inspite of the name of the owner of the vehicle and his address of the shop being given by the accused why was the owner not interrogated by the prosecution is baffling us. In the absence of this we find it difficult to fasten the knowledge of the cavity and the concealment of the charas therein upon this appellant. His statements Exts. Ka.2 and Ka.5 both prove his lack of any such knowledge.

29. Learned amicus curiae on the basis of the above facts has also placed reliance on the judgment of the Apex Court in Gurbux Singh Vs. State of Haryana reported in 2000 Cr.L.J. (Page 1166). The Apex Court has held that failure of the Investigating Officer in making full report of all particulars to his immediate superior and to comply the provisions of Section 57 of the N. D. P. S. Act is a serious infirmity. In the present case, no such compliance of Section 57 of the N. D. P. S. Act and Section 42 (1) (ii), 35 and 20 (b) (ii) has been made by the prosecution. The only so called independent witness P. W.3 is a pocket witness and he is only witness of search and seizure made by the prosecution produced inspires no confidence in the testimony of P. Ws. 1, 2 and 4 nor it furnishes any corroboration to their evidence.

30. In view of the foregoing discussion we find that the prosecution has failed to prove its case against the accused-appellant beyond all reasonable doubts.

31. Consequently, the appeal succeeds and is allowed. The appellant is acquitted of all the charges. The judgement and order dated 14.02.1996 passed by the learned Ist Addl. Sessions Judge, Siddharth Nagar in S. T. No. 88 of 1994 is hereby set aside. This appellant is in jail. He shall be set at liberty forthwith, unless he is wanted in some other case subject to his complying with the requirements of Section 437 A Cr. P. C.

32. A copy of this judgement shall be sent to the Trial Court for passing necessary orders in this regard.

Order Date: 30.5.2017.

HR