Arvind Dubey vs State Of U.P.
2017 Latest Caselaw 6880 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 26.10.2017
 
Delivered on 15.11.2017
 
Court No. - 13
 

 
Case :- JAIL APPEAL No. - 4577 of 2014
 

 
Appellant :- Arvind Dubey
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Sameer Jain
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. This jail appeal has been preferred against the judgment and order dated 29.09.2014, passed by the Additional Sessions Judge, Court No.4, District Maharajganj in S.S.T. No.17 of 2005 (State Vs. Arvind Dubey) arising out of Case Crime No.155 of 2005, whereby the accused-appellant has been awarded punishment under Section 8/20/23 of NDPS Act, P.S. Parsamalik, District Maharajgang of three and half years' R.I., fine of Rs.10,000/- and in default of payment of fine two months' additional imprisonment.

2. The facts in brief of this case are as follows:

3. The first informant S.O., Bachchoolal Chaudhary, Officer-in-Charge, P.S. Parsamalik alongwith his teammates Sri Mahendra Kumar (PW-1) and Constable Sri Dinesh Chandra Yadav (PW-2) were busy in maintenance of law and order duty on 22.04.2005. When they reached near Tiraha Parsa Tola, they found accused coming from the way which led to Nepal. When they signalled him to stop, he accelerated his motorcycle, but the police party arrested him at 13:30 hours about 50 steps away from that Tiraha. When enquired, he disclosed his name to be Arvind Dubey. He was searched on the spot and was found in possession of a countrymade pistol of .315 bore and a live cartridge of .315 bore. When he was asked about the substance which was kept in dicky of his motorcycle (UP 56 A/6539, Chesis No.DMFBKJ 85028 and Engine No.DMMBKJ 86359), he told that it was Charas. In compliance with the provisions of Section 50 of NDPS Act, he was apprised that the search of Charas/his motorcycle could be made before a Magistrate/Gazetted Officer, if he so wanted, but stated that since he had already been caught, hence the police party could take his search and gave written consent in this regard which is Ex. Ka-1. The recovery memo was prepared on the spot and after the search being made, 500 grams of Nepali Charas, packed in polythene, wrapped in two packets, kept in dicky of the motorcycle was recovered. Thereafter the accused was apprised that he had committed an offence punishable under Section 3/25 of Arms Act and 8/20/23 of NDPS Act and was taken into custody. A sample of 50 grams of Charas, recovered from him was taken and was packed in a plastic and was separately sealed; sample of seal was taken. The remaining contraband (Charas) contained in two plastic bags was kept in plastic and was packed in a cloth separately and sealed properly. The sample of seal was also prepared. Because the place of occurrence was a lonely place, no public witness could be found. The recovery memo was signed by all the police officials and the signature of the accused was also obtained thereon. A copy of the said recovery memo (Ex. Ka-2) was provided to the accused.

4. Thereafter the accused alongwith the recovered contraband was taken to the Police Station Parsamalik where the Case Crime No.155 of 2005, under Section 8/20/23 of NDPS Act was registered against him by Harisharan Tiwari (PW-4) who prepared the Chick FIR (Ex. Ka-3).

5. The recovered contraband was got deposited in Malkhana. The investigation of this case was handed over to S.I., Sri Bipin Bihari Singh (PW-5), who after inspecting the place of occurrence, prepared the site plan at the instance of PW-3 which is Ex. Ka-4. The docket of the said sample of the recovered contraband was sent to Forensic Science Laboratory for being tested, report of which was received on 14.05.2005 by PW-5. It was found in this report that the said contraband was Charas. After having recorded entire evidence, PW-5 submitted charge-sheet (Ex. Ka-6) against the accused under Section 8/20/23 of NDPS Act.

6. The accused was subjected to trial after framing of charge under Section 8/20/23 of NDPS Act on 27.07.2016 to which he pleaded not guilty.

7. Thereafter the prosecution examined Constable Mahendra Kumar as PW-1; Constable Dinesh Chandra Yadav as PW-2; S.O. Bachchoolal Chaudhary as PW-3 who were witnesses of fact. Thereafter statement of Head Constable Harisharan Tiwari (PW-4) and retired S.I. Vipin Bihari Singh (PW-5, I.O.) were also recorded.

8. Besides above, the prosecution produced following documentary evidence: The consent memo of the accused for being searched by police is Ex. Ka-1; recovery memo of 500 grams of Charas is Ex. Ka-2; the Chick FIR is Ex. Ka-3; the site plan is Ex. Ka-4; the Forensic Science Laboratory report is Ex. Ka-5 and the charge-sheet is Ex. Ka-6. The recovered contraband from the accused in plastic bag is material Ex.-2.

9. After conclusion of the evidence of the prosecution the statement of accused under Section 313 Cr.P.C. was recorded, in which he took the defence of false implication, however he did not produce any evidence in defence.

10. Learned counsel for the appellant Sri Sameer Jain, amicus curiae has argued that learned court below has convicted the appellant without taking into consideration the following points:-

(a) That there was no link evidence to prove that the contraband recovered from the accused was deposited in Malkhana. In support of this, he has relied upon State of Rajasthan Vs. Gurmail Singh, 2005 (1) JIC 844 (SC). He has also drawn attention of the Court towards statement of PW-4 at page 34 in which in the examination-in-chief the said witness has stated that two packets of Charas weighing 500 grams connected with this offence and one katta were shown by him to SHO and after its being weighed, it was found 500 grams of Charas, which was deposited in Malkhana. Pointing out towards his above statement it is mentioned that the prosecution did not produce the Register of Malkhana to prove that the recovered Charas was deposited in Malkhana and that it was kept in safe custody. Due to lack of this evidence, it cannot be held that the alleged recovered Charas was deposited in Malkhana and its benefit will go to the accused.

(b) That the recovery was being alleged to have been made on 22.04.2005, while the sample for being tested by the Forensic Science Laboratory was sent on 06.05.2005 i.e. after two weeks' delay. In this regard reliance is placed upon State of Rajasthan Vs. Tara Singh, 2011 (11) SCC 559 and it is argued that in view of such huge delay it would be taken that there was enough chance of the said contraband being tampered.

(c) At the time of recovery, the accused was driving motorcycle, from the dicky of which, it is alleged that the said contraband was recovered, but even then the said motorcycle was not seized which was mandatory under law because the said motorcycle was used in concealment of the contraband. It was also not investigated as to whom the said motorcycle belonged. Due to this, the recovery of the contraband may not be attributed to the accused, as no conscious possession thereof can be attributed to him.

(d) That there was cutting/overwriting on the date in recovery memo in respect of the date "22.04.2005". Specific question was asked from PW-5 as to who made cutting/overwriting, but it has not been clarified by him and this would lead to the whole incident/occurrence being doubtful.

(e) The plea taken by the appellant that the procedure provided under Section 50 of the NDPS Act was also not followed by the prosecution, has been discarded by the learned court below holding that the same would not be applicable in the present case becuase the recovery was not made from the person of the accused rather the same was made from the dicky of the Motor-cycle being driven by the accused-appellant.

11. In rebuttal the learned AGA has admitted that there is no evidence on record to show as to when the recovered contraband was deposited in Malkhana. He also admitted that there was no seizure memo prepared of the motorcycle which is alleged by prosecution to have been used by the accused in carrying the contraband recovered. But it is vehemently argued that the prosecution has proved its case to the hilt by examining three witnesses of fact who had proved the recovery of the said contraband from the motorcycle of the accused in his presence and that the court below has found the charges under Section 8/20/23 of NDPS Act rightly proved.

12. At the very outset, it would be pertinent to mention that the NDPS Act has been eancated to consolidate and amend the laws relating to norcotic drugs, to make stringent provisions for the control and regulations and operations relating to norcotic drugs and psychotropic substances. The Hon'ble Supreme Court in a large number of cases has had an occasion to consider the provisions of the NDPS Act and has noted that the object of the NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to innocent persons and to avoid abuse of provisions by the officers certain safeguards are provided which need be observed strictly. The Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 has made following observations in paragraph 15:-

"15......The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial."

13. Similarly, in another judgment namely Saiyad Mohd. Saiyad Umar Saiyad Vs. State of Gujrat (1995) 3 SCC 610, the Hon'ble Supreme Court has made following observations in paragraph 6 of the judgment:-

"6. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which May extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily". Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the Legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate."

14. In view of above position of law it is clear that once the prosecution becomes successful in establishing, on the basis of evidence on record, that the contraband was found from the possession of the accused, onus will shift to the accused, in view of the provisions mentioned under Section 35 read with Section 54 of the NDPS Act which are as follows.

Section 35- Presumption of culpable mental state.-

"1. In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation.- In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.

2. For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."

Section 54- Presumption from possession of illicit articles- 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-

"(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) 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

(d) 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."

15. Therefore, it shall be heaviest duty on the part of the prosecution to produce beyond shadow of doubt that the contraband was recovered from possession of the accused-appellant and for that it shall certainly be required that the provisions legislated to prove recovery from the accused-appellant under the Act in Chapter V under Sections 41 to to 68 are strictly followed/complied with. It would be pertinent to reproduce hear relevant Sections so as to know as to what procedure was required by the prosecution to prove recovery of contraband from the appellant.

Section 41- Power to issue warrant and authorisation-

"1. A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any 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 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.

2. Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence 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 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 place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

3. The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42."

Section 42- Power of entry, search, seizure and arrest without warrant or authorisation.-

"1. Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any 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 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

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that if such officer has reason to believe that a search warrant or authorisation 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.

2. 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 seventy-two hours send a copy thereof to his immediate official superior."

Section 43- Power of seizure and arrest in public place. Any officer of any of the departments mentioned in section 42 may-

"(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or 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;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation- For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public."

Section 50- "Conditions under which search of persons shall be conducted.-

1. When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

2. If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

3. The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

4. No female shall be searched by anyone excepting a female.

5. When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

6. After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

16. Besides above provisions the most authoritative decision of the Hon'ble Supreme Court in regard to interpretation of these Sections has been made in the State of Punjab Vs. Baldev Singh (1999) 6 SCC 172, in paragraph 24, 25 following is held:-

"24. It would, thus, be seen that none of the decisions of the Supreme Court after Balbir Singh's case have departed from that opinion. At least none has been brought to our notice. There is, thus, unanimity of judicial pronouncement to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a gazetted officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a gazetted officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad.

25. To be searched before a gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted officer, at the time ofthe intended search. Courts have to be satisfied at the trial of the case about due compliance with requirements provided in Section 50. No presumption under Section 54 of NDPS Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with."

17. In the light of above cited law this Court would like to take up the point, as to whether the finding of the learned court below as regards non compliance of Section 50 was correct or erroneous. The learned court below has recorded in paragraph 24 of the judgment is as follows:-

"24. It is settled law which is very much clear from the due and respectful perusal of the aforesaid case-laws of the Hon'ble Supreme Court that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. Which [the accused] may be carrying. In the present case, the Section 50 of NDPS Act can have no application on the facts and circumstances of the present case as charas was allegedly recovered from the bag which was being carried by the accused."

18. The point as to whether Section 50 would apply in the present case or not will depend on the facts of the present case, hence, the relevant facts need to be taken into consideration. The prosecution case is that when the police patrolling party was busy in law and order duty they came across the accused-appellant at 13.30 hours who was going on a motor-cycle. When signalled to stop, instead of slowing down the vehicle he accellarated the same but was over-powered by the police. Personal search was conducted by the police party held by S.O. Bachchulal Chaudhary Officer-in-charge P.S. Parsamalik and a country made pistol of .315 bore and a live cartridge of .315 bore were recovered from him but when he was asked as to what substance was kept in dicky of his motor-cycle, he told the police party that it was charas. Thereafter, the police, in compliance with Section provision 50 of NDPS Act apprised him of his legal right that search of charas/his motro-cycle could be taken before a Magistrate or Gazetted Officer, if he so desired. But the accused declined to go to either Magistrate or Gazetted Officer and consented to be searched by police party itself which has been obtained in writing (Exhibit ka-1). Pursuant to the consent search was made of motor-cycle, and about 500 grams of charas was recovered by police packed in a polythene of which he could not show license to possess. In above set of facts the question arises as to whether recovery of alleged charas from the dicky of motor-cycle driven by the accused-appellant would be treated to be personal search or not because for application of the provisions of Section 50 of the NDPS Act, the search should be made of a person and not of his separate box, bag etc., being carried by him.

19. In view of law laid down in State of Rajasthan Vs. Parmanand and another, (2014) 5 SCC 345, in case personal search of accused is made simaltaneously with that of any baggage such as box, bag etc., being carried by him then even if no contraband is recovered from his person but the same is recovered from such bag or baggage being carried by him, the provisions of Section 50 shall apply. In the above case law, the Hon'ble Supreme Court has held in paragraph 15 of the judgmet as below:-

"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."

20. In the present case, the facts are little different. The personal search of the accused-appellant had already been made by the police party and thereafter, when it inquired as to what was kept in motor-cycle, the appellant told them that charas was kept therein in the dicky of motor-cycle and thereafter, according to prosecution after applying provisions of Section 50 of NDPS Act by apprising him of his right to be searched in presence of a Magistrate or a Gazetted Officer and upon his declining the search to be made in presence of any such officer & giving consent for search to be made by police party itself, search was made and the said contraband was recovered. These facts indicate that the recovery of contraband was not made at the time of his personal search, rather the same was recoverd after he told the police party that he had kept charas in dicky of the motor-cycle. In view of these facts, the above law laid down in Parmanand (Supra) will not be applicable. Hence in view of this Court, there was no violation of provision of Section 50 of NDPS Act as the recovery was made from the dicky of the motorcycle and not from the person of the accused. Hence, there is no infirmity found in the judgment of lower court in this regard.

21. The next, court would like to also see whether the provisions of Section 41, 42 and 43 of the NDPS Act would apply in the present set of facts.

22. It is apparent that the contraband (charas) is being alleged to have been recovered all of a sudden as there was no prior information that the appellant was carrying the same. In this regard it would be pertinent to refer to the position of law laid down in Babubhai Odhavij Patel and others Vs. State of Gujrat (2005) 8 SCC 725. In this case, the Hon'ble Supreme Court has held as below in paragraph 5 of the Judgment:-

"5. The counsel for the appellant further contended that the search was conducted at 5.30 A.M., that is, before sunrise and the PSI should have obtained a warrant or authorization for conducting the search of the vehicle. This plea also is without any merit. The contraband substance, namely the opium, was recovered from the tanker when the usual search of suspected vehicles carrying such contraband was being conducted by the police officials. The police party had no previous information that any contraband substance was being concealed in any building, conveyance or enclosed space and they have to conduct a search pursuant to such information. Then only they would require a warrant or authorization as contemplated under Section 42 of the NDPS Act. If it is a chance recovery, the procedure contemplated under Section 42 cannot be complied with and the evidence of PW-2 would clearly show that it was a chance recovery."

23. Keeping in view the above position of law that in a sudden recovery of contraband substance, the provision of Section 42 of NDPS Act is not applicable, in the case at hand, it is clear that the contraband substance was recovered when the police party was on their usual duty of maintenance of law and order when all of a sudden they came across the accused and recovered this contraband substance.

24. This court, on its own, as the learned counsel for the appellant has not raised this point, would like to take up the issue as to whether the prosecution has been able to prove beyond reasonalbe doubt that the alleged contraband substance was recovered(500 grams charas) from the appellant or not.

25. In this regard, it pertinent to mention hear that in recovery memo (Exhibit-ka-2) it is recorded that when the appellant was asked as to what was kept in the dicky of the motor-cycle, the appellant admitted his guilt by the saying that Nepali charas was kept therein. When the said dicky was searched, two packets of Nepali charas weighing about 500 grams were recovered. From the said recovered charas about 50 grams quantiy was taken out by way of sample in a separate plastic and was sealed. The reamining charas was sealed in the same plastic packet in which it was found and was sealed separately and separate sample of seals were prepared. It is not recorded in this recovery memo as to how the said recovered contraband substance was taken to have weighed 500 grams when there is no entry made in the recovery memo that the same was weighed by any of the police personnel who was included in the search party. The only evidence on record with regard to weighing this contraband substance is found in the statement made by PW-4, who has stated that when the alleged contraband substance was brought to the police station, the same was weighed in sealed condition. It is beyond comprehesion as to how the quantity/weight of the said contraband substance was recorded in recovery memo to be 500 grams even before the same was weighed on the spot.

26. It would be pertinent to refer to provisions of law in this regard. The Norcotic Control Bureau, New Delhi by issuing standing Instructions No. I/88 has laid down the standards of 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 standardise the procedure with regard to drawing forwarding and testing of samples. The relevant portions of the said instructions are being reporduced herein below:-

1.5.- Place and time of drawal 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 norcotic 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 homogenous 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 subsistances and 20 or more in case of Ganja and Hasish, one more sample in duplicate may be drawn for such remainder package/containers.

(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 shold 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 S.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."

27. 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."

28. The position of law described above makes it abunduntly clear that normally when the contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law unless there is no facility for weighing articles or other requisite facilities are lacking. In such situation, 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.

29. In the case it hand, no reason has been brought on record neither in recovery memo nor in the statement of prosecution witnesses that there was no facility available of weighing the contraband substance recovered from the accused. Therefore, in what circumstances it was assumed that the said recovered contraband substance weighed 500 grams gives rise to suspicion to the recovery of said substance. No proper steps were taken for establishing recovery of the said contraband from the accused. In recovery memo there is no mention made as to how the same was found to be 500 grams and how 50 grams was out of it and weighed.

30. Next consideration the court would like to make is whether the prosecution has been able to prove that the alleged contraband which was recovered from the accused and the sample taken out of it were kept in safe custody ensuring that there was no possibility of their being tampered. In this regard it would be pertinent to mention hear that in the recovery memo (Exhibit Ka-1) nothing has been recorded as to whose seal was affixed on the contraband at the time of its being sealed and also whose seal was affixed on the sample taken out of it when the same was sealed. All that the recovery memo contains is that the police party reached the Police Station along with recovered articles and got the case registered against the accused. Neither anywhere it has been recorded nor shown by the prosecution that the said recovered contraband and its sample were separately sealed and the seals by which they were sealed, all this was kept at some safe place when they reached the police station. PW-1 has not stated in his examination-in-chief as to whose seal was affixed on the sealed items. Similarly, PW-2 has also not given any statement as to where the said contraband was placed after returning to police station in sealed condition. Similarly, PW-3 who is also a witness of fact has not given any statement as to where the said articles were deposited. The Investigating Officer (PW-5) has stated that after getting the docket of recovered contraband sample prepared, the same was sent for being tested to the Forensic Science Lab. It was incumbent upon the prosecuton to prove and bring evidence on record as to where the recovered contraband, its sample and the seals by which they were separately sealed, were kept. Whether, the said place where these items were kept was a safe place where no tampering could be possible.

31. The report of Forensic Science Lab(Exhibit-Ka-5) contains that the sealed baggage covered with cloth was received by them on 6.5.2005 containing suspected charas of quantity (50 grams) which was found to be charas after being tested. Whose seal was affixed on it is not clear from perusal of Exhibit-ka-5. No endorsement is made in this report stating that the sample seal was compared with the seal which was found affixed on this packet and the same was found to be un-tampered/unbroken. There is no sufficient evidence on record adduced by the prosecution in this regard. There is lack of evidence on record to prove that the seal which was affixed on the sample taken out of recovered contraband was matched by the Forensic Science Lab with the sample of seal sent with it at the time when the sample of contraband was received by it for being tested. Similarly, whose seal was found affixed on the remaining quantity of contraband substance, when produced before the court & whether the same matched with the sample of seal affixed at the time of recovery, has not come on record. It was primary duty of the prosecution to bring unimpeachable evidence in this regard on record which is not the case hear. The enitre testimony of the witnesses of facts has been gone through but it is not found that any of the witnesses stated before the court that the seal with whcih the recovered contraband was sealed on the spot was placed before them in court at the time of their statements being recorded and the same was matched with the seal which was affixed on the recovered contraband. This is a huge lacuna left by prosecution in this case. It leads to suspicion that any such recovery has made from the accused.

32. The AGA has relied upon Hardip Singh Vs. State of Rajasthan, 2008 (8) SCC 557 in which it has been held that delay in sending samples of seized opium to Forensic Science Lab has been of no consequence for the fact that the recovery of the said sample from the possession of the appellant stood proved and established by cogent and reliable evidence led in the trial. PW-5 categorically stated and asserted about recovery of opium from possession of the appellant which fact was also coroborated by Higher Officer, namely Deputy Superintendent of Police who was also examined at length during the trial. The said recovery was effected in the presence of Deputy Superintendent of Police, the Senior Police Officer, who also put his seal on the said parcels of opium. Besides, it had also come on evidence that till the date the parcels of samples were received by chemichal examiner, the seal put on the said parcels remained intact. That itself proved and established that there was no tampering with the aforesaid seal on the sample at any stage and the sample received by the analyst for chemichal examination contained the same opium which was recovered from the possession of the appellant. In that view of the matter, delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant.

33. The other case was relied upon by the learned AGA is Krishna Kanwar (Smt.) @ Thakura Deen Vs. State of Rajasthan, (2004) 2 SCC 608, in which in paragraphs 26 & 27 it is held that the quantity recovered, by no stretch of the imagination, was small. Nothing could be shown as to how there was violation of Section 57 of NDPS Act. The safe custody of seized articles and samples had been established by cogent evidence. The Forensic Science Lab report showed that the samples were received in sealed condition with seals and tags intact. That being so, there is no infraction as alleged. Further when the factual possession is tested on the legal principles idicated above, the inevitable conclusion was that prosecution had established its case beyond a shadow of doubt and the conviction and sentence imposed were well merited.

34. Both the above ruling will not help prosecution in this case because in both of them seal was found intact but in case at hand, as disclosed above the prosecution has failed to establish whose seals were used, nor such seals were produced before court at the time of recording evidence of witnesses.

35. This Court has to take into consideration the other points raised by the learned counsel for the appellant one by one in the light of the evidence recorded by the court below.

36. The point, (a) & (b) are being taken up together. The point no. (a) relates to the fact that no link evidence is found on record, that the alleged contraband was deposited in Malkhana. While point no. (b) relates to the fact of delay in sending sample of recovered contraband to Forensic Science Laboratory. In recovery memo (Ex. Ka-2), it is recorded that when the dicky of motorcycle was opened by the accused, two packets of Nepali Charas were found kept in it which weighed approximately 500 grams, to possess which he did not have any licence. From both the packets approximately 50 grams of Charas was taken out by way of sample and packed in plastic separately and sealed separately for being tested and rest quantity of Charas was left in the same plastic in which it was found, and it was wrapped in separate cloth and was sealed properly and sample of seal was also prepared. The said motorcycle was also taken into custody by the police. Recovery memo was prepared on the spot and its copy was provided to the accused. PW-1, Constable Sri Mahendra Kumar has not stated anything in his examination-in-chief whether the said contraband was deposited in the Malkhana or not. In the cross-examination, this witness has stated that he does not recollect that after arrest of the accused with alleged contraband was sealed and recovery memo prepared, whether they had gone to police station or had gone to their area; but he did mention that they had returned to the police station the same day; but he does not recollect the time nor could he say whether it was day or night. PW-2, Constable Dinesh Chandra Yadav has also not stated in examination-in-chief that the said contraband was deposited in Malkhana when they reached police station. PW-3, S.I. Sri Bachchoo Lal Chaudhari also did not state anything regarding deposit of the recovered contraband. PW-4, Sri Harisharan Tiwari has stated in examination-in-chief that the recovered Charas was deposited in Malkhana, but has not mentioned the specific date when the same was deposited there. Nothing has been stated by the Investigating Officer about the said Charas being deposited in Malkhana. Prosecution did not prove by showing any entry made in Malkhana register that the alleged recovered contraband was kept in Malkhana in sealed condition, which was very essential to remove doubts that there could be any tampering with it.

37. Learned counsel for the appellant has placed reliance upon State of Rajasthan Vs. Gurmail Singh, 2005 (1) JIC 844 (SC), in which paragraph 3 is held as follows:

"3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the Malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent alongwith the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent."

38. In view of above, it is apparent that the prosecution has not led any evidence in the case at hand as to where the recovered contraband was kept after its possession was taken by the police party. The sample taken out of it is also said to be separately sealed but where the said separately sealed sample of contraband was kept, before its being sent to Forensic Science Laboratory, has also not been made clear.

39. The next point raised by the learned counsel for the appellant relates to delay in sending the sample of recovered contraband to the Forensic Science Laboratory and due to that, according to him, the accused would get benefit of this delay. The prosecution has failed to clarify as to where the said sample of contraband was stored between 22.04.2005 to 06.05.2005 (when the said sample was received in Forensic Science Laboratory). In this regard reliance has been placed by him upon State of Rajasthan Vs. Tara Singh 2011 (11) SCC 559, in which the Hon'ble Supreme Court has held in paragraphs 5 & 6 as below:

"5. We find, however, that the second aspect on which the High Court has opined calls for no interference. As per the prosecution story the samples had been removed from the malkhana on 26-2-1998, and should have been received in the laboratory the very next day. The High Court has, accordingly observed that the prosecution had not been able to show as to in whose possession the samples had remained from 26-2-1998 to 9-3-1998. The High Court has also disbelieved the evidence of PW 6 and PW 9, the former being the Malkhana Incharge and the latter being the constable, who had taken the samples to the laboratory, to the effect that the samples had been taken out on 9-3-1998 and not on 26-2-1998. The Court has also found that in the absence of any reliable evidence with regard to the authenticity of the letter dated 26-2-1998 it had to be found that the samples had remained in some unknown custody from 26-2-1998 to 9-3-1998.

6. We must emphasise that in a prosecution relating to the Act the question as to how and where the samples had been stored or as to when they had been dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. The High Court was, therefore, in our view, fully justified in holding that the sanctity of the samples had been compromised which cast a doubt on the prosecution story. We, accordingly, feel that the judgment of the High Court on the second aspect calls for no interference. The appeal is, accordingly, dismissed. The respondent is on bail. His bail bonds stand discharged."

40. From the above citation, it is evident that because it could not be clarified by the prosecution as to in whose possession the sample remained from 26.02.1998 to 09.03.1998. the benefit was given to the accused of this delay by holding that in absence of any reliable evidence with regard to the authenticity of the letter dated 26.02.1998, it was found that the sample had remained in some unknown custody between aforesaid period and the acquittal order of the accused was passed in that case.

41. In the case at hand it is evident that where the sample of contraband was kept between 22.04.2005 to 06.05.2005, (date when it was received in Forensic Science Laboratory), has not been clarified by the prosecution by adducing any evidence, hence its benefit would go to the accused.

42. The next most important point raised by the learned counsel for the appellant is that the contraband is being stated to have been recovered from the motorcycle which was not owned by the accused nor the same was seized by the police, as no seizure memo is found on record and yet the prosecution has attributed possession of the said contraband to the accused. It is further argued that it was bounden duty of the prosecution to seize the said motorcycle by preparing a seizure memo which was allegedly being used for concealment of contraband (Charas), as the same was being driven by the accused. It was required by the prosecution to prove that the said contraband (Charas) was in conscious possession of the accused, to appreciate this argument it would be pertinent to refer to Section 60 of NDPS Act which is as follows:

"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.-

(1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation.

(2) Any narcotic drug or psychotropic substance or controlled substances lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance or controlled substances which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance or controlled substances, materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.

(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance, or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use."

43. It is evident from the above proviso that it was necessary for the prosecution to seize the motorcycle allegedly being driven by the accused and should have been presented before the Court while the evidence was being recorded, to prove the recovery of the alleged contraband from the custody of the accused. It would be further better if the prosecution had taken evidence on record as to who was the owner of the said vehicle and whether the accused was consciously carrying Charas in its dicky while driving the same. Learned counsel for the appellant has drawn attention of the Court towards statements of Investigating Officer (PW-5) in which he has stated that the number of motorcycle is UP 56 A/6539, Chesis No.DMFBKJ 85028 and Engine No.DMMBKJ 86359. He does not know whom this motorcycle belongs. During the investigation he did not try to find out as to who was its actual owner and whether the said motorcycle was stolen or looted because he had not received any information in that regard.

44. The above statement of the Investigating Officer shows absolute carelessness in conducting the investigation of this case to prove the recovery from the accused of the alleged contraband from the motorcycle being driven by him. It was essential for the police to seize the said motorcycle because the same was being used, as per prosecution, for commission of the said offence, under Section 60 of NDPS Act, which has been quoted above. The only evidence on record in this regard is the statement of PW-3 who in cross-examination has stated that the accused had apprised him that the said motorcycle belonged to him. The said statement was not enough to prove that it was owned by him. If the motorcycle belonged to the accused, the police ought to have collected its registration certificate and other necessary documents to establish that the said motorcycle belonged to him. Therefore, the benefit of this lack of collecting evidence and not seizing the motorcycle would go to the accused.

45. Next learned counsel for the appellant he has relied upon the State of Orissa Vs. Sitansu Shekhar Kanungo, 2003 (1) JIC 329 (SC), in paragraph 4 of which the Hon'ble Supreme Court has held as follows:

"4. The learned advocate appearing in support of the appeal, however rather confidently stated that since the provisions of Section 57 of NDPS Act are now settled to be only directory and not mandatory in nature, the question of non-production of the malkhana register though vital, but the success of a case does not and cannot depend upon it. It may be a mere irregularity but cannot go to the root of the prosecution which make the prosecution vulnerable. At the first blush, the arguments seem to be rather convincing but on a closure scrutiny, however, it lost its efficacy by reason of the fact of there being no factual support therefor. The High Court has dealt with the matter purely on the factual score and concluded adversely by reason of non-production of malkhana register coupled with other set of facts, as argued before the High Court. The doubt which sprang up as regards the seizure lists, admittedly cannot be brushed aside. The seizure lists ought to have been prepared before the lodgement of the FIR and as such question of mention of the FIR No. in the seizure lists would not arise at all. But in the contextual facts the indication of the case number in the seizure lists has resulted in the submission of the learned Advocate for the defence before the High Court as also before this Court that this extra noting on the seizure lists cannot but be ascribed to be a manipulation in the document which is not permissible under the law. The High Court though not placed much reliance apparently thereon but obviously the same had its due impact and effect on the Court since in the last paragraph, the High Court did speak of "other factors highlighted coupled with the non-production of malkhana register that have given fatality to the prosecution case'. This observation of the High Court by itself connotes that the High Court has taken note of it with due particulars and it is on the issue of facts that the High Court felt that there would be justice trampled if an order is passed in favour of the prosecution."

46. From above view of the Hon'ble Supreme Court, it transpires that though non-production of Malkhana Register cannot be the sole ground for passing the acquittal order, but the said fact coupled with other evidence on record, may impact adversely the prosecution's case, in case necessary steps are not taken by the prosecution in proving the case against the accused to the hilt.

47. It may also be mentioned here that it could be possible that the accused drove the said motorcycle without having any knowledge that the same contained any contraband/Charas in its dicky. Had the same been owned by him or there would be some link that some person had directed him to reach the said contraband to a particular place, he could very easily be imputed its knowledge, but the evidence to that offences has not come on record. It need not be stated that stricter the punishment, higher the burden of prosecution to prove the case against the accused beyond any shadow of doubt.

48. In view of above infirmities found in the impugned judgment, it is held that the learned court below has not been able to appreciate evidence on record in proper perspective in the light of the latest position of law and according to this Court's view, the prosecution has failed to prove its case beyond reasonable doubt that the accused was found in possession of 500 grams of illegal charas, of which he could not show the license.

49. The appeal is liable to be allowed and is, accordingly, allowed. The judgment and order dated 29.09.2014 of learned court below is set-aside. Accused is held not guilty and is acquitted of the charges levelled against him.

50. Let the accused be released forthwith in this case, if not wanted in any other case.

51. The case property shall be disposed of in accordance with law after the period of appeal expires or if law permits otherwise.

Order Date :- 15.11.2017

Shahroz/Anand