Kamlesh Kumar Yadav vs State Of U.P.
2017 Latest Caselaw 7448 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 01.11.2017
 
Delivered on 30.11.2017
 
Court No. - 13
 
Case :- CRIMINAL APPEAL No. - 3976 of 2014
 
Appellant :- Kamlesh Kumar Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- B.G.Singh,Brij Raj Singh
 
Counsel for Respondent :- Govt. Advocate
 
With
 
Case :- CRIMINAL APPEAL No. - 3958 of 2014
 
Appellant :- Shan Mohammad & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vinay Saran,Brij Gopal Singh,Brij Raj Singh,Prabhakar Vardhan
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Dinesh Kumar Singh-I,J.

1. Criminal Appeal No.3976 of 2014 has been preferred by the accused-appellant Kamlesh Kumar Yadav against the judgment and order dated 22.09.2014, passed by Additional District & Sessions Judge, Court No.3, Kushinagar, Padrauna in S.S.T. No.38 of 2012 (State of UP Vs. Kamlesh Kumar Yadav & others) whereby he has been convicted and sentenced to undergo 15 years' R.I., fine of Rs.1,50,000/- and in default of payment of fine further to undergo one year's additional imprisonment under Section 21(ii)(C) of NDPS Act and the other Criminal Appeal No.3958 of 2014 has been filed by the accused-appellants Shan Mohammad and Anwar Husain against the judgment and order dated 22.09.2014, passed by Additional Sessions Judge, Court No.3, Kushinagar, Padrauna in S.S.T. No.38 of 2014 whereby they have been convicted and sentenced under Section 21(ii)(C) of NDPS Act to undergo 15 years' R.I. each, fine of Rs.1,50,000/- each and in default of payment of fine both have to undergo one year's additional imprisonment each.

2. Since both the above appeals arise out of common judgment, they are being taken up together.

3. In brief the facts of the case are as follows:

4. On 16.05.2012 the police party comprising SO, Pawan Kumar Singh (PW-1) alongwith Constable Rajesh Singh Yadav (PW-5) and other co-police personnel were present in Kasba Salemgarh (small town) and were performing their patrolling duty. Sri Pawan Kumar Singh received an information through informer that a maruti car of grey colour coming from Gorakhpur side would go towards Bihar, in which illegal weapons and substance/articles were being carried, if promptly intercepted, they could be arrested. Believing this information, the police party waited at Police Chauki Bahadurpur for the said vehicle to arrive. After some time one maruti car was noticed coming from Gorakhpur side, seeing which the informer pointed out that the said vehicle was the same vehicle in which illegal articles were kept. Together the entire police party came on the road and tried to stop the vehicle, but the driver instead of slowing down, accelerated the same, but was intercepted at police barrier at small distance from there. When its door was opened it was found that there were three people siting inside. When it was asked from them as to why they were trying to flee, they told that they had illegal smack/heroin in their vehicle because of which they were trying to flee from there. When it came to the knowledge of police party that they had smack, they were told whether they would like to be taken before a Gazetted Officer? They said, yes. Thereafter the Circle Officer was informed by telephone and names of all the three persons were enquired. They disclosed their names as Kamlesh Kumar Yadav son of Sri Krishna Kumar Yadav, Shan Mohammad son of Sri Jameel Ahmad and Anwar Husain son of Sri Abdul Samad respectively and further told that all of them together indulge in smuggling of psychotropic substances and whatever earning they have out of it they share among them. Today also they were going to Bihar with psychotropic substance. Further it was told that their patron was Hafeez Pyarul son of late Badkadeen who is a resident of Barabanki and who makes smack available to them for being taken to the destination and also provides money and for this business he has got maruti car (U.P. 32 B.R.-2365) transferred in the name of accused Kamlesh Kumar Yadav. All three of them do business with the help of this vehicle. Thereafter in the presence of Circle Officer Sri D.K. Singh the police party went towards rear portion of maruti and its dicky was opened. After removing rubber kept there a bag was taken out, in which a brown colour powder was kept in a packet of polythene. All the three confirmed that the same was smack. Thereafter Constable Sri Deepak Kumar was sent to bring weighing machine and after some time when he returned the same was weighed and the total smack was found to be 05kg and 150gm, out of which 50gm was taken out as sample in a separate small polythene and was wrapped in a cloth and was sealed. The remaining 05kg and 100gm smack kept in a polythene packet was wrapped in cloth and was sealed on the spot. All this was done in presence of Circle Officer. When personal search was made of all the three accused, weapons such as 12 bore countrymade pistol, live cartridge, knife etc. were also recovered from them. When they were asked to show the licence to possess the said smack, they were unable to show the same. Thereafter they were apprised that all of them had committed an offence punishable under Section 8/21/27-A of NDPS Act and were being arrested. They were, accordingly, arrested at about 14 hours and after their being taken into custody alongwith the recovered contraband and other illegal weapons, were taken to the police station. A recovery memo (Ex. Ka-1) was prepared on the spot which was read out to them and their signatures were also obtained thereon and a copy each of it was provided to them.

5. Constable Deen Bandhu Tiwari (PW-4) who was posted at P.S. Taraya Sujan, District Kushinagar registered case Case Crime No.289 of 2012, under Section 18/21/27-A of NDPS Act against all the three accused when the S.H.O. Pawan Kumar Singh presented a copy of recovery memo, the recovered contraband substance and maruti car alongwith all the three accused and prepared Chick FIR (Ex. Ka-4). He also made entry of this case at Serial No.21, Time 16:10 hours in G.D. dated 16.05.2012 (Ex. Ka-5). Pursuant to the registration of the case, S.I. Sri Vikas Yadav (PW-3) initiated investigation and at the instance of first informant, Sri Pawan Kumar Singh, inspected the place of occurrence and at his instance prepared the site plan (Ex. Ka-4) [Ex. Ka-4 has been recorded twice, as already Chick FIR has been marked as Ex. Ka-4]. Thereafter the investigation was transferred to other Investigating Officer Sri Sadanand Singh (PW-2), who after conducting further investigation and recording statements of all the relevant witnesses and taking into consideration the reprot of F.S.L. (Paper No.16-Ka) dated 16.06.2012 submitted charge-sheet (Ex. Ka-3) against the accused-appellants.

6. The charge against all the three accused was framed on 19.10.2012 under Section 8/21 of NDPS Act to the effect that on 16.05.2012 at 14 hours, 05kg and 150gm heroin was recovered from all of them within Village Bahadurpur, P.S. Taraya Sujan, District Kushinagar, to possess which they did not have any licence. They pleaded not guilty and claimed to be tried.

7. The prosecution produced witnesses of fact namely, S.I. Sri Pawan Kumar Singh (PW-1), Constable Sri Rajesh Singh Yadav (PW-5) and the formal witnesses namely Constable Sri Deen Bandhu Tiwari (PW-4), first Investigating Officer S.I. Sri Vikas Yadav (PW-3), second Investigating Officer S.H.O. Sri Sadanand Singh (PW-2) and also the documentary evidence namely the arrest memo (Ex. Ka-2); recovery memo (Ex. Ka-1); Chick F.I.R. (Ex. Ka-4); G.D. (Ex. Ka-5); site plan (Ex. Ka-4); F.S.L. Report (Paper No.16 Ka) dated 16.06.2012; certified copy of the Malkhana Register (Paper No.25 Ka-1, 2) and chemical examinatioin memo (Paper No.13 Ka).

8. Thereafter statements of all the three accused were recorded under Section 313 Cr.P.C., wherein they denied veracity of the evidence and took the plea of false implication however, they did not prefer to give any evidence in defence. The accused Shan Mohammad stated that no recovery was made from him nor did he have any knowledge that in the dicky of the said car any psychotropic substance was kept; the accused Kamlesh Kumar Yadav stated that the police had given information on mobile phone regarding the vehicle being taken into possession by police and when he went to the police station he was challaned. The said vehicle was given out on rent; the other accused Anwar Husain stated that no recovery was made from him nor had he any knowledge that any psychotropic substance was kept in the vehicle.

9. After having taken into consideration the entire evidence on record, the court below has found the charges proved against all the three accused.

10. The main arguments which were made by the learned counsel for the appellants before the court below were as follows:-

11. The information about the legal rights of the accused of being searched before a Gazetted Officer or a Magistrate was not given to them by police properly as required under Section 50 of NDPS Act. The recovered contraband substance has been pointed out to be 05kg and 150gm kept in five packets and each packet was reported to be little more than 01kg in weight but it was not proved as to from which packet the sample of 50gm was taken. The prosecution could only disclose anticipated weight, which is improper. Exact weight should have been taken. No public witness was taken. The investigation suffered from infirmity of the departmental bias because the Investigating Officer who was earlier conducting the investigation had only conducted the same for five days and thereafter the investigation was assigned to his subordinate, which is improper. The sample was sent for testing with delay. The cuttings and overwritings at several places rendered the case to be doubtful. The F.S.L.'s report is erroneous. The F.I.R. was anti-timed. The search and seizure are doubtful. The reliance was also placed by the learned counsel for the defence before the court below on Ashfaq Vs. State of U.P., 2008 (2) ACR 1404 (Criminal Appeal No.636 of 1995), concerning their arguments that no independent witness was taken and also on the State of Punjab Vs. Bhola Singh 1999 (1) A.Cr.R. 889 and on the point of departmental bias reliance was placed on the law laid down in Shyam Kumar Vs. State of U.P., 2008 (1) JIC 666 (All).

12. A perusal of the judgment of the court below reflects that because the recovery of the alleged contraband substance was made from the open place from a car in which accused were sitting, the court below held that it could not be disbelieved because such a huge quantity could not have been planted. The plea of departmental bias was also negated. The plea of sending of sample with delay has also been repelled on the ground that the occurrence took place on 16.05.2012 while sample was taken on 22.05.2012 and the report was received from F.S.L. on 23.05.2012 which was within seven days of the date of occurrence, hence the same was not treated to have been sent with delay. Cuttings and overwritings were also not found creating suspicion. It is also held that there was no violation of the provisions of Section 42 of NDPS Act, in view of the law laid down by the Supreme Court in Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, wherein it was held that if any information was given about the accused having contraband substance and there was likelihood of the accused escaping arrest if time was lost in information being sent to the higher authorities in compliance of the provisions under Section 42 of NDPS Act, in such a situation its compliance could be diluted. In view of above position of law the lower court held that in the present case there existed such a situation as mentioned above, hence there was no violation of the said provision. The reliance placed by the learned counsel for the defence on different cases cited above relating to the point of non-procurement of the independent witness and departmental bias have not been found applicable in the facts of the present case. It is held that PW-1 was given information by mukhbir (informer) to the effect that in a car of a grey colour coming from Gorakhpur going towards Bihar bearing Registration No. U.P. 32 B.R.-2365, illegal weapons and articles were being transported, if hurriedly intercepted the same could be arrested and taken into possession. Pursuant to that information heroin was recovered from the dicky of the maruti car which was occupied by all the three accused. Nowhere the accused stated that they had no knowledge about heroin being kept in that car. None of the accused stated that they were sitting in that car having taken lift voluntarily. In such a situation they would be taken to be in conscious possession of the said contraband substance as has been held by the Supreme Court in Surjit Singh Vs. State of Punjab, (2011) AIR-SCW 6621 and Jagdish Rai Vs. State of Punjab (2011) 2 SCC (Cri) 292. It is clear that on the information of informer the said car was intercepted and PW-1 had without any delay called the Circle Officer, D.K. Singh on the spot who was a Gazetted Officer and in his presence the recovery of the contraband substance was made from the dicky of the car. Constable Sri Deepak was sent for obtaining the weighing machine by which it was weighed and the total weight of the smack was found to be 05kg and 150gm, out of which 50gm sample was taken and was kept in a small polythene which was sealed and was sent for testing to F.S.L., report of which is Paper No.16 Ka on the file, according to which the same was found to be heroin and the accused were unable to show the licence/authority to possess the same. Further the court below has observed that the Investigating Officer and other co-witnesses had stated that the recovered contraband substance was kept in five packets, each weighing little more than 01kg. It is noteworthy that the sample was taken from only one packet and no sample was taken from the other four packets, hence it could be held that a little more than 01kg of heroin/smack was recovered from the accused persons which is established beyond doubt. It is further mentioned in the judgment that the commercial quantity of heroin/smack is 250gm and as the quantity recovered from the accused persons was more than 01kg, therefore, the provisions of Sections 35 and 54 of NDPS Act would shift the burden upon the accused to prove as to how the said contraband substance came in their possession. No clear explanation has emanated from the accused as to how the said contraband substance was found in their possession. Therefore, they are guilty of illegal possession of contraband substance. Further it is held by the court below that the provisions of Section 50 of NDPS Act would not be applicable because the said heroin was recovered from dicky of the car and not from their personal search, therefore, all the three accused have been guilty and they have been awarded aforementioned punishment.

13. During the arguments the learned counsel for the appellant-Sri Brij Raj Singh has made arguments on the following points:

(a) The full compliance of Section 50 of NDPS Act has not been made because the accused persons, when they had disclosed that there had heroin in their car, were not apprised of their legal rights that they could be searched in presence of a Magistrate or a Gazetted Officer, if they so desired. Merely, a Circle Officer who is a Gazetted Officer appears to have been called by them, in whose presence the search has been made which is illegal process. Even if it be assumed that they were apprised that only if they opted, they could be searched in presence of a Gazetted Officer, pursuant to which they gave assent, the said Circle Officer was called, the same would not be taken to be complete compliance as it is evident that they were not apprised of their right that they could be searched in presence of a Magistrate as well and in this regard reliance has been placed on the law laid down in C. Ali Vs. State of Kerala, 1999 (7) SCC 88.

(b) Much emphasis has been laid on the point that PW-1 has admitted in statement given before the court below that there were five packets recovered from the dicky of the car which was occupied by the accused persons while the sample was admittedly taken from only one packet and not from others. Even the weight of each packet was not taken which was mandatorily required, hence the recovery should be treated to be doubtful.

(c) The sample of seal by which the sample taken out of the recovered contraband was sealed, was of which person, has not been clarified. The seal found affixed on the sample sent for testing to the F.S.L. bears "V.K....U.P.P." while it is not clear as to who this 'V.K.' is. There is no evidence on record to the effect that when the alleged sample was sealed at the time of recovery of contraband substance from the dicky of the car of the accused persons, the same was sealed by the seal of "V.K....U.P.P.". Therefore, it also creates doubt that whatever contraband substance is being alleged to have been recovered from the dicky of the car of the accused persons, of which sample was taken, the same was sent to the F.S.L., hence the said lab's report should also be taken as doubtful.

14. The attention is drawn towards statement of PW-4 who has stated that before the sample of contraband substance recovered was sent to the F.S.L., the same remained at police station for about two months, then how it could be possible that the report was prepared by F.S.L. within seven days of the receipt of sample of contraband substance. It is also pointed out that this witness has stated that sample of seal was not in the file at the time of recording of his statement nor the entry was made in G.D. of its description.

15. It is also argued that the police party had not taken their own search prior to conducting the search from the dicky of the vehicle, which was necessary to eliminate any chance of false planting.

16. Lastly, learned counsel for the appellants has also relied upon Section 42 of NDPS Act and argued that the provisions of the said section would also be attracted to the present case because the police party had been pre-informed by informer that vehicle would be coming from the side of Gorakhpur and would be going towards Bihar in which the illegal arms and articles were being carried/transported, hence it was mandatory for the prosecution to make compliance of Section 42 of NDPS Act and reliance is placed in this regard upon the law laid down by Supreme Court in State of Rajasthan Vs. Jag Raj Singh @ Hansa, (2016) 11 SCC 687.

17. From the side of the learned AGA it has been argued in rebuttal that the information received by the police party was only related to illegal weapons and articles being carried in the said vehicle and not that any psychotropic substance was being carried in the said vehicle, therefore, the provision of Section 42 of NDPS Act would not stand violated. Secondly it is stated that the police had apprised the accused of their rights to be searched in presence of a Gazetted Officer and pursuant to their assent the Circle Officer, Sri D.K. Singh was called there and in his presence the search was made from the dicky of the car, wherein the accused persons were sitting, hence it cannot be said that the compliance of Section 50 of NDPS Act was not made merely because their right that they could be searched in presence of a Magistrate as well was not apprised to them.

18. It is also argued that once the recovery of contraband substance from the accused persons is established, the burden had shifted upon them under Sections 35 & 54 of NDPS Act to prove as to how the said alleged contraband substance come in their possession. The accused have failed to discharge their burden. There is no infirmity in the judgment of conviction passed by the court below.

19. Before proceeding to analyse impugned judgment in the light of the facts of the case and to see whether any error is committed in appreciation of evidence, law as provided under the Act as well as laid down in various judgments of Supreme Court, needs to be taken into consideration.

20. The NDPS Act was enacted to consolidate and amend the law relating to narcotic drugs to make stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances. The Supreme Court has had occasion to consider the provisions of NDPS Act in a large number of cases and it has been noted therein 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 the provisions by the Officers, certain safeguards are also provided which have to be observed strictly. The Supreme Court in State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299 has made the 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."

21. To the similar effect the Supreme Court in Saiyad Mohd. Saiyad Umar Saiyed Vs. State of Gujrat, (1995) 3 SCC 610 in paragraphs 10 & 11 has made the following observations:

"10. Finding a person to be in possession of articles which are illicit under the provisions of NDPS Act has, as we have said, the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to punishment which can extend to 20 years' rigorous imprisonment and a fine of Rupees two lakhs or more. It is necessary, therefore, that courts dealing with offences under then NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the officer concerned that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. It need hardly be emphasised that the accused must be made aware of this right or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirement and drug-pedlars do not go scot-free due to non-compliance thereof. Such instructions would be of great value in the effort to curb drug trafficking. At the same time, those accused of possessing drugs should, however heinous their offence may appear to be, have the safeguard that the law prescribes.

11. For the reasons aforestated, the conviction of the appellants under the NDPS Act and the sentence imposed upon them for the same must be set aside."

22. It would further be pertinent to quote the relevant provisions of Sections 41, 42, 43 and 50 of NDPS Act which need to be taken into consideration in the present case which are as follows:

"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.

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.

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.

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."

23. It is also pertinent to refer to the law laid down in G. Sriniwas Goud Vs. State of A.P., (2005) 8 SCC 183, which deals with the point as to whether sending of information taken down in writing to immediate official superior, is mandatory. It was held in this case that the Officers of the Gazetted Rank were not requiured to comply with the said requirement. The said requirement is confined to cases where the action is taken by the Officers below the Rank of Gazetted Officers without authorisation. The relevant paragraphs of the judgment are quoted herein below:

"9. It will be seen from Section 41(2) that it refers to only officers of gazetted rank and it is such officers who can authorise their subordinates, not below the rank of peon, sepoy or constable, to carry out arrest, search or seizure. The function of arrest, search and seizure carried out under Section 42(1) is by officers who do not have warrants or authorization in their hands before proceeding to take action. This is as per the heading of the Section which reads: "Power of entry, search, seizure and arrest without warrant or authorization". Under Section 41 it is the specified Magistrates who issue warrants of arrest and it is officers of gazetted rank who give authorisation in favour of their juniors. Provisions of sub- section (2) of Section 42 are meant to cover cases falling under Section 42(1). Therefore, in our view, the requirement under Section 42(2) need not to be extended to cases of arrest, search and seizure by officers of gazetted rank. The officer of gazetted rank while authorising junior officers under Section 41(2) knows what he is requiring them to do and, therefore, there is no need for reporting. For this reason Section 41 does not contain any such requirement. The need for reporting under Section 42(2) arises because the officer proceeds without authorisation in terms of Section 41(1) or 41(2). The requirement of informing the immediate official superior under Section 42(2), in our view, has to be confined to cases where the action is without authorisation by officers below the rank of gazetted officers without authorisation.

10. It will be anomalous to say that officers of gazetted rank who are conferred with power to authorise junior officers to carry out arrest, search and seizure, are required to report to their superior officers when they carry out arrest, search or seizure on their own. As already seen the rationale for this provision of informing superiors appears to be that when the arrest, search and seizure is without authorisation by gazetted rank officers, the officers taking action must keep their superiors informed. The superior officers must know about the action taken by their subordinates. However, the position of gazetted rank officers, in view of their rank and seniority and power to authorise subordinates to proceed to action, is totally different. They are the source of power of authorization. The gazetted rank officers enjoy special position and privileges under the Act. They need not be equated to officers taking action without authorisation or warrants. The requirement of sending information to superior officers under sub-section (2) of Section 42 cannot be insisted upon in their case. There is no bar in the statute to functions of arrest, search and seizure being carried out by the officers of the gazetted rank themselves. When they act on their own, they do not have to report to their seniors on such things."

24. First of all, the point as to whether the provisions of Section 42 of NDPS Act would be applicable in the present case is being taken up.

25. Now in the light of the above position of law, the facts of the present case have to be analysed and it has to be seen whether the provisions of Section 42 of NDPS Act would be applicable in the present case or not. According to the prosecution version the police party headed by S.O. Pawan Kumar Singh, received a secret information that a grey coloured maruti car would be coming from Gorakhpur and would proceed towards Bihar with illegal weapons and articles in it and believing this information to be correct he waited for the said car to arrive and when the same approached there, it was directed to stop but when it did not stop, the same was got stopped at police barrier which was nearby and when door of the same was opened all the three accused were found sitting therein. When enquired strictly they disclosed that they had illegal smack in their vehicle. Thereafter, before the search was made, they were apprised of their rights that they could opt for getting the said vehicle searched in presence of a Gazetted Officer. Thereafter the information was given to the Circle Officer on mobile phone, in whose presence the dicky of the car was opened and alleged contraband was recovered. It is apparent that the information was received by a Gazetted Officer i.e. S.O. Sri Pawan Kumar Singh and before he proceeded to make the search, he called the Circle Officer, Sri D.K. Singh in whose presence search was conducted. As per the provisions of Section 41(2), if search is made by a Gazetted Officer he does not require obtaining search warrant before making the search, hence in the present case it was not required that the information received by S.O. Sri Pawan Kumar Singh regarding the contraband substance being carried in the said car, be reduced in writing.

26. The reliance placed by the learned counsel for the appellant on State of Rajasthan vs. Jag Raj Singh @ Hansa, (Supra) will not give any help to the case of the appellant because the facts of that case were different. In that case it was found that SHO had got secret information who was supposed to send it to C.O. Which was found not done properly as the information taken down by him was different from the information sent to C.O. In the case at hand, it is held that there was no need to transmit such an information because in the presnce of the C.O. himself the search was made who was a Gazetted Officer.

27. The next argument of the learned counsel for the appellants is that the contraband substance recovered from the dicky of the car in possession of accused persons contained five packets which were weighed and found to be 05kg and 150gm smack and that the sample taken of the contraband was 50gm which was separately sealed in a polythene; the said fact was not mentioned by the first informant/writer of the recovery memo in recovery memo (Ex. Ka-1). There is huge discrepancy with regard to there being no entry to that effect in recovery memo, while in the statement of witnesses of facts i.e. PW-1 and PW-5, it has emerged that there were five packets, each weighing little more than 01kg and it was not possible for them to state as to from which particular packet the 50gm smack was taken out as sample. In the impugned judgment the lower court itself has observed that the prosecution has failed to establish that the sample was taken from all the five packets allegedly recovered from the accused persons rather the same was taken from only one packet, but from which one particular packet the sample was taken, they have failed to prove. Based on this evidence, the court below has taken it as proved that it shall, at least, be held proved that more than 01kg smack was recovered from them which was much above commercial quantity and accordingly the accused were held guilty. The ground for holding them guilty has also been given that once it was established by the prosecution that they were found in possession of illegal contraband (heroin) little more than 01kg, the burden would shift upon them under Sections 35 and 54 of NDPS Act to disclose as to how they came in possession of the said quantity of heroin, which they failed to discharge, hence they were held guilty.

28. The evidence in this regard has been gone through by this Court, PW-1 has stated in examination-in-chief in this regard that one packet of brown colour wrapped in polythene containing powder was found which all the three accused confirmed to be heroin and when the same was weighed it was found to be 05kg and 150gm out of which 50gm was taken and sealed separately and the remaining 05kg and 100gm was kept in white cloth and was separately sealed. It is further stated that the said recovered substance in white cloth and sealed with Case Crime No.289 of 2012, under Section 8/21/27-A of NDPS Act, State Vs. Kamlesh Kumar Yadav, Shan Mohammad and Anwar Husain written thereon, was brought by pairokar Hasim Ali which was kept in a bag. Seal was found correct as it had seal of the police station, the same was opened with permission of the court and out of it wrapped in polythene, the said substance was shown to the witness who stated that it was the same packet, wherein five pieces were kept, which were recovered from the accused persons, which was found to be heroin. The packet of polythene was marked as material Ex.1 and the bag was marked as material Ex.2. In cross-examination this witness has stated that the recovered substance was in five packets and all of them weighed together. Each packet weighed about 01kg and 100gm, one packet weighed little more than that, but he could not tell by looking at these packets as to which packet had more weight. All the five packets were opened before court below. For the purposes of testing, the sample was taken from only one packet, but he could not tell as to from which packet the sample was taken. Again stated that the sample was taken from the packet which had the least weight. What would have been its weight, he could not tell. In the recovery memo he had not recorded the weight of each packet separately because the substance was sealed already much earlier. Hence, he could not tell weight of the said packet. Further he has stated that the seal by which the recovered substance was sealed, was in his possession on the spot, but he could not recollect whether there was any special mark on the said seal. The sample of seal was prepared by him, but the same is not available on file. The recovered substance which is presented in court today does not bear clear seal. The said seal used to be kept by the driver, as it had been given to him by him. It was the same seal which was used for preparing the sample as well as for sealing the recovered contaband substance. Only driver could tell about the location of seal; he did not provide the seal to either Investigating Officer or Head Moharrir. He did not show that seal to the Investigating Officer.

29. In this regard the other witnesses of fact PW-5 has stated that the recovered smack was 05kg and 150gm and 50gm sample was taken out of it and sealed, while 05kg and 100gm was separately sealed. In cross-examination this witness has stated that in all, five bundles were recovered; what was weight of each, he could not tell; from which particular bundle the sample was taken, he could not tell; the said recovered substance was not before him today in court; he also could not tell as to what mark was there which existed on the sample seal.

30. The Investigating Officer (PW-2) has stated, in this regard, that the seal used on the recovered substance was checked by him, but he does not recollect as to what was written thereon. He could not tell what was written on sample seal. During investigation when he received the substance, he had seen the seal on it, but he did not make entry of the same in case diary. The docket of substance sample was prepared by first informant of the case at the time of the arrest on the place of occurrence. The sample of the contraband substance was sent under the signatue of Circle Officer, Sri D.K. Singh who was also a witness of preparation of recovery memo. The 50gm substance which was taken out for docket to be sent, that was sent to Circle Officer by Constable Pankaj Rai. The seal by which the recovered substance was sealed was not brought to the Office of the Circle Officer. The said seal was not available on file.

31. From the evidence which has been cited above, it is clear that in the recovery memo only one packet has been shown to have been recovered from the dicky of the vehicle while both the witnesses of fact have admitted in cross-examination that there were five packets and each weighed little more than 01kg, but it has not been specified as to how much more than 01kg each packet was weighing. It was bounden duty of the prosecution to weigh each packet and record their weight in the recovery memo and also the sample ought to have been taken from each packet and should have been mixed together, in case they wanted to send only one sample to be tested by the F.S.L., however better it would be, if the sample was taken by them from each packet and the same should have been sent under specific seal to F.S.L. with the sample of seal, so that F.S.L. could match the seal on sample with sample seal, which would help to ascertain that it was the same material which was actually recovered from the accused. This has not been done in this case by the prosecution as is evident from the above mentioned statements. The witnesses of fact have even failed to disclose as to from which packet out of the five, the said substance was taken which was found to be smack by the F.S.L. The seal which was used for sealing the recovered substance and for sealing the sample taken out of it, was of whom, has not been made clear. It has also come in evidence that both the witnesses of fact have admitted that the seal at the time of recording their statements were not found on the file so as to verify as to whether the alleged recovered contraband substance which was presented before the court below, was the same which was sealed by the police party on the spot. Similarly, the seal which is found in the F.S.L.'s report is reported to be having text "V.K....U.P.P." written on it. Nowhere in the said report has it been mentioned that the said seal which was found used on the sample of substance matched with the seal which was sent to F.S.L. as sample seal. The prosecution/Investigating Officer ought to have mentioned in case diary as to which seal was used for sealing the recovered contraband as well as on the sample taken out of it and where they were kept safely before production of the recovered substance before the court as well as for being sent to the F.S.L. for being tested. This shows huge lacuna in conducting of investigation by police party despite the fact that this was a case of the great significance as huge quantity is alleged to have been recovered which is much higher than the beginning level of commercial quantity. The benefit of all this must go to the accused.

32. It would be pertinent to refer to provisions of law in regard to taking sample. 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."

33. 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."

34. Although the above procedure is very detailed one which is laid down only with a view to ensuring that absolute caution is observed in heavy recovery cases and looking to the heavy quantum of punishment provided under law, but in the case at hand the prosecution has not taken even this much precaution that they take the sample out of the recovered contraband substance and seal the same properly with seal of a particular description. Even if the entire procedure narrated above was not followed at least, it must have come on record that the seal with which the sample of the contraband substance as well as the substance which remained after taking the sample, both were sealed separately with separate seals and such seals were kept in safe place and that the seal which was sent alongwith the sample to the F.S.L. was also matched by the F.S.L. before submitting its report to the court or to the prosecuting agency that it was found to be the same seal on sample which they had sent. All these things appear to be lacking in this case. This would also lead to doubt as to whether the recovered contraband substance was actually the same, a sample of which is found to be containing heroin.

35. The lower court, however, has taken it as proved that little more than 01kg heroin was recovered from the accused persons even though the prosecution has failed to establish that sample was taken from all the five packets but was taken only from one packet, identity of which was not made clear. It also did not consider that the seal of which particular officer was used on the alleged recovered contraband substance as well as on the sample taken out of it sent to the F.S.L. These glaring lapses seem to have escaped the notice of the court below which will cause prejudice to the accused strongly. Moreso, when the punishment awardable in this case was very huge, the burden on the prosecution was much higher to prove prosecution's case to the hilt showing that at each and every stage an extreme caution was observed by it, which seems to be lacking here.

36. Learned counsel for the appellant had raised this point emphatically that the compliance of provisions of Section 50 of NDPS Act has not been proved by the prosecution in this case and that by itself is a sufficient ground for vitiating the trial as well as the conviction. Although the learned AGA has vehemently opposed the aforesaid plea. Whether the compliance has been made of Section 50 of NDPS Act can be determined only in the light of evidence which has come on record as well as the latest position of law. The Section 50 of NDPS Act has already been reproduced above. In this regard the Supreme Court has laid down in State of Rajasthan Vs. Parmanand & another, (2014) 5 SCC 345 in paragraph 15 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 No.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."

37. Thus, it is clear from the above that in a situation where a search is made of the person/accused pursuant to an information or on his revealing that he possessed some contraband substance, and simultaneously the search is also made of any bag, box or some other such container being carried by him, in which ultimately the contraband substance is recovered, the compliance of Section 50 of NDPS Act shall have to be made even if contraband substance is not found from the person of the accused.

38. In view of the above position of law the evidence on record in the case at hand has to be appreciated/evaluated.

39. It would appear from the recovery memo that the police party had received an information about the grey coloured maruti car coming from Gorakhpur and heading towards Bihar wherein illegal weapons and articles were being transported. Recording of this fact in the recovery memo is in conflict with the statement given by PW-1 Pawan Kumar Singh who had prepared the recovery memo because in cross-examination this witness has stated very clearly that he had received this information at Salemgarh that accused persons were to go towards Bihar with illegal weapons and psychotropic substance. Despite this prior information given to him that narcotic substance was being transported in the said vehicle, the same was not recorded in the recovery memo, is beyond comprehension. The argument of the learned AGA was that the provisions of Section 50 of NDPS Act were not required to be complied with because the information received by the PW-1, was not with regard to transportation of any contraband. It was only with regard to some illegal weapons and articles being carried. This Court is not convinced with argument of the learned AGA because in the light of the statement of PW-1 mentioned above, knowledge will be imputed to the police party that the accused persons were transporting contraband substance prior to making search of the accused as well as their vehicle. In recovery memo, it is further mentioned that when the accused were stopped and the door was opened, three persons were found sitting who told the police party that they were carrying smack and because of the fear they were trying to flee. It is also recorded that after this knowledge that smack was being carried as per admission of the accused they were told that they could give their search in presence of a Gazetted Officer, if they so desired and simultaneously it is also recorded that Circle Officer was informed by phone who subsequently arrived there and in his presence the search was made of the vehicle, in the dicky of which the said contraband substance was found. The same recovery memo also contains the fact that personal search was also taken of all these accused and from their pockets illegal weapons and cartridges, knife etc. were also recovered for which separate cases have been lodged. Therefore, from the recovery memo itself it is absolutely clear that not only the search of vehicle but the search of persons of all the three accused was also made, therefore, it was mandatory for the police to make compliance under Section 50 of NDPS Act in view of the law cited above in Parmanand's case (supra).

40. It is not that the prosecution did not attempt to make compliance of Section 50 of NDPS Act because it is recorded in the recovery memo itself that soon after learning about the accused persons being in possession of smack/heroin, they were apprised that they could give their search in presence of a Gazetted Officer and thereafter the Gazetted Officer, Sri D.K. Singh who is a Circle Officer was called by mobile phone in whose presence the search was made. It is absolutely clear that nowhere in this recovery memo has it been mentioned that the accused persons were also apprised about their rights that if they desired, they could be taken before a Magistrate for being searched in his presence.

41. It would be pertinent to mention here that the learned counsel for the appellant has placed reliance on C. Ali Vs. State of Kerala (1999) 7 SCC 88 in paragraph 2 of which the follwing is held:

"2. The appellant had contended before the High Court that the mandatory requirement of Section 50 of the Act was not complied with in this case. We do not find any clear finding recorded by the High Court on this point. As the deposition of the Circle Police Inspector (P.W. 5) was recorded in Malayalam language, we told learned Counsel for both the parties to verify and tell us whether he had stated in his evidence that the appellant was informed about his right to be searched in presence of a Magistrate or a Gazetted Officer. After going through his evidence, both the learned Counsel stated that the evidence of the witness is silent on this point. The settled position of law is that the person to be searched under the N.D. P.S. Act, 1995 is required to be told about his right under Section 50 before he is searched and that is a mandatory requirement. No presumption to that effect can be raised. As there is no evidence on record to show that the appellant was informed about his said right, it has to be held that the said mandatory requirement of Section 50 was not complied with in this case. On this short point, this appeal deserves to be allowed. Accordingly, we allow this appeal, set aside the conviction of the appellant and also quash the order of sentence passed against him."

42. The above citation makes it absolutely clear that not apprising the accused persons of their rights that they also had a legal right to be searched before a Magistrate and only telling them that they could be searched before a Gazetted Officer, would amount to not making full compliance of Section 50 of NDPS Act and would be treated to be a breach of the same.

43. In view of above position of law, in the case at hand from record it is absolutely clear as recorded in the recovery memo itself and also narrated by PW-1 and PW-5 that accused were apprised only about their rights to be searched in presence of a Gazetted Officer and not in presence of a Magistrate. Hence, on facts it is found that the prosecution has failed to make full compliance of the provisions of Section 50 of NDPS Act in this case which will adversely affect the prosecution's case and would vitiate the conviction.

44. It is evident from the above discussion that the prosecution has failed to make full complicane of Section 50 of NDPS Act. There is infirmity found in regard to the seal used in sealing the sample contraband which was sent to the F.S.L. The procedure which is prescribed for collecting the sample by the Narcotics Control Bureau, New Delhi has not even remotely been followed. The five packets which were allegedly recovered of heroin/smack each weighing little more than 01kg, were not weighed separaely nor was it established as to from which particular packet the sample was taken, therefore, the recovery of the said quantity would be doubtful. The cumulative effecte of all these infirmities found by this Court appears to have escaped attention of the lower court or it may be said that the lower court did not make proper appreciation of the evidence on reocrd. Thus, the prosecution has failed to establish its case of recovery of 05kg and 150gm heroin/smack or even of little more than 1 kg heroin as held by court below from the accused-appellants beyond shadow of doubt.

45. Both the appeals are allowed. The judgment and order under challenge of the court below is set aside and the accused-appellants are held not guilty of charge under Section 21(ii)(C) of NDPS Act. They be released in this case forthwith, if not detained in any other case.

46. The case property shall be destroyed after the period of appeal is over or if law permits otherwise.

47. Let the lower court record be returned promptly with a copy of this judgment for compliance by the court below.

Order Date :- 30.11.2017

Shahroz