Badruddin And Another vs State Of U.P.
2021 Latest Caselaw 576 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on 04.11.2020:
 
Delivered on  11.01.2021
 

 
Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 6058 of 2017
 

 
Appellant :- Badruddin And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ravindra Nath Rai,Ashok Kumar Rai,Jai Shanker Audichya,Prakash Veer Tripathi,Ram Sagar Ram,Viresh Mishra
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Umesh Kumar,J.

This Criminal Appeal has been filed assailing the judgment and order dated 22.09.2017 passed by Addl. Sessions Judge, Court No. 6, Basti in Special Case No. 12 of 2015 by which, the appellants have been convicted and sentenced under Sections 8/22 of Narcotic Drugs and Psychotropic Substance Act, (hereinafter referred to as the ''NDPS Act') to undergo 12 years rigorous imprisonment with a fine of Rs. 1,25,000/- each with default stipulations, inter-alia on the grounds that there is no independent/public witness; there is non compliance of Section 50, 52, 54 and 57 of the Act, the raid in the present case is said to have taken place on 25.12. 2014 and as per the evidence, the sample was seized on 26.12.2014 which creates doubt on the prosecution version; the recovery memo/Fard prepared by the Head Constable- Manoj Pandey, but he has not come in the witness box, that although the appellants are alleged to have been arrested at Footwahiya Tiraha near Police Station, Nagar district, Basti, but neither the tickets, bus number nor any statement of either Conductor or Driver of the Bus was recorded; there is no evidence that the seized article was kept in Malkhana in safe custody, no information was given to the higher Authorities about the recovery, that moreover, Footwahia tiraha is not a Bus stop, that there is no compliance of Section 100 and 165 Cr.P.C., that sample of the substance was sent for examination on 9.1.2016, but there is no evidence about its safe custody; that there is no evidence as to when the sample was withdrawn from Malkhana and when the same was sent for examination; that there is no entry in the GD; that the seized sample of substance was not produced in the Court, that the prosecution has failed to prove its case beyond reasonable doubt and that the sentence is too severe.

On the aforesaid grounds, the impugned judgment and order has been challenged.

Briefly stating the prosecution story is that on the information given by police informer/mukhbir, on 25.12.2014, that on Government Bus coming from Badhani to Basti, big quantity of charas is being transported for its supply in western U.P. and Haryana, Panipat and Sonipat districts; on this information, S.I. Sandeep Mishra along with S.I. Vivek Sharma, Head Constable Manoj Pandey, Constable Shailendra Nath Yadav reached Footwahia tiraha and after parking the vehicle of the police party, tried to get witnesses, but none became ready to give evidence, and at about 16.40 hours one Bus came and stopped at Footwahia tiraha and two persons namely Mohd. Shahid Ahmad and Ameerudding(minor) came down from the Bus and another person Badruddin handed over a plastic bag to the appellant; the police party raided and caught hold the appellants; that after completing formalities as is required under the provisions of N.D.P.S Act, that the appellants were told that search is to be made before a Gazetted Officer or the Magistrate, but the appellants replied that when you have arrested us, they do not want to give search before the Officer or the Magistrate; that on search of Baduruddin-appellant besides white plastic bag, a sum of Rs. 1030/- and some old papers along with one old ticket from Panipat junction to Basti were recovered and from the pocket of appellant-Mohd. Shahid, one black money purse, containing voter ID card, ATM card of Punjab National Bank, one pan Car along with Rs. 520/- were recovered; that from the pocket of jacket, pass book of Punjab National Bank, SBI, PNP Pass Book, and Pass book were recovered; that from the search of third person namely Ameeruddin @ Qamaruddin, besides plastic bag and Voter ID, ATM Card of Punjab National Bank along with Rs. 250/- were recovered ; that the police party opened the plastic bag and found therein 16 packets covered from tap which was said to be charas by the appellants and the weight of all 16 packets was 16 Kg- 150 grams; that the police party collected the sample of 100 grams of recovered substance and sealed the plastic bag; that on 25.12.2014, on the basis of recovery memo (Ex.Ka-5), chick FIR (Ex.Ka-6) at 19.30 hours, a case under Sections 8/18/21/22/27 of the Act was registered and its G.D. (Ex.Ka-7) was prepared. The investigation of the case was completed and after completion, charge sheet (Ex.Ka 9) was submitted against the appellants.

Learned Trial Judge framed charges under Sections 8/22 of NDPS Act against the appellants Badurruddin, Mohd. Shahid Ahmad and one Ameeruddin @ Qamruddin. Accused persons denied the charges and claimed trial.

In support of its case, prosecution examined as many as six witnesses. P.W.1 S.I.Sandeep Mishra-informant, P.W.2 S.I. Sarya Prakash Singh, P.W.3 Head Constable Ram Ashish, P.W.4 S.I. Anand Kumar, P.W.5 Constable C.P. Dev.Vrat and P.W.6 Constable Dinesh Kumar Yadav.

In their statements recorded under Section 313 Cr.P.C., accused-appellants denied the prosecution assertions. They stated false implication due to ulterior motive. They have produced Moinuddin as D.W.1 in their defence.

During trial, accused- Ameeruddin @ Qamruddin was declared Juvenile and his file was sent to Juvenile Justice Board by order dated 11.6. 2015 and thus, present appeal confines to appellants- Badruddin and Mohd. Shahid only.

Heard learned Counsel for the appellants and learned A.G.A. for the State and gone through the materials available on record.

Learned Counsel for the appellants argued that there is no independent witness of the recovery and search except the raiding police party; that the prosecution has failed to bring on record the number and depot of the Bus and even the names of Conductor and Driver of the Bus has also been noted down which creates suspicion on the prosecution version; that no efforts were made to inform the higher authority or even any immediate officers before arresting the appellants; that the time of arrest and recovery is doubtful as P.W.1 stated the time at 16.40 hours and P.W.2 stated the time at 14.40 hours; that the seized substance was sent to the laboratory of chemical examination after 24 days and there is no proper explanation from the side of the prosecution of such a long delay; that even, no crime number is mentioned in seized article (mool maal bori) which suggests that whole recovery is doubtful; learned Counsel has vehemently argued about non compliance of statutory provisions of Sections 42, 50, 55 and 57 of the Act and that the statements of appellants recorded under Section 313 Cr.P.C. were not at all considered by learned Trial Judge; that the sentence is too severe.

On the contrary learned A.G.A opposed the submissions made on behalf of appellants and supported the impugned judgment and order of conviction passed by learned Trial Judge. Submission is that minor irregularity made during investigation of the case, in the facts of the case is not fatal to the prosecution; that non production of public witnesses are explained by the Investigating agency and thus, evidence of police personnel can not be discarded.

In this case, S.I. (P.W.1) Sandeep Mishra, in his testimony has supported the prosecution version and stated the time of arrest and recovery of the appellant at Footwahia tiraha at 16.40 hours when they step down from a Bus. In his cross examination, he stated that on the bag in which recovered substance was kept was not sealed by him and the bag also does not bear signature of any accused-appellants; that he got the FIR lodged at the police station. He stated that he did not remember whether ticket of the Bus was found or not and as the plastic bag was sezied from the appellants after they step down from Bus, there is no use of recording statements of the Conductor and Driver of the Bus. He denied the suggestion that knowingly did not wrote the names of Conductor and Driver. He stated that before effecting the arrest of the accused, he did not inform the local police.

P.W.2 S.I Satya Prakash Singh who was a member of the raiding party has supported the prosecution version, but in Chief, he specifically stated the time of incident as 14.40 hours. He further stated that after taking 100 grams sample of the seized item, remaining substance were kept in the bag and the same was sealed. He denied to have any knowledge as to whether efforts were made to call any higher officer on the spot or not.

P.W.3 Head Constable Ram Ashish proved chick FIR (Ex.ka-6). He stated that G.D. entry ( Ex.Ka.7) was prepared by Moharrir-Anuj Kumar Ram and he proved his signature on the carbon copy of the G.D. In his cross, he stated that exhibit Ka.6 did not contain entry as to when the same was sent to the Court and when, it was sent to the office of the Circle Officer and there is no signature of the informant on it.

P.W.4 S.I. Anand Kumar stated that investigation was entrusted to him. He recorded the statements of informant and the accused persons on 25.12.2014 and thereafter, on 2.1.2015, he visited the place of recovery and prepared site plan (Ex.Ka.8) and after completing investigation, he submitted charge sheet (Ex.Ka.9). In his cross examination, he stated that he did not remember as to whether sealed sample contains seal of the Court or not. He further stated that at the time of recovery and arrest of the accused persons, whether any efforts were made to call a higher Officer or not, no evidence was found in this respect.

P.W.5 Constable Dev Vrat in his statement has proved the police documents. In his cross examination, he stated that in Malkhana Register, there is no mention about the Roadways Bus ticket. He further stated that at the time of preparation of Ex.Ka.10 (Malkhana Register), he was not on duty and nothing was entered in the said Register regarding substance(mal) or accused persons before his presence. He also stated that at Sl.No.53 of the Register, there is no signature of any police officer.

P.W.6 Constable Dinesh Kumar Yadav has stated that he has submitted sealed sample of the recovered substance in Forensic Laboratory and its receipt ( Ex.Ka.11) contains his signature. In his cross examination, he stated that he has no knowledge whether remaining substance contains the seal of the Inspector, Circle Officer or the Court or not, but he endorsed that although it contains signature of the Circle Officer, but there is no date.

Learned Counsel for the appellants during course of arguments vehemently argued about non compliance of the provisions of the Act, by placing before the Court certain provisions of NDPS Act from the decision rendered in Kamlesh Kumar Yadav Vs. State of U.P. reported in 2018(102) ACC 771. For convenience, para-32 and 33 of the judgment are quoted here in below;

"32. It would be pertinent to refer to provisions of law in regard to taking sample. The Narcotic Control Bureau, New Delhi by issuing standing Instructions No. I/88 has laid down the 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 reproduced herein below:-

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

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

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

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

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

On the strength of above decision, learned Counsel for the appellants argued that the above provisions are laid down with a view to ensure absolute caution in heavy recovery cases and looking to the heavy quantum of punishment as is provided in law, but in the present case, prosecution has not taken even this much precaution that they had taken the sample of substance out of the recovery contraband items and seal the same properly with description and particulars. In the case in hand, it has not come on record that the seal with which sample of the substance as well as contraband substance which remained after taking out sample, both were separately kept and sealed which was sent along with sample to the Forensic Science Laboratory before submitting report to the Court or to the prosecution agency indicating that it was found to be the same seal on sample which they had sent. From a perusal of material available on record of the case in hand, all these things appear to be lacking which leads doubt as to whether the recovered contraband substance was actually the same as that of sample which is found to be containing ''charas'.

In the present case, prosecution has not been able to prove beyond doubt that search of the accused persons were made after appraising them about their rights to be searched before the Gazetted Officer . There is no whisper in the statements of the witnesses even about mode which were adopted to call a Gazetted Officer or the Magistrate.

The position of law is settled that in respect of mandatory requirement of Section 50 of the NDPS Act and no presumption can be raised. In the present case, from perusal of prosecution evidence, it is absolutely clear that not apprising the accused persons of their rights that they had a legal right to be searched before a Magistrate and thus, only telling them that they could be searched before a Gazetted Officer would amount not to make full compliance of Section 50 of NDPS Act and would be treated to be a breach of the same. (see. C. Ali Vs. State of Kerala 2000(40) ACC 485(SC), State of Rajasthan Vs. Permanand and another (para-15) 2014(85) ACC 662 (SC), Vijai Singh Chandubha Vs. State of Hujrat 2011(72) ACC 286 (SC)

This Court has no hesitation to observe that on this short point only, this appeal deserves to be allowed and the conviction and sentence are liable to be quashed.

In the case in hand, from the records, it is clearly recorded in the recovery memo itself and also stated by the prosecution witnesses that the accused were apprised only about their rights to be searched in presence of a Gazetted Officer and not in presence of a Magistrate and it is found that the prosecution has failed to make complete compliance of the provisions of Section 50 of the NDPS Act which itself vitiate the conviction.

Moreover, apart from non compliance of provision of Section 50 of the NDPS Act, infirmity has been found in sealing of the sample of contraband. The prosecution has failed to establish beyond doubt that sample of contraband substance was collected/taken from all packets found in the while plastic bag. There is also material contradiction between the statements of P.W. 1 Sandeep Mishra and P.W.2 Satya Prakash Singh in respect of time of arrest and recovery as P.W.1 stated the time as 16.40 hours and P.W.2 said it to be 14.40 hours. There is no signature of accused Mohd. Shahid on (Ex.Ka.1) i.e. consent letter. There is another major contradiction in respect of quantity of seized substance as in the GD entry no.32 dated 19.1.2015, Constable Dinesh Yadav wrote its weight as 150 grams and the same was sent to FSL, while as at the time of recovery, the weight of sample is shown as 100 grams.

In view of the above discussions, the cumulative effect of all these infirmities and contradictions in the prosecution evidence pointed out above, escaped from the attention of learned Trial Judge. It can also be said that learned Trial Court did not make proper appreciation of the evidence available on record and thus, the prosecution has failed to establish its case beyond shadow of about.

In the result, this appeal is allowed. The judgment and order under challenge passed by learned Court below is set aside and the accused appellants are held not guilty of charge under Section 8/22 of N.D.P.S Act.

The appellants are in jail. They be released in this case forthwith, if not in the incarceration in other case. The case property will be destroyed, in accordance with law after the period of appeal is over.

Let the Trial Court record be returned with a copy of this judgment for onward compliance by the concerned Court below.

Order Date :- 11.01.2021

Shahid