Saroj And Another vs State Th. Sho P/S Akhnoor
2021 Latest Caselaw 706 j&K

                                         5




              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU


                                                     CRA 46/2012 in
                                                     CRA 44/2012
                                                     IA 154/2012

                                                     Reserved on : 08.07.2021
                                                     Pronounced on: 13.07.2021

Saroj and another
Arjun Singh and another
                                                                .....appellant(s)

                          Through :- Mr.Jagpaul Singh Advocate
                                     Mr. Ajay Bakshi Advocate.

                  V/s

State th. SHO P/S Akhnoor                           .....Respondent(s)
                       Through :- Mr. Aseem Sawhney AAG

Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL

                          JUDGMENT

1 These appeals are directed against the conviction and sentence recorded

by the learned Principal Sessions Judge, Jammu (hereinafter to be referred as

the "trial court") vide his common judgment dated 24.04.2012 and order dated

26.04.2021, whereby the appellants herein have been convicted for the offence

punishable under Section 20 of NDPS Act and sentenced to undergo rigorous

imprisonment for a period of ten years and a fine of Rs.1.00 lac each. In

default of payment of the fine, the appellants would undergo imprisonment for

a further period of three years. The said conviction and sentence recorded by

the trial Court has been challenged by the appellants on the following grounds:

(i) That the judgment and order impugned are contrary to law, therefore, the same are required to be set aside;

                                      2          CRA 44/2012 & CRA 46/2012 111 of 2011



            (ii)    That the judgment and order impugned are liable to the set

aside on the ground that the same are contrary to the evidence on record. It is stated that the prosecution witnesses have not supported the prosecution case as required in terms of NDPS Act;

(iii) That the judgment and order impugned are liable to be set aside on the ground that no independent material witness has been examined;

(iv) That the judgment and order impugned are liable to be set aside on the ground that the trial Court has not appreciated the evidence in its right perspective;

(v) That the judgment and order impugned are also required to be quashed on the ground that the police witnesses, who have deposed against the appellants, have also materially contradicted themselves from their statements recorded under Section 161 Cr.P.C;

(vi) That the trial Court has neither properly appreciated the evidence, nor has applied the law in right perspective;

(vii) That the judgment and order are not sustainable in the eye of law and, thus, required to be set aside on the ground that there is a violation of mandatory provisions;

(viii) That the judgment and order are also liable to be set aside on the ground that it has not been proved that the appellants were in possession of the alleged seized contraband; and

(ix) That the judgment and order impugned are required to be set aside on the ground that none of the witnesses has supported the prosecution story and even the seizure memo has also not been proved.

2 At the outset, it may be stated that the during the pendency of these

appeals, appellant Thomas Massi in Cr. Appeal No. 46/2012 expired, therefore,

vide order dated 27.12.2018 passed by this Court, his legal heir (wife) was

allowed to be substituted as appellant No.1.

                                     3         CRA 44/2012 & CRA 46/2012 111 of 2011



3     Heard learned counsel for the appellants and Mr. Aseem Sawhney,

learned AAG, appearing for the respondent-State.

4 Learned counsel appearing for the appellants submit that there is no

evidence on record to prove the charge for which the appellants have been

convicted and sentenced. They further submit that the investigation has been

conducted in gross violation of the provisions of NDPS Act. It is submitted by

the learned counsel for the appellants that as per the prosecution case, there

was prior information and it was on the basis of said alleged prior information

that Dy. S.P. proceeded towards the spot, but before proceeding towards the

spot on prior information, Dy. S.P. was required to comply with the mandatory

provisions of Section 42 of NDPS Act, i.e., before proceeding towards the spot

he has to give information in writing to his superior officer, which was not

done in this case. It is also submitted by the learned counsel for the appellants

that the search as per the prosecution story was conducted and the contraband

was recovered from their personal search but again in violation of Section 50

of NDPS Act the search as claimed by the police has been conducted. As per

the provisions of Section 50 of NDPS Act, before conducting personal search,

an option is required to be given in writing to the person sought to be searched

for his search in the presence of a Gazetted Officer or before a Magistrate but

the said option was not given in this case. It is further submitted by the learned

counsel for the appellants that there is no proof with regard to the sample

having been kept in the safe custody as no evidence with regard to depositing

of said sample in Malkhana has been produced. The prosecution has failed to

produce the Malkhana register evidencing to have kept the sample in safe

custody and to show that there was no chance to temper the same. It is further

submitted that the investigating officer has not been examined in this case.

                                     4         CRA 44/2012 & CRA 46/2012 111 of 2011



5     Learned counsel for the appellants argues that since the investigation has

been conducted in gross violation of the provisions of NDPS Act, therefore,

the appellants ought to have been acquitted by the trial Cour but the trial Court

has not taken the said violation into consideration and convicted the appellants.

6 On the other hand, Mr. Aseem Sawhney, learned AAG appearing for the

respondent-State submits that there is no violation of the provisions of the

NDPS Act and the investigation has been conducted strictly in accordance with

the provisions of law and the trial Court has appreciated the evidence in proper

perspective and no fault can be found with the investigation or in appreciation

of the evidence produced by the prosecution before the trial Court.

7 I have considered the arguments put forth by learned counsel for the

parties, the grounds taken up in the appeal as well as the material on record.

8 The facts in brief borne out from the record are that on 12.01.1996

police party headed by Dy.SP Akhnoor was proceeding towards Surangli Morh

when SDPO received an information that accused persons, namely, Thomas,

Sukha, Motta, Fouja Singh and Mathi, assembled near the house of Sukha at

Kashmiri Mohalah and distributed the consignment of Charas and thereafter to

carry the same of their respective shares to different places for sale. On

reaching near Surangli Morh, he saw five persons on Jhourian road coming

from Akhnoor Bazar, police party gave an alert and intercepted the accused.

The police party managed to apprehend four persons whereas fifth one

succeeded to flew away from the spot, after leaving behind a packet. The

police found that accused taken in custody possessing each of them packets

containing charas in the shape of balls. This led to send a docket to Akhnoor

Police Station for registration of a case under Section 20 of NDPS Act. On the

basis of this report, investigation commenced which culminated into 5 CRA 44/2012 & CRA 46/2012 111 of 2011

presentation of challan. On 23.05.1996 the accused were discharged and the

challan was dismissed. However, on revision being filed, the order of

discharge was set aside and thereafter the charges were framed against the

accused on 27.09.2000 for offence punishable under Section 20 of NDPS Act.

9 The prosecution produced four out of thirteen listed witnesses. Neither

the Scientific Assistant, nor the investigating officer has been produced in this

case. The witnesses produced in this case are Gharu Ram, Jagdish Lal,

Manohar Lal and Hans Raj.

10 PW Garu Ram was posted in Police Post Bus Stand, Akhnoor on the

date of occurrence. He deposed that the Dy.SP received an information to the

effect that few boys were carrying on business of sale of charas at Sungli

Morh. He states that the SHO and Dy.SP went to the spot and a Naka was laid.

One of the accused Poch Singh absconded from the spot, whereas other

accused were apprehended. The said accused was possessing charas in

envelops. They were asked by the Dy.SP to hand over the contraband which

was in their possession. According to this witness, charas was recovered from

their personal search. The recovery memo regarding the recovery of charas was

prepared on spot which was signed by him after reading the same. In the

recovery memos, the presence of Dy.SP is not mentioned. He states that the

accused were searched by the SHO and Dy.SP and information was received at

7.00 pm. So far as the statement of this witness is concerned, he has not stated

anywhere that the information which was received by the police officers was

forwarded to the superior officer before Dy.SP, SHO or he proceeded towards

the spot in connection with the said information. He has also not stated about

the fact that before the accused were searched, an option as required in terms 6 CRA 44/2012 & CRA 46/2012 111 of 2011

of Section 50 of NDPS Act was given to them. According to this witness, the

accused were searched by the SHO and Dy. S.P.

11 Before search is to be conducted, an option as required in terms of

Section 50 of NDPS Act is required to be given to the accused and it is only

after exercise their option, search is to be carried out. In this case, there is

noncompliance of the provisions of Section 50 of NDPS Act.

12 PW Jagdish Lal has also stated that the information was received to the

effect that Ashok Kumar, Vinod Kumar, Arjun Singh and Fouja Singh are

distributing charas for selling the same at different places and on this

information, they went to the spot. Five persons were found proceeding

towards them. They asked them to stop but they ran away. Four out of five

persons were apprehended. He states that an option for search was given to the

accused for their personal search which they agreed to be taken in his presence

and thereafter SHO conducted their search and a written notice given to the

accused ExPW GR/1 to ExPW GR/4 were prepared, on the bottom of which

the accused had given their consent. Thereafter, the search of the accused was

conducted and contraband recovered from their possession which was seized.

According to this witness, an option in writing vide EXPW GR/1 to ExPW

GR/4 was given to the accused and only thereafter the search was conducted.

As per this witness, PW Manohar Lal was also accompanying them.

Regarding the option, he states that the option was given but it was given

orally. He specifically states that no document was prepared regarding such

option. PW Manohar Lal is also police personnel who claims to have been with

the police party along with SHO at Sumbli Morh where it is claimed that the

accused were found in possession of contraband. PW Jagdish Lal has stated in 7 CRA 44/2012 & CRA 46/2012 111 of 2011

his statement about the notice of option having been given to the accused in

writing which is falsified by his own witness Manohal Lal.

13 When the statements of Jagdish Lal and Manohar Lal are taken into

consideration, a doubt is created as to whether an option ExPW GR/1 to ExPW

GR/4 was prepared and given before search of the accused was conducted or

after search and seizure, it was prepared later on. The fact that the option was

given to the accused, thus, becomes doubtful in this case. The prosecution has

produced one witness namely Hans Raj, Naib Tehsildar who has resealed the

sample.

14 On scrutinizing the record of the file and the evidence produced by the

prosecution, the prosecution story becomes doubtful for the reason that the

prosecution has not complied with the provisions of Section 42 of NDPS Act

as the information alleged to have been received regarding the occurrence was

not recorded in writing and forwarded to the superior officer. As per the

prosecution case, the information was received at about 10 pm i.e, after sunset

and they proceeded towards the spot thereafter. Non-compliance with the

provisions of Section 42 of NDPS Act and its effect has been considered in a

number of judgments.

15 In State Of Punjab vs Balbir Singh Karnail Singh vs. State of

Haryanna, 2009 AIR (SCW) 5265, the Hon'ble Supreme Court while dealing

with the provisions of Section 42 of NDPS, has held as under:

"Under Section 42(2) as it stood prior to amendment such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same would adversely affect the prosecution case and to that 8 CRA 44/2012 & CRA 46/2012 111 of 2011

extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section. Abdul Rashid (supra) has been decided on 01.02.2000 but thereafter Section 42 has been amended with effect from 02.10.2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non- compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused".

16 In another case i.e State Of Punjab vs Balbir Singh 1994 SCC (3)

299, the Apex Court, while dealing with the provisions of Section 42 of NDPS

Act has held that compliance of provisions of Section 42 is mandatory,

non-compliance of which is fatal to the prosecution case.

17 In Boota Singh and ors vs. State of Haryana, (Cr. Appeal No.

421/2021, decided on 16.04.2021, the Hon'ble Supreme Court has held that

non-compliance of Section 42 of NDPS Act is impermissible.

18 As per the prosecution story, before the search of the accused was

conducted, they were given notice to exercise their option as required under

Section 50 of NDSP Act, The search, as per the prosecution, was conducted

before the FIR was registered, as such, had there been any option given to the

accused, the document would not bear the FIR number and the offence alleged 9 CRA 44/2012 & CRA 46/2012 111 of 2011

to have been committed. The FIR had been registered after the search was

conducted and the contraband recovered. As is claimed by PW Manohal Lal,

the documents regarding the option ExPW GR/1 to ExPW GR/4 were prepared

on spot before the search was conducted and after exercise of the option, the

recovery was effected meaning thereby, at the time of giving notice for

exercising the option, no FIR was registered. FIR came to be registered

thereafter when the recovery was effected and a report was sent to the police

Station for registration of FIR. However, the recovery memos ExPW GR/1 to

ExPW GR/4 would show the number of FIR and the commission of offence

that means, either the option was not given to the accused or the recovery

memos have been prepared after registration of FIR. Had these recoveries been

effected and had the option been given, the recovery memos would not bear

the FIR number as the FIR at that time was not registered.

19 In Lalji Shukla vs State, 2000 (1) RCR (Cri) 515, the Hon'ble

Supreme Court while dealing with such a situation, has held as under:

"It needs to be highlighted that the rukka (Ex. P.W./6A) shows that the contraband was recovered at 6.15 p.m. and the rukka was sent to the police station at 8 p.m. The FIR (Ex. P.W. 6/B) shows that it was registered at 8.10. p.m. Surprisingly the personal search memo of the members of the raiding party (Ex. P.W. 3/B), the personal search memo of the appellant (Ex.P.W. 4/A), the notice under Section 50 of the Act (Ex. P.W. 3/A) alleged to have been served upon the appellant before taking his search and the seizure memo (Ex. P.W. 3/C) bear the number of the FIR Ex. P.W. 6/B. The number of the FIR (Ex. P.W. 6/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered an explanation whatsoever as to under what circumstances number of the 10 CRA 44/2012 & CRA 46/2012 111 of 2011

FIR (Ex. P.W. 6/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This gives rise to two inference that either the FIR (Ex. P.W. 6/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant. Needless to add that the provisions of the Act are so stringent that it cast a duty on the prosecution to rule out any possibility of tampering of the sample and false implication of an accused. It must be borne in mind that severer the punishment, the greater care has to be taken to see all the safeguards provided in a statute are scrupulously followed. Unfortunately, the learned Additional Sessions Judge did not take notice of the aforesaid infirmity in the prosecution case and unjustifiably accepted the prosecution evidence. Consequently, the impugned order of conviction and sentence cannot be sustained".

20 The prosecution has also failed to prove the report of FSL. As per the

prosecution, the samples taken were sent to FSL for scientific analysis and on

analysis, they were found to be 'charas' and a report of the Scientific Assistant

was received. The report of the Scientific Assistant has been placed on record,

but the Scientific Assistant has not been examined.

21 The facts and conclusion emerging from the report of Scientific

Assistant could be considered by the Court only, if the Scientific Assistant had

appeared in the Court to support the opinion given by him regarding the

analysis of material alleged to have been sent to him by the police. Such is the

position of law as to proving of the contents of the document.

                                       11         CRA 44/2012 & CRA 46/2012 111 of 2011



22      Chapter IV of the Evidence Act, Svt. 1977, in Section 60, provides that

oral evidence must, in all cases whatever, be direct; that is to say. If it refers to

an opinion or to the grounds on which that opinion is held, it must be the

evidence of the person who holds that opinion on those grounds. The report of

the Scientific Assistant cannot, thus, be taken for consideration by a Court

treating it to be an evidence in the case, unless, however, such report was

covered by Section 510 of the Code of Criminal Procedure, which prescribes

special Rules of evidence making documents and options mentioned in the

Section to be admissible in evidence. Section 510 of the Chapter XLI of the

Code of Criminal Procedure dealing with special Rules of Evidence, reads

thus:

"510. Report of Chemical Examiner (1) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government (or the Chief Inspector of Explosive or the Director of Finger Print Bureau or an Officer of the Mint), upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceedings under this Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the subject-matter of this report".

23 In terms of Chapter XLI, only those documents which purport to be

the report under the hand of any of the persons mentioned in Section 510

may be used as evidence in any inquiry, trial or proceedings under the

Code of Criminal Procedure. Scientific Assistant does not find its

mention in the list of functionaries in Section 510 of the Code of Criminal 12 CRA 44/2012 & CRA 46/2012 111 of 2011

Procedure, whose reports are admissible, as such, in evidence under

Section 510 of the Code.

24 In this case, Pawan Kumar, Scientific Assistant has examined the

samples and analyzed the same, who has given the report on such analysis

but he has not been produced by the prosecution to prove it, therefore it is

held that the prosecution has not led any evidence to prove that the alleged

contraband which was recovered from the possession of the appellants

was 'charas' as the report has not been proved by the prosecution. The

prosecution has also not produced any evidence with regard to the fact

that the samples, after having been taken from the spot as alleged before

the same were got resealed and sent to FSL, were kept in safe custody.

This fact could have been proved by producing Malkhana In-charge or

Malkhana Register, but there is no such evidence forthcoming, nor any

such evidence has been produced.

25 There are also material contradictions evident from the statements

of witnesses produced in this case by the prosecution. The independent

witnesses have not been produced by the prosecution. Even the

investigating officer, who could have explained these drawbacks in the

prosecution story and contradictions in the statements of the witnesses,

has also not been produced. In such circumstances, where there are

contradictions and certain shortcomings, it is the investigating officer,

who is the best witness to explain the same. Non-production of I.O in such

circumstances is fatal to the prosecution case.

26 Having regard what has been stated above, I find merit in both the

appeals and hold that the trial Court has, without considering the effect of

non-compliance of the provisions of NDPS Act, proceeded in a casual 13 CRA 44/2012 & CRA 46/2012 111 of 2011

manner and without there being sufficient evidence to prove the charge,

convicted the appellants.

27 Therefore, the appeals at hand are allowed. Consequently, the

judgment and order impugned recorded by the trial Court are quashed and

set aside and the appellants in both the appeals are acquitted. The

appellants are already on bail. Fine, if paid, be refunded to the appellants/

legal heir of deceased appellant Thomas Massi.

28 The record of the trial Court along with copy of this judgment be sent

down.

(VINOD CHATTERJI KOUL) JUDGE Jammu 13 .07.2021 Sanjeev PS

Whether the order is speaking : Yes Whether the order is reportable :Yes/No