TaxTMI 
TaxTMI 
2017 (12) TMI 620
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.... Tiraha Parsa Tola, they found accused coming from the way which led to Nepal. When they signalled him to stop, he accelerated his motorcycle, but the police party arrested him at 13:30 hours about 50 steps away from that Tiraha. When enquired, he disclosed his name to be Arvind Dubey. He was searched on the spot and was found in possession of a countrymade pistol of .315 bore and a live cartridge of .315 bore. When he was asked about the substance which was kept in dicky of his motorcycle (UP 56 A/6539, Chesis No.DMFBKJ 85028 and Engine No.DMMBKJ 86359), he told that it was Charas. In compliance with the provisions of Section 50 of NDPS Act, he was apprised that the search of Charas/his motorcycle could be made before a Magistrate/Gazetted Officer, if he so wanted, but stated that since he had already been caught, hence the police party could take his search and gave written consent in this regard which is Ex. Ka-1. The recovery memo was prepared on the spot and after the search being made, 500 grams of Nepali Charas, packed in polythene, wrapped in two packets, kept in dicky of the motorcycle was recovered. Thereafter the accused was apprised that he had committed an offence puni....
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....ontraband from the accused in plastic bag is material Ex.-2. 9. After conclusion of the evidence of the prosecution the statement of accused under Section 313 Cr.P.C. was recorded, in which he took the defence of false implication, however he did not produce any evidence in defence. 10. Learned counsel for the appellant Sri Sameer Jain, amicus curiae has argued that learned court below has convicted the appellant without taking into consideration the following points:- (a) That there was no link evidence to prove that the contraband recovered from the accused was deposited in Malkhana. In support of this, he has relied upon State of Rajasthan Vs. Gurmail Singh, 2005 (1) JIC 844 (SC). He has also drawn attention of the Court towards statement of PW-4 at page 34 in which in the examination-in-chief the said witness has stated that two packets of Charas weighing 500 grams connected with this offence and one katta were shown by him to SHO and after its being weighed, it was found 500 grams of Charas, which was deposited in Malkhana. Pointing out towards his above statement it is mentioned that the prosecution did not produce the Register of Malkhana to prove that the rec....
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....the motorcycle of the accused in his presence and that the court below has found the charges under Section 8/20/23 of NDPS Act rightly proved. 12. At the very outset, it would be pertinent to mention that the NDPS Act has been eancated to consolidate and amend the laws relating to norcotic drugs, to make stringent provisions for the control and regulations and operations relating to norcotic drugs and psychotropic substances. The Hon'ble Supreme Court in a large number of cases has had an occasion to consider the provisions of the NDPS Act and has noted that the object of the NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to innocent persons and to avoid abuse of provisions by the officers certain safeguards are provided which need be observed strictly. The Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 has made following observations in paragraph 15:- "15......The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to ....
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....gistrate." 14. In view of above position of law it is clear that once the prosecution becomes successful in establishing, on the basis of evidence on record, that the contraband was found from the possession of the accused, onus will shift to the accused, in view of the provisions mentioned under Section 35 read with Section 54 of the NDPS Act which are as follows. Section 35- Presumption of culpable mental state.- "1. In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.- In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. 2. For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." Section 54- Presumption from possession of illicit artic....
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.... 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 conceale....
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....ve may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. 2. Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." Section 43- Power of seizure and arrest in public place. Any officer of any of the departments mentioned in section 42 may- "(a) seize in any public place or in transit, any na....
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....nstead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). 6. After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." 16. Besides above provisions the most authoritative decision of the Hon'ble Supreme Court in regard to interpretation of these Sections has been made in the State of Punjab Vs. Baldev Singh (1999) 6 SCC 172, in paragraph 24, 25 following is held:- "24. It would, thus, be seen that none of the decisions of the Supreme Court after Balbir Singh's case have departed from that opinion. At least none has been brought to our notice. There is, thus, unanimity of judicial pronouncement to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a gazet....
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....f Section 50 were duly complied with." 17. In the light of above cited law this Court would like to take up the point, as to whether the finding of the learned court below as regards non compliance of Section 50 was correct or erroneous. The learned court below has recorded in paragraph 24 of the judgment is as follows:- "24. It is settled law which is very much clear from the due and respectful perusal of the aforesaid case-laws of the Hon'ble Supreme Court that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. Which [the accused] may be carrying. In the present case, the Section 50 of NDPS Act can have no application on the facts and circumstances of the present case as charas was allegedly recovered from the bag which was being carried by the accused." 18. The point as to whether Section 50 would apply in the present case or not will depend on the facts of the present case, hence, the relevant facts need to be taken into consideration. The prosecution case is that when the police patrolling party was busy in law and order duty they came across the a....
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....sonal search of respondent 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application." 20. In the present case, the facts are little different. The personal search of the accused-appellant had already been made by the police party and thereafter, when it inquired as to what was kept in motor-cycle, the appellant told them that charas was kept therein in the dicky of motor-cycle and thereafter, according to prosecution after applying provisions of Section 50 of NDPS Act by apprising him of his right to be searched in presence of a Magistrate or a Gazetted Officer and upon his declining the search to be made in presence of any such officer & giving consent for search to be made by police party itself, search was made and the said contraband was recovered. These facts indicate that the recovery of contraband was not made at the time of his personal search, rather the same was recoverd after he told the police party that he had kept charas in dicky of the motor-cycle. In view of these facts, the above law laid down in Parmanand (Supra) will not be applicable. Hence in view of ....
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....leged contraband substance was recovered(500 grams charas) from the appellant or not. 25. In this regard, it pertinent to mention hear that in recovery memo (Exhibit-ka-2) it is recorded that when the appellant was asked as to what was kept in the dicky of the motor-cycle, the appellant admitted his guilt by the saying that Nepali charas was kept therein. When the said dicky was searched, two packets of Nepali charas weighing about 500 grams were recovered. From the said recovered charas about 50 grams quantiy was taken out by way of sample in a separate plastic and was sealed. The reamining charas was sealed in the same plastic packet in which it was found and was sealed separately and separate sample of seals were prepared. It is not recorded in this recovery memo as to how the said recovered contraband substance was taken to have weighed 500 grams when there is no entry made in the recovery memo that the same was weighed by any of the police personnel who was included in the search party. The only evidence on record with regard to weighing this contraband substance is found in the statement made by PW-4, who has stated that when the alleged contraband substance was brought to....
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....ckages/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 ....
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.... 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 t....
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....n. Similarly, PW-3 who is also a witness of fact has not given any statement as to where the said articles were deposited. The Investigating Officer (PW-5) has stated that after getting the docket of recovered contraband sample prepared, the same was sent for being tested to the Forensic Science Lab. It was incumbent upon the prosecuton to prove and bring evidence on record as to where the recovered contraband, its sample and the seals by which they were separately sealed, were kept. Whether, the said place where these items were kept was a safe place where no tampering could be possible. 31. The report of Forensic Science Lab(Exhibit-Ka-5) contains that the sealed baggage covered with cloth was received by them on 6.5.2005 containing suspected charas of quantity (50 grams) which was found to be charas after being tested. Whose seal was affixed on it is not clear from perusal of Exhibit-ka-5. No endorsement is made in this report stating that the sample seal was compared with the seal which was found affixed on this packet and the same was found to be un-tampered/unbroken. There is no sufficient evidence on record adduced by the prosecution in this regard. There is lack of evide....
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.... and could not have caused any prejudice to the appellant. 33. The other case was relied upon by the learned AGA is Krishna Kanwar (Smt.) @ Thakura Deen Vs. State of Rajasthan, (2004) 2 SCC 608, in which in paragraphs 26 & 27 it is held that the quantity recovered, by no stretch of the imagination, was small. Nothing could be shown as to how there was violation of Section 57 of NDPS Act. The safe custody of seized articles and samples had been established by cogent evidence. The Forensic Science Lab report showed that the samples were received in sealed condition with seals and tags intact. That being so, there is no infraction as alleged. Further when the factual possession is tested on the legal principles idicated above, the inevitable conclusion was that prosecution had established its case beyond a shadow of doubt and the conviction and sentence imposed were well merited. 34. Both the above ruling will not help prosecution in this case because in both of them seal was found intact but in case at hand, as disclosed above the prosecution has failed to establish whose seals were used, nor such seals were produced before court at the time of recording evidence of witnesses. ....
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.... Malkhana register that the alleged recovered contraband was kept in Malkhana in sealed condition, which was very essential to remove doubts that there could be any tampering with it. 37. Learned counsel for the appellant has placed reliance upon State of Rajasthan Vs. Gurmail Singh, 2005 (1) JIC 844 (SC), in which paragraph 3 is held as follows: "3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the Malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent alongwith the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case ....
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.... that the sanctity of the samples had been compromised which cast a doubt on the prosecution story. We, accordingly, feel that the judgment of the High Court on the second aspect calls for no interference. The appeal is, accordingly, dismissed. The respondent is on bail. His bail bonds stand discharged." 40. From the above citation, it is evident that because it could not be clarified by the prosecution as to in whose possession the sample remained from 26.02.1998 to 09.03.1998. the benefit was given to the accused of this delay by holding that in absence of any reliable evidence with regard to the authenticity of the letter dated 26.02.1998, it was found that the sample had remained in some unknown custody between aforesaid period and the acquittal order of the accused was passed in that case. 41. In the case at hand it is evident that where the sample of contraband was kept between 22.04.2005 to 06.05.2005, (date when it was received in Forensic Science Laboratory), has not been clarified by the prosecution by adducing any evidence, hence its benefit would go to the accused. 42. The next most important point raised by the learned counsel for the appellant is that the con....
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....ent from the above proviso that it was necessary for the prosecution to seize the motorcycle allegedly being driven by the accused and should have been presented before the Court while the evidence was being recorded, to prove the recovery of the alleged contraband from the custody of the accused. It would be further better if the prosecution had taken evidence on record as to who was the owner of the said vehicle and whether the accused was consciously carrying Charas in its dicky while driving the same. Learned counsel for the appellant has drawn attention of the Court towards statements of Investigating Officer (PW-5) in which he has stated that the number of motorcycle is UP 56 A/6539, Chesis No.DMFBKJ 85028 and Engine No.DMMBKJ 86359. He does not know whom this motorcycle belongs. During the investigation he did not try to find out as to who was its actual owner and whether the said motorcycle was stolen or looted because he had not received any information in that regard. 44. The above statement of the Investigating Officer shows absolute carelessness in conducting the investigation of this case to prove the recovery from the accused of the alleged contraband from the moto....
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.... be a manipulation in the document which is not permissible under the law. The High Court though not placed much reliance apparently thereon but obviously the same had its due impact and effect on the Court since in the last paragraph, the High Court did speak of "other factors highlighted coupled with the non-production of malkhana register that have given fatality to the prosecution case'. This observation of the High Court by itself connotes that the High Court has taken note of it with due particulars and it is on the issue of facts that the High Court felt that there would be justice trampled if an order is passed in favour of the prosecution." 46. From above view of the Hon'ble Supreme Court, it transpires that though non-production of Malkhana Register cannot be the sole ground for passing the acquittal order, but the said fact coupled with other evidence on record, may impact adversely the prosecution's case, in case necessary steps are not taken by the prosecution in proving the case against the accused to the hilt. 47. It may also be mentioned here that it could be possible that the accused drove the said motorcycle without having any knowledge that the ....