TaxTMI 
TaxTMI 
2017 (12) TMI 630
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....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 th....
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.... 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. dat....
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.... 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....
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....ound 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 ma....
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....ed 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 n....
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....nt 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 ....
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.... 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 beha....
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....l 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 f....
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....ed 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 ....
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.... 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 supe....
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....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 15....
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....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....
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....ination 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 ....
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....mical 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 p....
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....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 t....
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....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 th....
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....mation 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 persona....
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....t 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 vi....