TaxTMI 
TaxTMI 
2017 (12) TMI 1508
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....e directed that they will undertake crime control proceedings by being on the move. When the train arrived on the station at about 17:50 hours the police party headed towards the east from their Chauki and noticed a person getting down from the last bogi and started heading towards east swiftly. Being suspicious, he was directed to stop, he ignored the direction and started moving at faster pace. He was caught at about 17.52 hours near a tree of Jamun near cemented bench. When enquired, he disclosed his name to be Suraj Prasad. When personal search was made, charas was found from him weighing about 01kg which was kept in a soiled bag and started apologizing. 3. He was apprised that he had committed an act punishable under Section 20 of NDPS Act and was taken into custody. From the recovered charas, about 20gm quantity was taken out as sample, which was kept in a 'jarde ki dibiya' and after wrapping the same in a cloth was sealed on the spot. The remaining recovered charas was kept in the same bag (Jhola) and was also sealed. The samples of seals were separately prepared. The people present there were requested to be witness of proceedings but none gave consent. The recover....
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....ixed on the sample of contraband was found to be the same sample by F.S.L. which was affixed on the spot, when the alleged sample was opened for testing by them. Therefore, the cumulative effect of all these infirmities in this case should create enough doubt regarding recovery of the alleged charas from the accused. He has relied upon Noor Aga Vs. State of Punjab & another, 2010 (71) ACC 575, in which in paragraph 161 following has been held: "161. Our aforementioned findings may be summarized as follows: "1. The provisions of sections 35 and 54 are not ultra vires the Constitution of India. 2. However, procedural requirements laid down therein are required to be strictly complied with. 3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant's guilt. 4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view o....
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....is apparent that the position of law is that if during search and arrest in normal course of investigation into a suspected offence the police comes across recovery of a narcotic drug or psychotropic substance, the plice officer, who is not empowered, should inform the empowered officer, who should thereafter proceed in accordance with provisions of NDPS Act. If he himself happens to be empowered officer, then from that stage when recovery has already been made, he should carry out the investigation in accordance with the other provisions of NDPS Act. In the case at hand, the recovery of contraband substances is allegedly made by PW-1, S.I. Sri Vinaya Kumar Singh who is covered under the category of empowered officer as provided under Section 42 of NDPS Act being an officer superior in rank to a 'peon' 'sepoy' or 'constable'. But once he had made the recovery of alleged charas from the accused he was supposed to follow all the relevant provisions, chiefly among them would be the provision given under Section 57 of NDPS Act, which required him to send a full report of all particulars of such arrest and seizure to his immediate official superior. For the sake ....
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....a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried ou....
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....s 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the off....
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.... covered by a cloth and sealed. The remaining charas was sealed in the same packet in which it was recovered. Further he has stated that the said recovered substance was in front of him in court in sealed condition upon which the Case Crime No.297 of 1990, under Section 20(b)(ii) of NDPS Act, Vs. Suraj Prasad dated 05.07.1990 was endorsed. On the sealed bag (Jhola) the name of accused Suraj Prasad and his address was endorsed which was written by him in his hand writing, which is material Ex.1. In cross-examination this witness has stated that the recovered substance was 01kg as per his guess. Accused (Mulzim) had also told him that the said contraband substance's weight was 01kg; he had not weighed the same. The sample was taken in 'Dibba' which was procured from the market by sending a constable whose name he does not recollect. The 20gm of charas was taken out of the said bag (Jhola) containing charas in a separate dibba and was sealed. The paper related to the sample of seal was sent to Lucknow, and is not on this file. Further he has stated that the bag (Jhola) was closed and was sealed, but he could not say as to whether the sample of seal of the said seal was on ....
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....hereafter sample was taken out of Malkhana and sent to the F.S.L. has not been established. It has also not come on rercord that when the Ex.1 was placed before court at the time of recording of statement of PW-1 and PW-2, it bore seal of "R.S. Maurya, U.P.P." and the same was found in intact condition. It would be pertinent to also refer to the statement of PW-5, S.I. Sri Chandra Shekhar Singh (Investigating Officer) who has stated in examination-in-chief that on 19.07.1990 under the order of court he had got the docket prepared of the recovered substance which was to be sent for being tested by F.S.L. In cross-examination he has stated that earlier also the paper work for sending the recovered contrabad substance was done by him, he had not sent any letter for examination of the recovered substance directly rather the same was sent by court. The recovered substance was brought by him in court; the said substance was taken out by way of sample, which was brought in court and under order of court the same was sent for examination through Sri Ram Yadav and such entry is made by him in the case diary. There is no other document on record other than entry in case diary proving that Sr....
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....of knowledge, with regard to the bags containing poppy husk lying in the jeep. It was for the accused to explain, as to how the bags, containing poppy husk were being transported. Not only this, the conduct of the accused, is also relevant, in this case. They instead of stopping the jeep, when the signal was given, by the policy party, accelerated the speed thereof and sped away towards Village Keharwala. It was only after hot chase given by the members of the police party in their jeep, that the driver of the jeep got nervous, could not properly negotiate the turn and lost control, as a result whereof, the said jeep struck against the wall and stopped. In case, there was no contraband, in the jeep, and the accused were not in the knowledge of the same then what was the necessity of speeding away the jeep was for them to explain. This material circumstance goes against them. Under these circumstances, it could be said that they were in possession of, and in control over the bags, lying in the jeep." Once the possession of the accused, and their control over the contraband was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against them that they w....
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....session of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise. 20. Thus, in view of the above, it is a settled legal proposition that once possession of the contraband articles is established, the burden shifts on the accused to establish that he had no knowledge of the same. 21. Additionally, it can also be held that once the possession of the contraband material with the accused is established, the accused has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872. 22. In State of W.B. v. Mir Mohammad Omar (AIR 2000 SC 2988), this Court held that if the fact is specifically in the knowledge of any person, then the burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not i....