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Mahesh Nai v. State of U.P. - CRIMINAL APPEAL No. 3977 of 2002 [2005] RD-AH 2625 (9 September 2005)


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This jail appeal arises out of the judgment and order dated 26.3.2001 passed by the 1st Addl. Sessions Judge, Etawah, convicting the appellant  for the offence punishable under Section 21 of N.D.P.S. Act (hereinafter referred to as the 'Act') and awarding him sentence of rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-.

The brief facts, as disclosed in the prosecution case are that in the night falling between 31st December, 1999 and 1st January, 2000 at about 3.10 a.m. when the police party in leadership of P.W. 1, S.I. Rudra Pratap Singh, was out for night patrol, they had to halt near the Railway crossing, which was then closed on account of some train shortly to pass therefrom. While their jeep was stopped on the road, the police party noticed that one person from the other side of the railway line was coming towards the railway gate but when he noticed the presence of the police vehicle there, he immediately turned back and started walking in the opposite direction. P.W. 1 Rudra Pratap Singh, having got suspicious of the person, immediately got down from the jeep and flashed his torch towards the man and cautioned him to stop. Hearing the police caution and warning, the man started running but the police party, after a little chase arrested him at about 3.10 a.m. and on inquiry the appellant disclosed his name. On further inquiry as to why he was trying to escape he gave unusual gestures. The police got suspicious of him and took his search and seized 21 tablet of Nitrazepam. He told the police party that by mixing tablets in the liquor it enhances intoxicating effect twice. He further admitted that he also consumes it and sells it to the people at the railway platform. P.W. 1 thereafter told him that he could be taken to a gazetted officer for his search. But he gave his consent for search being taken by the police party itself. Thereafter, the recovered article was got sealed on the spot and its seizure memo was prepared, a copy of which was handed over to the accused. The recovered article Nitrazepam and the accused were brought to the police station where the F.I.R. was lodged and the case under Section 8/21 N.D.P.S. Act was registered against him.  

The investigation was started by P.W. 3, S.I. Bhim Singh, who recorded the statements of the witnesses, inspected the spot, prepared the site plan of place of occurrence, obtained the report of chemical examiner from Lucknow Laboratory and after completing the investigation submitted the charge sheet in this case.

The appellant accused was charged for the offence punishable under Section 21 of the Act and he pleaded not guilty to it. He further stated before the court that he had been falsely implicated in this case on account of enmity. There was a quarrel between him and his brother Surendra. The police had taken him from his residence and got him challaned in this fabricated case.

The prosecution in support of its version has examined P.W. 1, S.I. Rudra Pratap Singh, the arresting officer, Constable Kaushal Kishor and other police personnel, who were members of the police party and had done search and seizure of the contraband from the possession of the appellant, and P.W. 3, Bhim Singh, the Investigating Officer. The prosecution has also filed and proved documents in support of its case, Ext. Ka-1 to Ka-7, which include the recovery memo, chick F.I.R., site plan, charge sheet, extract of general diary and report of chemical examiner etc.

The defence has neither examined any witness nor has proved any document in support of this case.

The appellant accused has all along been in the lock up. Since there was none to represent and defend him in this appeal, the court appointed Sri Anil Pratap Singh, Advocate, as Amicus Curiae to argue the appeal on his behalf.

I have heard Sri Anil Pratap Singh, Amicus Curiae and learned A.G.A. and have gone through the paper book and original record received from the trial court.

It has been argued on behalf of the appellant by the learned Amicus Curiae that in this case the seizure officer P.W. 1 has actually not complied with the provisions of Sections 50, 55 and 57 of the Act. It is submitted that since the requirements to be complied with in relation to Section 50 of the Act are held to be mandatory by the Apex Court, the whole evidence of search and seizure becomes liable for rejection for the purpose of this trial and it should not have been accepted for recording conviction of appellant in this case. In this context, he has submitted that the seizure officer has though, stated in the recovery memo (Ext. Ka-1) as well as in the  evidence before the trial court that the accused appellant was given option on the spot for his search being taken in presence of a gazetted officer, is not sufficient to cover the entire mandatory requirements of Section 50 of the Act. As such, the trial court has made an erroneous interpretation of this provision of land and has wrongly recorded the conviction of appellant.

The submissions made on the part of the Amicus Curiae regarding different provisions of the Act are being taken separately for discussion. First of all the argument with regard to the compliance of the requirements of Section 50 of the Act is being taken up. In fact, the learned A.G.A., while placing his submissions in reply to the argument of the defence on this point, has tried to impress upon the court that in the present case when the recovery of the narcotic drug is said to have been made  and seizure had been affected all of a sudden without any prior information, the compliance of requirement of Section 50 of the Act is not called for. A reference has also been made by him to the case of State of Punjab Vs. Balbir Singh, 1994 (31) A.C.C. 351 (S.C.). No doubt the fulfillment of requirement of Section 50 of the Act is imperative on the part of the Investigating Officer and any kind of latches in that regard, as the Hon'ble Apex Court propounded in State of Punjab Vs. Baldev Singh, 1999 (39) ACC 349, would lead to invalidate the entire search and seizure but in certain cases such compliance of Section 50 of the Act is not required. In view of the proposition of law of the Hon'ble Apex Court itself, this case would not be affected for such non compliance. In the aforesaid case of State of Punjab (supra), it has been specifically held that in such cases where the arrest has been made in normal course on the basis of some suspicion against the person arrested all of sudden and in the course of such search, some prohibited item which is called as a contraband substance is recovered, the provisions of Section 50 of the Act would not be attracted. Hon'ble Apex Court has concluded its view as below:-

"If a police officer without any prior information as contemplated  under the provisions of the N.D.P.S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the N.D.P.S. 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 N.D.P.S. 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 N.D.P.S. Act."

In the present case, the appellant Mahesh Nai was noticed by the police party coming towards the railway gate in the said night of the incident but when the appellant noticed the presence of police party in police vehicle, he immediately turned back. The conduct of the accused was found to be suspicious by P.W. 1. Immediately thereafter the appellant accused was asked to stop by P.W. 1 at which he started running. The suspicion about his criminal mind was got further confirmed by this act of the accused and after a little chase he was arrested. Consequently the search was taken in which this contraband has been found from his possession. This sort of search and seizure obviously, appears to be a search under the normal course by the police officer on the basis of suspected offence, which might have been committed by the person and when the search in such manner has been completed at that stage the provision of Section 50 of the Act would not then be attracted and the question of its compliance to the requirement thereunder would definitely not arise. Therefore, even if the seizure officer has not made full compliance of the requirements of Section 50 of the Act in this case, the search and seizure would not be adversely affected nor it would be vitiated. Therefore, the submission of learned Amicus Curiae on this point has hardly any force for the purpose to demolish the prosecution case or to attack the finding recorded by the trial court.

The other argument which has been advanced by the learned Amicus Curiae on behalf of the appellant is that the seizure is said to have been affected in the night hours of 31.12.1999 and after arrest, the accused and the contraband were brought to the police station. The recovered Nitrazepam tablets in sealed condition were kept in Malkhana but there is no legal evidence of the fact that from Malkhana of the police station when and how this article was taken for preparation of samples for being sent to the chemical examiner. There is also no evidence to show as to how this article was preserved in the police Malkhana. This is a grave non compliance of the procedural obligations, which has to be carried out by the investigating agency before submitting the charge sheet and when these obligations are not proved to have been actually carried out, the prosecution cannot claim to have proved its case.

In the aforesaid context, we have to go by the evidence as has been produced before the trial court. The evidence of P.W. 1 and 2 are to the effect that the alleged contraband articles, after its seizure on the spot, were sealed there on the spot and brought along with the accused to the police station where both were lodged. Thereafter, the prosecution has given the statement of the Investigating Officer P.W. 3, who has simply stated in his examination in chief that he recorded the statement of the witnesses, inspected the spot and thus, completed the investigation and submitted charge sheet. There is nothing in his examination in chief as to how and when the recovered contraband was sent for chemical examination to the Lucknow Laboratory after preparation of the sample therefrom. It is only during the cross examination when he has stated that on 25.1.2000, the sample from out of stock of the seized contraband, was prepared but he does not say that he himself carried the recovered Nitrazepam from police station Malkhana to the court for preparation of sample.  How and by which source this contraband had reached the court remains a mystery in the evidence before the trial court. The other fact, which has been disclosed by him about the course of obtaining report from the Lucknow Laboratory, is that one constable Jai Ram Pal took the sample on 25.1.2000 from the court to the police station and it was sent to the Lucknow Laboratory on 29.1.2000. There is no other fact given out in this regard in the statement of P.W. 3 and it appears that the prosecution has been extremely negligent of its compliance to prove this fact that the recovered contraband was taken from police station Malkhana to the court in proper sealed condition and therefrom it was brought back to the police station and whereafter the sample was taken to Lucknow Laboratory for chemical examination. This police constable Jai Ram Pal, who is said to have taken the article from the court after preparation of sample back to the police station, for the reasons best known to the prosecution, has not been produced before the trial court. Who took the article from the police station Malkhana thereafter to Lucknow Laboratory is not proved  on record. These are necessary pieces of link evidence which the prosecution is obliged to prove in such cases and any negligence or latch accruing therein has to adversely affect its case. Section 55 of the Act provides as below:-

"Police to take charge of articles seized and delivered.-- An officer in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."

It is the duty of prosecution in such cases in view of the aforesaid procedural obligations laid down under the Act to discharge  its obligations quite meticulously and in case the same has not been done, the probative value of the prosecution evidence is treated to be reduced to such an extent that the same is not found worth acceptance for recording conviction.

The other point of argument regarding compliance of the procedural requirement of Section 57 of the Act is advanced by the learned Amicus Curiae. The provision itself contemplates about making a report by the seizure officer under the Act to his immediate official superior within 48 hours next after search, arrest or seizure. A non observance of such procedural requirement has though, been held to be only an irregularity in the case of State of Punjab Vs. Balbir Singh (supra) and it may not render the act of seizure and recovery as null and void but at the same time it also does affect the probative value of the evidence regarding arrest and seizure. In some cases of such arrest or search, the non compliance of such statutory instructions may also cause prejudice to the accused and those may result in failure of justice. This provision cannot be ignored by the officers and in case it is found that there is total ignorance the conviction recorded may be held to be bad in law. In this context a reference has been given to the case of Thandi Ram Vs. State of Haryana, 2000 Supreme Court Cases (Cri) 189 and also to a case of Bombay High Court in case of Gangaram Rama Gundkar and another Vs. State of Maharashtra, 2002 Cri.L.J. 2578  and a decision of this court given by me in case of Irshad Ahmad alias Shekhu Vs. State decided on 21.7.2005.

In the present case, there is no evidence either given by P.W. 1, the seizure officer or given by P.W. 2 that any such report as contemplated, was ever made by the seizure officer within 48 hours of the recovery to his immediate official superior. Since there is total non compliance of the requirements of Section 57 of the Act here in this case, it will definitely prejudice the accused because had there been some report sent under Section 57 of the Act available on record, the defence would have had an opportunity to confront the seizure officer P.W. 1 with the same but no such report having been made, this opportunity has been denied to the defence.

Besides above, it has also been pointed out from the side of the defence that there is no evidence given by the prosecution to the effect that before making search and seizure of the contraband from the possession of the accused the police party had also volunteered its search to be taken  by the accused nor there is anything in the evidence that the police personnel before such arrest and seizure had taken search of each other to ascertain that they themselves were not carrying any contraband, which they claim to have recovered from the possession of the appellant. This is definitely a procedural requirement though not statutory, as recognized by the law courts treating it as necessarily to be gone into and its non-observance renders the search and seizure as doubtful. The prosecution also having failed to advance such evidence, the lacuna so caused, renders the disputed search and seizure as not transparent and it cannot be wholly accepted.

In the aforesaid facts and circumstances, it appears that the trial court has not properly appreciated the aforesaid factors and did not notice the obvious defects reflected in the prosecution evidence. It without taking much pain, has jumped to a wrong conclusion for recording conviction of the accused on the basis of such a doubtful recovery of 21 tablets of Nitrazepam. In this appeal, I therefore find that the judgment of the trial court cannot sustain in the eye of law. The prosecution has failed to establish the guilt for the offence punishable under Section 21 of the Act against the appellant beyond reasonable shadow of doubt. He has to be given benefit of the same and his appeal deserves to be allowed.

In result, the appeal is allowed and the judgment and order dated 26.3.2001 passed by the 1st Addl. Sessions Judge, Etawah is hereby set aside. The accused is not found guilty for the aforesaid offence. He is acquitted for the same. The appellant is languishing in jail and he shall be released forthwith, if not wanted in any other case.

Office is directed to transmit the original record along with copy of this judgment immediately to the trial court concerned, which shall issue release order of the appellant as contemplated under law.


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