Cases referred:
1. Chhoteylal v. State of Rajasthan; 1989 E.F.R. 354.
2. Smt. Zubada Khatoon v. Assistant Collector; 1991 (1) E.F.R. 617.
3. Ramkishan v. State of H.P.; 1992 (1) E.F.R. 395.
4. Mahaboob Bee v. State of Madras; 1992 (2) E.F.R.4.
5. Bhanwar Singh v. State of Rajasthan; 1990 (1) E.F.R. 300.
Faizan Uddin, J. - In this Criminal Appeal filed under section 374 (2) of the Code of Criminal Procedure, the appellant has challenged his conviction under section 20 (b) (ii) read with section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act') for which he has been sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 1 lakh, In default of payment of fine to undergo further rigorous imprisonment for two years, by the VIIIth Additional Judge to the Court of Sessions Judge, Bhopal, in Session Trial No. 53 of 1991, decided on 29.4.1991.
2. The facts giving rise to the filing of the present appeal are that when A.S.I. Laxman Singh Chouhan (P.W. 1) who at the relevant time was posted in Police Station Talaiya, Bhopal, received an intimation on 19.7.1989 that the appellant was indulging in the sale of illicit liquor he, therefore, proceeded to Budhwara locality within the jurisdiction of his police Station. At Budhwara, S.I. Vipin Tiwari and S.K. Verma met him and all proceeded to Itwara locality. At It war a, Laxman Singh Chouhan took S.I. Ashok Tiwari with him and raided to house of the appellant Mansharam at about 7.10 p.m. on 19.7.1989 and arrested the appellant under section 151 of the Code of Criminal Procedure. A.S.I. Laxman Singh Chouhan (P.W. 1) also seized liquor from the residence of appellant. After his arrest and seizure of liquor, A.S.I.-Laxman Singh took a personal search of the appellant and from the pocket of his Pant he recovered seven Pudias of charas wrapped in a handkerchief. The said charas was seized by him as per seizure memo (Ex. P/1) under his signature and the signatures of the witnesses. A.S.I-Lax man Singh took the appellant to the Police Station Talaiya where he recorded First Information Report (Ex. P/2) of the occurrence. The seized charas was sent for examination to the Chemical Examiner, Sagar, who, as per his report (Ex. P/5), found positive results.
3. The appellant was charged and tried for commission of an offence under section 20 (h) (ii) read with section 8 (c) of the Act. The appellant abjured his guilt, denied the alleged seizure of Charas from him and pleaded to be tried contending that he was falsely implicated. The learned trial Judge accepted the prosecution evidence regarding seizure of charas on personal search of the appellant which amounts to an offence under the Act and, therefore, convicted and sentenced him as said above against which this appeal has been preferred.
4. Learned counsel appearing for the appellant made a scathing attack on the findings recorded by the learned trial Judge by contending that the Narcotic Drugs and Psychotropic Substances Act, 1985, provides a special procedure in regard to the search, seizure and production of an accused and seized articles etc. different from the one as contained in the Code of Criminal Procedure, 1973, but the prosecution violated the mandatory procedure contained in sections 42, 50, 52, 53 and 57 of the Act in prosecuting the appellant and the learned trial Judge also failed to take note of the same which resulted into miscarriage of justice and, therefore, the conviction of the appellant cannot be sustained.
5. Earlier the statutory control over narcotic drugs was sought to be achieved through various Central and State enactments through medium of Opium Act, 1857 and 1878 as well as the Dangerous Drugs Act, 1910 etc. which with the passage of time and the developments in the field of illicit drug traffic and drug abuses at national and international level proved to be inefficacious necessitating a comprehensive legislation sufficiently stringent in nature to combate the challenges of the day posed by the drug traffickers and smugglers. It is common knowledge that the whole country seems under the spell of variety of narcotic drugs and psychptropic substances a situation created by traffickers who could not be properly deal with under the existing laws. Due to increase of consumption of drugs, the country was becoming one of the centers of Narcotics under world criminal and in order to curb all these undesirable activities of drugs traffickers, the Parliament enacted the present Act of 1985. It cannot be disputed that it is one of the primary duties of the Government under the Constitution of India to take steps and measures, check health hazards and improve public health Inter-alia by prohibiting the consumption of intoxicating drinks and drugs which are injurious to health. No doubt, the Narcotic Drugs and Psychotropic Substances Act, 1985, is a special law made by the Parliament to meet the above requirements with stringent provision of control and regulation of the operation relating to Narcotic Drugs and Psychotropic Substances providing deterring punishment including the forfeiture of property derived from or used in illicit traffic of such drugs and sub Stances. But, at the same time, fool-proof procedure has been laid down to eliminate any scope and chances of adopting any unfair means or methods by the investigating agency in the conduct of investigation and to avoid suspicion and doubt about the authenticity of the seizure of any Narcotic Drugs and Psychotropic Substances, amounting to an offence under Act.
6. Chapter- V of the Act contained the complete procedure for issuance of warrant, search seizure and investigation of the crime under the Act. It consists sections 41 of section 68; but for our purposes sections 42,50, 52, 55 and 57 alone are relevant. Section 41 deals with power to issue warrant and authorization. Section 42 relates to power of entry, search seizure and arrest without warrant or authorisation. It provides that any officer mentioned in the section has reasons to believe from personal knowledge or information given to him by any person and taken down in writing, that any offence of narcotic drug or psychotropic substance punishable under Chapter IV of the Act, has been committed, he may between sunrise and sunset - enter into and search any building, conveyance or place and after removing the resistance, if any, seize such substance and materials used in the manufacture thereof and if necessary, arrest any person whom he has reason to believe to have committed the offence. Section 50 lays down conditions under which search of persons shall be conducted. It provides that when any officer who is duly authorised under section 42, is about to search any person under sections 41,42 or 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of the departments mentioned in section 42 or to the nearest Magistrate and 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 otherwise shall direct that search be made. Further section 52 relates to disposal of persons arrested and articles seized. It directs that every person arrested and article seized under section 41 (1) shall be forwarded without unnecessary delay to the Magistrate by whom warrant was issued and every person arrested and article seized shall be forwarded without unnecessary delay to (a) the officer incharge of the nearest police station, or (b) the officer empowered under section 53. Section 55 enjoins a duty on the officer incharge of a police station to take charge of and keep in safe custody pending the orders of the Magistrate, all articles seized under this Act. It also provides for taking the sample of the articles seized. Section 57 provides that whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure make a full report of the particulars of such arrest or seizure to his immediate official superior. A reading of these provisions clearly go to show that the legislature has prescribed elaborate procedure with sufficient safeguards to a person accused of an offence under the Act and unless the procedure is strictly adhered to by all the concerned officers and the investigating agency the prosecution will ultimately as in the present case, would result into failures.
7. Now adverting to point in controversy in the instant case, learned counsel appearing for the appellant first contended that A.S.I Laxman Singh Chouhan (P.W. 1), who set out for search of the appellant had not taken down in writing the knowledge and information that he had received in connection with the appellant and the reasons to believe such knowledge or information before proceeding for search of the appellant. It was, therefore, contended that there was a clear breach of the mandate of section 42. In this connection, it may be pointed out that A.S.I Laxman (P.W. 1) has not deposed that he had an knowledge or information against the appellant with regard to any narcotic drugs or psychotropic substances which necessitated him to take down the same in writing as required by section 42. All-that he stated is that he had only received information that the appellant was selling illicit liquor. From this statement and the facts on record, it clearly turns out that ASI Laxman Singh, who affected the personal search of the appellant, was completely ignorant of the possession of any narcotic drugs or psychotropic substances by the appellant. If, it was known to Laxman that the appellant is possessed of charas, then certainly he was under an obligation to record and take down the fact in writing before search and seizure as required by section 42 of the Act. But in the instant case, the fact of possession of narcotic substance that is charas by the appellant, came to be known to police officer Laxman (PW 1) only after the search and seizure of charas from the appellant. In these facts and circumstances, it could not be expected from the Police Officer to record or take down the fact in writing which is totally not known to him. The fact of violation of procedure taking down in writing by itself cannot by any stretch of imagination be regarded to be causing any kind of material prejudice to the case of the appellant vitiating the entire prosecution. In such a situation, what is necessary to be examined is whether the search and seizure were true and evidence adduced by the prosecution inspires confidence so as to be accepted by the Court, which shall be examined at a later stage.
8. Learned counsel for the appellant then urged that the police officer also failed to observe the mandatory provision of section 50 inasmuch as the appellant was not apprised of his right under Section 50 to exercise his choice of being searched in the presence of a gazetted officer of the departments mentioned in section 42 or the nearest Magistrate. In the considered opinion of this Court, the question of compliance of section 50 under the peculiar facts and circumstances of the present case was also not possible for the reasons already mentioned above. House of the appellant was raided on the information that he is dealing illicit liquor and during the course of such raid when personal search was made, charas was suddenly recovered from which the police officer had neither any prior personal knowledge or any intonation from any other source. But in fact the police officer was completely oblivious of the factum of possession of any narcotic drug or psychotropic substance by the appellant. Once the search was made and charas was recovered from his person, it was meaningless to take the appellant either to the nearest gazetted officer of the departments mentioned in section 42 or to any nearest Magistrate to affect the search or seizure which was already done and charas was already recovered and seized.
9. Learned counsel for the appellant next submitted that after his arrest, the Police Officer A.S.I. Laxman Singh Chouhan (P.W. 1) neither informed the appellant of the grounds for such arrest nor the seized article charas was forwarded without unnecessary delay to the officer incharge of the nearest police station in accordance with the mandatory provisions contained in section 52 of the Act. As regards the allegation of non-production before the officer incharge of the nearest policy station there is evidence as contained in para 18 of the deposition of A.S.I Laxman (P.W. 1) that he did produce the appellant before the T.I. of the Police Station after his arrest. But as regards the allegation that the police officer did not infant the appellant of the grounds of such arrest and that the article seized was not forwarded to the officer incharge of the nearest police station or the officer empowered under section 53 there appears to be much substance. The entire reading of the evidence of Lax man Singh (PW 1) goes to show that he did not depose that after the arrest of the appellant he had informed him of the ground for such arrest or he had forwarded the charas seized from the appellant to the officer incharge of the nearest police station or the officer empowered under section 53 of the Act There is no evidence at all on this aspects. Here a reference to provision of section 55 of the Act may also be made which contemplates that an officer incharge of the police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act and which may be delivered to him. This provision is a mandatory provision and there is no evidence that it was complied with. A.S.I Laxman Singh (P.W. 1) has made no statement that the seized article was given to the officer incharge of the police station. See Chhoteylal v. State of Rajasthan1 wherein it has been observed that this contravention will certainly prejudice the accused as section 52 provides safeguards to the accused and the said provisions have been purposely made by the Parliament in order to save the accused from unnecessary harassment.
Further sub-section (4) of section 52 of the Act relates to the disposal of such properties and provides that the authority or officer to whom any person or article is forwarded shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. These directions in section 52 are mandatory providing safeguards to the accused because the intention of the Parliament by embodying these conditions in section 52 was to ensure just and fair investigation by responsible officers, to avoid and eliminate grievances against the officers of the ranks lower than incharge of a police station to have abused their powers. But these mandatory provisions have been entirely ignored by reason which a doubt in the investigation process is created the benefit of which must go to the appellant.
11. Learned counsel then assailed the evidence regarding seizure of alleged charas from the appellant. He submitted that the two witnesses of the search and seizure who were examined by the prosecution, have turned hostile Apart from their being hostile the said witnesses were the selected witnesses and not the witnesses of the same locality as required by sub-section (4) of section 100 of the Code of Criminal Procedure. He assailed the evidence of ASI- Laxman Singh (P.W. 1) and the police constable Govind Singh (P.W. 4) as interested witnesses unworthy of any reliance. In this connection, it may be pointed out that A.S.I Laxman (P.W. 1) has deposed in para 13 that he had taken the witness with him who met him on Budhwara-It-wara road. He also deposed that he had called the witnesses of the vicinity for search and seizure but they all declined to oblige him. This evidence goes to show that association of independent witnesses of the locality was not possible in the present case. But it may be pointed out that the mere fact that the witnesses who are not residents of the locality, are taken by a raiding party to witness the raid, is not sufficient to vitiate the proceedings. So also, even if, no independent witnesses but only police officers are reexamined to prove the case that will not by itself be regarded as a fatal infirmity as there is no rule or any presumption that the police witnesses are not the truthful witnesses. The non-compliance of the provisions of sub-section (4) of section 100 of the Code of Criminal Procedure may be an irregularity but in a case where proceeding of search and seizure appeared to be faulty and doubtful, the evidence of witnesses of seizure will have to be closely scrutinized. That being so, unless it is demonstrated that the police witnesses are not unfaithful, their evidence cannot be discarded. But, what is necessary is that the evidence of Police witnesses, who are interested required: close and cautious scrutiny and careful examination before accepting the same. I shall, therefore make a close scrutiny of the evidence of the witnesses of search and seizure namely ASI-Laxman Singh Chouhan (P.W. 1) and constable Govind Singh (P.W. 4).
12. ASI-Laxman Singh (P.W. 1) deposed that he had sealed seven pudias of charas then and there on the spot after the same were searched and seized from the appellant; but Govind Singh (P.W. 4) makes no statement in this behalf; on the contrary, he made a vague statement in para 13 of his deposition that he took charas from the accused and kept them with him but he did not see those pudias on reaching the police station. He further deposed in para 13 of his deposition that he had taken the witnesses with him, who met him on Budhwara-Itwara road; but quite contrary to this, constable Govind Singh (PW 4) deposed in para 6 that both these witnesses were taken by them from the Police Station itself. A perusal of statement in para 10 of witness Govind Singh goes to show that both the witnesses of seizure were taken in a police van. Munna (PW 3) one of the witnesses of the seizure even went to the extent of stating that he was living behind Talaiya Police Station where ASI-Laxman Singh (PW 1) is posted and that ASI-Laxman was in the habit of forcing this witness frequently to sign on various papers at different occasions. He also deposed that Laxman Singh had taken, his signature on blank paper in the instant case. Most significant and inconsistent statement is contained in para 15 of the deposition of ASI-Laxman Singh (PW 1) where he states that he had left the police station at 11 a.m. and reached the spot where search and seizure were affected after 7 p.m. But quite contrary to this, Constable-Govind (PW 2) who is said to be accompanying Laxman Singh, deposed in para 11 of his deposition that they had left the police station at about 7 p.m. There are some other inconsistencies also in the statement of Laxman Singh (PW 1) and Govind Singh (PW 4) A combined reading of these contradictions and inconsistencies in the evidence of these two police witnesses, an impression is gathered that they are not wholly truthful witnesses and their evidence with regard to the search and seizure of charas does not inspire confidence. It does not, therefore, appear advisable to accept their interested evidence without corroboration from any independent sources, as they are not found to be wholly truthful.
13. Learned counsel for the appellant lastly contended that there was also non-compliance of mandatory provision contained in section 57 of the Act inasmuch as after the arrest and seizure, a full report of particulars of such arrest and seizure was not made by ASI-Laxman Singh, to the immediate official superior within forty-eight hours next after such arrest and seizure. There is much force in this submission also as there is no evidence at all to show that a full report of particulars of the arrest and seizure was made by ASI Laxman Singh (PW 1) to his immediate official superior, so as to show that the investigation was fair. This is one of the checks provided by the Legislature in order to secure fair investigation and to eliminate any chance of any grievance or complaint by an accused person. The obvious object behind this provision is that the prosecution is left with no opportunity of improving upon the earlier and first version of all particulars of the occurrence. In Smt. Zubada Khatoon v. Assistant Collector2, a Division Bench of Karnataka High Court took the view that the provisions contained in section 57 are mandatory in character and the failure to comply with the mandatory provisions of section 57 will certainly result in the prejudice to the accused appellant. Similar view has been expressed by a Division Bench of High Court of Himachal Pradesh in Ramkishan v. State of H.P.3 Further in Mahaboob Bee v. State of Madras4, the Madras High Court also took the view that the provision of section 57 are mandatory and if the provisions are not complied with the conviction is vitiated. Similar view was expressed by Rajasthan High Court in Bhanwar Singh v. State of Rajasthan5.
14. Before parting with this appeal, I feel it necessary to point out that sections 41 to 57 of the Act, lay down an elaborate procedure with regard to issuance of a warrant, search, seizure and production of articles seized and a person accused of an offence under the provisions of the Act; but the officers authorised in this behalf and the investigating agency do not seem to be conversant with the relevant provisions of the law and the intricacies involved there by reason of which, most of the trials result into a futile exercise. The ultimate result is that the purpose of this new enactment also does not seem to achieve its objective. Better results could not be expected in the present state of affairs where the official concerned and the investigating agency seem to be totally ignorant of the mandatory procedure and provisions made under tile Act as safeguards, the non-compliance of which vitiates the trial. In these circumstances, the Government would be better advised to issue guidelines highlighting the relevant and mandatory provisions the compliance of which is necessary under the Act and also to organise training programmers to impart necessary knowledge and information to the official concerned and the investigating agency.
15. For the reasons stated above, the appeal succeeds and is hereby allowed. The judgment dated 29.4.1991 passed by the VIIIth Additional Sessions Judge, Bhopal, in Sessions Trial No. 53 of 1991 convicting and sentencing the appellant as said above, is set aside and the appellant is acquitted of the offences charged with. The appellant be released forthwith, if not required in any other offence.
Appeal allowed.