CHHOTEYLAL v. STATE OF RAJASTHAN — 1989 DIGILAW 119 (RAJ)

Judgment HASSAN, J. ( 1 ) THIS appeal from Jail by Chhoteylal springs from his conviction under Sections 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, the Act) and sentence of to years rigorous imprisonment with a fine of one lac (in default, further one years R. I.) for having illegal possession of charas (cannabis) weighing 27 grm. with a small sack, passed vide judgment dated 13-6-1988 by the Additional Sessions Judge No. 2, Ajmer. ( 2 ) ON 4-3-1987 at 7 p. m. having received a secret information that near chhoti Daig (cauldron-a large boiling vessel) placed in Daragah Shariff mosque, at Ajmer one Choteylal had been selling charas having a small black coloured attachi in his hand. Astali Khan (Sub-Inspector, Police) along with Kanaram (Asstt. Sub-Inspector), Nandkishore (L. C. No. 1082) Suresh Chand (L. C. No. 225) and Sajjan Singh (L. C. No. 1145) proceeded from Buland Darwaja towards small cauldron inside Dargah near thereby they found one person standing with a small black coloured attachi in his hand, who was entangled in the presence of motbirs, Arjun and Pratap Singh and who named himself as Chhoteylal (appellant) and then was searched thereupon in his pants right hand pocket, Rupees 410/- and a small sack were found and in that sack on its opening charas was found which was recovered and on weighing it was 27 grames and the appellant could not produce any permit for possession thereof. The appellant was arrested, and on the basis of recovery and seizure memo of charas an First Information Report was chalked out at the Police Station Buland Darwaja (Ajmer) for the offence Under Sections 8/20/21/32 of the Act which was transferred and sent through Chhitar Singh (F. C. 549) to the Police Station Ganj (Ajmer) where a criminal case No. 41/87 was registered. After completing necessary formalities of investigation, report was presented before the Additional Chief Judicial Magistrate No. 2 Ajmer. Sealed bag of the charas was sent for chemical examination through Dashrath Singh and according to the report of the Chemical Examiner (Ex. P. 6) charas was found in the small sack. After going through the documents, the Magistrate committed the case for trial to the Court of Sessions. Sealed bag of the charas was sent for chemical examination through Dashrath Singh and according to the report of the Chemical Examiner (Ex. P. 6) charas was found in the small sack. After going through the documents, the Magistrate committed the case for trial to the Court of Sessions. The Additional Sessions Judge Ajmer, after framing the charge for an offence under Section 20 (b) (ii) of the Act of which the appellant pleaded not guilty, examined in all nine prosecution witnesses and accused appellant under Section 313 of the Criminal Procedure Code wherein the accused denied the prosecution allegation but, no defence was produced by him. After hearing the parties, the Trial Court found the appellant guilty of the offence charged, and the appellant was sentenced as stated in first para of this judgment. ( 3 ) BEFORE I deal with forensic controversy, a broad brush legal back drop and reference to the relevant provisions of the Act will help delineate the controversy involved. ( 4 ) THE Act has prescribed minimum punishment of rigorous imprisonment of 10 years and fine of Rs. 1,00,000/- irrespective of the quantity recovered, with enhanced punishment for offences after the previous conviction of the person concerned. The Opium Act, 1878 (repealed by the Act) prescribed no procedure except that the possession of opium without licence was made punishable and there was no minimum punishment prescribed but it was left to the discretion of judicial Courts. Further I more, under the Act, a specific procedure has been laid down for arresting of the persons their search, deposit of the article recovered, taking samples therefrom etc. under different sections of the Act, but has saved the application of the provisions of the Criminal Procedure Code, in so far as the same are not inconsistent with the provisions of the Act with respect to the warrants issued, arrests, searches and seizures thereunder. The legislature has deliberately made such provisions and has given some safeguards to the accused persons so they may not be harassed unnecessarily. And, those are almost mandatory provision and its altogether ignorance and non-compliance of theirs lacking on the part of lhe prosecution and by not making the investigation upto the mark, all would certainly fatal to the prosecution and cause material prejudice to the accused persons- the benefit of which must necessarily go to them. And, those are almost mandatory provision and its altogether ignorance and non-compliance of theirs lacking on the part of lhe prosecution and by not making the investigation upto the mark, all would certainly fatal to the prosecution and cause material prejudice to the accused persons- the benefit of which must necessarily go to them. In fact, the intention of the Parliament was to ensure fail investigation by responsible officers and to do away with a common complaint that officials of lower ranks have started abusing their powers. ( 5 ) LET me now pass on to discuss the relevant provisions of the Act. Before making a search, as the provisions of Section 50 of the Act lay down, the officer duly authorised will not conduct any search, if the person to be searched so requires, before taking such person to the nearest gazetted officer any of the Department envisaged in Section 42 of the Act or to the nearest Magistrate. Thus, the word) if such person so requires as mandatory and the officer has to ask the person if he wanted to be taken to the said nearest gazetted officer or to the nearest Magistrate. However, unless the person to be searched is informed about his right guaranteed under Section 50 of the Act the said words would not come into operation and such provisions cannot be said to be complied with. On a careful perusal of the evidence, I am persuaded to hold that in the present case, the appellant was not informed of his right at any time before he was searched. ( 6 ) ANOTHER mandatory provisions are of Section 52 of the Act which contemplates that the officer arresting a person, shall as soon as may be inform him to the grounds for such arrest, and the person arrested along with the article seized shall be forwarded without. unnecessary delay to the Magistrate if any warant is issued or to the Officer incharge of the nearest Police Station or the officer empowered under Section 53 of the Act. Section 52 further lays down that the officer to whom any person or article is forwarded shall with all convenient despatch take such measures as may be necessary as to the disposal according to law of such person or article. Section 52 further lays down that the officer to whom any person or article is forwarded shall with all convenient despatch take such measures as may be necessary as to the disposal according to law of such person or article. Next is also the mandatory provisions contained in Section 55 which envisages that the officer incharge of a Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of the 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 to take shall also be sealed with a seal of the officer-in-charge of the Police Station. ( 7 ) IN the present case, the evidence is like this that from the personal search of the appellant, charas was recovered and was taken into possession after sealing the same at the spot itself. And, in these circumstances, the requirement of the officer accompanying the articles to the Police Station and then to affix his seal to such article has not been complied with. There is nothing to indicate that the provisions of Sections 50, 52 and 55 of the Act have been complied with. Its contravention would certainly cause prejudice to the accused. These are in fact safeguards to the accused and have been deliberately made by the Parliament in order to save the accused from being harassed unncessarily. Therefore, the compliance of these provisions have been held mandatory. So, where these mandatory provisions are altogether ignored, the whole recovery of substance or materials from the person who is searched is materially prejudice and fatal to the prosecution and creates doubt and certainly when doubt is created the benefit of doubt is to be given to the, accused, who is entitled to the acquittal. For these observations, I find support from the decisions in Hakom Singh v. U. T. Chandigarh Ratanlal v. State. For these observations, I find support from the decisions in Hakom Singh v. U. T. Chandigarh Ratanlal v. State. ( 8 ) NOW, I must conclude that looking to the scheme of the Act, it is duty of the prosecution not to be lacunic because lacuna gives suspicion the benefit of which always goes to the accused, and the investigation should be upto the mark keeping in mind the object and scheme of the Act, and should be in a far better condition, especially-when the provisions of the Act have become so stringent and the punishment is so serve which can only be awarded when the case is proved beyond reasonable doubt. Looking to the severity of the offence, I am of the opinion that special burden is casted on the shoulder of the investigating agency to investigate, the matter in such a manner efficiently and cautiously in the light of the procedure prescribed deliberately by the legislature in the Act so that there could not be any circumstance to create suspicion and doubt in the prosecution case. In the present case, I am of the opinion that the prosecution failed to prove the case beyond reasonable doubt and from the evidence led by the prosecution it appears that it failed to prove the recovery of charas from the person of the accused appellant. ( 9 ) NOW, I turn to discuss the evidence of prosecution which produced in all four witnesses in order to support the recovery of charas from the person of the accused appellant. Pratap Singh (P. W. 4) is a motbir witness who deposed that he was called at the Police Station where he found the accused appellant seated; and that, police employees gave out that charas was recovered from him (accused) and the charas was lying on the table was weighed in his presence. However, in his cross-examination this witness (P. W. 4) deposed that no charas was recovered from the pant pocket of the accused appellant in his presence and that he signed on the recovery memo but no signature of Arjun Singh (another motbir) was taken in his presence. ( 10 ) KANARAM (P. W. 5) Asstt. However, in his cross-examination this witness (P. W. 4) deposed that no charas was recovered from the pant pocket of the accused appellant in his presence and that he signed on the recovery memo but no signature of Arjun Singh (another motbir) was taken in his presence. ( 10 ) KANARAM (P. W. 5) Asstt. Sub-Inspector of Police at the relevant time on patrolling duty at Darga Sharif, deposed that he also accompanied with Shri Astali Khan who after receiving a secret information went to Dargah and there they found the accused appellant and on being searched, a wallet was found in his pant pocket which was opened and thereafter charas was found in that wallet. He further deposed that charas was sealed there on the spot, itself, so it is emphatically clear that the mandatory provisions contained in Sections 55 and 52 of the Act have not been complied with. The witness (P. W. 5) then deposed that the weight of charas was taken alongwith wallet so, he is not in a position to say as to what was the actual weight of the charas. Further the witness deposed that the motbir witnesses were called there at the spot and necessary formalities were completed in their presence. Similarly is the statement of Astali Khan (P. W. 6 ). ( 11 ) ARJUN Sindhi (P. W. 8) claimed to be motbir witness stated that on being called, he went to the Police Station at about 10. 11 a. m. on 8-3-1987 where the accused appellant was sitting and search was made on the person of the accused appellant whereupon charas weighing 27 gms. was found; and that weight was taken in his presence, that, charas was found in right hand pant pocket of the accused-appellant. However, in his cross-examination the witness admitted that in his presence, no search was made on the person of the accused appellant at Dargah market. was found; and that weight was taken in his presence, that, charas was found in right hand pant pocket of the accused-appellant. However, in his cross-examination the witness admitted that in his presence, no search was made on the person of the accused appellant at Dargah market. ( 12 ) IN view of the evidence of the prosecution witnesses on the point of recovery of the substance it is thus clear that the motbir witnesses are not corroborating the evidence of Astali khan and Kanaram and there are material contradictions in the prosecution evidence on the point of recovery and that too are such which cannot be ignored and in the presence of such material contradictions, the recovery, memo becomes doubtful and further more, the recovery, seizure and arrest all have been in contravention of the mandatory provisions of the Act causing materially prejudice to the appellant. And. no weight can be given for the recovery on the basis of the evidence of Kanaram and Astali Khan. ( 13 ) FOR reasons stated above, it is thus clear that the mandatory provisions of the Act have been altogether ignored, the prosecution agency and the illegality in the investigation which occurred on account of contravention of the provisions of the Act has caused prejudice to the accused appellant and brought about miscarriage of justice, creating doubt and suspicion in recovery of the substance, charas, in question and thus the benefit of suspicion is to be given to the accused appellant who deserves to be acquitted. ( 14 ) IN the result, this appeal succeeds and hereby allowed; conviction and sentence imposed by the Trial Court against the accused appellant are set aside and the appellant is acquitted of the charge. Fine if paid, be refunded. The appellant, Chhoteylal, is in jail. He be set at liberty forthwith, if not required in any other case. Appeal allowed.