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2001 DIGILAW 64 (CHH)

SAVITRI ALIAS SHOOBHA v. STATE OF CHATTISGARH

2001-06-13

R.S.GARG

body2001
R. S. GARG, J. ( 1 ) THE appellants being aggrieved by the judgment dated 9-2-2001 passed in Special Case No. 83/99, by the learned Special Judge (N. D. P. S.) Bastar at Jagdalpur, convicting the appellants under Section 20 (b) (i) of the N. D. P. S. Act, sentencing the appellant No. 1 Savitri alias Shobha to undergo R. I. for one year and pay fine of Rs. 1,000/- and in default of payment of fine to undergo further R. I. for three months and sentencing the appellant No. 2 Sunita alias Sushila alias Chanda to undergo R. I. for six months and pay fine of Rs. 500/-; in default of payment of fine to undergo further R. I. for a period of one month, have filed this appeal. ( 2 ) ). The prosecution case in brief is that on 7-10-99, Sub-Inspector-Prakash Sharma (P. W. 3) Police Station Jagdalpur, received an information from some informer that the present appellants were carrying Ganja. On the basis of the information, he recorded the information and prepared Panchanama at Ex. P/13 and sent the information to the Supdt. of Police under Ex. P/14. The witnesses were invited and were also informed about the information; thereafter, the said P. W. 3 Prakash Sharma along with P. W. 1 Smt. Sushila Tekam and others proceeded to the spot. When they reached the spot the accused tried to flee away, but they were apprehended. The said Prakash Sharma (P. W. 3) gave a joint notice to the appellants under Section 50 of the Act and informed them about their statutory right to be searched in presence of a Magistrate First Class or Gazetted Officer. As each of the accused gave his consent, their search was taken. From the possession of appellant-Savitri alias Shobha 2kg. Ganja was recovered and from the possession of Sunita 900 gms. Ganja was recovered. The search was taken by P. W. 1 Sushila Tekam, samples were drawn and thereafter the seized articles and samples were sealed. The accused persons and the contrabands were brought to the police station. Ex. P/16 First Information Report was registered and thereafter the seized articles were kept in Malkhana. Ganja was recovered. The search was taken by P. W. 1 Sushila Tekam, samples were drawn and thereafter the seized articles and samples were sealed. The accused persons and the contrabands were brought to the police station. Ex. P/16 First Information Report was registered and thereafter the seized articles were kept in Malkhana. On 14-10-99 the samples were sent along with the impression of the seal to the F. S. L. The F. S. L. submitted its report dated 26-10-99 that the seal on articles were intact and the samples were confirming to the standard of Ganja. After recording the statements of witnesses and armed with the F. S. L. report, the police filed challan against the appellants. As the appellants abjured the guilt, they were put to trial. ( 3 ) ). The prosecution in support of its case examined P. W. 1 Smt. Sushila Tekam, P. W. 2 Sitaram, P. W. 3 Prakash Sharma and P. W. 4 Devo alias Bhayana to prove the case of search and seizure. The learned trial Court after hearing the parties found in favour of the prosecution and, convicted and sentenced the appellants as referred to above. ( 4 ) ). Shri Prafull Bharat, learned counsel for the appellants submits that the notice Ex. P/4 is bad because individual and independent notices were not given to the appellants. He has placed his strong reliance upon the judgment of Punjab and Haryana High Court to support his contention. ( 5 ) ). Shri Deep Kesharwani, learned counsel for the State on the other hand submits that the observations made by the Punjab and Haryana High Court were on the peculiar facts of that case, therefore, the said judgment would not be applicable to the facts of this case. ( 6 ) ). Learned counsel for the appellants has further submitted that the provisions of Section 50 of the N. D. P. S. Act has not been complied with in their true spirit because P. W. 1 Smt. Sushila Tekam does not say that in her presence options were given to the appellants. Ex. P/4 is a notice under Section 50 of the Act to each of the appellant. The objection of the appellants is that they ought to have been given separate notice. Ex. P/4 is a notice under Section 50 of the Act to each of the appellant. The objection of the appellants is that they ought to have been given separate notice. In the matter of Paramjit Singh v. State of Punjab reported in 1997 (1) EFR 392 from a perusal of head-note/placitum, it appears that issuance of separate/independent/individual notices to the accused persons is a mandatory requirement; but a perusal of paragraph 9, 10 and 11 of the judgment would show that in the said case the prosecution was relying upon a oral notice and the Court was of the opinion that the oral notice does not appear to have been given, therefore, the other circumstances speak against the case of the prosecution. The Court was of the opinion that the offer must be given to each of the accused individually and the same was not done in that case. The Court further recorded that the assertion of the prosecution was make belief rather than genuine. ( 7 ) ). In the present case P. W. 3 Prakash Sharma has clearly stated that he had issued a notice in writing and each of the appellants gave their consent. On the back of the Ex. P/4 writings of said appellants is available. Each of the appellant has clearly mentioned that they were ready and willing to be searched by the lady police. There appears to be absolute compliance of Section 50 of the Act. The argument of Shri Prafull Bharat is rejected. ( 8 ) ). Yet another ground regarding enmity was raised and it was contended that because some Constable Rajendra Acharya was inimical to the appellants, they were unnecessarily framed. Unfortunately, barring a bald and wild suggestion about enmity, the appellants did not bring on record anything to show that what was the cause of enmity. The suggestion was denied by the P. W. 3 Prakash Sharma and after going through the records, I am unable to find that because of the alleged enmity, the appellants have been framed. ( 9 ) ). It is last contended that the prosecution has failed in establishing that the goods seized and samples were kept intact under the same seal. It is submitted by Shri Bharat that the seizure was effected on 7-10-99 and was kept with the police upto 14-10-99. ( 9 ) ). It is last contended that the prosecution has failed in establishing that the goods seized and samples were kept intact under the same seal. It is submitted by Shri Bharat that the seizure was effected on 7-10-99 and was kept with the police upto 14-10-99. According to him, barring a self serving statement made by P. W. 3 Prakash Sharma that he handed-over the seized articles and samples to Malkhana Mohirir, nothing further has been brought on the record to show that the samples and articles were kept intact and seal was not tampered. He further submitted that the certificate or the receipt issued by F. S. L. would only show that on the date of receipt of the samples, the seal was intact, but the said statement would not be sufficient to hold that right from 7-10-99 upto 14-10-99 the seized articles and the samples were kept in proper custody and under proper seal. The appellants place their strong reliance upon a judgment of High Court of M. P. in the matter of Amar Bahadur Khadak Bahadur v. State of M. P. , reported in 1999 (1) MPLJ 67. ( 10 ) ). On the other hand, learned counsel for the State submits that the case of Amar Bahadur was decided on typical facts, but as in the present facts, the appellants have not suggested that the seals were tampered or some other articles were sent for analysis; the appellants at the appellate stage cannot challenge the prosecution. ( 11 ) ). In the matter of Amar Bahadur (supra) two persons had gone to take the search; one was the Investigating Officer, while the other was the Supdt. of Police. The question raised before the High Court was who had affixed the seal, what was the nature of the seal and whether the articles were kept intact? In the said matter, the High Court found that the witnesses did not state about the initials or nomenclatures of the seal or as to whom the seal belonged. The High Court also found that no witnesses had stated it. In the said matter, the High Court found that the witnesses did not state about the initials or nomenclatures of the seal or as to whom the seal belonged. The High Court also found that no witnesses had stated it. The High Court also found that the witnesses did not say as to where the sealed packets were kept after the seizure and before being sent to the F. S. L. On the strength of evidence available on the record, the High Court further found that Rajendra Singh did not say that from where he obtained the sealed packets for being carried to the F. S. L. Shri S. K. Guru yet another witness did not say that the seized articles and samples were under his control or under the control of the police party. The High Court observed that before the persons can be convicted for possessing the contrabands, the prosecution should prove the identity of the recovered articles and that identity of the same was maintained till it reached the F. S. L. The High Court was of the opinion that this could be done by expressly stating as to what was the seal by which it was sealed; "where the seal was kept and whether the articles were retained in sealed condition properly and undisturbed". The High Court also observed that if the samples were kept in Malkhana, then Malkhana entries should be produced to say that the articles remained undisturbed. The High Court also found that from the statements of the witnesses it does not appear that identity and sanctity of the seal was maintained. ( 12 ) ). In the matter of Gurbax Singh v. State of Haryana, reported in (2001) 3 SCC 28 : (2001 Cri LJ 1166), the Supreme Court while appreciating the scope of Sections 52, 55 and 57 of the Act, observed that provisions of Sections 52 and 57 are directory and violation thereof would not ipso facto violate the trial or conviction, but, however, the Investigating Officer cannot totally ignore these provisions because such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. On the facts, the Supreme Court found that in the said case the Investigating Officer has admitted that the seal which was affixed on the muddamal article was handed over to P. W. 1 and was kept with him for 10 days. The said I. O. has also admitted that muddamal parcels were not sealed by the officer incharge of the police station as required under Section 55 of the N. D. P. S. Act. The Supreme court found that in absence of such positive evidence, the accused could not be convicted. Section 55 of the N. D. P. S. Act reads as under :- section 55 :"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-incharge of the police station. "from a perusal of Section 55 of the Act it would clearly apper that an Officer-in-charge of police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act which are delivered to him, he 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. The requirement under Section 55 of the Act is that the sealed samples are also to be sealed by the officer-in-charge of the police station. ( 13 ) ). P. W. 3 Prakash Sharma, undisputedly was not an officer-in-charge of the police station, Jagdalpur. He was posted there as Sub-Inspector. The requirement under Section 55 of the Act is that the sealed samples are also to be sealed by the officer-in-charge of the police station. ( 13 ) ). P. W. 3 Prakash Sharma, undisputedly was not an officer-in-charge of the police station, Jagdalpur. He was posted there as Sub-Inspector. The said Prakash Sharma in his statement does no-where say that he produced the accused persons before the Station House Officer or produced the articles and samples before the said Officer for affixation of his seal. He had simply stated that he handed ever the seized articles and samples to Malkhana Mohirir. Unfortunately, the said Malkhana Mohirir was not examined by the prosecution nor entry register of Malkhana was produced in the Court. From the statements of P. W. 3 Prakash Sharma, it would only appear that he had handedover certain articles to Malkhana Mohirir. From that statements it would not appear that the articles and samples remained intact in the Malkhana and were brought out in the same condition. There is no dispute about the fact that the S. H. O. or officer-in-charge of the police station did not affix his seal on the samples or the articles. From the statements of P. W. 3 Prakash Sharma, the Court can only read that he had seized some articles, drew certain samples and gave the same for safe custody to Malkhana Mohirir; but in his statement, it cannot be read that the said samples were kept intact. The person who had taken the samples to the F. S. L. has also not been examined by the prosecution. The prosecution in its wisdom had examined P. W. 1 Smt. Sushila Tekam, who had taken the search of the accused persons and recovered the alleged contrabands. P. W. 2 Sitaram P. W. 4 Devo alias Bhayana were witnesses to the search and seizure, but they turned hostile. P. W. 3 Prakash Sharma had received the information, went to the spot and seized the alleged articles. In absence of examination of Malkhana Mohirir and because of non-production of the register of Malkhana showing the deposit entries of the alleged contrabands and samples, it would not be possible for a Court to hold that the articles were deposited with the Malkhana. The best evidence relating to the deposit was though available with the prosecution, but was not produced in the Court. The best evidence relating to the deposit was though available with the prosecution, but was not produced in the Court. Even otherwise, from the evidence it would appear that the police did not comply with the provisions of Section 55 of the N. D. P. S. Act. ( 14 ) ). In the matter of Gurbax Singh (supra), the Supreme Court had observed that there was non-compliance of Section 55 of the Act because the I. O. did not say that Muddamal Parcels were sealed by the Officer-in-charge. The Supreme Court also found that in absence of the evidence relating to proper sealing of the articles and its safe custody, it would not be fair to convict the accused. ( 15 ) ). In the present case also, there is no evidence that the articles were kept in safe custody or samples were properly sealed. In absence of positive evidence to show that what was seized from the accused was kept intact and the sealed articles were ganja and contrabands, I am unable to agree with the learned trial Court. ( 16 ) ). The findings recorded by the trial Court are set aside. It is held that the prosecution has failed to prove its case beyond doubt against the accused. In a case like present, the benefit must go to the accused. Giving benefit of doubt to the accused persons, I acquit them. The appellants are said to be in jail. They be released forthwith, if not required in any other matter. ( 17 ) ). The appeal is allowed. Appeal allowed. --- *** --- .