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2005 DIGILAW 1302 (ALL)

IRSHAD AHMED ALIAS SHEKHU v. STATE OF U P

2005-07-21

UMESHWAR PANDEY

body2005
UMESHWAR PANDEY, J. This jail appeal arises of the judgment and order of conviction and sentence dated 10-8-2001 passed by Special Judge (Narcotics), Ghazipur. 2. The facts of the case are that on 31-1-1998, the Sub-Inspector of Police, Prem Chandra Misra (PW 3) alongwith constable Hira Lal Yadav and Narendra Kumar Singh was out on duty in connection with the investigation of a case within their circle searching for the accused of that case. He received an information through one police informer (Mukhbir) that a person was coming from village Rajdepur via Tulsiya Bridge. He would be carrying contraband heroin. The Police party on getting this information waited for the person to come and then appended him. After about 25 minutes, an young lad was seen coming on foot from the side of village Rajdepur. The police informer identified him and went away. The moment that boy arrived near the police party, he was commanded to stop at which he tried to escape but was chased and caught. The accused on inquiry from PW 3 disclosed his name as Irshad Ahmad alias Shekhu and also gave his address. Thereafter, the police party told him for his search and seizure as he was suspected of carrying heroin with him. PW 3 asked him that his search could be taken in presence of a Gazetted Officer or a Magistrate, who might be made available on the spot whereupon the accused appellant requested for his search to be taken by the police party present there. On the search of the accused, 6 gms. of heroin was found kept in his right pocket of the trouser which was seized and duly sealed on the spot after observing all the formalities. No witnesses of the public could be made available inspite of all efforts of the police party because the persons who were present, did not agree for the same. The recovery memo was prepared, a copy of which was given to the accused. He was brought to the police station alongwith seized contraband and on the basis of the recovery memo F. I. R. was lodged at 6. 05 p. m. PW 3 gave information of this seizure and search through wireless set to his superior officers. 3. The recovery memo was prepared, a copy of which was given to the accused. He was brought to the police station alongwith seized contraband and on the basis of the recovery memo F. I. R. was lodged at 6. 05 p. m. PW 3 gave information of this seizure and search through wireless set to his superior officers. 3. The investigation of the case was conducted by the Sub- Inspector K. D. Rakesh, who recorded the statements of the witnesses, visited the spot of recovery and prepared its site plan. He also sent the recovered contraband for its chemical analysis to the laboratory at Lucknow under the orders of the Chief Judicial Magistrate, Ghazipur through constable Param Hans Shukla (PW 1 ). Thereafter, the Investigating Officer appeared and submitted the charge-sheet before the Court. The contraband articles sent to the chemical analyst, on due analysis, was found to be heroin and a report of the chemical analyst dated 7-4-1998 is Ext. Ka-7 on the record. 4. The accused was accordingly charged and tried for the offence punishable under Section 21 read with Section 8 of NDPS Act (hereinafter referred to as the act ). He pleaded not guilty to the charge and stated that he had been falsely implicated on account of the police keeping prejudices against him. He further stated that as he used to resort to different quarrels in his locality, the police had become prejudiced against him. 5. The prosecution in support of its case examined PW 1 Param Hans Shukla, PW 2 Constable Ashok Chand Ram, PW 3 Prem Chandra Misra, who headed the police party, and PW 4 Sub-Inspector, K. D. Rakesh, the Investigating Officer. PW 1 and 4 are the formal witnesses whereas the PWs 2 and 3 are the witnesses of fact. 6. The prosecution has proved the documents Ext. Ka-1 to Ka-8 which include the recovery memo, F. I. R. , charge-sheet, site plan, report of chemical analyst and few other documents. 7. The defence in support of its case has not examined any witness not has proved any document on the record. 8. 6. The prosecution has proved the documents Ext. Ka-1 to Ka-8 which include the recovery memo, F. I. R. , charge-sheet, site plan, report of chemical analyst and few other documents. 7. The defence in support of its case has not examined any witness not has proved any document on the record. 8. The Trial Judge after having considered the respective cases of the parties and arguments advanced before him and on having considered the entire materials available on the record, was of the view that the prosecution had succeeded to bring home the guilt for the charged offence under Section 8/21 of the Act to the accused and had proved its case to the hilt. Accordingly, the Court below recorded the order of conviction and imposed sentences of rigorous imprisonment for a term of ten years and also to pay a fine of Rs. 1,00,000/- against the appellant accused and thus rendered the impugned judgment. 9. I have heard Sri Shishir Tandon, Amicus Curiae, appointed in this case to represent the appellant accused detained in side the jail and the learned AGA. I have also perused the paper book and original record received from the trial Court. 10. Learned Amicus Curaie appearing for the appellant has advanced manifold arguments and submitted that there is non compliance of all the mandatory requirements of Section 50 of the Act and has emphasized that the Recovery Officer-PW 3 Prem Chandra Mishra had not afforded an opportunity to the appellant before seizure of the contraband to exercise his right of search before a Magistrate or a gazetted officer. This argument, however, does not appear to have much strength in view of the recital of the seizure memo (Ext. Ka-2) coupled with the statement of PW 3, the Recovery Officer. It has come in quite unambiguous terms, in the seizure memo that after the appellant Irshad Ahmad was arrested by the police party, he was told by the arresting officer that as per the information received by him he was having contraband and he could be searched for the same before a gazetted officer or a Magistrate, who may be called on the spot itself. After this information was given, the seizure memo further refers to the fact that the appellant in his reply told the search party that he had full faith in them and his seizure may be taken by the recovery officer. This statement of fact stands fully substantiated in the statement of PW 3 recorded before the trial Court. This fact has not been challenged or disputed anywhere in the cross-examination of PW 2, as such, the trial Court appears to have rightly concluded that there is full compliance of the mandatory requirements of Section 50 of the Act in the present case and the alleged search and seizure of contraband cannot be challenged on that score. 11. Learned Counsel in the second place has submitted that there is total non compliance of the provision of Section 57 of the Act, which requires the seizure officer to make full report of all the particulars of such arrest and seizure of the contraband within 48 hours next after such arrest, to his immediate official superior. Learned Counsel has, thus, emphasized that since there is total non compliance of this provision, the arrest and search of the accused appellant stands invalidated and the probative value of evidence of the prosecution given in the case, is badly effected and is cannot be helpful for recording the conviction of accused. Learned Counsel in this context has placed reliance on several case laws of Honble apex Court as well as different High Courts. 12. A perusal of the evidence of PW 3 given before the trial Court shows that he admittedly did not himself give any information of the present search and seizure to his immediate officer superior. In his examination in chief, he has stated that the information of this incident was given to the higher officers through R. T. set (wireless set ). In the cross-examination when he was confronted on this point, he admitted that this information to the higher officers was given on R. T. set by concerned officials. This statement makes it evident that the report required under Section 57 of the Act has not been given by the arresting officer to his immediate official superior. The evidence demonstrates a total non compliance of the requirements, as contemplated under Section 57 of the Act. This statement makes it evident that the report required under Section 57 of the Act has not been given by the arresting officer to his immediate official superior. The evidence demonstrates a total non compliance of the requirements, as contemplated under Section 57 of the Act. For ready reference the provisions of sub-section 57 of the Act is quoted as below: report of arrest and seizure - Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, makes a full report of all the particulars of such arrest or seizure to his immediate official superior. 13. In the aforesaid provisions of the Act, it is provided that the person, making arrest and seizure under the Act, shall within 48 hours after such arrest and seizure shall make a full report of all the particulars to his immediate official superior. It has been emphasized by the learned Amicus Curaie that in case, there is non compliance or where the arresting officer totally ignored the aforesaid provision that will have an adverse effect on the prosecution case and it has resulted into prejudice to the accused and in failure of justice. 14. The object of the Act is to make stringent provision for control and regulation for operation relating to Narcotic Drugs and Psychotropic Substance but at the same time in order to avoid abuse of the stringent provision of the Act by the officers, certain safeguards have been provided in the statute itself, which have to be observed in its context very strictly. Even procedural instructions under the statute given to the officers are meant for strict compliance by them and in case of State of Punjab v. Balbir Singh, 1995 (1) JIC 382 (SC) : (1994) 3 SCC 299 , the Honble Apex Court has held that the irregularities in compliance of such procedural instruction given under the statute, even though may not render the act, done by the officers as null and void but at the same time it does effect probative value of the evidence regarding arrest and seizure. In some cases, it may invalidate such arrest or search. The non- compliance of such instruction also causes prejudice to the accused and may result in failure of justice. In some cases, it may invalidate such arrest or search. The non- compliance of such instruction also causes prejudice to the accused and may result in failure of justice. This provision cannot be ignored by the officers and if there is total ignorance that does not have adverse effect on the prosecution case through, the prosecution itself may not be vitiated on this count. 15. Honble Apex Court in the case of Thandi Ram v. State of Haryana, 1999 (2) JIC 216 (SC) : 2000 SCC (Cri) 189, relying upon the aforesaid case of State of Punjab (supra), has found that in view of non compliance of the aforesaid Section 57 of the Act, the conviction recorded is bad in law. The Bombay High Court in case of Gangaram Rama Gundkar & Anr. v. State of Maharashtra, 2002 Cri. L. J. 2578, has held that in order to give the proof about sending of report, as required under Section 42 (2) of the Act, the prosecution has to produce that report before the trial Court and prove it and it has also to produce the evidence to the effect that the said report had actually reached the immediate official superior. In relation to Section 57 of the Act in the aforesaid judgment of Gangaram Rama Gundkar (supra), the Court has further observed that by not submitting the full report, the accused appellant was deprived of testing the truthfulness of the evidence of arresting officer with reference to the report contemplated under the aforesaid Section 57 of the Act and to that extent, the appellant accused was prejudiced in making his defence. 16. In fact, the aforesaid provision of Section 57 of the Act contemplates written report of all the particulars of arrest and seizure and not an oral report. It also contemplates that the arresting officer himself shall send this report to his immediate official superior. The report, thus, is supposed to be sent by the arresting officer with full details and particulars of arrest and seizure and for that purpose sufficient evidence to that effect has to be adduced. It also contemplates that the arresting officer himself shall send this report to his immediate official superior. The report, thus, is supposed to be sent by the arresting officer with full details and particulars of arrest and seizure and for that purpose sufficient evidence to that effect has to be adduced. A cursory statement of the arresting officer in examination in chief that such report was sent to the superior officers on R. T. set and his subsequent admission in the examination that the report was sent by the concerned officials of the police station and not by him goes to demonstrate that there is total non compliance of this provision in the present case. In the case of State of Punjab (supra), it has been though, propounded that the violation of such provisions of Section 57 of the Act will not invalidate the trial or conviction but such provision of the Act cannot be totally ignored and in case the Courts find that the arresting officer has totally ignored the provision and has not submitted any explanation for non compliance of the said requirement contemplated under Section 57 of the Act, that will definitely have adverse effect on the prosecution case. 17. In the present case, the prosecution has not filed and proved any copy of such report on the record. Sending a report by R. T. set in the present context, may not amount to the strict compliance of the provision because in the case of Jai Shree Yadav v. State of U. P. , 2004 (2) JIC 677 (All) : 2004 (3) ACR 2068 (SC), the Apex Court has held that such messages transmitted to higher authorities about the incident is only an information sent about a crime and generally does not contain all particulars of crime to be stated. This case law, though, is in reference to a murder case but the observation of the Apex Court about the shape and usual format of R. T. message sent to the higher authorities goes to state that these messages are laconic and cryptic in nature and generally the particulars of the incident are not detailed in it. This case law, though, is in reference to a murder case but the observation of the Apex Court about the shape and usual format of R. T. message sent to the higher authorities goes to state that these messages are laconic and cryptic in nature and generally the particulars of the incident are not detailed in it. Since the prosecution in the present case has not proved that such report sent on R. T. set under Section 57 of the Act was reduced in writing at the other end and it has also not filed any copy of such report sent to the higher officers, it is established that there is total non compliance on the part of arresting officer in the observance of the aforesaid provisions of Section 57 of the Act. The total ignorance of the provision is further reflected in the proceeding that the arresting officer himself has not sent this report to his immediate official superior, as required under law. 18. In the aforesaid circumstances, it is obvious that the detailed report, as contemplated and claimed to have been given to the officers, if would have been given produced, the accused could have had an opportunity to confront the arresting officer PW 3 with the same and the defence could have been benefited in one or the other manner. But the details of such report having not been made available on record, it has definitely pre-judiced the accused to a great extent. Obviously, this effects the probative value of the evidence given by PW 3 regarding the arrest and seizure. The report contemplated under Section 57 of the Act would have corroborated or contradicted the statement of PW 3 and in case its details have not been brought on record before the trial Court, the evidence given by PW 3 in that regard is rendered of little probative value. The provision of Section 57 of the Act may not be mandatory as held in the case of State of Punjab (supra ). But even though it is directory only still in the present case, its violation on the part of arresting officer, has definitely led to prejudice the appellant accused and has also reduced the probative value of the evidence of the arresting officer and the documentary evidence, as appearing in the seizure memo (Ext. Ka-2 ). But even though it is directory only still in the present case, its violation on the part of arresting officer, has definitely led to prejudice the appellant accused and has also reduced the probative value of the evidence of the arresting officer and the documentary evidence, as appearing in the seizure memo (Ext. Ka-2 ). Sending such report through R. T. Set has also been held to be improper compliance of the provision of Section 57 of the Act in the judgment dated 26- 4-2005 of this Court rendered by me in Govt. Appeal No. 3407 of 1999 (State of U. P. v. Raj Kumar ). 19. In addition to the aforesaid arguments, learned Amicus Curaie has further submitted that neither the seizure memo (Ext Ka-2) nor the statement of the recovery officer contains this fact that before taking search of the appellant accused, they had volunteered to give their search to the accused nor it has come in the evidence that the police personnel among themselves had taken search of each other to ascertain that they were themselves not carrying any such contraband, which they claim to have recovered from the possession of the appellant. This is a necessary procedure, which has to be adopted before taking search of any individual for certain contraband item suspected to be in his possession. This necessary formality is observed to demonstrate before the Court that the recovery is wholly genuine and no manipulation has been done in the same by any individual of such party. Obviously, in the present case, the prosecution has not advanced any evidence to this effect and this lacuna also renders the present search of the appellant as translucent and it canton be said to be wholly transparent. That is also a major defect appearing in the evidence of the prosecution. 20. The trial Court appears to have not appreciated the aforesaid factors and obvious defects reflected in the prosecution evidence and without much strain has jumped to a wrong conclusion that the evidence so recorded before it is sufficient to prove the guilt for the recovery and seizure of the alleged contraband of 6 gms. of heroin from the possession of the accused appellant. 21. of heroin from the possession of the accused appellant. 21. In the aforesaid facts and circumstances, I find that the impugned judgment challenged in this appeal cannot sustain in the eye of law, as the prosecution has failed to establish the guilt for the offence punishable under Section 8/21 of the Act against the appellant accused beyond reasonable shadow of doubt. He has to be given benefit of doubt and the appeal deserves to be allowed. 22. In result, the appeal is allowed and the impugned order dated 10-8-2001 passed by the Special Judge (Narcotics), II, Ghazipur, is hereby set aside. 23. The accused appellant Irshad Ahmad alias Shekhu is not found guilty for the aforesaid offence punishable under Section 8/21 of the Act and he is acquitted for the same. The appellant is languishing in jail and he is released forthwith, if not warranted in any other case. 24. Office is directed to transmit the original record alongwith a copy of this judgment immediately to the trial Court concerned, which shall in compliance of this order, issue release order of the appellant, as contemplated under law. Appeal allowed. .