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Uttarakhand High Court · body

2008 DIGILAW 578 (UTT)

Ram Singh v. State of Uttarakhand

2008-12-19

J.C.S.RAWAT

body2008
JUDGMENT This appeal has been preferred against the judgment and order dated 10-01-2007 passed by Special Sessions Judge/Sessions Judge, Almora in Special S.T. No. 10 of 2006, State Vs. Ram Singh whereby the accused/appellant has been convicted for the offence punishable u/s 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred' as Act, 1985) & sentenced to undergo rigorous imprisonment for ten years and a fine of 1,00,000/-. In default of payment of fine, the accused/appellant would further undergo rigorous imprisonment for two years. 2. Brief facts leading to the prosecution case are that on 24-02-2006 at about 17:30 hrs. the police patrolling party was on the patrolling duty. When the police patrolling party reached near Mohaan Barrier, they started checking the vehicle at the spot. When they were busy in checking the vehicle, they saw a person hanging plastic bag on his shoulder. Seeing the police patrolling party coming over there, he started moving back from there. On suspicion, the police patrolling party immediately apprehended him. After being apprehended, the accused/appellant disclosed his name as Ram Singh S/o Dashrath and admitted that he was having Ganja in the bag which he was holding on his shoulder. He was informed about his legal right of, being searched before the Gazetted officer or the Magistrate as provided under Act, 1985. The accused/appellant stated that he would not like to be searched before the Magistrate or the Gazetted officer. He stated that as the patrolling party had already apprehended him, so they could make his search well at the spot. On the said statement of the accused/appellant, the police tried to take the public witnesses. As no public witnesses was available or ready to be witness of the recovery, search was taken by Chandra Singh PWI in presence of other police patrolling party members. He found that the accused/appellant was having 20 Kgs. Ganja in his bag which he was holding on his shoulder. He was not having licence to keep the said Ganja. The accused was apprehended and recovery articles were kept in two separate bundles. In one bundle at about 100 grams of Ganja was taken and sealed for being sent to the F.S.L. for chemical examination and rest of the seized contraband was wrapped in a separate bundle and sealed at the spot and thereafter recovery memo was prepared at the spot. In one bundle at about 100 grams of Ganja was taken and sealed for being sent to the F.S.L. for chemical examination and rest of the seized contraband was wrapped in a separate bundle and sealed at the spot and thereafter recovery memo was prepared at the spot. Thereafter, the accused/appellant and the seized contraband was taken to the police station and a report was lodged at the police station. The said contraband was also handed over to the police station. The contraband was sent to the chemical examiner and the report of the chemical examiner (Ex.Ka8) reveals that the contents of the seized articles were Ganja. The matter was investigated by the Investigating Officer and after completing the investigation, charge sheet (Ex.Ka.7) was submitted before the court. 3. After submission of charge sheet, the accused/appellant was charged u/s 20/ 22 of Act, 1985. The accused/appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined S.I. Chandra Singh Bist PW1, Const. Kedar Singh PW2 and Kirti Kumar PW3. Both the witnesses S.I. Chandra Singh PWI and Const. Kedar Singh PW2 were on patrolling duty on the date of the occurrence and apprehended the accused/appellant alongwith the recovered article near Mohaan Barrier. S.I. Kirti Kumar PW3 is the Investigating Officer of the case. 5. The accused/appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. The accused/appellant has stated that he has been falsely implicated in this case. 6. The learned Special Sessions Judge after appreciation of the evidence and hearing the parties convicted the accused/appellant and sentenced him as indicated above. 7. I have heard Mr. Manoj Kumar Goel, Amicus Curiae for the accused/appellant; Mr. Amit Bhatt, Addl. G.A. for responden1/State; and perused the record. 8. Now, it is to be seen whether the said 20 kgs. Ganja was recovered from the possession of the accused/appellant or not. The prosecution in support of its case examined S.I. Chandra Singh PW1 and Const. Kedar Singh PW2. Both the witnesses are the witnesses of arrest, search and seizure. They have supported the prosecution version. Chandra Singh PW1 has stated in his statement that when he alongwith the police patrolling party reached near Mohaan Barrier, they started checking the vehicle. During the course of checking the vehicles, they saw a person hanging plastic bag in his shoulder. Both the witnesses are the witnesses of arrest, search and seizure. They have supported the prosecution version. Chandra Singh PW1 has stated in his statement that when he alongwith the police patrolling party reached near Mohaan Barrier, they started checking the vehicle. During the course of checking the vehicles, they saw a person hanging plastic bag in his shoulder. Seeing the police patrolling party coming over there, he started moving back from there. On suspicion, they apprehended him. After being apprehended, the accused/appellant disclosed his name as Ram Singh S/o Dashrath and admitted that he was having Ganja in the bag which he was holding on his shoulder. He was informed about his legal fight of being searched before the Gazetted officer or the Magistrate as provided under Act, 1985. The accused/appellant stated that he would not like to be searched before the Magistrate or the Gazetted officer and the police can take his search. When search was taken by him, in presence of other police patrolling party members, he found that the accused/appellant was having 20 kgs. Ganja in his bag which he was holding on his shoulder. The accused was apprehended and recovered articles were kept in two separate bundles. Thereafter, the accused! appellant and the seized contraband were taken to the police station and a report was lodged at the police station. Both the witnesses namely Kedar Singh PW2 and Kirti Kumar PW3 have corroborated each other about the search, seizure and arrest of the accused/appellant. 9. Thereafter, the accused! appellant and the seized contraband were taken to the police station and a report was lodged at the police station. Both the witnesses namely Kedar Singh PW2 and Kirti Kumar PW3 have corroborated each other about the search, seizure and arrest of the accused/appellant. 9. Learned Amicus Curiae for the accused/appellant contended that the arresting Officer and the Investigating Officer could not totally ignore the provision of Section 52 and 53 of Act, 1985 and such violation would have a great bearing on the appreciation of the evidence regarding the arrest, search & seizure; the prosecution has not proved that the article which was recovered from the possession of the accused/appellant was ever deposited in the malkhana no sample seal was ever produced before the court; there is no evidence of any of the witnesses who have proved or stated that the said contraband was sealed in the police station by the seal of the S.O. as provided u/s 52 of the Act; there is no evidence that the recovered articles was kept in the safe custody till it was produced before the Court; there is no iota of evidence that the said sample which was taken at the spot by Chandra Singh PW1 was sent to the F.S.L. in the safe custody and that was the seized contraband at the spot; the contraband was never weighed at the spot; Chandra Singh PW 1 has categorically stated that it was never weighed at the spot whereas Kedar Singh PW2 has stated that weight was taken; as such, the contradictory stand cannot be relied upon. Learned Addl. G.A supported the findings recorded by the trial court and further contended that the prosecution has proved its case beyond reasonable doubt. 10. It is true that the prosecution has not proved the safe custody of the recovered article till it was produced before the Court or it was sent to the Director F.S.L., Agra. S.I. Chandra Singh PW1, Kedar Singh PW2 and S.I. Kirti Singh PW3 were examined and they have not stated that the recovered article was 'kept in the safe custody of the malkhana. S.I. Chandra Singh PW1, Kedar Singh PW2 and S.I. Kirti Singh PW3 were examined and they have not stated that the recovered article was 'kept in the safe custody of the malkhana. The prosecution should have produced the malkhana Moharrir or the S.O. concerned alongwith the malkhana register who could have stated that the said article which was handed over to them alongwith sample of the seal and thereafter the said sample was sealed alongwith the seal of the Court in accordance with the provisions of Act, 1985. There is no iota of evidence to the above effect from the side of the prosecution. There is no evidence regarding handing over of the said recovered article to the Station Officer or malkhana Moharrir immediately after reaching to the police station with the accused/appellant. Thus, it cannot be said that the said article which was sent to Director, F.S.L. or produced before the Court were ever kept in the safe custody and this article was never disturbed by any of the person or the officials. It was obligatory on the part of the prosecution to prove that the said sample was kept in the safe custody; thereafter sent to the F.S.L. in safe custody; and the rest of the recovered article was kept in the safe custody till it was produced before the court. In absence of such evidence, the entire evidence of search, recovery and seizure becomes doubtful and link evidence is missing in this case. I am fortified with the view taken by Allahabad High Court in Shiv Charan Vs. State A.C.C. 1999 (38) p/181 in which it has been held as under :- "6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not given link evidence. It is not known where the seized charas was kept after it was recovered from the possession of the appellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the charas to the Chemical Examiner. The said Charas is said to have been recovered on 11-10-1990 and the report of the chemical examiner is dated 26-8-1993 from which it appears that it was received in the office of chemical examiner by means of letter dated 5-11-1991. No evidence was also adduced as to who had carried the charas to the Chemical Examiner. The said Charas is said to have been recovered on 11-10-1990 and the report of the chemical examiner is dated 26-8-1993 from which it appears that it was received in the office of chemical examiner by means of letter dated 5-11-1991. No evidence is given to show that the Charas in question remained intact in the sealed bag for a period of more than one year i.e. from 11-10-1990 to 5-11-1991. In view of this, it cannot be said that the same Charas was sent to the chemical examiner for his report which was recovered from the possession of the appellant. Hon'ble the Supreme Court in the case of Valsala Vs. State of Kerala 1993 (30) ACC 605 S. C. has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained." 11. It has also been held in Valsala Vs. State of Kerala 1993 Supp. (3) S.C.C.p/665 that: "We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on 14-1-1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW6, the Officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the Mahazar Ex. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the Mahazar Ex. P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW6 does not say that he continued to keep it in his custody under seal till it was produced in the court on 14-1-1998. The evidence given by PW6 Police Sub Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the court. As a matter of fact he did not produce it in the court. PW3, A.S.I. is supposed to have produced the same in the court. But PW3 does not say anything about this. It is only PW7 the Circle Inspector who comes into the picture at a later date, who admitted in the cross examination that the seized article was sent by PW3 (A.S.I.) to the court and PW7 in his cross examination further admitted that he did not even see if the recovered material "Object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW7 that the Chemical Examiner's report is marked. PW7 further admitted that he did not even know when it reached the court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof; the courts cannot convict." 12. It has been held in State of Tamil Nadu & another Vs. Muniandi 2001 J.Cr. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof; the courts cannot convict." 12. It has been held in State of Tamil Nadu & another Vs. Muniandi 2001 J.Cr. SC p/308 that : "9.................,..........The I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under section 55 of the NDPS Act. The prosecution had not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser............." 13. The Hon'ble Supreme Court has observed in State of Rajasthan Vs. Gurmail Singh 2005 SCC (Cri) p.641 that: "2...................In the first instance, though the seized articles are said to have been kept in the malkhana on 20-05-1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on 5-6-1995. We further find that no sample of the. seal was sent alongwith the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles." 14. In the case of Gurbax Singh Vs. State of Haryana 2001 Vol. 3 SCC Page 28, the Hon'ble Supreme Court has held as follows : "9.........................It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding the arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser." 15. It has also been held by this Court in Mr. Harman Chrust Vs. State 2005(1) U.D. p/736 that the prosecution' cannot prove its case against the accused without the link evidence that the seized article was not tampered with during the period it remained in the custody at police station and thereafter at malkhana is completely missing. 16. It is also important to mention here that the provisions of the N.D.P.S. Act are very stringent and it provides all the necessary formalities to be done before taking the accused into custody in order to safeguard the accused from false implication. If the law is stringent, it is obligatory on the part of the prosecution to prove all the formalities as provided under the act, or the prosecution should adhere to the formalities, which are necessary to safeguard the interest of the accused-appellant. It is true that the provisions of Sections 52 &57 of the N.D.P.S. Act are directory in nature and violation of these provisions would not ipso fact lead to take the acquittal of the accused. At the same time the prosecution cannot ignore these provisions and if these provisions had been violated, failure would have a bearing on the appreciation of the evidence regarding arrest of the accused or seizure of the articles or safe custody of the articles so seized. 17. Chandra Singh PW1 has categorically stated that at the spot the contraband was not weighed whereas Kedar Singh PW2 has stated that the contraband was weighed in the shop. He has simultaneously stated that weight was taken at the spot which was found 20 Kgs. These statements are contradictory with each other. In the Examination in chief Chandra Singh PW1 who is the arresting officer or who has seized the Ganja had not stated about the taking of the weight of the contraband. Whereas in the cross examination, he has categorically stated that weight was not taken at the spot. In this regard, this Court in the case of. Baldev Singh Vs. In the Examination in chief Chandra Singh PW1 who is the arresting officer or who has seized the Ganja had not stated about the taking of the weight of the contraband. Whereas in the cross examination, he has categorically stated that weight was not taken at the spot. In this regard, this Court in the case of. Baldev Singh Vs. State of Uttarakhand reported in 2008 (2) U.D. p/456 has held that if weight was not taken at the spot, the recovery becomes doubtful. 18. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has not been able to establish the guilt beyond reasonable doubt against the accused/appellant. I find that the learned trial court has erred in convicting and sentencing the accused/appellants. The judgment and order dated 10/01/2007 passed by Special Sessions Judge/Sessions Judge, Almora in Special S.T. No. 10 of 2006, State Vs. Ram Singh is hereby set aside. The appeal is liable to be allowed and is hereby allowed. The accused/appellant is in jail. He shall be released forthwith if not wanted in any other case. 19. Let the lower court record be Sent back to the court concerned for compliance.