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2012 DIGILAW 317 (CHH)

NASIR KHAN v. STATE OF C. G.

2012-12-04

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against the judgment dated 7-8-2003, passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985'), Rajnandgaon in Special Case No. 43/2003. By the impugned judgment, accused/ appellant Nasir Khan has been convicted under Section 20(b)(i) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 50,000/-, in default of payment of fine, to undergo rigorous imprisonment for 1 year. 2. Case of the prosecution, in brief, is as under: On 26-2-2003, Sub-Inspector T. Khakha (PW-7) was posted in Police Station Kotwali, Rajnandgaon. On that date, he received secret information from the Mukhbir that the appellant had kept Ganja in plastic bag and was going to sale the same. On receipt of this secret information, he recorded secret information vide Ex. P-6 and transmitted the same to the City Superintendent of Police and thereafter, proceeded to the spot, i.e., Ganj Chowk. The appellant was found there with a plastic bag. The appellant was informed about his right under Section 50 of the Act, 1985 vide Ex. P-7 and the consent of the appellant regarding his search was recorded vide Ex. P-7 itself. The plastic bag was searched in presence of the witnesses and Ganja was recovered from the plastic bag. After physical verification, it was found that the recovered article was Ganja and identification panchnama of the substance, i.e., Ganja was prepared vide Ex. P-19. Ganja was weighed and weight panchnama was prepared vide Ex. P-9. Ganja was seized vide Ex. P-4. 11.500 kgs Ganja was found in the plastic bag. Two samples of 100-100 grams of the seized Ganja were prepared separately. Thereafter, Sub-Inspector T. Khakha (PW-7) recorded Dehati Nalishi (Ex. P-17). Sub-Inspector T. Khakha (PW-7) came back to Police Station Kotwali, Rajnandgaon along with the appellant and seized articles. He registered First Information Report (Ex. P-18) in the police station. The seized Ganja and its samples were kept in Malkhana for safe custody. The samples of the seized Ganja were sent to Forensic Science Laboratory, Raipur for chemical examination and report (Ex. P-13) was received therefrom, in which, test of Ganja was found positive. He registered First Information Report (Ex. P-18) in the police station. The seized Ganja and its samples were kept in Malkhana for safe custody. The samples of the seized Ganja were sent to Forensic Science Laboratory, Raipur for chemical examination and report (Ex. P-13) was received therefrom, in which, test of Ganja was found positive. After completion of the investigation, charge sheet was filed against the appellant in the Court of Special Judge under the Act, 1985, Rajnandgaon, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Rajneesh Shrivastava, learned counsel for the appellant, argued that there was no compliance of provisions of Sections 42, 50, 55 and 57 of the Act, 1985. He further argued that there is nothing on record to show that the plastic bag was containing Ganja and samples taken from the plastic bag were sealed and specimen impression of the seal was prepared. The samples were taken on 26-2-2003 and it was sent to the FSL, Raipur on 3-3-2003. The samples were produced in the FSL, Raipur on 5-3-2003. The samples were sent after considerable delay, for which, no explanation was offered. Therefore, the seizure from the appellant was not in accordance with law. Possibility of tampering of the seal of the plastic bag sent to the FSL, Raipur cannot be ruled out. Therefore, the appellant is entitled to be acquitted of the charge framed against him. 4. Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not wan-ant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Special Case No. 43/2003. 6. To hold the appellant guilty for the offence punishable under Section 20(b)(i) of the Act, 1985, the prosecution examined Head Constable Sundarlal Gorle (PW-1), Head Constable Babulal Sinha (PW-2), Vijay (PW-3), Champalal Soni (PW-4), Constable Sonchand Dahriya (PW-5), Kumar Swami (PW-6) and Sub-Inspector T. Khakha (PW-7). The appellant did not examine any witness in his defence. 7. Now, I shall examine whether provision of Section 42 of the Act, 1985 has been substantially complied with or not? 8. Sub-Inspector T. Khakha (PW-7) deposed that on 26-2-2003, he was posted in Police Station Kotwali, Rajnandgaon. The appellant did not examine any witness in his defence. 7. Now, I shall examine whether provision of Section 42 of the Act, 1985 has been substantially complied with or not? 8. Sub-Inspector T. Khakha (PW-7) deposed that on 26-2-2003, he was posted in Police Station Kotwali, Rajnandgaon. On that date, he received secret information from the Mukhbir that the appellant had kept Ganja in plastic bag and was going to sale the same. He further deposed that he called witness Kumar Swami (PW-6) vide Ex. P-16 and Vijay (PW-3) vide Ex. P-5. He further deposed that he recorded secret information vide Ex. P-6. 9. Sub- Inspector T. Khakha (PW - 7), in paragraph 19 of his cross-examination, deposed that he had informed to the C.S.P., Rajnandgaon regarding the Mukhbir Suchana Panchnama telephonically. 10. In Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539 the Hon'ble Supreme Court held thus: "35. In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 , did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham v. State of Kerala, (2001) 6 SCC 692 , hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the inforn1ation [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith information the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer, But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not infom1 the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001. (see also Rajinder Singh vs. State of Haryana (2011) 8 SCC 130 )" 11. Sub-Inspector T. Khakha (PW-7) deposed that it is true that when any information is sent to the CSP office, receipt/acknowledge for the same is given by the CSP office. He further deposed that he gave information regarding mukhbir suchana panchnama telephonically to CSP office. He further deposed that it is true that the time has not been mentioned on the documents. He further deposed that he gave information regarding mukhbir suchana panchnama telephonically to CSP office. He further deposed that it is true that the time has not been mentioned on the documents. He further deposed that it is true that he did not send any information to CSP office within 24 hours. 12. Head Constable Sundarlal Gorle (PW-1) deposed that on 26-2-2003, he was posted as Reader to CSP, Rajnandgaon. He further deposed that he had received action taken report (Ex.P-1). In Ex. P-6, it is not mentioned that the Mukhbir Suchana Panchnama was transmitted to the Superior Officer. Even in Rojnamcha Sanha, it is mentioned that “ bl lwpuk dks jkstukepk esa ntZ dj VsyhQksu ds ek/;e ls C.S.P. egks- dks voxr djk;k x;k ” 13. Head Constable Sundarlal Gorle (PW-1) deposed that it is true that no information was received by him under Section 42 of the Act, 1985. He further deposed that had any information sent to CSP office under Section 42 of the Act, 1985, he would have given receipt for the same. It is also true that when any acknowledgment is given, time and date is mentioned on the same. 14. I have gone through the evidence of Sub-Inspector T. Khakha (PW7) and Head Constable Sundarlal Gorle (PW-1). It appears that Sub-Inspector T. Khakha (PW-7) recorded the secret information received by him in writing, but he did not send it to any Superior Officer. It is, therefore, clear that there was complete non-compliance of Section 42 of the Act, 1985. 15. Mere writing the secret information is not sufficient for compliance of provision of Section 42(2) of the Act, 1985 in view of the law laid down by the Hon'ble Supreme Court in Karnail Singh Vs. State of Haryana (2008)8 SCC 539 (supra). In the instant case, Sub-Inspector T. Khakha (PW-7) did not comply with the provision of Section 42 of the Act, 1985. Therefore, there is no illegality or irregularity in the finding recorded by the learned Special Judge that the prosecution did not comply with provision of Section 42 of the Act, 1985. It is, therefore, clear that there has been complete non-compliance with the provision of Section 42 of the Act, 1985 which vitiates the conviction. 16. Therefore, there is no illegality or irregularity in the finding recorded by the learned Special Judge that the prosecution did not comply with provision of Section 42 of the Act, 1985. It is, therefore, clear that there has been complete non-compliance with the provision of Section 42 of the Act, 1985 which vitiates the conviction. 16. In light of the fact what has been held above, I am not inclined to go to other issues raised by the learned counsel for the appellant. 17. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are hereby set aside. The appellant is acquitted of the charge framed against him. It is reported that the appellant is in jail. He be set at liberty forthwith, if not required in any other case. Appeal Allowed.