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2012 DIGILAW 48 (CHH)

GANGABAI v. STATE OF M. P.

2012-02-03

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 7-7-1997 passed by 1st Additional Sessions Judge, Raipur in Special Sessions Trial No. 136/1996. By the impugned judgment, accused/appellant Gangabai has been convicted under Section 20-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985') and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.2,000/-, in default, to undergo simple imprisonment for six months. 2. Case of the prosecution, in brief, is as under: On 19-10-1996, Assistant Sub-Inspector Gulabdas (PW-2), on receiving secret information that the appellant had Ganja in her possession and was engaged in selling the same illegally, he recorded the secret information and communicated it to his superior police officers and thereafter went to the spot along with Assistant Sub-Inspector M.L. Ajgale (PW-5), Head Constable and Constable and witnesses Parasram (PW-3) and K.B. Tiwari (PW-4). At the time when they reached the house of the appellant, she was present in her house. The appellant was informed about her right under Section 50 of the Act, 1985 vide EX.P-4 and consent of the appellant regarding search was recorded in EX.P-4 itself. Thereafter, Gulabdas (PW-2) searched the house of the appellant. 5 Kilograms and 400 Grams of Ganja, worth Rs.10,800/-, kept in a plastic bag and a sum of Rs.273/- were seized from possession of the appellant. Sample of the seized Ganja was also prepared separately. Spot-Map (Ex.P-11) was prepared by Assistant Sub-Inspector M.L. Ajgale (PW-5). After the seizure, Investigating Officer Assistant Sub-Inspector Gulabdas (PW-2) came back to police station and registered the crime vide First Information Report (Ex.P-9). The appellant was arrested on the same day vide arrest memo (Ex.P-10). Complete details of the action taken was prepared under Section 57 of the Act, 1985 vide Ex.P-2 and a copy thereof was sent to Sub-Divisional Officer (Police). After completion of the investigation, charge-sheet was filed against the appellant in the Court of Sessions Judge, Raipur, from where it was received on transfer by the 1st Additional Sessions Judge, Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Smt. Indira Tripathi, learned counsel for the appellant argued that there was no compliance of provisions of Sections 42, 50 and 55 of the Act, 1985. 3. Smt. Indira Tripathi, learned counsel for the appellant argued that there was no compliance of provisions of Sections 42, 50 and 55 of the Act, 1985. She further argued that there is nothing on record to show that the bag was containing Ganja and samples taken from the bag were sealed and specimen impression of the seal was prepared. The Ganja was seized on 19-10-1996, samples were not taken, the whole bag was sent to Forensic Science Laboratory, Raipur on 25-10-1996 and the same was received at the FSL, Raipur on 26-10-1996. It was sent after a considerable delay, for which there is no explanation. Therefore, the seizure from the appellant was not in accordance with law. Possibility of tampering of the seal of the bag sent to the FSL cannot be ruled out. Therefore, the appellant is entitled to be acquitted of the charge framed against her. 4. Shri M.P.S. Bhatia, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Special Sessions Trial No. 136/1996. The prosecution examined Assistant Sub-Inspector Gulabdas (PW-2) who searched the house of the appellant. Constable Tikamlal Soni (PW -1) who received the information in the office of City Superintendent of Police, Urla and independent witnesses Parasram (PW-3), K.B. Tiwari (PW-4), Assistant Sub-Inspector M.L. Ajgale (PW-5), City Superintendent of Police A.K. Pandey (PW-6), Sunderlal (PW-7) and Devnarayan (PW-8). The appellant did not examine any witness in her defence. 6. Now, I shall examine whether provisions of Section 42 of the Act, 1985 have been substantially complied with by Assistant Sub-Inspector Gulabdas (PW-2) or not? 7. Gulabdas (PW-2) deposed that he received the secret information that the appellant had Ganja in her possession and was engaged in selling the same illegally. He communicated the information to Station House Officer and Sub-Divisional Officer (Police). He recorded the information vide EX.P-2. 8. Tikamlal Soni (PW-1) deposed that on 19-10-1996, he was posted as Reader to City Superintendent of Police, Urla. At 11:40 A.M., he received a wireless message, which was sent to City Superintendent of Police, Urla, vide EX.P-I. 9. He communicated the information to Station House Officer and Sub-Divisional Officer (Police). He recorded the information vide EX.P-2. 8. Tikamlal Soni (PW-1) deposed that on 19-10-1996, he was posted as Reader to City Superintendent of Police, Urla. At 11:40 A.M., he received a wireless message, which was sent to City Superintendent of Police, Urla, vide EX.P-I. 9. City Superintendent of Police A.K. Pandey (PW-6) deposed that a radio message was received in his office from Police Station Urla vide Ex.P-1, which was received by his Reader T.L. Soni (PW-1). 10. Gulabdas (PW-2) deposed in cross-examination that on 19-10-1996, he received the secret information when he was standing at the gate of Police Station Urla and he recorded the information in Rojnamcha Sanha and thereafter left for Village Achhoti. 11. 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 information [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 inform 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." 12. Looking to the evidence of Assistant Sub-Inspector Gulabdas (PW-2), Constable (Reader) Tikamlal Soni (PW-1) and City Superintendent of Police A.K. Pandey (PW-6), it appears that Gulabdas (PW-2), on receiving the secret information, recorded it in Rojnamcha Sanha and communicated the same to higher authorities, which is corroborated by the documents EX.P-1 and Ex.P-2. It is, therefore, clear that Gulabdas (PW-2) complied with the provisions of Section 42(2) of the Act, 1985. 13. It is, therefore, clear that Gulabdas (PW-2) complied with the provisions of Section 42(2) of the Act, 1985. 13. Now, I shall examine whether provisions of Section 50 of the Act, 1985 have been substantially complied with by the Investigating Officer or not? Under Section 50(1) of the Act, 1985, the officer, who is to search the accused, is required to inform the person about his right to be searched by a gazetted officer or by a Magistrate. If the person opts to the search before a gazetted officer or a Magistrate, he shall immediately be taken to the said officer or Magistrate. Otherwise, the search can be made by the concerned officer. The requirement of law has been held to be mandatory in nature and non-compliance thereof vitiates the trial. 14. Gulabdas (PW-2) deposed that before making search, he had given a notice to the appellant before witnesses for search by him or by a gazetted officer. The appellant consented to be searched by him. Notice of search is Ex.P-4, which bears his signatures and thumb impression of the appellant. Consent of the appellant was recorded in Ex.P-4 itself, which bears thumb impression of the appellant. On making search of the appellant after giving her notice before witnesses, Ganja was found in her possession, which was seized before witnesses. 15. Vide Ex.P-4, the appellant was informed of her right under Section 50 of the Act, 1985. In Ex.P-4, consent of the appellant regarding her search is recorded. 16. In Nirmal Singh Pehlwan @ Nimma Vs. Inspector. Customs, Customs House, Punjab, JT 2011(8) SC 581 the Hon'ble Supreme Court observed thus: "7. We have examined the facts of the case in the light of the arguments raised by the learned counsel for the parties and the case law cited. Ext. P.A. is the consent memo under which the appellant had opted to be searched in the presence of a Gazetted Officer. This memo is in the Gurmukhi script and has been read to us and we see that it cannot by any stretch of imagination be said to be informing the appellant of his right to be searched in the presence of a Gazetted Officer or a Magistrate as he was only given the option to be searched before one of the other. In Vijaisingh’s case (supra) the Constitution Bench crystallized the issue before it in para 1 as under: "The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section?" 9. It is therefore apparent that the precise question that was before the Constitution Bench was as to whether a consent memo could be said to be information conveyed to an accused as to his right under Section 50 of the Act. The Constitution Bench clearly stated that a consent memo could not be said to be such information as the provisions of Section 50 of the Act were mandatory and strict compliance was called for and any deviation therefrom would vitiate the prosecution. It was further held that it was not necessary that this information should be in a written form but the information had to be conveyed in some form or manner which would depend on the facts of the case. We have accordingly gone through the evidence of P.W.4 Prem Singh. He did not utter a single word as to whether he had informed the appellant of his right and he merely took his option as to whether he would like to be searched before a Gazetted Officer or a Magistrate as noted in EX.P.A. In the light of the judgment in Vijaisingh’s case (supra) we find that there has been complete non-compliance with the provisions of Section 50 of the Act." 17. I have gone through the evidence of Gulabdas (PW-2). Gulabdas (PW-2) deposed that he informed the appellant about her right that she was entitled to be searched before a gazetted officer or a Magistrate or before him vide EX.P-4. The appellant gave her written consent vide EX.P-4 to be searched by the Investigating Officer himself. I have gone through the evidence of Gulabdas (PW-2). Gulabdas (PW-2) deposed that he informed the appellant about her right that she was entitled to be searched before a gazetted officer or a Magistrate or before him vide EX.P-4. The appellant gave her written consent vide EX.P-4 to be searched by the Investigating Officer himself. From the evidence of Gulabdas (PW-2), it is clearly established that substantial compliance of the provisions of Section 50 of the Act, 1985 was also made by Gulabdas (PW-2). 18. In Madanlal and another Vs. State of Himachal Pradesh, (2003) 7 SCC 465 and Megh Singh Vs. State of Punjab, (2003) 8 SCC 666 the Hon'ble Supreme Court observed that a bare reading of Section 50 of the Act, 1985 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicle or articles. The position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172. 19. In view of the above settled legal position, Section 50 of the Act, 1985 would not be applicable when search is made in a house. In the instant case, the search was made in the house of the appellant, therefore, Section 50 of the Act, 1985 is not applicable. 20. Learned counsel for the appellant submitted that Assistant Sub-Inspector Gulabdas (PW -2) had taken sample of the Ganja on 19-10-1996. According to the prosecution, the sample was received in the FSL, Raipur for chemical examination on 26-10-1996, i.e., after near about 6-7 days of the seizure. Malkhana Register was not produced by the prosecution. The Constable, who was entrusted with the sample of Ganja was not examined and the delay in submitting the sample in FSL, Raipur is not explained. 21. On the other hand, Shri M.P.S. Bhatia, learned Deputy Government Advocate for the State/respondent submitted that the sample of Ganja was sealed properly and the evidence led by the prosecution does not indicate any possibility of tampering of seal affixed on the sample sent to the FSL, Raipur. 22. I have perused the evidence led by the prosecution with utmost circumspection. 23. 22. I have perused the evidence led by the prosecution with utmost circumspection. 23. In Gurbax Singh Vs. State of Haryana, (2001) 3 SCC 28 the Hon'ble Supreme Court observed that Section 55 of the Act, 1985 is directory; its total non-compliance causes doubts. 24. In State of Rajasthan Vs. Bher Singh, (2009) 16 SCC 293 the Hon'ble Supreme Court, regarding failure by prosecution to prove that the seal on seized opium sample had remained intact till its examination in FSL, held that this being a mandatory requirement, no interference with High Court's order reversing the conviction is called for. 25. In Narendra Bhusan Dubey Vs. State of M.P. (Now C.G.), 2011(1) CGLJ 259 this Court observed thus: "18..........Section 55 of the Act of 1985 requires the officer-in-charge of police station to take charge of and keep in safe custody all seized articles. The statutory scheme of the act engrafted under Section 55 requires the officer-in-charge of the police station to seal all the samples with his own seal. The legislative intention is that there should be fair investigation for keeping the seized article in safe custody of the highest officer of the concerned police station so as to eliminate the possibility of the sample being tampered with till the same reaches the hands of the chemical examiner. Under provision contained in Section 55 such a duty has been enjoined upon the officer-in-charge of the police station with the manifest object that the senior officers can be trusted to be fair in investigation and not indulging in dubious practices. When the prescribed procedure is abandoned, it gives rise to gnawing suspicion particularly when in the present case, the officer-in-charge/S.H.O. himself had seized the articles." 26. Gulabdas (PW-2) deposed that after obtaining consent from the appellant, he made search of the house of the appellant and seized 5 Kilograms and 400 Grams of Ganja kept in a plastic urea bag and a sum of Rs.273/- vide EX.P-5. Ex.P-5 contains his signatures. He took out 100 Grams of Ganja from the seized Ganja, prepared a sample thereof in a packet, sealed the packet and sent the same under a memorandum (Ex.P-6) to the FSL, Raipur through the Superintendent of Police, Raipur. The acknowledgement issued by the FSL, Raipur against receipt of the sample is EX.P-7. The report (Ex.P-8) received from the FSL, Raipur was placed on the record. The acknowledgement issued by the FSL, Raipur against receipt of the sample is EX.P-7. The report (Ex.P-8) received from the FSL, Raipur was placed on the record. After making seizure of the Ganja, he had come to the police station and registered First Information Report (Ex.P-9) on 19-10-1996 at 11:30 A.M. The FIR (Ex.P-9) bears his signatures. 27. Gulabdas (PW-2) deposed that he sent the Ganja to the FSL, Raipur for chemical examination vide Ex.P-6 and in the report (Ex.P-8) of the FSL, Raipur, presence of Ganja was found to be positive. 28. In a prosecution for the offence under Section 20 of the Act, 1985, it is the duty of the prosecution to establish the shadow of doubt that samples taken from the quantity of Ganja alleged to have been seized from the appellant were sealed and specimen impression of the seal was prepared. It was also necessary for the prosecution to establish that at the time of entrustment of the samples in the Malkhana, Station House Officer of the Police Station had affixed his seal on the sample packets as also on the remaining quantity of Ganja. The prosecution must establish beyond reasonable doubt that the seal affixed on the sample packets not only at the time of seizure but also at the time of entrustment in the Malkhana remained intact till the sample packets were delivered at FSL for their chemical analysis. 29. In the instant case, the prosecution did not examine the officer-in-charge of Malkhana. It also did not produce the Malkhana Register in its evidence. Even Gulabdas (PW-2) did not state anything about safe custody of the seized contraband article. In the FSL Report (Ex.P-8), it is mentioned that the sample was received from Constable No.302 Shyam Sunder Chandrakar on 26-10-1996. In the FSL Report (Ex.P-8), specimen impression of seal is not mentioned. It is also not mentioned in the FSL Report (Ex.P-8) that the sample was received along with specimen impression of the seal of the officer-in-charge of the concerned police station. Constable 302 Shyam Sunder Chandrakar was not examined by the prosecution. The contraband article was seized on 19-10-1996 and the sample was received by the FSL, Raipur on 26-10-1996. There is no evidence to explain custody of the sample during this period and the delay in submitting the sample in the FSL, Raipur is also not explained. 30. Constable 302 Shyam Sunder Chandrakar was not examined by the prosecution. The contraband article was seized on 19-10-1996 and the sample was received by the FSL, Raipur on 26-10-1996. There is no evidence to explain custody of the sample during this period and the delay in submitting the sample in the FSL, Raipur is also not explained. 30. After having considered the evidence led by the prosecution in its entirety, I am of the considered opinion that there is non-compliance of the provisions of Sections 52 and 55 of the Act, 1985. Neither delay in delivering the sample at FSL has been explained nor the Malkhana Register was produced in evidence. The prosecution did not establish that the seized Ganja was kept in safe custody in Malkhana. The prosecution did not examine the officer-in-charge of Malkhana, Station House Officer and Constable 302 Shyam Sunder Chandrakar. Therefore, the report of FSL (Ex.P-8) cannot form basis of conviction of the appellant under Section 20-B of the Act, 1985. In view of the above, the impugned judgment deserves to be set aside. 31. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 20-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 are set aside. The appellant is acquitted of the charge framed against her, after giving her benefit of doubt. Her bail bonds are cancelled and sureties stand discharged. Appeal Allowed.