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Madhya Pradesh High Court · body

2013 DIGILAW 1097 (MP)

Sunil v. State of M. P.

2013-09-11

M.C.GARG

body2013
JUDGMENT M.C. Garg, J. This appeal arises out of the conviction of the appellant by the Special Judge, (Narcotic Drugs and Psychotropic Substances) convicting the appellant under Section 8 read with Section 20-B(2)(C) of the NDPS Act, 1985 (hereinafter referred to as 'Act') on account of recovery of 37.5 kgs. of Ganja, which is commercial quantity. By the impugned judgment, the appellant has been sentenced to undergo RI for 10 years with fine of Rs.1,00,000/- and in default of payment of fine to further undergo SI for one year. 2. As per the prosecution story, information was received at Police Station, Shajapur through an informer at 5.10 p.m., that one person was standing at AB Road, near Village Majania corner towards Village Sunera, with 3 bags containing contraband. S.I. Sanjay Verma (P.W. 11) claims to have recorded the aforesaid information at Police Station, Shajapur, and then he alongwith other members of the raiding party came towards spot in Maruti Van bearing number MP-13/D/0606, a private vehicle and arrested the appellant Sunil at about 7.35 p.m. It is their case that the appellant was found in possession of 37.5 kgs of Ganja. Panchnama was prepared of the recovery allegedly in the presence of two witnesses namely--Rajesh Satwas and Akbar Khan. After completing the investigation, police filed the challan. Charges framed against the appellant were denied by him. The prosecution, therefore, led evidence and examined 12 witnesses namely--Dilip Kumar Arya (P.W. 1), Manoj Singh Chandel (P.W. 2), R. Kamal Solanki (P.W. 3), Shyam Sharma (P.W. 4), Sitaram Chouhan (P.W. 5), G.S. Pawar (P.W. 6), Shishu Pal Singh (P.W. 7), Amit Bhavsar (P.W. 8), Rajesh Rao (P.W. 9), Mohan Prasad Saxena (P.W. 10), Sanjay Verma (P.W. 11) and Fateh Bahadur Singh (P.W. 12). 3. Out of the aforesaid witnesses except for Fateh Bahadur Singh (P.W. 12), none of the witnesses is senior to S.I. Sanjay Verma (P.W. 11), who is the Investigating Officer of this case. 4. To appreciate the case of the prosecution, we may also take note of Paragraph 3 of the judgment. The Trial Court has noticed the case as under:-- XXX XXX XXX 5. As stated above, the Trial Court has convicted the appellant under Section 8 read with Section 20-B(2)(C) of the NDPS Act and sentenced him to undergo RI for 10 years with fine of Rs. The Trial Court has noticed the case as under:-- XXX XXX XXX 5. As stated above, the Trial Court has convicted the appellant under Section 8 read with Section 20-B(2)(C) of the NDPS Act and sentenced him to undergo RI for 10 years with fine of Rs. 1,00,000/- and in default of payment of fine to further undergo SI for one year. 6. The appellant has denied the story of the prosecution and claims to have been falsely implicated. It is also his case that nothing was recovered from him. 7. To prove his defence, the appellant examined five witnesses namely--Jagan Nath (D.W. 1), Bharelal (D.W. 2), Pandit Devendra Parashar (D.W. 3), Krishnabai (D.W. 4) and Ramsewak (D.W. 5). 8. A perusal of the impugned judgment shows that conclusions drawn by the Trial Court to support the conviction appellant is primarily based upon the statement made by ASI Sanjay Verma (P.W. 11), who claims to have received the information about the possession of contraband by the appellant. According to the appellant, there are number of violations of the mandatory provisions of the Act, besides other contradictions. According to Sanjay Verma (P.W. 11), the information received by him was taken down in writing in the presence of two panch witnesses namely Rajesh Satwas and one Akbar Khan, vide Exh. P-9. In reply to Paragraph 33, he stated as under:-- 9. Rajesh Satwas (P.W. 9), only recovery witness, who appeared in the witness box has also not supported the case of the prosecution and is a hostile witness. The other recovery witness namely--Akbar Khan has not been produced by the prosecution. It is also submitted that the impugned judgment is also not sustainable because the Trial Judge has simply ignored the defence given by the appellant despite examining 5 defence witnesses. It is submitted that the manner in which the investigation has been conducted by P.W. 11 itself causes serious doubt in the story of the prosecution and given credence to the defence of the appellant. 10. At this juncture, it will also be appropriate to make a reference to Paragraphs 6, 7 and 8 of the judgment, which are reproduced here as under:- XXX XXX XXX 11. This shows that accused/appellant Sunil was resident of Pachaur. 10. At this juncture, it will also be appropriate to make a reference to Paragraphs 6, 7 and 8 of the judgment, which are reproduced here as under:- XXX XXX XXX 11. This shows that accused/appellant Sunil was resident of Pachaur. No information was obtained by the S.I. Sanjay Verma (P.W. 11) about the number of truck, from where the appellant was dropped with the contraband as per the information allegedly received by P.W. 11. 12. With respect to the documents believed to have been executed by the Trial Judge as mentioned in the statement of Sanjay Verma (P.W. 11), it has been submitted that those documents have not been proved in accordance with law. It is also submitted that the impugned judgment is liable to the set aside for the reasons that during investigation. P.W. 11 has not complied with the mandatory provisions of the Act, inasmuch as contained under Sections 42, 50, 52 and 57 of the Act, the articles seized were not forwarded for testing without un-necessary delay and the information received by the prosecution was also not communicated to the higher officer either earlier or even after the arrest of the appellant as per requirement of Sections 42 and 57 of the Act. It is also their case that the alleged contraband and samples stated to have been drawn therefrom were also not sealed in accordance with the provision of Section 55 inasmuch as, the SHO or any other senior officer of the concerned police station has not put his seal on the sample. 13. It is submitted the Trial Court went wrong in believing the case of the prosecution about execution of Exhs. P-19, P-20, P-21 and P-22 in the absence of production of the original Rojnamcha. It is submitted that no other witness has come to prove the veracity including Moharrir Head Constable who is the custodian of Rojnamcha maintained in the police station. It is also submitted that Exh. P-9, despite its availability, has also not been proved inasmuch as, neither P.W. 9 has supported the case of the prosecution, nor the other search witness has come forward to depose in this regard. It is surprising that no other police officer despite number of persons having joined the raiding party have come forward to prove these documents. P-9, despite its availability, has also not been proved inasmuch as, neither P.W. 9 has supported the case of the prosecution, nor the other search witness has come forward to depose in this regard. It is surprising that no other police officer despite number of persons having joined the raiding party have come forward to prove these documents. In fact, in Para 8 of the judgment as quoted above, the statement of P.W. 11 about Rojnamcha bearing Nos. 914, 916 and 918 and Exhs. P-19, P-20, P-21 and P-22 were not prepared by Sanjay Verma (P.W. 11) in the presence of Dilip Arya (P.W. 1), Manoj Singh Chandel (P.W. 2) or G.S. Pawar (P.W. 6), merely because P.W. 9 admitted his signatures on some papers on which P.W. 11 claims to have recorded some information despite giving an explanation that he was made to sign blank papers, the Trial Court has presumed execution of these documents, without there being any independent corroboration. 14. It has been submitted that it is only the officer in-charge of the police, who is empowered to investigate the matter. However, in this case the investigation has been conducted by the S.I. Sanjay Verma (P.W. 11), who was not competent to investigate the matter. It is a matter of record that no general or special order permitting the Sub-Inspector to investigate such crime in the police station where the SHO was posted has been placed on record. It is submitted that P.W. 12, who was immediately superior officer was not even informed about the information, before conducting of the raid or recovery of contraband and deposit of the same in the Malkhana. This is apparent from the fact that P.W. 12, who was immediate superior officer and was incharge of the Police Station, has not put his seal on the contraband seized and the samples allegedly deposited in the Malkhana. 15. It is submitted that instead of complying with provision of Section 55 of the Act, the samples were given to a Constable namely--Mohan Prasad Saxena (P.W. 10), who was not the competent person to either seal the sample with his own seal or to deposit the same without obtaining the seal of the Incharge of the police station in the Malkhana as per the provision contained under Section 55 of the NDPS Act. It is submitted that the observation made by the Trial Court that since the SHO of the police station was not available on the date, SI Sanjay Verma being the senior most was not obliged to bring the material seized by him before the incharge of the police station for the purpose of sealing the sample, is contrary to law. 16. It is also submitted that while conducting the search the Investigating Officer has not also complied with the provision of Section 100 and Section 165 of Cr.P.C., as no person from the same locality was joined as witness to the seizure, despite deposition of the witnesses that people had been coming and going on motorcycle on the road from where, the alleged seizure has taken place. It has also come in the statement of one of the witnesses that there were about 40 to 50 shops in that area but none of the shopkeeper has been associated with the search. In this regard, reference has been made to the deposition of P.W. 2. 17. According to Rajesh Satwas (P.W. 9), his signature were obtained by the police on blank papers. It is submitted that the observation of the Trial Court that no explanation has been furnished by P.W. 9 as to why his signatures were available on Exh. P-9 was unwarranted because except for the signature of P.W. 9 nobody has come forward to witness the document nor any other person including number of police personnels who were member of the raiding party were associated with the execution of the aforesaid document. It is also submitted that the explanation furnished by P.W. 9 about his signature on the blank papers should not have been brushed aside because it is a fact of common knowledge that police is in the habit of obtaining signature on the blank papers. Rajesh Satwas (P.W. 9) in his cross-examination, has denied each and every allegation of the prosecution. Moreover, the preparation of various documents by the I.O. have not been proved by any other independent witness including any other member of the raiding party. It is submitted that non production of the second witness to Exh. P-9 goes to prove that either the said witness was not interested to support the prosecution or he is non-existent. 18. My attention has also been drawn to point out the contradictions in the statement of the witnesses. It is submitted that non production of the second witness to Exh. P-9 goes to prove that either the said witness was not interested to support the prosecution or he is non-existent. 18. My attention has also been drawn to point out the contradictions in the statement of the witnesses. The statement of Dilip Arya (P.W. 1), reads as under:-- XXX XXX XXX 19. A bare perusal of the aforesaid deposition shows that the same is contradictory to the case of the prosecution inasmuch as, according to the prosecution, there were three bags whereas, according to this witness, there was only one bag. It is submitted that, from the statement of this witness, it is also fortified that the information allegedly received by Sanjay Verma (P.W. 11), was not even recorded in Rojnamcha and the same was also not supplied to the higher officials before carrying out the search. Inasmuch as, even according to Dilip Arya (P.W. 1), the information about which, the letter was given to him for being given to the SDOP, was not given by him prior to the search. It is matter of record that no higher official has appeared in the witness box to support the version of the prosecution that such information was received by any higher official, i.e., higher than Sanjay Verma (P.W. 11) including his SHO. In, fact, even Shishupal Singh (P.W. 7) has not stated that he brought the information and sent to him to the notice of the senior officer and if so, to whose information. Moreover, the conduct of the appellant as pointed out by this witness also shows that the appellant proved his innocence. 20. It is also submitted by the appellant that he has been falsely implicated inasmuch as, one Gajju Banjara, who was earlier arrested in this case about two days before, was not produced before the Trial Court and has not been made as an accused. These facts are clear from the statement of Fateh Bahadur Singh (P.W. 12). In fact, in Paragraph 11 of his statement, he has admitted apprehension of Gajju Banjara on 10-4-2005, which fact has also been corroborated by G.S. Pawar (P. W. 6). It has also come in the statement of G.S. Pawar (P.W. 6) and Dilip Arya (P.W. 1) that after the apprehension of Gajju Banjara, the police had also gone to the house of the appellant on 10-4-2005. It has also come in the statement of G.S. Pawar (P.W. 6) and Dilip Arya (P.W. 1) that after the apprehension of Gajju Banjara, the police had also gone to the house of the appellant on 10-4-2005. However, these admissions have simply been ignored by the learned Trial Court even though, no case was registered against Gajju Banjara despite admission of these witnesses that he was found in possession of 900 gms of Ganja. It is submitted by the appellant that this gives credence to the defence of the appellant that he was falsely implicated in this case only because his father failed to oblige the police, which fact, is also clear from the statement made by the defence witnesses and also from the publication of newspaper Exhs. D-5, D-6 and D-7 and Exh. D-2, which is an intimation given about the illegal arrest of the appellant to the senior officers by the family of the appellant on 11-4-2005 itself gives credence to the version of the defence, which is also corroborated by D.W. 1, D.W. 2, D.W. 3, D.W. 4 and D.W. 5. It may be true that the news paper report may not have any evidential value but if they are read in the light of the statement made by the defence witnesses and the admission made by the prosecution witness, it may cause doubt on the story of the prosecution. The statement of the aforementioned witness give credence to the deposition of defence. It has been submitted that while the prosecution is required to prove its case beyond reasonable doubt, the defence can establish its case according to preponderance of probability. 21. At this juncture, I may also take note of the statement of the defence witnesses examined on behalf of the appellant. Jagganath (D.W. 1) has deposed that while the said witness was posted as Home Guard in Police Station, Pachor, which is the village of the appellant on 10-4-2005 at about 9 p.m., G.S. Pawar and Sanjay Verma alongwith 3-4 Constables brought one accused in the Maruti Van and wanted to search the house of Ramsevak Beragi, who is the father of the appellant. In his deposition, he has also deposed about the embarrassment caused by this police party of which the Investigating Officer was member to the mother of the appellant. In his deposition, he has also deposed about the embarrassment caused by this police party of which the Investigating Officer was member to the mother of the appellant. The following portion of his deposition reads as under:-- XXX XXX XXX Paragraphs 6 and 8 are also relevant which reads as under:-- XXX XXX XXX 22. The deposition of this witnesses supports the version of the defence that not only the police party with S.I. Sanjay Verma as member thereof has come to the house of the appellant two days earlier to the incident and wanted to arrest his father and further they arrested his mother solely with a view to obtain illegal gratification. This witness also proves that in the aforesaid police party G.S. Pawar was also a member. 23. G.S. Pawar (P.W. 6), in his statement has supported the case of the defence that prosecution has arrested one Gajju Banzara and had gone to Pachor. Second witness Barelal Pal whose name has also been taken by D.W. 1. Similarly, Devendra Parasar (D.W. 3), who is also independent witness has supported the defence version about the police party having gone to village on 10-4-2005 at about 12 in the midnight and having taken mother of Sunil, Manohar tailor and Yogesh Dubey in the Maruti Van and wanted a settlement to be reached by responsible person. Devendra also stated that from them Ganja was recovered and in case a sum of Rs. 3,00,000/- is given to the police, these persons will not be involved. As far as Krishnabai (D.W. 4) and Ramsevak (D.W. 5) are concerned of course they are mother and father of the appellant, but their statement corroborates the version of D.W. 1, D.W. 2 and D.W. 3. The Trial Court has not given any credence to the version of the defence witnesses. 24. The third witness Devendra Parasar has also supported the story of the defence. None of these witnesses are relative of the appellant but appears to be independent person inasmuch as Barelal Pal (D.W. 2) was a retired ASI. He has also submitted about the coming of Sanjay Verma with other police personnels to Pachor on 10-4-2005 and their intention to search the house of Sunil. The witness also submits about the illegal detention of Sunil, Manohar and Yogesh who according to the appellant was released later. He has also submitted about the coming of Sanjay Verma with other police personnels to Pachor on 10-4-2005 and their intention to search the house of Sunil. The witness also submits about the illegal detention of Sunil, Manohar and Yogesh who according to the appellant was released later. Sitting in Maruti Van also proves that even the mother of the appellant was also present when they went home. In the cross examination the prosecution had tried to rely the story of this witness, but the factum of going to Pachor is admitted by P.W. 11 on 10-4-2005. 25. It is also submitted that even the sample out of the contraband remained in the custody of the Constable for about 3 days and as such, there is a delay in forwarding the contraband to the FSL of more than 3 days. In this regard, no cogent explanation has been furnished by Kamal Solanki (P.W. 3), who was given this responsibility. 26. We have also heard the submissions made on behalf of the learned Panel Lawyer, who denied all these and has submitted that the case was investigated in accordance with law and the delay in sending the sample stands explained adequately. Reference has been made to Paragraph 30 of the judgment in this regard, which is reproduced here as under:-- 27. It may be observed here that neither the statement of incharge of FSL has been recorded nor the register of FSL has been produced. The deposition made on behalf of Kamal Solanki (P.W. 3) that on 3rd Saturday, the FSL was closed appears to a wrong statement inasmuch as, the office remains closed only on 2nd Saturday and not on the 3rd Saturday. Moreover, no evidence has been produced in this regard to corroborate the version of the Constable. 28. Regarding the other submission of the appellant, reference has been made to Paragraph 25 of the judgment, which is reproduced here as under:-- 29. The aforesaid paragraph of the judgment again gives credence to the stand of the appellant that the contraband and the samples were not taken therefrom to the in-charge of the police station but were directly deposited by the Constable with MHC. This is clearly in violation of Section 55 of the Act, which reads as under:-- XXX XXX XXX “55. The aforesaid paragraph of the judgment again gives credence to the stand of the appellant that the contraband and the samples were not taken therefrom to the in-charge of the police station but were directly deposited by the Constable with MHC. This is clearly in violation of Section 55 of the Act, which reads as under:-- XXX XXX XXX “55. 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-in-charge of the police station. 30. Relevant provisions of the NDPS Act are reproduced here as under:-- “42. 30. Relevant provisions of the NDPS Act are reproduced here as under:-- “42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and subset,-- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detail and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 50. Conditions under which search of persons shall be conducted.-- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. 51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.-- The provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrant issued and arrests, searches and seizures made under this Act. 52. Disposal of persons arrested and articles seized.-- (1) Any officer arresting a person under Section 41, Section 42, Section 43 or Section 44 shall, as soon as may be, inform him of the grounds for such arrest. 52. Disposal of persons arrested and articles seized.-- (1) Any officer arresting a person under Section 41, Section 42, Section 43 or Section 44 shall, as soon as may be, inform him of the grounds for such arrest. (3) Every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to-- (a) The officer-in-charge of the nearest police station, or (b) The officer empowered under Section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. 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 sage 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-in-charge of the police station. 57. Report of arrest and seizure.-- Whenever, any person makes any arrest or seizures under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. 31. According to the appellant, the investigation of this case conducted by Sanjay Verma (P.W. 11), is illegal and is certainly in violation of the aforesaid provision of the Act. 32. The fact of non-compliance of the provisions of NDPS Act, and regulation of operations relating to those drugs and substances, came up for consideration before Hon'ble the Supreme Court in the case State of Punjab Vs. Balbir Singh, reported in AIR 1994 SC 1872 . 32. The fact of non-compliance of the provisions of NDPS Act, and regulation of operations relating to those drugs and substances, came up for consideration before Hon'ble the Supreme Court in the case State of Punjab Vs. Balbir Singh, reported in AIR 1994 SC 1872 . While observing that when we are to deal with the stringent provision for control and regulation of operations relating to those drugs at the same time, to avoid harm to the innocent persons and to avoid abuse of the provision by the investigating persons, certain safeguards are provided which in the context have to be observed strictly. The conclusion drawn in that case by Hon'ble the Supreme Court have enumerated in Paragraph 26 of the judgment, which is for the sake of reference, reproduced here as under:-- “26. The questions considered above arise frequently before the Trial Courts. Therefore, we find it necessary to set out our conclusions, which are as follows:-- (1) If a police officer without any prior information as contemplated under the Provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his Subordinate Officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But, if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2), such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But, if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an 'empowered' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165, Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4-A) If a police officer, even if he happens to be an 'empowered' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165, Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Section41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Sections 100 and 165, Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C., then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information, the empowered officer or authorised officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50, which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57, which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc., then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. 33. If there is non-compliance or if there are lapses like delay etc., then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. 33. A perusal of the aforesaid provisions establishes that in respect of any information about the violation of the provisions of the Act, the search should be conducted by empowered officer and if it is not done by him, then the officer who conducts the search must follow provisions contained under Section 42 of the Act mandatorily. In this case no evidence has been brought on record that P.W. 11 was the authorized officer or that he informed the authorized officer about the information received and conducting the search and bringing the contraband before him. Soon after the conducting the search even though Fateh Bahadur Singh (P.W. 12), who was in-charge of the police station was not available on the date of the incident, but became available thereafter. As discussed above, the defence led on behalf of the appellant had simply been ignored by the Trial Court. 34. In view of the aforesaid, it is submitted that the impugned judgment is liable to be set aside for the following reasons:-- (i) The investigation of this case was not conducted by the authorised officer. (ii) The investigating officer namely-- Sanjay Verma (P.W. 11) has not followed the mandatory provision of Section 41(2) of the Act inasmuch as, he has not given the relevant information either earlier or later to the senior officers. It is submitted that what has been placed on record is only the communication sent to the SDOP after the raid was conducted. However, no evidence has been led by the prosecution that the information was received by the senior officer about taking down of the information and bringing it to the notice of senior officer as nobody has appeared from the office of the SDOP to support Sanjay Verma (P.W. 11). (iii) The seized articles were not sealed with the seal of incharge of the police station. (iii) The seized articles were not sealed with the seal of incharge of the police station. In fact, even if, they were sealed by the Investigating Officer, they were not produced before the SHO/In-charge of the police station for this information and enabling him to comply with the other provision of the Act namely Section 55 of the Act. (iv) Admittedly, there is delay in depositing the sample with the FSL inasmuch as, the sample was taken by the Constable after three days of the delivery. No record to show that the intervening period, the sample was not tempered with, has been produced on record. As such, it is submitted that there is a clear cut violation of Sections 41(2), 52and 57 of the Act and Sections 100 and 165 of Cr.P.C. 35. It is submitted that even if, some of the aforesaid provisions may not be mandatory but requires careful scrutiny of the evidence which has come on record. In the light of the observation made by Hon'ble the Supreme Court in the case of State of Punjab Vs. Balbir Singh (supra). 36. Exh. P-9 relied upon by the prosecution as a document of taking down the information has not been proved in accordance with law. Moreover, it is surprising to know that no other police personnels or staff of the police station signed the said document in the witness of the execution thereof. The defence evidence as discussed also castes serious doubt on the conduct of Sanjay Verma (P.W. 11) and is sufficient to establish that the prosecution has not been able to prove its case beyond reasonable doubt. 37. To appreciate the aforesaid submissions of the appellant, we may also take note of some of the cross-examination of Sanjay Verma (P.W. 11). Paragraph 16 of the cross-examination is relevant and is reproduced here as under:-- XXX XXX XXX 38. The relevant deposition of P.W. 12 is also reproduced hereunder:-- XXX XXX XXX 39. 37. To appreciate the aforesaid submissions of the appellant, we may also take note of some of the cross-examination of Sanjay Verma (P.W. 11). Paragraph 16 of the cross-examination is relevant and is reproduced here as under:-- XXX XXX XXX 38. The relevant deposition of P.W. 12 is also reproduced hereunder:-- XXX XXX XXX 39. It is a fact of common knowledge that SHO/In-charge of the police station is on duty for 24 hours even if, at particular time, he was busy in connection with some other case or was on leave for few hours, even then keeping in view Section 55 of the Act, it was necessary for I.O. to have taken the appellant and the seized material before him so as to unable him to put his own seal over the product, which has not been done. His deposition also shows that many other persons were connected with the raid but none of them have been produced to fortify the deposition of P.W. 11 about taking down the information before starting to conduct the raid or even about information being sent to the senior officer subsequently. 40. Going to Pachor, i.e., the village of appellant has been admitted by G.S. Pawar (P.W. 6) in Para 17 of his deposition and the Investigating Officer himself in Paragraph 25 of his deposition has deposed as under:-- 41. The Trial Court in its judgment has taken note of the visit of the police party to the village of the appellant, but has discarded the defence version only by stating that conduct of the Sanjay Verma may be a ground for taking action against him in having not registered any case against Gajju Banzara, but it would not be of any help to the defence in this case. Paragraphs 38, 39, 40, 41 and 42 of the judgment reads as under:-- 42. It has also been noticed that the reliance placed by the Trial Court in Exh. P-9, Exh. P-19, Exh. P-20, Exh. P-21, Exh. P-22 is doubtful inasmuch as the execution of these documents have not been proved by the prosecution by leading sufficient evidence. From the statement of Shishupal Singh (P.W. 7), it is borne out that the information was given to the senior officers. P-9, Exh. P-19, Exh. P-20, Exh. P-21, Exh. P-22 is doubtful inasmuch as the execution of these documents have not been proved by the prosecution by leading sufficient evidence. From the statement of Shishupal Singh (P.W. 7), it is borne out that the information was given to the senior officers. From the statement of Dilip Arya (D.W. 1), it is clear that any such information was not given to senior officers prior to conducting the raid. 43. The next document relied upon is D.D. No. 1297, dated 12-4-2005 having been sent to SDOP, Shajapur through Constable Dilip Arya. Reference has been made to statement of Shishupal Singh (P.W. 7) to whom that letter was given and who accepted the same (Exh. P-1). Regarding information given to senior officers reliance has been placed upon the statement of Shishupal Singh (P.W. 7), who has submitted that he received the report at about 15.30 p.m. and returned the carbon copy, vide Exh. P-7. However, nothing has been submitted by him regarding conveying that information to the senior officers. Same is the position of the statement made by Sitaram Chouhan (P.W. 5). 44. Regarding sealing of the contraband reference has been made to the statement of Sanjay Verma (P.W. 11), who himself has sealed the seized articles as well as samples. It has been stated by Sanjay Verma that he not only sealed the Articles A-1 and A-2 but also signed the same and got the signatures of the accused. Relying upon the statement of T.I. Fateh Bahadur Singh (P.W. 12), the Court held that there was no need to comply with Sections 52(3) and 55 of the NDPS Act because after Fateh Bahadur Singh, it was the Investigating Officer, Sanjay Verma, who was the senior most and has sealed the material. 45. From the evidence as discussed by the learned Trial Court it is established that on 10-4-2005, i.e., two days before the incident Sanjay Verma (P.W. 11) apprehended Gajju Banzara who according to the appellant was also in possession of Ganja, which was seized but later on he was released without implicating him in any case. The factum of arrest of Gajju Banzara is found in the statement of G.S. Pawar (P.W. 6). The factum of arrest of Gajju Banzara is found in the statement of G.S. Pawar (P.W. 6). His statement also goes to show that on 10th April on the same day he has gone with Sanjay Verma, Manoj Chandel, Naresh Patel, Devilal and Vinod Sharma at about 10 p.m. to Pachor, i.e., village of the appellant on the basis of an information that Ganja was purchased by Gajju Banzara from the father of the appellant. This is also borne out from the statement of Sanjay Verma (P.W. 11) in Paragraph 25 of his statement, wherein he has stated that two days before the incident he had gone to Pachor and apprehended Gajju Banzara with 900 gms of Ganja. He had taken him to his house at Pachor. This fact was admitted by Fateh Bahadur Singh (P.W. 12), in Para 11, when he stated that Gajju Banzara was apprehended on 12-4-2005 alongwith Ganja. Despite observing that from the statement of these three witnesses it was borne out that two days before the incident one Gajju Banzara was apprehended by Sanjay Verma with 900 gms of Ganja. Despite that Sanjay Verma had not registered any case against Gajju Banzara. The defence has been simply discarded by the Trial Court only on the ground that payment of Rs.50,000/- was not put by the appellant in the cross-examination of the witnesses. The reasons given by the learned Trial Court in discarding the statement of defence witnesses finds mention in Paragraphs 45, 46 and 47, which are reproduced hereunder:-- XXX XXX XXX 46. The importance of compliance of Section 42 of the NDPS Act has also been highlighted by the Apex Court in its judgment delivered in the case of Sajan Abraham Vs. State of Kerala, reported in (2001) 6 SCC 692 . In Paragraph 6 of the aforesaid judgment, it has been held that:-- XXX XXX XXX “6. With regard to Section 42, the submission is that P.W. 5 has not recorded the information given by P.W. 3 with respect to the appellant's involvement before proceeding to arrest him in this case. This constitutes violation of Section 42 of the Act. In Paragraph 6 of the aforesaid judgment, it has been held that:-- XXX XXX XXX “6. With regard to Section 42, the submission is that P.W. 5 has not recorded the information given by P.W. 3 with respect to the appellant's involvement before proceeding to arrest him in this case. This constitutes violation of Section 42 of the Act. It is true under Section 42(1), the officer concerned, when he has reason to believe from his personal knowledge or information received from any person, he is obliged to take it down in writing if such information constitutes an offence punishable under Chapter IV of the Act and send it forthwith to his immediate superior. Such an officer is empowered to search any building, conveyance and in case of any resistance, break up any door or remove any obstacle for such entry, seizure of such drug or substance and to arrest such person whom he has reason to believe to have committed any offence punishable under the said Chapter. Thereafter such officer has to send a copy of this information forthwith to his immediate superior. Submission is that P.W. 5 after receiving the said information has not communicated it to his immediate superior which constitutes violation of Section42. In construing any facts to find, whether prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug, traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply, which the Courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of law. The Court, however, while construing such provisions strictly should not interpret it so literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.” 47. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.” 47. In the same judgment, it has been held that Section 57 is not mandatory, but certain precaution required to be taken during trial has been highlighted in Paragraph 12, which reads as under:-- “12. The last submission for the appellant is, there is non-compliance of Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest or seizure. The submission is, this has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court that P.W. 5 has sent copies of FIR and other documents to his superior officer which is not in dispute. Exh. P-9 shows that the copies of the FIR along with other records regarding the arrest of appellant and seizure of the contraband articles were sent by P.W. 5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said it has prejudiced the accused. This section is not mandatory in nature. When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. In the present case, we find P.W. 5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of Section57 of the Act.” 48. However, in the present case, it is apparent that the compliance of this section has also not been done inasmuch as nothing has been brought on record that the information was given to the senior officer inasmuch as no senior officer has come forward to say that such information was received. However, in the present case, it is apparent that the compliance of this section has also not been done inasmuch as nothing has been brought on record that the information was given to the senior officer inasmuch as no senior officer has come forward to say that such information was received. Thus, the statement made by P.W. 11 only shows that he gave information of the report to the Constable Shishupal Singh but except this there is no evidence that Shishupal Singh communicated the information to any senior officer or that the senior officer received such information. 49. Having given my thoughtful consideration to the rival submission and perusing the evidence, which has come on record, in the light of the well-settled principles that while the prosecution must prove the case beyond reasonable doubt, the defence can prove its defence by the principle of probability, I find that the case of the prosecution is not free from doubt while the defence given by the accused is probable. Consequently, the judgment of the Trial Court convicting the appellant is set aside. The appellant is in custody for 8-9 years. If he is not required in any other case, he be released forthwith. C.C. as per rules.