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Uttarakhand High Court · body

2013 DIGILAW 30 (UTT)

PREMA SHAH v. STATE OF UTTARAKHAND

2013-01-19

Alok Singh, Barin Ghosh

body2013
JUDGMENT ALOK SINGH, J. Appellant is assailing the judgment and order dated 27th February, 2008 passed by Sessions Judge, Bageshwar, in Sessions Trial No. 15 of 2007, whereby the learned Sessions Judge has found the appellant guilty for commission of an offence punishable under Section 20(b)(ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) as well as for commission of an offence punishable under Section 60 of the Excise Act, and has sentenced her to undergo rigorous imprisonment for a period of 20 years and to pay fine of ` 2,00,000/-, failing which, to further undergo additional simple imprisonment for six months, for the offence punishable under Section 20(b)(ii)(C) of the Act; and has sentenced the appellant to pay fine of Rs. 10,000/-, failing which, to undergo two months’ simple imprisonment for the offence punishable under Section 60 of the Excise Act. 2. Brief facts inter alia are that S.S.I. Diwan Singh Bisht (PW1), along with Constable Subhash Chandra (PW2) and other police personnel, left the Police Station on 29th April, 2007 at about 06:05 p.m. for patrolling purpose. The moment patrolling party reached near Jhulapul Tiraha, they saw the appellant coming from the other side carrying one bag on her head. Police party signaled her to stop, however, she turned towards the narrow lane and started walking fast. However, she was stopped and was asked that, as the police personnel have suspicion on her, they want to check the bag being carried by her and, therefore, if she wants, she may be checked in the presence of City Magistrate or any other gazetted officer. To this, she replied that she has no objection in being searched by the police personnel. Therefore, PW1 called lady constables from the Police Station by phone. Sunita Rani (PW6), a female constable, and another female constable, namely, Geeta Rawat, reached on the spot and the search was conducted. The bag, being carried by the appellant, was opened, wherefrom, 20 quarters of country-made liquor and about 6 kilograms of charas, contained in four different bags, were recovered. All the recovered items were kept in a sealed cover, after taking samples of 50-50 grams from each of the four bags containing the charas and, thereafter, appellant was taken to the Police Station and a chick First Information Report (Ex. Ka. 12) was registered. All the recovered items were kept in a sealed cover, after taking samples of 50-50 grams from each of the four bags containing the charas and, thereafter, appellant was taken to the Police Station and a chick First Information Report (Ex. Ka. 12) was registered. The contraband, so recovered, was kept in the Maal Khana after having obtained the counter-seal of the Station House Officer. Having investigated the matter, a charge-sheet was submitted against the appellant for an offence punishable under Section 8 / 20 of the NDPS Act and Section 60 of the Excise Act. 3. From the side of the prosecution, seven prosecution witnesses were examined and forensic examination report was submitted to say that the samples, taken from the contraband, were found to be charas. Having considered the entire material made available on the record, the learned Sessions Judge has passed the judgment and order under appeal. 4. We have heard Mr. L.K. Tiwari, learned counsel appearing for the appellant, as well as Mr. A.S. Gill, learned Senior Government Advocate assisted by Mr. V.P. Bahuguna, Brief Holder for the State, and have carefully perused the record as well as various provisions of the Act. 5. Having had perused the statements of PW1, PW2 and PW6, following facts have emerged, which are as under: (i) Appellant was apprehended at about 08:15 p.m. of 29th April, 2007 in the Bageshwar market near Jhulapul. From the bag, being carried by her on her head, 20 quarters of country-made liquor as well as four bags containing 6 kilograms of charas were allegedly recovered. (ii) While the chick report was registered in the Police Station on 29th April, 2007 at 11:10 p.m., it has also come on record, as per the statements of PW1 and PW2, that the Police Station is hardly 1 km away from the place, where the appellant was apprehended. (iii) From Paper No. 11 of the paper-book, it is also proved that the contraband, so recovered from the possession of the appellant, for the first time, was produced before the Station House Officer in the morning of 30th April, 2007 and he had put his own seal on the bundles in the morning of 30th April, 2007 and, thereafter, the contraband, so recovered, was kept in the Maal Khana. (iv) It has come from the statements of PW1, PW2 and PW6 that, allegedly, 50-50 grams charas was collected from each of the four bags as samples on the spot and that no sample was collected either in the presence of the Magistrate or any superior officer. (v) PW1 has stated that Gazetted Officers and Magistrates were residing within a kilometer of the place, wherefrom, appellant was apprehended. He has further stated that, before arresting the appellant, no permission or warrant was obtained from the Magistrate. 6. As per Section 51 of the Act, provisions of the Code of Criminal Procedure, 1973 shall apply, insofar as they are not inconsistent with the provisions of the Act. 7. As per Sub-Section (4) of Section 46 of the Code of Criminal Procedure, 1973, a woman can be arrested only by a woman police officer, by making a written report and obtaining the prior permission of the Elaka Judicial Magistrate, where either the offence is committed or arrest is to be made. However, prior permission of the Elaka Judicial Magistrate would not be required in exceptional circumstances. 8. As observed hereinabove and as stated by PW1, appellant was arrested at 08:15 p.m. of 29th April, 2007 from the busy market of Bageshwar near Jhulapul and Magistrates were residing within a kilometer from the spot. We, therefore, fail to understand as to why compliance of Sub-Section (4) of Section 46 of the Code was not made. Therefore, in our firm view, arrest of the appellant was in violation of Section 46(4) of the Code. There seems to be no compelling or such extraordinary circumstances, which can justify the arrest of the appellant without there being any report to the Magistrate and without obtaining permission and warrant from the competent Magistrate. 9. Moreover, as per the statement of PW1, after the appellant agreed to be searched by the police party, PW1 called the female constables from the Police Station so that the appellant may be searched by the female constables and, thereafter, PW6 as well as Smt. Geeta Rawat (both female constables) came on the spot and, after reaching on the spot, both the female constables started searching the bag being carried by the appellant. PW6, lady constable, states that the telephone call was received in the Police Station at about 07:15 p.m. and she reached the spot at 07:30 p.m. She further states that, after reaching on the spot, both the lady constables had asked the appellant that, if she wants, her search can be conducted in the presence of the Magistrate or a gazetted officer. To that, appellant replied that she does not know any Magistrate or gazetted officer and, therefore, police can search her and her belongings. As per the statement of PW1, appellant was asked as to whether she wants her search in the presence of a Magistrate or a gazetted officer and, when she had consented to be searched by the police officers, PW1 called the lady constables thereafter telephonically. PW1 nowhere says that the lady constables, too, had given such option to the appellant. Therefore, there seems to be major contradictions in the statements of PW1 and PW6. Not only this, PW1, in the very first line of his cross-examination, submitted that the police personnel reached Jhulapul Tiraha at 08:15 p.m. and the appellant was arrested soon thereafter at 08:15 p.m. This statement falsifies his previous statement that female constables were called telephonically and, thereafter, female constables conducted the search. Moreover, PW6, lady constable, stated that she reached on the spot at about 07:30 p.m. and the police personnel remained on the spot only for 30 minutes and, soon thereafter, all of them, alongwith the appellant, reached the Police Station at 08:30 p.m. and the entire contraband and the appellant were handed over to the Police Station at 08:30 p.m. If the police personnel and the appellant had reached the Police Station at 08:30 p.m., as stated by PW6, why the First Information Report was lodged at 11:10 p.m., has not been explained. 10. Section 55 of the Act reads as under: “55. Police to take charge of articles seized and delivered. 10. Section 55 of the Act reads as under: “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 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.” 11. Having perused Section 55 of the Act, we have no doubt in our minds that the officer-in-charge of the Police Station is responsible to keep the contraband, so seized and forwarded to him, in safe custody pending the orders of the Magistrate and he may allow the officer, who may accompany such articles to the Police Station, to affix his seal along with the seal of the officer-in-charge of the Police Station and to take samples therefrom and the samples, so taken, of the contraband shall also be sealed with a seal of the officer-in-charge of the Police Station. 12. As observed herein above, the contraband was sealed by the Station House Officer in the next day morning of 30th April, 2007. There is nothing on the record to explain that, if the contraband and the appellant were produced in the Police Station at 08:30 p.m. of 29th April, 2007, as to why the Station House Officer had put his seal on the next day morning on 30th April, 2007. Between 08:30 p.m. of 29th April, 2007 and the morning of 30th April, 2007, the contraband remained in whose custody and there was no tempering with the bag containing the contraband, has not been explained. Therefore, the entire exercise becomes even more suspicious and doubtful. 13. On being asked, Mr. Between 08:30 p.m. of 29th April, 2007 and the morning of 30th April, 2007, the contraband remained in whose custody and there was no tempering with the bag containing the contraband, has not been explained. Therefore, the entire exercise becomes even more suspicious and doubtful. 13. On being asked, Mr. A.S. Gill, learned Senior Government Advocate, was not able to point out any provision under the Act, which authorised the arresting officer to take out the samples himself without there being presence of either the officer-in-charge of the Police Station, as contemplated under Section 55 of the Act, or the competent Magistrate, as contemplated under Clause (c) of Sub-Section (2) of Section 52A. 14. In the present case, samples were not drawn in the presence of the officer-in-charge of the Police Station. As per the statement of PW1, the same were drawn on the spot, while, as per Section 55 of the Act, samples should have been drawn in the presence of the officer-in-charge of the Police Station and the seal of the officer-in-charge of the Police Station had to be put on the samples so drawn. Therefore, the statement of PW1 that samples were drawn by him on the spot, is of no value. There is nothing on record to suggest that the officer-in-charge of the Police Station had, himself, verified that the samples, so drawn by PW1, were in fact drawn from the contraband deposited in the Police Station and that, only after such verification, he had put his seal thereon. 15. The Hon’ble Apex Court, in the case of Kishan Chand vs. State of Haryana, reported in (2013) 2 SCC 502 , in paragraph No. 22, has observed as under: “22. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance with these provisions in their entirety, the court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevance. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevance. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance with the provision.” 16. In the present case, appellant was said to be arrested at 08:15 p.m. of 29th April, 2007 in the market near Jhulapul, Bageshwar, without there being any prior application and permission from the Magistrate, while admittedly a Magistrate was residing within a kilometer. The First Information Report was lodged with the Police Station at about 11:10 p.m., i.e. almost after three hours from the time of the arrest, and admittedly the Police Station is within a kilometer from the place of the arrest. No explanation with regard to the delay in registering the First Information Report is coming forward. Not only this, the contraband, for the first time, was produced before the officer-in-charge of the Police Station in the morning of 30th April, 2007 and there is no explanation as to why the same was not produced before the officer-in-charge of the Police Station soon after the seizure thereof. There is nothing on the record to suggest as to when the information about the seizure and the arrest of the appellant was forwarded to the superior officers, as required under Section 57 of the Act. Therefore, in our view, arrest, seizure and entire prosecution story become highly doubtful. Consequently, we are unable to uphold the judgment and order under appeal. However, before parting with the judgment, we would like to deal with the procedure of disposal of person arrested and contraband seized. 17. In the State of Uttarakhand, we have noticed that narcotic drugs or psychotropic substances, so recovered in commercial quantities, are not being destroyed at the earliest and they are being kept either in the police Maal Khana or in the court’s Maal Khana. The Hon’ble Apex Court, in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in (2002) 10 SCC 283, in paragraph Nos. 19, 20 and 21, has observed as under: “19. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. The Hon’ble Apex Court, in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in (2002) 10 SCC 283, in paragraph Nos. 19, 20 and 21, has observed as under: “19. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing. 20. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same. 21. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly.” 18. Now, question arises, if a person is arrested for carrying the narcotic drug or psychotropic substance and such contraband is seized and kept in sealed cover, as to how sample thereof shall be collected for chemical analysis and how contraband, so recovered, shall be dealt with? 19. Sections 52 of the Act is being reproduced herein below: “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. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (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.” 20. Having perused the provisions of Sub-Sections (3) & (4) of Section 52 of the Act, we find that every person arrested and article seized under Sub-Section (2) of Sections 41, Section 42, Section 43 or Section 44, shall be forwarded, without unnecessary delay, either to the officer-in-charge of the nearest Police Station or to the officer empowered under Section 53. Thereafter, the officer-in-charge of the Police Station or the authority, to whom the person arrested or article is forwarded either 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. 21. As per Sub-Section (4) of Section 52 of the Act, In-charge of the police station or officer shall take measures for the disposal of person arrested and article seized in accordance with law. It means, person arrested shall be produced before the Magistrate immediately but not later than twenty four hours along with the entries of the case diary as required by Section 57, 167(1) of the Code, read with Article 22(2) of the Constitution of India. 22. Section 52A of the Act reads as under: “52A. Disposal of seized narcotic drugs and psychotropic substance. 22. Section 52A of the Act reads as under: “52A. Disposal of seized narcotic drugs and psychotropic substance. – (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of - (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” 23. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” 23. Section 52A was inserted in the Act w.e.f. 29th May, 1989 as per the United Nation Convention against illicit trafficking in Narcotic Drugs and Psychotropic Substances. Language of Sub-Section (1) of Section 52A would go to suggest that, considering the hazardous nature of the contraband and their vulnerability to theft, substitution, misuse or constraints of proper storage space or any other relevant consideration, drugs or substances as notified by the Central Government shall be destructed in such a fashion as prescribed by Central Government after following the procedure prescribed under Sub-Section (2) of Section 52A. 24. The Central Government, in exercise of the powers conferred by Sub-Section (1) of Section 52A of the Act, has issued a Notification dated 29th May, 1989, which reads as under: “Ministry of Finance (Department of Revenue), Noti. No. S.O. 381(E), dated May 29, 1989, published in the Gazette of India, Extra., Part II, Section 3(ii), dated 29th May, 1989, p. 2 [No. 4/89-F. No. 664/23/89- Opium] In exercise of the powers conferred by sub-section (1) of Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government, having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space, specifies the following narcotic drugs and psychotropic substances, namely:- 1. Narcotic Drugs: (i) Opium (ii) Morphine (iii) Heroin (iv) Ganja (v) Hashish (vi) Codeine (vii) Thebaine (viii) Cocaine (ix) Poppy straw and any other manufactured drug as defined under clause (xi) of Section 2 of the Act. 2. Psychotropic Substances: (i) Methaqualone (ii) T.H.C. (iii) Amphetamine and (iv) any other psychotropic substances as defined under clause (xxiii) of Section 2 of the said Act.” 25. 2. Psychotropic Substances: (i) Methaqualone (ii) T.H.C. (iii) Amphetamine and (iv) any other psychotropic substances as defined under clause (xxiii) of Section 2 of the said Act.” 25. Sub-Section (2) of Section 52A provides that the officer-in-charge of the police station or the officer empowered under Section 53, to whom person arrested or article seized was forwarded under Sub-Section (4) of Section 52, shall prepare an inventory of such narcotic drugs or psychotropic substances with full details of their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars, including the country of origin, as the officer may consider relevant to the identity of the contraband and, thereafter, make an application to the Magistrate for the purposes of either (i) certifying the correctness of the inventory so prepared; or (ii) for taking the photographs of the contraband in the presence of the Magistrate and certifying the same by the Magistrate; or (iii) to draw the representative samples of such contraband in the presence of the Magistrate and to certify the same by the Magistrate. The officer may also move an appropriate application before the Magistrate for the destruction of the contraband. If such an application is moved, Magistrate has no option except to allow the same. Inventory, photographs and samples, so collected under the certificate of the Magistrate, shall be used as primary evidence in trial. 26. We have experienced that no compliance is being made in our State either of the directions of the Hon’ble Supreme Court, as noted above, or of Section 52A of the Act. Inventory, photographs and samples, so collected under the certificate of the Magistrate, shall be used as primary evidence in trial. 26. We have experienced that no compliance is being made in our State either of the directions of the Hon’ble Supreme Court, as noted above, or of Section 52A of the Act. In our firm opinion, the moment narcotic drugs or psychotropic substances, as notified by the Central Government under Sub-Section (1) of Section 52A of the Act, or commercial quantity of contraband, is seized, the officer-in-charge of the Police Station or the officer empowered under Section 53 of the Act, as the case may be, to whom accused or articles seized were forwarded under Sub-Section (2) or Sub-Section (3) of Section 52, should immediately approach the Magistrate for certification of the inventory so prepared and to take photographs of the contraband and samples thereof should only be drawn in the presence of the Magistrate under his certificate and steps must be taken for the destruction of such contraband to avoid vulnerability of theft, misuse, interpolation, substitution either in the samples or in the contraband so recovered, soon after the charge-sheet is filed in the matter. 27. In our firm opinion, although narcotic drugs and psychotropic substances, as mentioned in the Central Government Notification dated 29th May, 1989, require immediate disposal thereof, as prescribed under Section 52A of the Act, however, in our firm opinion, if commercial quantity of any narcotic drug or psychotropic substance is seized, keeping in mind vulnerability to theft, misuse, substitution and constraints of proper storage space, it is desirable that the officer-in-charge of the Police Station or the officer empowered under Section 53, to whom such seized contraband was forwarded under Section 52, should immediately approach the learned Magistrate for certifying the correctness of the inventory, taking the photographs and for taking all the samples in the presence of the Magistrate under his certificate so that false implication of the innocent people may be avoided. 28. The appeal is allowed. The impugned judgment and order dated 27th February, 2008 is set aside. Appellant, accordingly, stands acquitted. Appellant is on bail. She need not surrender. 29. Let a copy of this judgment be forwarded to the Director General of Police, Uttarakhand, as well as to all the Session Judges, for strict compliance thereof. 30. Lower court records be sent back immediately.