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2018 DIGILAW 242 (ALL)

BARSATI YADAV v. STATE OF U. P.

2018-01-31

DINESH KUMAR SINGH I

body2018
JUDGMENT : Dinesh Kumar Singh-I, J. 1. This criminal appeal has been filed against the judgment and order dated 30.8.1999 passed by the then VIIth Additional Sessions Judge, Varanasi in Criminal Case No. 624 of 1996 (State Vs. Barsati Yadav), under Section 21 of NDPS Act whereby accused-applicant has been convicted and awarded punishment of ten years rigorous imprisonment, fine of Rs. 1,000,00/- and in default of payment of fine, two years additional simple imprisonment. 2. In brief, the prosecution case is as follows. On 23.10.1996, S.I. Sri Dalpati Singh (PW-3), Constable Rajendra Bahadur Singh (PW-1) and Constable Mayapati Pandey (PW-2) reached village Tarna Bazar during patrolling duty. They found one person near whom, there were few persons, who fled away from there seeing the police. Getting suspicious police gave him a chase and arrested him at about 3:15 pm. When inquired, he disclosed reason of his running away that he sells 'Heroin' in pudias and as he was selling the same, he was trying to flee away from there. When it was inquired as to whether still he had heroin with him, he replied in affirmative. At this, he was commanded to be taken to a Magistrate or a Gazetted Officer as he was possessing Heroin. He stated that he should not be taken to any such Officer as he was ready to give his search to them only and saying this he took out a small polythene from "Tahmad" which contained forty pudias of brown coloured Heroin. These pudias were weighing about five grams. Apprising him about his act being an offence u/s 8/20/21 NDPS Act, he was taken into custody and the recovered Heroin was kept in a box and was sealed. The sample seal was prepared. During this process, a number of passersby were there who were asked to be a witness but stating that 'who could give statement against a criminal' they went away. The recovery memo was prepared on the spot and after having been read out, signatures were taken thereon of the companion officials. Thereafter the police party along with accused and the recovered contraband reached the police station where Case Crime No. 194 of 1996 was registered against the accused appellant Barsati Yadav u/s 8/20/21 of NDPS Act, P.S. Shivpur, Chick FIR (Ext. Thereafter the police party along with accused and the recovered contraband reached the police station where Case Crime No. 194 of 1996 was registered against the accused appellant Barsati Yadav u/s 8/20/21 of NDPS Act, P.S. Shivpur, Chick FIR (Ext. Ka-6) of which was prepared and the entry of this case was made at Report No. 30 in GD dated 23.10.1996 at 16:40 hours. The case was investigated by S.I. Pramod Kumar Pandey (PW-4), who made site plan (Ext. Ka-2) at the instance of the first informant and after having recorded entire evidence and taking into consideration the FSL report (Ext. Ka-5) submitted charge sheet (Ext. Ka-3) against the accused under Sections 8/20/21 of NDPS Act. 3. Learned court below framed charge against accused on 6.6.1997 under Section 21 of NDPS Act, to which the accused-appellant pleaded not guilty. 4. From the side of prosecution, Constable Rajendra Bahadur Singh was examined as PW-1, Constable Mayapati Pandey as PW-2, Constable Dalpati Singh as PW-3 and Investigating Officer Sri Pramod Kumar Pandey as PW-4. 5. Thereafter the evidence of prosecution was closed and the statement of accused was recorded under Section 313 Cr.P.C., wherein he refused recovery of any contraband substance from him and stated that 2-3 days prior to the date of occurrence, the police arrested him after taking away from his home and he was beaten badly. He has been falsely implicated in this case. He examined Lallu Yadav as D.W.-1 in defense. His affidavit dated 23.10.1996 (Ext. Kha-1), letters sent by C.J.M., Varanasi for medical examination of the accused (Ext. Kha-2) and the medical examination report (Ext. Kha-3) have been filed in defense. Besides that by way of documentary evidence, prosecution has produced recovery memo (Ext. Ka-1), site plan (Ext. Ka-2), Charge sheet (Ext. Ka-3) Docket (Ext. Ka-4), FSL's Report (Ext. Ka-5), Chick F.I.R. (Ext. Ka-6), G.D. (Ext. Ka-7). 6. Learned court below had found the case proved against him in respect of the above charge and awarded him aforementioned punishment. 7. The perusal of the judgment of court below would indicate that it has described the defense of the accused at length and the court has dealt with it meticulously. The defense was taken that he was taken away by police from his house on 21.10.1996 and after detaining him at police station for 2-3 days and beating him badly, he was falsely implicated in this case. The defense was taken that he was taken away by police from his house on 21.10.1996 and after detaining him at police station for 2-3 days and beating him badly, he was falsely implicated in this case. It was also stated from the side of accused that on 23.10.1996, his brother Lallu Yadav had given an application in Court in regard to his being taken away from house on 21.10.1996 at 3:30 pm and regarding him being beaten a report was called for from the concerned police station by the court but till next date i.e. 24.10.1996 no report was received from the concerned police station, rather accused was falsely challaned under NDPS Act showing recovery from him. It was also stated from the side of accused that an application was moved from the side of accused for his medical examination to be conducted in Varanasi Jail, pursuant to which, on 25.10.1996 at 10:10 am his medical examination was conducted, copy of report of which is Ext. Kha-3. The application given by his brother was supported by an affidavit (Ext. Kha-2) and medical examination report (Ext. Kha-3) which shows that in all, six injuries were found on his person which were all of ordinary nature and it was opined that they could have been caused by a blunt object and were caused about four days prior to 25.10.1996 i.e. on 21.10.1996. The court below has expressed its opinion in this regard that the evidence adduced by the accused does not prove that he was picked up from his house on 21.10.1996 and was taken to police station, Shivpur, where he was beaten and was detained illegally till 30.10.1996 because in this regard from the side of accused, a suggestion is made to the prosecution that accused use to give milk to the Inspector of the P.S. Shivpur. For payment of balanced amount he was called at police station where he was falsely challaned under this case after being beaten badly. This suggestion was denied by PW-3 Dalpati Singh, who even denied that he knew Barsati Yadav from before. For payment of balanced amount he was called at police station where he was falsely challaned under this case after being beaten badly. This suggestion was denied by PW-3 Dalpati Singh, who even denied that he knew Barsati Yadav from before. The court below has also mentioned in this regard that DW-1 who is elder brother of the accused has stated nothing in examination-in-chief that he was taken away by police from his house nor had he made clear as to when his brother was being taken away from house, why he did not resist them but during cross-examination, he had stated that police personnel had told his brother that 'Inspector Sahab had called him'. He had inquired from the police constables, whereon he was told that account of milk was to be settled. But during cross-examination, this witness had also stated that he did not know whether Barsati used to give milk to police pesonnels because he never accompanied him during supply of milk. Further the court has mentioned in the judgment that the brother of accused Lallu Yadav gave first application in this regard on 23.10.1996 with affidavit (Ext. Kha-1), which contained that he was elder brother of Barsati Yadav and was knowing the facts of the case. He stated on oath that his brother was innocent; his brother was taken away from his house on 21.10.1996 at about 3:30 pm and was detained at concerned police station and that he had full hope that police might implicate his brother in some case. It is further mentioned in the judgment that from the said facts, it was clear that, it was not stated that police had taken away his brother from home, saying that account of milk was to be settled nor any reason has been mentioned as to why police had taken away his brother. The application which was moved from the side of accused before the then District and Sessions Judge, Varanasi on 4.11.1996 contained that the correct facts were that the accused had a dispute relating to land with his Pattidar Ram Kishan Yadav and others, who had frequent access to police station concerned and by colluding with police, they got him arrested on 21.10.1996 at 3:30 pm, where he was beaten and after two days he was challaned. With the said application, the wife of accused Tara Devi had submitted her affidavit also in which she also stated that there was land dispute between the accused and Ram kishan Yadav and that Ram Kishan Yadav had got him arrested on 21.10.1996, but during cross-examination of witnesses in court, no suggestion was given regarding there being any enmity with Pattidar Ram Kishan Yadav relating to land or that under the influence of pattidar, police had arrested him from house. The brother of accused Lallu Yadav (DW-1) has also not stated anything in his statement in this regard. Thus, the court below has deducted from all this that it appeared that whatever the counsel for the accused suggested him to say in defense, the same was stated but nothing stated by the accused in defense had been proved. 8. As regards the version of defense that accused was beaten by police, a conjecture has been expressed by court that it was possible that accused might have been beaten by some other persons on 21.10.1996 or thereafter and due to the said injury being old the police of Shivpur might not have considered it appropriate to get him medically examined. The whole version of defense has been discarded as being un-believable because the same was not got supported by any independent witness and the defense might have been taken due to legal advice of counsel. 9. It is also mentioned that the application dated 23.10.1996 allegedly given by brother of the accused was possible to be given after the arrest of the accused because of the police station, Shivpur being located only 2-3 km away from the court. 10. Perusal of the judgement would further reveal that the defense was also taken by the accused before it that compliance of provisions of Section 50 of the NDPS Act was not made but the same was overruled because it was held that the accused was not arrested in pursuance of any information received from any informant. It was a case of sudden recovery and arrest pursuant to the disclosure made by the accused himself that he had Heroin, therefore, provision of Section 50 of NDPS Act was not applicable. 11. It was a case of sudden recovery and arrest pursuant to the disclosure made by the accused himself that he had Heroin, therefore, provision of Section 50 of NDPS Act was not applicable. 11. Regarding quantity of recovery of heroin, it is held by the court below that prosecution has a case that forty pudias of Heroin was recovered which weighed about five grams each, therefore, no adverse impact would be there on prosecution's case whether weight of this contraband substance was less than five grams or more than five grams. 12. Before the court below the ground of no public witness being taken to prove the recovery was also raised but it was discarded on the ground that it is difficult to get a public witness against a criminal. Thus, finally the court below believed all the prosecution witnesses and had convicted the accused. 13. Heard Sri Mewa Lal Yadav, learned counsel for the appellant and learned A.G.A. and perused the record. 14. Learned counsel for the appellant has assailed the judgment mainly on the ground that compliance of Section 50 of NDPS Act has not been made by the arresting party which was essential because of the law laid down in State of Himachal Pradesh Vs. Pawan Kumar, 2005 (4) SCC 350 , in which in view of difference of opinion between two learned Judges of the Supreme Court on the issue in question, the matter was placed before the Larger Bench. The question for consideration was whether the safeguards provided by Section 50 of the NDPS Act regarding search of any person would also apply to any bag or brief case or any such article, container etc., which is being carried by him. Allowing the appeals and remetting the matter to High Court for decision afresh, the High Court held that the word "person" had not been defined in the Act. In view of basic principles of interpretation of statutes, it becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". Allowing the appeals and remetting the matter to High Court for decision afresh, the High Court held that the word "person" had not been defined in the Act. In view of basic principles of interpretation of statutes, it becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". Having regard to the scheme of Act and the context in which it has been used in the section which naturally means that a human body or a living individual unit and not an artificial person, the word "person" has to be understood in the broad common sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear. The bag, brief case, container or any such article etc. can, under no circumstances, be treated as body of human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be a part of the body of human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, brief case, suit case, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc., of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article specifying the manner in which it was carried like hand, shoulder, bag or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. An incriminating article can be kept sealed in the body or clothings or coverings in different manner or in the footwear while making the search of such type of articles which have been kept so concealed, it will certainly come within the ambit of the word search of "person". 15. The other citation relied upon by the learned counsel for the appellant is Ramesh Chandra Vs. 15. The other citation relied upon by the learned counsel for the appellant is Ramesh Chandra Vs. State of U.P., 2014 (7) ADJ 184 , in which it is held that weighing the contraband substance was essential and that delay in sending the sample to the FSL may prove fatal for the prosecution's case. Relevant paragraph no. 22 of the said judgment is quoted hereinbelow:- 22. In the present case, sampling was also done in a peculiar manner. P.W-1 Kaushal Kishore in his deposition has stated that out of said recovered material he had taken out 20 grams of contraband separately without ascertaining the weight, which also appears to have been done in contravention of the rules prescribed for sampling of the contraband. Another glaring aspect of the matter as per record of the case is that the sample was sent before Forensic Science Laboratory, Lucknow on 27.6.2007, after more than 70 days of the incident. This inordinate delay is highly disturbing. The trial court failed to consider this aspect in its correct perspective. The effect of delay in sending the contraband has not been considered by the trial court. Record of the case as well as the depositions of the police witnesses clearly reveal that sample of the recovered contraband was not prepared properly. Record also reveals that sample of seal was not produced before the trial court. Relevant portion of judgement is extracted as under:- "xxx xxx xxx" 16. Next citation which is relied upon by the learned counsel for the appellant is Jitendra Vs. State of Madhya Pradesh, 2004 (10) SCC 562 , in which it was held that non production of the material object would prove fatal for the prosecution's case. Relevant paragraph no. 6 of the said judgment is quoted hereinbelow:- "6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchanama is nothing but a document written by the concerned police officer. The suggestion made by the defence in cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the Investigating Officer was also not examined. Against this background, to say that, despite the pancha witnesses having turned hostile, the non-examination of the Investigating Officer and non- production of the seized drugs, the conviction under the NDPS, Act can still be sustained, is far fatched." 17. And lastly it is argued that the prosecution has failed to prove its case beyond reasonable doubt due to important lacunae in it's case as regards non production of the contraband substance before court. Non compliance of Section 50 and 57 of the NDPS Act and no link evidence being produced before court to establish that the contraband substance allegedly recovered on the spot was same which was sent for being tested by the FSL and that the same was kept at a safe place from the time it was recovered till it was sent for being tested to FSL and till production of the same before court for being exhibited. Hence, accused-appellant should be exonerated of the charge. 18. First of all, this Court would like to take up the point as to whether in this case the provisions of Section 50 of the NDPS Act would apply. It may be mentioned here that giving the finding on this point, would require appreciation of evidence laid by the prosecution in this regard. 19. The recovery memo shows that when accused was directed to disclose reason, why he was running away from there, he told that he had heroin with him. It may be mentioned here that giving the finding on this point, would require appreciation of evidence laid by the prosecution in this regard. 19. The recovery memo shows that when accused was directed to disclose reason, why he was running away from there, he told that he had heroin with him. At this, the police told him that he would be required to be taken before a Magistrate or a Gazetted Officer for being searched but the accused stated that he had already disclosed that he was possessing heroin and was ready to be searched by them and would not like to be taken to any Magistrate or a Gazetted Officer. Pursuant to this, he took out small polythene from the right side of his "Tahmad" which contained forty pudias of brown coloured heroin weighing about five grams. In this regard, PW-1, who is member of the arresting party has stated that when the accused was inquired the reason why he was trying to flee, he apprised the reason that he was selling heroin. At this he was told by "Daroga Ji" that he was required to be searched in presence of a Magistrate or a Gazetted Officer. The accused stated that since he had already been arrested by them and had already disclosed that he had heroin with him, he could not be searched by them only and that he did not want to be taken before any Gazetted Officer or a Magistrate. Thereafter his search was made and from the "Lungi", which he was wearing, he gave himself polythene containing forty pudias of Heroin out of which one pudias was opened and it was found to be brown coloured powder. On the basis of experience it was believed that the same was Heroin. Whereafter, he was apprised that since he was possessing heroin he had committed offence under the NDPS Act. Similarly, PW-2 who is also a witness of fact has given the same statement which has been made by PW-1 of the fact that the search was made of the accused. Witness PW-3 has also reiterated the same story and beyond that he has also stated that personal search of the accused was made. 20. Similarly, PW-2 who is also a witness of fact has given the same statement which has been made by PW-1 of the fact that the search was made of the accused. Witness PW-3 has also reiterated the same story and beyond that he has also stated that personal search of the accused was made. 20. It is apparent from the above statements that all the three witnesses of fact have stated on oath in cross examination-in-chief that they had made personal search of the accused without his disclosing that he was having Heroin in his possession as he used to sell the same, whereafter it has also come on record that forty pudias containing Hereoin, which in all weight five grams were taken out by him from his Lungi and handed over to the police party. Therefore, citation [Pawan Kumar's case (supra)] which has been relied upon by the learned counsel for the appellant would also apply here because the place from where the pudias containing Hereoin were recovered was right "phent" of "Tahmad" which he was wearing and was part of the body. Besides that in State of Rajasthan Vs. Parmanand (2014) 5 SCC 345 , in paragraph 15, it has been held that if personal search is also made apart from the search of any other article such as bag or brief case being carried by accused, despite the fact that nothing is recovered from the personal search but the contraband substance is recovered from such an article being carried by accused, the compliance of Section 50 of NDPS Act would have to be done by the prosecution. The relevant paragraph no. 15 of the said judgment is quoted hereinbelow:- 15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 21. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 21. In the light of above position of law, the finding of the learned court below that in the case at hand, the compliance of Section 50 of NDPS Act was not required because accused himself had given pudias of Heroin, would be an erroneous finding. Therefore, it is held that the provisions of Section 50 of NDPS Act were fully applicable in the case at hand and its compliance was lacking in the sense that once the accused had disclosed that he was in possession of contraband substance, it was mandatory on the part of the arresting party to apprise him of his legal right that, if he so wanted, he could be taken before a Magistrate or a Gazetted Officer for being searched. Only after his declining, he could be searched by police party as is now the settled law in the light of law laid down in Vijaysinh Chandubha Jadeja Vs. State of Gujrat, 2011 (1) SCC 609 case. Therefore, it is apparent from the evidence on record that all the three witnesses of fact had not apprised the accused of his legal right that he could be taken for being searched before Gazetted Officer or a Magistrate, if he so required. Merely giving option of being taken to such authorities would not be taken to be sufficient compliance of the said provisions. 22. The next point which has been raised by the learned counsel for the applicant is that arresting party has not weighed the contraband substance on the spot. In this regard, learned A.G.A. in rebuttal stated that under the un-amended Act, there was no requirement of weighing the contraband substance because there was no provision of graded punishment provided to be awarded in proportion to the amount of recovery of contraband substance. 23. This Court does not find substance in the said argument of the learned A.G.A. because in the Standing Instructions issued by Narcotic Bureau, New Delhi on 15.3.1988, it was clearly provided as to what procedure would be followed for taking sample of the contraband substance. 23. This Court does not find substance in the said argument of the learned A.G.A. because in the Standing Instructions issued by Narcotic Bureau, New Delhi on 15.3.1988, it was clearly provided as to what procedure would be followed for taking sample of the contraband substance. In Standing Instructions I/89 issued by Government of India, the quantity is prescribed of Narcotic Drugs, which would be collected as sample to be sent to the FSL for being tested. Provision as contained in paragraph 2.3 of the said order is quoted hereinbelow:- "Quantity to be drawn for the sampling:- 2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in cases of opium, ganja and charas (hasish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn". 24. Besides this, even under old NDPS Act there was provision under Section 27 of the Act that lesser punishment, for illegal possession of small quantity of any NDPS substance would be awarded if the same was for personal consumption. As per the Notification No. 5.0827 (E) in Gazette Of India, part 2 Section 3(ii) dated 14.11.1985 page 2 and 3, issued by Ministry of Finance Department of Revenue, the small quantity of opium was prescribed to be five grams. Therefore, these provisions pre-suppose that it was mandatory for the prosecution/arresting party to weigh on the spot the quantity of recovered contraband substance and its sample. Now, whether compliance in this regard has been made or not has to be seen in the light of evidence on record. In this regard, in recovery memo, it is mentioned that the forty pudias of brown coloured Heroin recovered, weighed around five gram. In statement of PW-1 it is stated in examination-in-chief that in one polythene forty pudias of Heroin were given by accused, out of which, one pudia was opened and was found to contain brown coloured powder which was taken to be Heroin by them on the basis of experience. In statement of PW-1 it is stated in examination-in-chief that in one polythene forty pudias of Heroin were given by accused, out of which, one pudia was opened and was found to contain brown coloured powder which was taken to be Heroin by them on the basis of experience. In cross-examination, this witness has stated that the weight was mentioned on the basis of conjecture as the contraband was not weighed on the spot. Its quantity could have been six to seven grams also. The weight of the paper in which it was kept was not assessed even on the basis of guess. Similarly, PW-2 has also stated in examination-in-chief that forty pudias of Heroin were given by accused and in cross-examination he stated that the material which was contained in all the forty pudias was not weighed. Their weight was recorded in F.I.R. on the basis of conjecture and he also has stated that the weight of the paper, in which contraband substance kept, was not assessed. The same statement has also been given by PW-3 that it was not weighed. PW-4, who is investigating officer has stated in cross-examination that during investigation he found the alleged contraband substance to be five grams because it was so stated by Constable Dalpati Singh (PW-3) that he had recovered five grams of Heroin. He also stated that it was about five gram which was assessed on the basis of conjecture as the same was not weighed. Thus, from the above statement, it is apparent that the prosecution has failed to stick to the necessary provisions while making recovery from the accused by not getting weighed of the allegedly recovered contraband substance on the spot. It is also violation of provision that no sample was taken out of it, rather the whole recovered contraband substance was sent to the FSL. In fact, the total contraband substance recovered should have been got weighed by the prosecution and out of it certain quantity ought to have been taken as a sample and should have been separately weighed & sealed and sample seals should have been prepared on the spot, unless there were such circumstances, to be disclosed in writing, that it was not possible to be done on the spot. The recovered contraband substance, its sample and the sample seals ought to have been kept at safe place such as Malkhana of the police station in sealed condition with entry made of the same in malkhana register. All this is lacking in this case, it diminishes the genuineness of recovery from the accused. It may also be noticed here that PW-1 has stated that only one pudia out of forty pudias was opened and rest of them were assumed to contain the same substance which was found in the first pudia which was opened, while PW-2 has stated that each pudia was opened one by one, which statement is not in consonance with the statement of PW-1. In FSL's labs report, the weight of the forty pudias has not been mentioned. Only this was mentioned that forty pudias containing suspected heroin kept in a box covered with cloth, which had affixed on it the seal by the name of "CJM, Varanasi" and each was separately analysed and was found to contain Heroin. It is apparent that for want of the weight of sample, it cannot be assumed as to whether the weight of the sample was actually in consonance with the Standing Order I/89 or not. One thing which is more important here is that it has not been made clear by prosecution as to whose seal was affixed at the place of occurrence, although it has not been mentioned in the recovery memo that the recovered contraband substance was sealed on the spot in a box. If the said box, in which forty pudias were kept which was sealed on the spot by a seal, it certainly must have been of the S.H.O. of the concerned police station or the person authorised by the S.H.O. to affix his seal but, how, when the same was sent to the FSL, was found to contain seal of "C.J.M, Varanasi" has not been made clear. It would pre-suppose that after the contraband substance was sealed on the spot, the same was taken to the C.J.M concerned where it might have been opened and sealed again affixing the seal of the "C.J.M., Varanasi". It would pre-suppose that after the contraband substance was sealed on the spot, the same was taken to the C.J.M concerned where it might have been opened and sealed again affixing the seal of the "C.J.M., Varanasi". No evidence has been made available in this regard, which was mandatory for maintaining sanctity of the recovered contraband substance and to convince the court that it was not allowed to be accessed by any person in the meantime for being tampered with. In this regard, the only statement which has come on record is that of Investigating Officer, who has stated that accused was taken on remand on 6.11.1996. The contraband substance was taken before VIIIth A.C.J.M, Varanasi for inspection of the contraband substance and for preparation of the docket. After preparing it's docket and sample seal the same was got sent to FSL through Constable Ashok Kumar Yadav, who had got the receipt of getting the said sample/contraband substance received in FSL of 28.11.1996. The other copy signed by an officer of the FSL was deposited by this Constable at police station on 19.11.1996. In cross-examination, this witness has stated that the contraband substance was got out from malkhana, entry of which (Ext. Ka-7) would make it clear that S.I. Dalpati Singh had given the recovered contraband substance to Munshi of the police station and the said contraband substance was kept by Munshi in his custody. Where the said contrabad substance went after it was received from FSL, he has no knowledge, although the whole contrabad substance recovered was sent by him for being tested. The aforesaid statement clearly contains that the contraband substance was placed by this witness before VIIIth A.C.J.M. for being inspected and for preparation of docket to be sent to FSL and also a sample seal was prepared which was sent through Constable Ashok Kumar Yadav along with seal but in the FSL's report, the seal is found to be of "C.J.M. Varanasi" and not of VIIIth AC.J.M., therefore, this discrepancy also creates doubt whether the contraband substance which had been sent to the FSL was the same which police is alleging to have been recovered from the accused on the spot. It is also strange that the Investigating Officer does not have any clue, as to where, after the recovered contraband substance was tested and report sent, the same was kept. It is also strange that the Investigating Officer does not have any clue, as to where, after the recovered contraband substance was tested and report sent, the same was kept. It is also apparent from the statement of this witness that after the Constable Dalpati Singh brought the contraband substance at P.S., it was handed over to Munshi of the police station, who kept it in his custody. It cannot be held that the said contraband substance was kept at a secure place such as Malkhana in a sealed condition where it could have been tampered with, rather it was handed over to Munshi, who is an employee of police station, who kept it in his custody which is a clear violation of the mandatory provisions. The statement of PW-4 is contradictory in itself because in examination-in-chief he had stated that the contraband substance was taken out of Malkhana while he has subsequently stated that the said contraband substance was kept in custody of Munshi of the police station. In view of this statement, there is absolutely no certainty that the alleged contraband substance could not have been tampered with during the period when it was allegedly recovered from the accused till it was sent to the FSL for being tested. There is a complete gap of approximately 25 days and the prosecution has utterly failed to prove that during these days where this substance was kept in safe custody in sealed condition. 25. All this leads this Court to doubt the alleged recovery of the contraband substance from the accused as well as its being tested and being found to be heroin. 26. Next point that this Court would like to take up is with regard to non production of the contraband substance before court which is alleged to have been recovered from the accused for being exhibited. In this regard, the evidence has come on record that it was not produced before court. PW-1 in this regard has stated that the said property was not produced before him during his statement in court. No statement is made by PW-2 and PW-3 in this regard as to whether it was presented before them in court or not. Investigating Officer (PW-4) has gone to the extent of staying in cross-examination where the contraband substance had vanished after the same was tested, he did not know. No statement is made by PW-2 and PW-3 in this regard as to whether it was presented before them in court or not. Investigating Officer (PW-4) has gone to the extent of staying in cross-examination where the contraband substance had vanished after the same was tested, he did not know. In this regard, the High Court has laid down in following judgments that it was mandatory for the prosecution to produce the case property before court. In case, it is not done that would prove fatal for the prosecution's case. In this regard in Jitendra and another Vs. State of M.P., 2004 (10) SCC 562 in paragraph 5 and 6, following is held. "5. The evidence to prove that charas and ganja were recovered from possession of the accused consisted of the evidence of the police officers and the panch witnesses. The Panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and sub inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial Court, so as to connect them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from interested testimony of police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the Court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, "non-production of these commodities before the Court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced". The High Court observed, "non-production of these commodities before the Court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced". The High Court relied on section 465 Cr.P.C. to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused. 6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched." 27. In this regard reliance may be placed upon in State of Rajasthan Vs. Gurmail Singh 2005 (3) SCC 59 , in which, in paragraph 3, following is held:- "3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though seized articles are said to have been kept in the Malkhana on 20/5/1995, the Malkhana register was not produced to prove that it was so kept in Malkhana till it was taken over by PW 6 on 5/6/1995. In the first instance, though seized articles are said to have been kept in the Malkhana on 20/5/1995, the Malkhana register was not produced to prove that it was so kept in Malkhana till it was taken over by PW 6 on 5/6/1995. We further find that no sample seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after the seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent." 28. Next, reliance may be placed upon Vijaijain Vs. State of M.P., 2013 (14) SCC 527 , in which, in paragraph 10 and 12, following is held:- "10. On the other hand, on a reading of this Court's judgment in Jitendra case, we find that this Court has taken the view that in the trial for an offence under the NDPS Act, it was necessary for prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok this Court found that the alleged Narcotic powder seized from the possession of the accused was not produced before the trial Court as material Exhibit and there was no explanation for its non- production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant. ......................................................................................... 12. ......................................................................................... 12. We are thus of the view that as the prosecution has not produced brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial Court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable." 29. Next reliance may be place upon in Ashok @ Dangra Jaiswal Vs. State of M.P., 2011 (5) SCC 123 , in which, in paragraph 12 following is held:- "12. Last but not the least, the alleged Narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial Court as material Exhibit and once again there is no explanation for its non- production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused." 30. Therefore it is clear from above position of law that if the prosecution fails to produce contraband substance allegedly recovered from the accused before the trial court without any justification, it's non production shall make the recovery of the contraband substance from the accused doubtful and because, in the case at hand, the evidence has come on record that it was not produced before court, it's recovery from the accused would held to be doubtful. 31. Next point which is being taken for consideration is that the provisions of Section 57 of the NDPS Act has not been complied with. 57. Report of arrest and seizure. Whenever any person makes any arrest or seizure, 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. 32. Next reliance may be placed upon in State of Punjab Vs. Balbir Singh 1994 (3) SCC 299 , in which, in paragraph 24 and 25, following is held:- "24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. 32. Next reliance may be placed upon in State of Punjab Vs. Balbir Singh 1994 (3) SCC 299 , in which, in paragraph 24 and 25, following is held:- "24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non- compliance or failure to strictly comply by itself will not vitiate the prosecution. 25. 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 offences as provided under the provisions of CrPC 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 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. Likewise only empowered officers or duly authorized 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 anyone 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. 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 CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC 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 Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC 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 Sections 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. 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. In view of the above law, it is apparent that although the compliance of provisions of Section 57 of the NDPS Act is not mandatory but directory. The compliance may be made even with delay with sufficient explanation. The court conducting trial of an accused under the NDPS Act has to take into consideration whether non-compliance of this provision has resulted in causing prejudice to the accused. If yes? Then certainly benefit may be given to the accused. From the record, it is apparent that the prosecution has not made compliance of Section 57 of the NDPS Act as nothing has come on record to indicate that after the arrest and seizure from the accused, any report was prepared that heroin was recovered from him to be sent to the Higher Authorities, hence, there was no question of sending the same within 48 hours or even beyond that. This, by itself, is not the only demerit in this case which would dent the case of the prosecution but when it is coupled with other lacunae which have been narrated above, its non-compliance causes serious prejudice to the accused and that would vitiate the recovery of the contraband substance and, consequently, the conviction of the accused. This, by itself, is not the only demerit in this case which would dent the case of the prosecution but when it is coupled with other lacunae which have been narrated above, its non-compliance causes serious prejudice to the accused and that would vitiate the recovery of the contraband substance and, consequently, the conviction of the accused. It is also pertinent to mention here that the defense taken by the accused that he was arrested from his house on the pretext that some settlement of purchase of milk from him was to be done and after having been taken at police station, he was thrashed badly which caused him about six injuries: he was detained there without being challaned for two days; later on he was challaned under the aforesaid Sections, has been discarded by the court below. This Court is not inclined to assess correctness of the finding of the court below in this regard because despite the said point not being touched, there are plenty of lacunae in this case which point a finger towards recovery being doubtful. The chain of these lacunae may be recapitulated; that the contraband substance allegedly recovered was not weighed on the spot nor its sample was taken; with which seal it was sealed on the spot is not made clear; how the seal of "CJM, Varanasi" came to be affixed on the contraband substance sent for being tested to FSL has not been made clear by adducing evidence; case property (contraband substance) was not produced before court; malkhana register was not produced to indicate that the allegedly recovered contraband substance was kept there in safe condition along with sample seal; lastly no compliance of Section 57 has been made; all these are sufficient to hold that the prosecution has failed to prove accused guilty of aforesaid offence. 34. After having considered all the aspects which have been mentioned above, this Court is of the view that accused-appellant deserves to be acquitted of the said charge and is held not guilty. This appeal is allowed. The judgment and order dated 30.8.1999 is set aside. Accused shall be released in this case immediately, if not wanted in any other case. 35. Lower court record be returned immediately with a copy of the judgment and order of this Court, for immediate compliance. 36. This appeal is allowed. The judgment and order dated 30.8.1999 is set aside. Accused shall be released in this case immediately, if not wanted in any other case. 35. Lower court record be returned immediately with a copy of the judgment and order of this Court, for immediate compliance. 36. The case property shall be destroyed after the period of appeal is over or if law permits otherwise.