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2020 DIGILAW 834 (ALL)

Darshan Singh Dhimar v. State of U. P.

2020-05-04

AJIT SINGH

body2020
JUDGMENT : AJIT SINGH, J. 1. Heard learned counsel for appellant, learned A.G.A. appearing for State and perused the record of this case. 2. This criminal appeal has been filed against the judgment and order dated 31.07.2018 passed by learned Sessions Judge (F.T.C.) District Jalaun at Orai in Special Session Trial No. 19 of 2014, State vs. Darshan Singh Dhimar, arising out of Case Crime No. 1175 of 2013, under Section 20 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “the NDPS Act”) Police Station Kotwali, Orai, District Jalaun. By the impugned judgment and order the appellant has been convicted and sentenced to undergo five years' rigorous imprisonment under Section 20 of the N.D.P.S. Act with a fine of Rs. 10,000/-. It has also been stipulated by the learned Trial Court in the order impugned that in case of failure to pay the fine, the appellant will undergo an additional sentence of six months' simple imprisonment. 3. The prosecution case in brief is that on 02.06.2013 SI G.P. Ojha along with Constable Vidya Kant Patel were on patrolling duty at Vinawar area in O.P. Deputyganj and were going towards Ramleela Maidan. They saw a person coming carrying with him a plastic bag (sack) filled with some light weight substance. All of a sudden seeing the police men, he stopped, turned around and tried to run towards Pani Ki Tanki Road. On suspicion, he was asked to stop, but he did not stop. At about 11:00 P.M. in night with the help of companion constable the accused-appellant was caught with plastic bag in his hand. It being a sudden incident and happened in night, no public witnesses could be found. The arrested person told his name and address. He gave a written consent (Ext. Ka.7) and on his written consent, the search was done and on search so made, it was found that he was having contraband namely Ganaj in the plastic bag (sack) and a sum of Rs. 450/- was also recovered from his pocket, about which it was told by accused to have been obtained by sale of Ganja. 4. The aforesaid contraband substance was seized and the accused was taken in police custody. From a shop weight and balance were brought by Constable Vidya Kant Patel and weight of the seized item was done, which weighed to be 9 Kgs. Recovery memo (Ext. 4. The aforesaid contraband substance was seized and the accused was taken in police custody. From a shop weight and balance were brought by Constable Vidya Kant Patel and weight of the seized item was done, which weighed to be 9 Kgs. Recovery memo (Ext. Ka.6) was prepared and the seized item along with Rs. 450/- was packed and sealed in the said plastic bag; a sample of 100 Gms. of the said recovered Ganja was taken and was got packed and sealed in a separate packet (Ext. Ka.5) to be sent to Forensic Science Laboratory. Thereafter, First Information Report (Ext. Ka.1) was lodged on 03.06.2013 on the written information of complainant SI Shri G.P. Ojha, Police Station-Kotwali, Orai. 5. After lodging of the First Information Report, investigation was done by SI Shri Sudhakar Singh and charge-sheet dated 19.07.2013 (Ext. Ka.4) was submitted against appellant under Section 20 of the NDPS Act. The case against appellant was registered as Special Session Trial No. 19 of 2014. On 03.12.2014 charge was framed against accused-appellant and trial proceedings commenced in this case. 6. The Trial Court recorded the prosecution evidence and also recorded the statement of accused under Section 313 Cr.P.C. The defence evidence of DW-1 Ram Kisun was also recorded. After considering the evidences available on record, the learned Trial Court found him guilty of the charges levelled upon him and by impugned judgment and order, the Trial Court convicted and sentenced the appellant, who is languishing in jail since the date of the judgment. 7. The learned counsel for the appellant has submitted that the impugned judgment and order is not correct in the eyes of law because the learned Lower Court has not considered the provisions of Sections 42, 43, 50, 55 and 57 of the NDPS Act in their right perspective. 8. The learned counsel has further argued that there are various contradictions and infirmities in the statement of the PW-3 who is the only witness of the alleged recovery. The other argument raised by the learned counsel for the appellant is that there is no link evidence produced by the prosecution to prove its case as per mandate of Sections 42, 55 and Section 57 of the Act. 9. The other argument raised by the learned counsel for the appellant is that there is no link evidence produced by the prosecution to prove its case as per mandate of Sections 42, 55 and Section 57 of the Act. 9. On the other hand, the learned AGA has submitted that the accused has been rightly convicted by the Trial Court and because the incident has happened in the night and no public witness could be procured at that time, there is no infirmity or illegality on the part of the prosecution in conducting the case. The impugned judgment deserves to be affirmed. 10. I have heard the arguments of the learned counsel for the parties and perused the record of the case. 11. This Court finds that nowhere it has been mentioned by the prosecution in its evidence as to wherefrom the weighing machine was brought and from whom it was brought. No statement regarding this has been recorded by the Investigating Officer, which casts a serious doubt on the veracity of the prosecution case. The statement of prosecution witness Vidya Kant Patel, PW-3 as well as the version of informant both read as under:- ^^dkaVk ckaV njksxkth ,d nqdku ls yk;s FksA fdl nqdku ls ysdj vk;s FksA ;g Hkh ;kn ugha gS fd rjktw bysDVªkfud Fkk ;k ckaV okyk FkkA** In the recovery memo dated 02.06.2013 (Ex. Ka.6) the following version has been recorded:- ^^gejkgh dkaLVscy fo|kdkar iVsy dks Hkstdj nqdku ls dkaVk ckaV eaxkdj otu fd;k x;k rks dqy Hkj ukS dsŒthŒ rksy esa vk;kA** 12. From the above quoted statements, it is evident that nothing specific has been said either by PW-3 in his statement or by the informant in the FIR. The informant has used word “Dukan” and PW-3 has used words “Ek Dukan” which appears to be vague. PW-3 says that weighing machine was brought by Darogaji and FIR version says that it was brought by Vidya Kant Patel, PW-3, there being serious contradiction, it cannot be said that the prosecution had proved its case before Trial Court beyond reasonable doubts. 13. This Court has gone through the charge-sheet as well as the lower court record along with the impugned order and finds that there is nowhere mention about the details of the shop from where kanta-baant were allegedly brought. 13. This Court has gone through the charge-sheet as well as the lower court record along with the impugned order and finds that there is nowhere mention about the details of the shop from where kanta-baant were allegedly brought. The Investigating Officer had not attempted to record and identify the name of the shop or shop keeper who had given kanta-baant in night to weigh the contraband. It was a public duty cast upon the concerned police official to disclose the name of the shop keeper in the FIR as well as in the charge-sheet, but the name of shop keeper has not been disclosed for the reasons best known to the prosecution side and this lacuna is sufficient to make the prosecution story doubtful. I find that the only witness of fact Vidya Kant Patel examined by the prosecution to prove its case has not supported the prosecution case fully and there are various inconsistencies, contradictions in his statement as noted down above. This witness who was said to be present at the place of occurrence along with the informant when the alleged contraband seized from the present appellant, has deposed before the learned Trial Court in his examination in chief that he brought the weighing machine with which the alleged contraband was weighed but in his cross examination this witness has said that the weighing machine was brought by Daroga Ji from any shop. This is a material fact which casts doubt about the recovery of the contraband from the accused-appellant. 14. Although there was a serious contradictions in the statement of the prosecution witness on the question of who brought the weighing scale for weighing the alleged contraband as PW-3 has stated that he does not remember as to who brought the weighing machine and in the recovery memo SI J.P. Ojha has noted down that the police constable Vidya Kant Patel was sent to get the weighing scale from a shop, yet the learned Trial Court has taken their statements to be reliable and trustworthy only on the ground that the evidence of police officials has to be taken as valuable and qualitative without there being any strait-jacket formula in this regard. 15. 15. Moreover, the relevant provisions of the NDPS Act which were mandatory to be complied with, were not complied with by the police officials since the very inception, but this aspect of the matter has not been dealt with by the learned Trial Court in right perspective in its judgment and order. That is why the impugned judgment and order suffers from manifest error of law and fact. 16. I have perused the entire evidence to find out the compliance of Section 42 of the NDPS Act and I find that nowhere it has been mentioned by the prosecution that the report of the seizure of the contraband and arrest of the accused was given to the Superior Officer as laid down by the Section 42 of the NDPS Act. I have also gone through the entries of the G.D. regarding this argument and find that the provisions of Section 42 of the NDPA Act were not complied with. Nor, the prosecution has adduced any evidence regarding the sending of special report to the Superior Officer, hence compliance of the provisions of Section 42 has not been proved by the prosecution, which casts serious doubt on the veracity of the prosecution case. 17. In Kishan Chand vs. State of Haryana, (2012) 12 Laws (SC) 55 the Hon’ble Apex Court has held as under:- “In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh (supra). In that judgment, the Court in the very opening paragraph noticed that in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513 , a three Judge Bench of the Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate officer superior may cause prejudice to the accused. However, in the case of Sajan Abraham (supra) again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. However, in the case of Sajan Abraham (supra) again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But, if there is delay, whether it was undue or whether the same was explained or not, will be a question of fact in each case. The Court in paragraph-35 of the judgment held as under:- 35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42 (1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42 (1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42 (1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42 (1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. (c) In other words, the compliance with the requirements of Sections 42 (1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” (Emphasis supplied) 18. Following the above judgment, a Bench of this Court in the case of Rajinder Singh vs. State of Haryana, (2011) 8 SCC 130 , took the view that total non-compliance of the provisions of sub-sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with a satisfactory explanation for delay can, however, be countenanced. 19. Following the above judgment, a Bench of this Court in the case of Rajinder Singh vs. State of Haryana, (2011) 8 SCC 130 , took the view that total non-compliance of the provisions of sub-sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with a satisfactory explanation for delay can, however, be countenanced. 19. As regards the submission of the learned counsel for the appellant that compliance of Section 55 was not made, this Court finds that no evidence by the prosecution has been led that the recovered articles were given in the charge of concerned officer of the police station and the alleged recovered contraband was kept in safe custody. Section 55 reads as under:- Section 55 in the Narcotic Drugs and Psychotropic Substances Act, 1985: “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.” 20. The prosecution has not led any evidence in this regard and compliance of Section 55 does not find any mention in the papers produced by the prosecution during the trial of this case. This Court finds that non compliance of Section 55 also casts a doubt on the veracity of the prosecution case as there is no evidence on file that the alleged seized contraband was ever produced before the officer in charge of the concerned police station. This Court finds that non compliance of Section 55 also casts a doubt on the veracity of the prosecution case as there is no evidence on file that the alleged seized contraband was ever produced before the officer in charge of the concerned police station. No evidence has been adduced by the prosecution that the matter was produced before the Station House Officer and he put his signature and seal over the alleged recovered contraband and then, it was kept in safe custody or it was given to the Maalkhana Moharrir who could place it in the safe custody because no Malkhana register was ever produced in evidence before the Trial Court and no such oral evidence in this regard was ever produced by the prosecution before the Trial Judge. 21. As regards the non compliance of Section 57 of the NDPS Act which lays down that whenever a person makes any arrest or search 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, this Court finds that no such evidence is led by the prosecution in the present case during the trial that any report was ever submitted about the such arrest and seizure in compliance of the Section 57 to the superior officer. 22. In Gurbax Singh vs. State of Haryana, AIR 2001 SC 1002 the Hon’ble Apex Court has held in para-9 thus:- “.......In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness PW-1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O. particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW-2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk.” (Emphasis supplied) 23. This Court finds that in the present case Malkhana register was not produced by the prosecution during trial before the Court. Thus, there is non compliance of the relevant Section of the NDPS Act and the prosecution has failed to prove its case against the accused-appellant in proper perspective. 24. Now, this Court is of the considered opinion that Section 50 of the NDPS Act was not complied with and the non compliance of this Section has vitiated the whole prosecution story seriously which makes the conviction of the appellant by the learned Trial Court contrary to the law as the provisions of Section 50 of the Act were not properly followed. Section 50 of the Act is quoted-below:- “50. Section 50 of the Act is quoted-below:- “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 41, Section 42 or Section 43, he shall, if such person so 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. (4) No female shall be searched by anyone excepting a female. (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.” 25. In Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 the Hon'ble Apex Court has observed thus:- “7. We are in this case concerned only with the question whether PW-1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the NDPS Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five Judge Bench. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five Judge Bench. This Court in Vijaysingh Chandubha Jadeja (supra) answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate. This Court also held that it is mandatory on the part of the authorized officer to make the accused aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer concerned, an obligation is cast on him under Section 50 of the NDPS Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate. The question, as to whether this procedure has been complied with or not, in this case the deposition of PW-1 assumes importance, which reads as follows: “He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in written and said that I have faith on you, you can search me. Fard regarding apprising and consent is Ex.P-3 on which I put my signature from A to B and the accused put his signature from C to D, E to F is the endorsement of the consent of the accused and G to H is signature, which has been written by the accused.” 13. The above statement of PW-1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person. 14. We may, in this connection, also examine the general maxim “ignorantia juris non excusat” and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Indisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various law laid down in this country i.e. leave aside the NDPS Act. We notice this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorized officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of that procedure. 15. We are of the view that non-compliance of this mandatory procedure has vitiated the entire proceedings initiated against the accused-appellant. We are of the view that the Special Court as well as the High Court has committed an error in not properly appreciating the scope of Section 50 of the NDPS Act. The appeal is, therefore, allowed. Consequently the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside. We are of the view that the Special Court as well as the High Court has committed an error in not properly appreciating the scope of Section 50 of the NDPS Act. The appeal is, therefore, allowed. Consequently the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside. The accused-appellant, who is in jail, to be released forthwith, if not required in connection with any other case.” (Emphasis supplied) 26. A Full Bench of the Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat, 2011 (1) SCC 609 has held that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. In the present case, from perusal of the entire evidence available on record it cannot be ascertained that the provisions laid down in Section 50 of the Act were complied with in its entirety. In this context PW-3, Vidya Kant Patel, has said only that the arrested person was apprised of his right if he wished that his search be conducted before any Gazetted Officer or Magistrate, he was not agree for his search before Magistrate and he consented that search be made by the police party itself. 27. In this context PW-3, Vidya Kant Patel, has said only that the arrested person was apprised of his right if he wished that his search be conducted before any Gazetted Officer or Magistrate, he was not agree for his search before Magistrate and he consented that search be made by the police party itself. 27. From perusal of the entire record, it is evident that the prosecution has not adduced any evidence regarding that recovered contraband was kept in a safe custody after it was recovered and it was sent from that safe custody to the Forensic Science Laboratory. No such evidence regarding this aspect of the matter is available on record which also casts a serious doubt on the veracity of the prosecution story. 28. Thus, from the aforesaid discussions and evidence on record, it is evidence that the recovery of the contraband article from the possession of the appellant appears to be doubtful and the prosecution has not proved its case beyond reasonable doubt against the appellant proving the recovery against him in strict compliance of the provisions of N.D.P.S. Act, hence his conviction and sentence by the trial court is not sustainable in the eyes of law. Thus, the impugned judgment and order passed by the trial court convicting and sentencing the appellant is hereby set aside. The appeal stands allowed. 29. The appellant shall be released forthwith from the jail, if he is not wanted in any other case. It is further directed that the lower court record be sent to the Trial Court.