:1: IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH. DATED THIS THE 1ST DAY OF JULY 2017. BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL APPEAL NO.2821 OF 2009. C/W CRIMINAL APPEAL NO.2815 OF 2009. [CASE NUMBER]. IN CRIMINAL APPEAL NO.2821 OF 2009. BETWEEN: SHRI.NAZEER ABBAS S/O DADASAB PATIL AGE: 25 YEARS, OCC: STUDENT R/O: JAWAHAR NAGAR GUDIHAL ROAD HUBLI. APPELLANT (BY SRI.SHRIKANT T. PATIL, ADVOCATE) AND THE [ENTITY] REPRESENTED BY ADDITIONAL S.P.P.DHARWAD, DY.S.P.DHARWAD RURAL SUB DIVISION DHARWAD. RESPONDENT (BY [ENTITY] HCGP) THIS CRIMINAL APPEAL IS FILED UNDER [SECTION] [ACT]., BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THE APPELLANT A1 BE ORDERED TO BE ACQUITTED IN NDPS C.C.NO.1/2005 ON THE FILE OF PRINCIPAL SESSIONS JUDGE AND SPECIAL JUDGE DHARWAD BY SETTING ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 07.11.2009. :2: IN CRIMINAL APPEAL NO.2815 OF 2009. BETWEEN: VISHWANATH S/O PARASHURAM PAWAR, AGE: 24 YEARS, R/O: NEKAR NAGAR 5TH CROSS, SHIRAM COLONY.HUBLI. APPELLANT (BY SRI.K.L.PATIL, ADVOCATE) AND THE [ENTITY] BY DY.S.P.DHARWAD RURAL SUB DIVISION DHARWAD, REPRESENTED BY STATE PUBLIC PROSECUTOR. RESPONDENT (BY [ENTITY] HCGP) THIS CRIMINAL APPEAL IS FILED UNDER [SECTION] OF [ACT]. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO A) CALL FOR RECORDS IN SPL. NDPS C.C.NO.1/2005 ON THE FILE OF HON'BLE PRINCIAPL SESSIONS JUDGE DHARWAD. B) ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 07.11.2009 BY THE HON'BLE SESSIONS JUDGE DHARWAD IN [CASE NUMBER], THERE BY CONVICTING THE APPELLANT FOR THE OFFENCES P/U/[SECTION] OF [ACT], C) GRANT SUCH OTHER AND FURTHER RELIEF THAT, THIS HON'BLE COURT DEEMS FIT UNDER THE CIRCUMSTANCES OF THE CASE. :3: IN [CASE NUMBER]. BETWEEN: [ENTITY] AGE: 23 YEARS,OCC: STUDENT-CUM-PART TIME JOB IN A GROCERY SHOP, OLD HUBLI, R/O: HEGGERI, DEVARAJ NAGAR, OLD HUBLI, HUBLI. APPELLANT (BY SRI. I.P.MOSES AND AJAY PATIL, ADVOCATE) AND THE [ENTITY] BY DHARWAD RURAL POLICE CIRCLE INSPECTOR, REPRESENTEDC BY STATE PUBLIC PROSECUTOR, HIGH COURT CIRCUIT BENCH, BUILDING, DHARWAD. RESPONDENT (BY [ENTITY] HCGP) THIS CRIMINAL APPEAL IS FILED UNDER [SECTION] [ACT] BY THE ADVOCATE FOR THE APPELLANT SEEKING TO: A) CALL FOR THE ENTIRE RECORDS. B) ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE RECORDED BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, DHARWAD AT DHARWAD IN SPECIAL (NDPS) [CASE NUMBER] DATED 7.11.2009, THEREBY CONVICTING THE APPELLANT FOR THE OFFENCE P/U/[SECTION], [SECTION] OF THE [ACT] AND SENTENCING HIM TO UNDERGO 2 YEARS RIGOROUS IMPRISONMENT AND IMPOSED A FUBE IF RS.10,000 IN DEFAULT TO UNDERGO R.I. FOR 6 MONTHS; :4: C) IT IS FURTHER HUMBLY PRAYED TO GRANT SUCH OTHER RELIEF OR RELIEFS AS THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THESE APPEALS ARE COMING ON FOR HEARING THIS DAY, THE COURT, MADE THE FOLLOWING: COMMON JUDGMENT
Since all the above three appeals arise out of the common judgment and order, in order to avoid repetition of discussion, they are taken together to dispose of them by this common judgment.
2. [CASE NUMBER] is preferred by appellant/accused No.1, [CASE NUMBER] is preferred by appellant/accused No.2 and [CASE NUMBER] is preferred by appellant/accused No.3. The above appeals are filed by the appellants/accused challenging the judgment and order, dated 7th Day of November 2009, passed in [CASE NUMBER] by the Principal Sessions & Special Judge, Dharwad.
3. All the above three appellants/accused were chargesheeted by the Court of Special Judge, Dharwad, for the alleged offences under [SECTION] of the [ACT] and also for the offence under [SECTION] of the [ACT] (hereinafter referred to as 'the [ACT], for short) read with [SECTION] of [ACT].
4. In order to prove its case, the prosecution, in all, examined ten witnesses as P.Ws.1 to 10 and got marked the documents Exs.P.1 to P.25 and so also the material objects M.Os.1 to 6. On the side of the defence, neither any witness was examined nor any document was produced.
5. After hearing both the sides and considering the merits of the case, both oral and documentary, ultimately, the learned Special Judge held that the prosecution proved its case beyond reasonable doubt and convicted all the above mentioned appellants/accused for the said offences.
6. Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the judgment and order of conviction passed by the learned Special Judge, the appellants/accused have preferred the above appeals on the grounds as mentioned in the respective appeal memorandum.
7. Brief facts of the prosecution case, as per the complaint averments, are that the complaint-Ex.P.15 was lodged by P.W.1 in this case. The allegations in the said complaint are that on 10.06.2004 at 9.00 a.m., the Circle Police Inspector, Dharwad Rural Circle, received a credible information that three persons by name [ENTITY] (accused No.1), [ENTITY] (accused No.2) and [ENTITY] (accused No.3) were illegally transporting opium without any pass or permit, towards Belgaum from Hubli and they were likely to get down at [ENTITY] by-pass and proceed to Belgaum in some other vehicle. P.W.1 transmitted this information to the Dy.S.P. and obtained his prior permission to conduct a raid. He sent a requisition to the Joint Director of Agriculture, Dharwad, and secured two officials of the Agriculture Department as panch witnesses and also a photographer from the area. After briefing them about the information, P.W.1, along with panchas, photographers and his staff, proceeded in two police jeep and kept a watch near Narendra cross. At about 12.30 p.m., they found three accused persons carrying plastic bag in their hand coming from Hotel Gajanan side. P.W.1 and his staff apprehended the accused persons and on enquiry, the accused persons revealed their names, and when asked about the contents of the plastic bag carried by them, the accused persons told that the bags contained opium and that they had no pass or permit to transport the same. P.W.1 informed the accused that search has to be conducted and whether it has to be conducted before a Gazetted Officer or before the Magistrate. The accused opted their search in the presence of a Gazetted Officer. Hence, P.W.1 sent a requisition to the Tahsildar, Dharwad, through [CASE NUMBER], and in this regard, mahazar was drawn at the spot as per Ex.P.7. Further averments are that at about, 3.00 p.m., the Tahsildar came to the spot. All the three accused were subjected to search by the Tahsildar in the presence of the panchas and the accused were found in possession of opium. The said opium was weighed 5 grams from each bag was taken as sample. The sample opium as well as the bulk opium recovered from the possession of the respective accused were seized and sealed and a detailed panchanama was prepared at the spot as per Ex.P.8. The appellants/accused were arrested and were taken to the police station along with the seized properties. Then P.W.1 lodged a complaint (Ex.P.15) on behalf of the State, which was registered by the Dharwad Rural Police Station, for the offence under [SECTION] and [SECTION] of the [ACT], in [CASE NUMBER]. Then, the FIR was forwarded to the Court.
8. Heard the arguments of the learned counsel appearing for the respective appellants/accused and also the learned HCGP for respondent-State.
9. Sri. [ENTITY], learned counsel appearing for the appellant/accused No.2, during the course of his arguments made the submission that the mandatory requirements of [SECTION], [SECTION] and [SECTION] of the [ACT] are not at all complied with in this case and this aspect is totally ignored by the learned Special Judge and thereby wrongly proceeded to convict the accused persons. Learned counsel took this Court to the entire material, deposition of the prosecution witnesses, in detail, and he made the submission that P.W.1, who is said to have received the said credible information, firstly, he was under a legal duty to immediately enter the said information in the station house diary as required under [SECTION] of the [ACT] and immediately, he was required to send the information about the same to his superior officers, but the same is not done in this case. He submitted that P.W.1 was very much in the police station when the information was received and, in spite of that, he has not reduced the information into writing in the station house diary, but, on the contrary, during the course of his evidence, P.W.1 has deposed that he made an entry of the said information in his case/personal diary. Hence, the learned counsel submitted that making an entry of the said information in case/personal diary is not the compliance of requirements under [SECTION] of [ACT]. It is also his contention that even the requirements of [SECTION] of the [ACT] are also not complied in this case and, in this connection, he drew the attention of this Court to the evidence of P.W.1, wherein he has deposed, on oath, that personal search of the accused person was conducted in this case. Learned counsel submitted that when it is his (P.W.1) evidence that a personal search was conducted, it goes to show that mandatory requirements of [SECTION] of the [ACT] is not at all complied. It is also the contention of the learned counsel that after everything was carried out at the spot, i.e. seizure of the alleged opium, conducting its weighment, and drawing a mahazar about the seizure of the said opium, P.W.1 was required to comply with the requirements of [SECTION] of the [ACT] that P.W.1 was required to submit a detailed report to his superior officers. Learned counsel submitted that P.W.10 was the Superior Officer to P.W.1 and even in the oral evidence of P.W.10, there is no whisper either in the examination-in-chief or in the cross-examination about compliance of [SECTION] of the [ACT] by P.W.1. Regarding the presence of the Tahsildar in this case, learned counsel submitted that the prosecution material, if perused, would raise a reasonable doubt about the very presence of the Tahsildar at the spot on that day and, in this connection, he drew the attention of this Court to the photographs-Exs.P.9 and 10 wherein the Tahsildar is not seen. [ENTITY] as the evidence is concerned, he drew the attention of this Court to the relevant portion of the oral evidence of P.Ws.1, 2, 3, 6; the documentary evidence i.e, Exs.P.20 and 17; and the material objects i.e., M.Os.4 to
6. Hence, he submitted that all these materials if appreciated they clearly go to show that the prosecution has not placed satisfactory material that really the Tahsildar was present at the spot while conducting the panchanama, as projected by the prosecution. He also made the submission that even with regard to the presence of the photographer the case of the prosecution is not acceptable and reliable. He submitted sofar as the evidence of P.W.1 is concerned, it is his case that while proceeding to the spot to conduct the raid, along with them, they took the photographer also, whereas looking to the evidence of the photographer (P.W.4), it clearly goes to show that P.W.1 has given false evidence before the Court. Counsel submitted that even with regard to the case of the prosecution about taking out 5 grams from each of the bulk for the purpose of sending it to the FSL, it is also not acceptable and, in this connection, the learned counsel drew the attention of this Court to the FSL report wherein it is mentioned that the quantity which is sent for examination is more than 5 grams, as stated by the prosecution. With regard to putting seal to the seized articles also, learned counsel submitted that the prosecution has not proved its case by cogent and acceptable evidence. Hence, he made the submission that the learned Special Judge, without considering all these legal as well as factual aspects in the case, has wrongly read the evidence on record and has wrongly proceeded to convict the accused persons. He also made the submission that the prosecution material itself raises a reasonable doubt about the case of the prosecution and the benefit of this reasonable doubt may be given to the accused person and accused No.2 may be acquitted of the charges levelled against him. In support of his contentions learned counsel relied upon the following decisions:
1. Kishan Chand v. State of Haryana reported in AIR 2013 S.C.3[SECTION].
2. [PRECEDENT].
3. [PRECEDENT].
4. [CASE NUMBER], disposed of on 29.06.2016 ([PRECEDENT].
5. State of Rajasthan V. Parmanand & Anr.
reported in 2014 AIAR (Criminal) 342.
6. State of Rajasthan v. Gurmail Singh, reported in AIR 2005 S.C.1[SECTION]8.
7. [PRECEDENT].
8. [PRECEDENT].
9. [PRECEDENT].
10. Sri. [ENTITY], learned counsel appearing for appellant/accused No.1, firstly, made the submission that he adopts the arguments advanced by the learned counsel, Sri [ENTITY], and in addition to that, he made his submission that as per the prosecution version, the accused were found at the Narendra Hotel, which is a place where public will always be present and in spite of that, no independent witness's statement was recorded nor such witnesses were examined before the Court to prove the prosecution case. It is also his submission that when, as per the credible information, the accused were proceeding from Hubli to go to Belgaum, what was the necessity for them to alight at Narendra cross. He submitted this is also a story created by the prosecution and there is no acceptable evidence in that regard. Regarding seizure and sending the seized material to the FSL, the learned counsel refers to the date when the alleged opium said to have been seized i.e. on 10.06.2004 and it has been sent to FSL on 29.08.2004 and the learned counsel also made the submission that looking to the evidence of the prosecution witnesses so also the experts from the FSL, it was examined on 27.01.2005. Hence, he submitted that looking to this long gap, there is every chance of tampering with the seals and the said material. Therefore, the learned counsel submitted that the prosecution has not proved the case as against appellant/accused No.1 and hence, appellant/accused No.1 may be acquitted from the case.
11. Sri. [ENTITY], learned counsel appearing for the appellant/accused No.3 firstly made the submission that he too adopts the arguments advanced by the learned counsel, Sri [ENTITY], and so also of learned counsel Sri [ENTITY], and, in addition, he made the submission that the Investigating Officer has not at all conducted the investigation as to from where they brought this material, contraband article, and where they were going to deliver or sell the said contraband article. He made the submission that the investigating officer could conducted the investigation to know about the same. He also submitted that accused No.3 is innocent and not involved in the said case that there is false implication of accused and, therefore, the appeal be allowed and accused No.3 may be acquitted from the charges levelled against him.
12. Per contra, the learned High Court Government Pleader during the course of her arguments made the submission that as per the evidence of the prosecution witnesses, the material has been seized from the possession of all the three accused persons in the presence of the panch witnesses. Hence, the learned Government Pleader made the submission that there is no explanation offered by the accused persons about possessing the said contraband article. Learned Government Pleader also drew the attention of this Court to the paragraphs of the judgment of the Special Judge and made the submission that the material placed on record were properly considered and appreciated by the learned Special Judge and rightly come to the conclusion in convicting all the three accused persons. She also made the submission that the offences alleged are under the provisions of the [ACT] which are very serious offences; accused persons have been rightly convicted by the Trial Court and that they should not be let scot-free. Hence, she submitted that there is no illegality in the judgment and order of the Trial Court; there are no reasons for this Court to interfere with the judgment and order of the Trial Court and therefore, submitted to dismiss all the three appeals and to confirm the judgment and order of conviction passed by the learned Special Judge. In support of his submissions, learned High Court Government Pleader relied upon the following decisions:
1. [PRECEDENT].
2. [PRECEDENT].
3. [PRECEDENT].
4. [PRECEDENT]
5. [PRECEDENT]
6. [PRECEDENT]
7. [PRECEDENT].
13. I have perused the grounds urged in the appeal memorandum in all the three appeals, judgment and order of conviction passed by the trial Court, decisions relied upon by the learned counsel appearing on both sides, oral and documentary evidence produced in the case before the trial Court, so also, considered the oral submissions made by the learned counsel on both sides, which are referred above.
14. The first and foremost point raised by the learned counsel for the appellants in the above appeals is that the provision of [SECTION] of [ACT] and its requirements are not at all complied by the prosecution in this case, in this regard, let me examine the oral and documentary material placed on record to ascertain whether really there is compliance of mandatory requirement of [SECTION] of [ACT] or not. [SECTION] of [ACT], reads as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation.
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under [SECTION] of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under [SECTION] of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]
15. Looking to the said provision, it shows that whenever any information is received, the first and foremost duty of the Police Officer, who receives such information, is to enter the same in the diary maintained in the Police Station immediately and then he has to send the information to the higher officers about such credible information, which he has received in the matter. But in the case on hand looking to the complaint averments Ex.P- 15, so also, mahazars Exs.P-7 and P-8a, there is no mention by the Police Officer that, immediately after receipt of such information, same was entered in the diary kept in the said Police Station and then the information was sent to the higher officers about the said information. The purpose and intention of [SECTION] insisting the Police Officers to immediately enter or reduce the same into writing about the credible information is to know exactly what was the information received, because at the subsequent stage there should be any manipulation of things, therefore, reducing the said information into writing is required as per [SECTION] of [ACT]. But here as I have already observed in the complaint Exs.P-7, P-8 and P-15, there is no such mention but during the course of oral evidence of P.W.1, [ENTITY], who received the information at the first instance, has deposed during his examination- in-chief on page No.5 of the deposition that he has sent the copy of his daily diary marked as per Ex.P-16, he has incorporated the credible information in his diary and other proceedings conducted in this case, so even in his oral evidence before the Court, it is not his case that immediately he reduced the same into writing in the concerned diary. It is also very clear in paragraph No.2 of his deposition, wherein he has stated that immediately after the receipt of the information, he given the requisition to DSP regarding the information received by him. So this shows that he has not taken any steps to reduce the same into writing in the concerned diary and even the diary, which he has referred in his examination- in-chief i.e., daily diary, and in the cross-examination he wanted to improve by saying he did not remember whether he made a mention of the same in the case diary unless he can go through the case diary, which is in the Dharwad Rural Police Station. In the cross-examination at paragraph No.20, he further deposed that he did not know whether the credible information received by him in relation to this case was incorporated in the Station House Diary of Dharwad Rural Police Station. So this material shows that immediately after the receipt of the said information he has not reduced the same into writing in the concerned diary maintained in the said Police Station.
16. I have also perused Ex.P-16, which P.W.1 refers in his oral evidence, perusing Ex.P.16 also, it is not the information that he said to have received at 9.00 a.m., because in his oral evidence as well as in the complaint Ex.P-15, he has clearly mentioned that he received the information that three persons, whose names are also mentioned at Nos.1 to 3, without having any permit, are carrying opium in the carry bags from Hubballi and they are going to Belgaum for the purpose of selling it and firstly they will go to Narendra cross in one vehicle, from there they will travel in another vehicle towards Belgaum, so according to the contents of the complaint and the oral evidence of the complainant, this is the credible information that he has received first in time, but looking to the daily diary Ex.P-16, the same is not found in similar manner. Therefore, even the entry made in Ex.P-16 cannot be said to be in compliance of mandatory requirements of [SECTION] of [ACT].
17. In the cross-examination at paragraph No.6 P.W.-1 has deposed that, he reduced the credible information received by him in his official daily diary. So there is a change in his version that he wanted to make it as official daily diary from his deposition in the examination-in-chief that the entry made in his diary. The further deposition is the information was given to him over telephone, also with regard to the physical features of accused No.1 such as his age, complexion, height, appearance and other general features. But he has not reduced the physical features of accused No.1 in his daily diary Ex-P.16. So by this deposition also P.W.-1 clearly admitted before the Court, that the entry made or reducing the information, even in Ex-P.16 is not as it is received by him. Under such circumstances, looking to the materials placed on record, it can be safely concluded that compliance of the requirements of [SECTION] of the [ACT], are not at all done in this case.
18. With regard to the receipt of the information is concerned, apart from [SECTION] of the [ACT], when it is the case of the prosecution that such information regarding commission of the cognizable offence was received when he was in the police station, even as per [SECTION] of the [ACT] also, it was his duty that immediately he should enter the said information in the diary maintained in the said police station. But in the case on hand, what has happened is, though it is the case of P.W.1,-complainant, that such credible information was received in the morning at 09.00 a.m., firstly, it was not reduced into writing in the concerned diary maintained in the police station. Apart from that, it is an admitted fact, as per the evidence of P.W.1 also, no information was sent to the Dharwad, Rural Police Station, within whose jurisdiction the said offence is said to have been committed. Apart from that, according to the prosecution material the complaint was lodged only in the night hours i.e. 9 - 9.30 p.m. So, till 9.00 p.m. or 9.30 p.m. on that day i.e. 10.6.2004, the case was not registered, though the information was received in the morning at 09.00 a.m. This also speaks on the prosecution case about delay of 12 hours in taking steps in the matter.
19. Regarding the place exactly at which, the proceedings said to have been conducted by the prosecution in this case is at [ENTITY]. So, as per the evidence of the prosecution witnesses, more particularly P.W.-1 the [ENTITY], the photographs of the accused persons were also taken at the said place. The photographs are as per Ex.-P9 and P-10. In his evidence at paragraph No.10, of his deposition, he (P.W-1) deposed that the spot of the incident is at [ENTITY] towards Belgaum road. So in view of this evidence, it is clear and there is no ambiguity regarding the place of the proceedings conducted by the police in connection with the said offence. But perusing the photographs produced at Ex.-P9 and P-10, they goes to show that it was in the open place like [ENTITY]. But the said photographs clearly goes to show, it was in a building, and during the course of the cross-examination it was suggested, in the said photograph some structures are seen, pillars are there to the building and I have also perused the photographs in Ex.P-9 photograph the pillar is clearly visible and there are some green plants can also be seen in the said photograph. This is not properly explained by the prosecution, about the place exactly at which photographs were taken and proceedings were conducted regarding the seizure of the opium from the possession of all the 3 accused persons. Though it is the case of the prosecution that it was conducted at the [ENTITY], looking to the materials before the arrival of the [ENTITY], the accused persons were already apprehended by the P.W.-1 [ENTITY] which is evident from his possession and it is his case that then they asked the accused persons regarding conducting their personal search, whether it is to be conducted before the police officer or before the Gazetted Officer, then the accused person told that let it the before a Gazetted Officer and then a requisition was sent to secure the [ENTITY] in the case and admittedly it is the case of the prosecution that before the arrival of the [ENTITY] to the spot, the mahazar under Ex.-P-7 was already drawn and it was completed. So, it goes to show that before the arrival of the [ENTITY], there was apprehension of the accused persons and they were asked about the personal search to be conducted. After the arrival of the [ENTITY] at about 03.00 p.m. and in the presence of the [ENTITY], it is said that the personal search was conducted and the accused persons were found in the possession of opium in the carry bags. The quantity that is mentioned in the document Ex.P-8 i.e., the seizure mahazar, here though it is deposed by P.W.-1 that he has issued notices in writing to the accused persons about his intention to conduct the personal search of the accused persons. But no such notices copy have been produced in the case. P.W.-1 in his evidence deposed that, he did give written notice to the accused expressing his intention to conduct search on their person. The notice issued to the accused is not seen in the case file. So by deposing like that he himself clearly admitted that the copies of the notice issued to the accused person were not at all found in the Court file. Whereas it is the defence of the accused person that no such notices were issued to them and the documents were created to suit the case of the prosecution. When that is so the burden is on the prosecution to show about the intention of the [ENTITY] P.W-1 for conducting the personal search of the accused person, that he had issued the written notices to the accused person. Therefore the said fact is also not satisfactorily established with cogent and satisfactory material.
20. Regarding this Ex.P-8 the seizure mahazar, it is the case of the prosecution and also the panch witness who has been examined on the side of the prosecution as P.W.-2 that the after seizure of the bulk from each of the accused person, 05 grams from each bulk was taken out by the [ENTITY] and then the bulk as well as the sample of the opium were put in a cover they were packed and sealed, the seal used is nut-bolt. It is also the case that the seal was given into the custody of the panch witness P.W-2 who has been examined before the Court. It is the further case as per the documents placed before the Court, that the materials were put into the cover packed and sealed in the presence of [ENTITY], who is a Gazetted Officer, and the panch witness. But the Dy.S.P. he took the decision that the sealing had not been properly done and again he called the panch witnesses and he re-sealed the articles by using the seal DSPO and it is also the evidence of the prosecution witnesses and the panch witness this is seal DSPO was put on the nut-bolt seal and in this regard another document which was drawn is Ex.P-17. This goes to show that, when the seizure and sealing of the materials were done in the presence of the [ENTITY] Gazetted Officer without calling him, without bringing to his notice, again the Dy.S.P. put the seals on the covers by using the specimen seal DSPO. Now coming to this aspect, whether the specimen seal given into the custody of the panch witness P.W.-2 has if produced before the Court during the course of the trial. He deposed in his evidence, that he is not having the seal with him in the shifting of his house, he has lost the seal. In this connection, paragraph No.5 of the deposition of P.W.2 is relevant, wherein he has stated the nut-bolt used to seal the opium was handed over to him, so as to produce the same before the Court, but he had misplaced the same while shifting his luggage from one house to another house. This goes to show that specimen seal nut-bolt with which the materials were said to have been sealed is not before the Court, at least to compare whether it was the very same seal with which the articles were sealed. [ENTITY] as another specimen seal, which was done in the office of the Dy.S.P., by using the DSPO seal, admittedly according to the prosecution case and the evidence produced before the Court its specimen seal was not at all handed over to anybody. Therefore, with regard to the sealing of the articles before sending to FSL both the seals were not produced before the Court below. In this connection, learned counsel appearing for the appellant-accused relied upon the decision of the Hon'ble Apex Court reported in AIR 2005 SC 1[SECTION]8 in the case of [PRECEDENT], wherein, Their Lordships have observed about this aspect in detail and there should be compliance of the specimen seals used for sealing of the articles in the case. Therefore, looking to the very evidence of the prosecution witnesses, it clearly goes to show that this aspect of putting the seal on the sealed articles either by nut-bolt or by DSPO seal is also not satisfactory established with the cogent and satisfactory material.
21. The prosecution case is that the [ENTITY] separated and taken 05 grams from each of the bulk for sending it to FSL for the purpose of the examination and report. It is specifically mentioned in Ex.P-8 the quantity that was taken separately for sending for examination. But looking to the FSL report, which is produced in this case as per the Ex.P-20, the FSL officer has mentioned about the quantity in the chart i.e. provided in the Ex.P-20, wherein, the first column it is mentioned weight of the sample received before examination in grams. In first column, it is mentioned as 7.2139 under the second column 7.6867, under the 3rd column 6.703 so this quantity is not tallying with the sample which is said to have been sent for examination mentioning that it is 5 grams in each of the cases. So, there is also no satisfactory and proper explanation by the prosecution about the quantity of the opium said to have been examined by the FSL authorities. The FSL authorities have also been examined before the Court and sofar as the seal said to have been put with nut-bolt in his oral evidence, he has clearly mentioned that the said seal is not clearly visible. Looking to all these materials, placed by the prosecution the aspect of what is the quantity taken separately from the bulk opium, what is the quantity sent to the FSL is not properly and exactly explained during the course of the trial proceedings. As per the prosecution case, the said opium was seized on 10.06.2004 and as per the evidence of the prosecution witnesses and, more particularly, the police officer who carried the packets to the FSL, he handed over to the FSL on 30.08.2004 and looking to the evidence of the FSL officer, he examined the articles on 27.01.2005. Therefore, there is a gap of nearly 03 months from the date of seizure of the opium till the date of its actual examination by the experts in the laboratory. So, for this period of 03 months or till the date of sending the sample opium to the FSL i.e. on 30.08.2004, where this opium was kept, in what manner it was kept and what were the steps taken to preserve the quality of the said opium, absolutely there is no material placed on record by the prosecution witnesses. The offences under the [ACT], are the serious offences having the serious consequences. Therefore, strict compliance of the provisions is must and only the substantial compliance of the provisions of the [ACT] is not sufficient to punish the accused person holding him guilty. Looking to all these aspects of the matter, even with regard to the preservation or detaining this quantity of the opium, there is no satisfactory material placed by the prosecution to explain how it was retained. But on the other hand, looking to the cross-examination of the learned counsel on behalf of the accused, it is their specific suggestion that the waste opium material has been used by the police planted it in this case for booking the false case against the accused person. When that is so it is the bounden duty on the part of the prosecution to satisfactorily explain about all these aspects.
22. About the presence of the [ENTITY] for conducting the proceedings as per P-8 is concerned, again there is a inconsistency in the case of the prosecution. As per P.W.1, he deposed that he send the requisition to the Tahasidar to secure his presence, which was served on the [ENTITY] at 02.40.p.m. on that day and the Tahasidar's evidence goes to show he came to the spot at about 3.15. p.m. But looking to the evidence of P.W.1 it goes to show that the [ENTITY] was with them from the 01.00 p.m. to till the conclusion of the proceedings. This itself goes to show that when exactly the Tahasidar came to the spot, there is no acceptable material. The witnesses deposed in their evidence, sofar as the photographer is concerned that the [ENTITY] sent the requisition to secure the presence of the photographer. But the contents of the complaint and the mahazar goes to show that P.W.1 in the morning itself, when he was proceeding to the spot, secured the photographer and along with the photographer they all went to the spot. Therefore, regarding this aspect also the prosecution has not placed the acceptable material on record. Referring to the oral evidence of the prosecution witnesses P.W-1 has admitted in his cross-examination at paragraph No.9 it is true that there is no mention in Ex.P-15 the complaint for having handed over Ex.P-1 to P-4 along with the complaint to the officer incharge of police station. Before conducting the personal search as deposed by PW-1, he informed there right to be searched in the presence of a Gazetted Officer or a Magistrate. But looking to the contents of the complaint, so also the mahazar more particularly Ex.P7, there is no mention about he explaining the legal rights the accused are having to exercise their option in the matter. The complaint as well as the Ex.P7 goes to show that, he asked the person that they wanted to conduct the personal search, whether it is to be done before the police officers or before a Gazetted Officer. Therefore if at all according to his oral evidence, he had explained about the illegal right same could have mentioned in the complaint as well as Ex.P7 the mahazar. In the absence of such specific mention in the complaint as well as in Ex.P-7 only on the basis of oral evidence of P.W.-1, it cannot be accepted by this Court that before conducting such personal search he had explained the accused person about their illegal right. Therefore mere asking the accused person that they wanted to conduct the personal search, whether it is to be conducted before the police officers or the Gazetted Officer itself is not sufficient, what is required is firstly the accused persons must be made known about their legal right that they are having such a legal right to exercise their option in that connection. Unless and until such illegal right is brought to the notice of the accused person only on the basis that the simply asked the person, whether the search is to be in the presence of police officers or Gazetted Officer itself is not sufficient compliance of the provisions of the [ACT].
23. Looking to the evidence of P.W-10 the Dy.S.P. who is a superior officer to P.W-1 the [ENTITY] he never deposed in his evidence, that after concluding the proceedings by P.W.1, under the mahazar Ex.P-7 and Ex.P-8, after the arrival of the Tahasidar what has happened till then the complete report ought to have been submitted by P.W.-1 to the Superior Officer P.W.-10. Looking to [SECTION] of the [ACT], [SECTION] reads as under:-
"[SECTION]. 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."
24. It is the under the heading report of arrest and seizure. The wordings in the said Section, whenever any person makes any arrest or seizure under this Act, he shall within 48 hours next after such arrest or seizure make a full report of all the particulars of such arrest or seizure to his immediate officer superior. But in the case on hand and as I have already observed above, that there is no whisper in the evidence of P.W.10 about the compliance of this requirements of [SECTION] by P.W.1. Therefore even the mandatory requirements of [SECTION] of the [ACT], were also not complied with in the case on hand.
25. The credible information according to the police was received at 09.00 a.m. on 10.6.2004. The complaint was lodged according to the oral evidence of P.W.1 at 09.00 or 09.30 p.m. the materials placed on record also goes to show that by the time the complaint was lodged and FIR was registered almost more than half of the investigation was completed in the case.
26. Looking to the contents of the complaint and the contents of Ex.P7 and P8, they go to show all the information about the accused, they carrying the opium from Hubli to Belgaum for the purpose of sale and they moving in a vehicle up to [ENTITY]. Even as per the oral evidence of P.W.-1 the physical features of accused No.1, every information was furnished to him in the morning at 09.00 a.m. When such credible information about commission of cognizable offence had already been received by the police officer and as he was very much in the police station according to his own deposition, he could have immediately entered the said information in the diary kept in their police station by way of first information which is not done in this case. Therefore, as per the decision of the Hon'ble Apex Court in the case of [PRECEDENT] about the compliance of the [SECTION] of the [ACT] that such information ought have been immediately entered in the concerned diary maintained in the police station which was also not done in the case on hand.
27. I have perused the decisions relied upon by learned HCGP which are referred above. Looking to the facts and circumstances of the case in the said decisions and the facts and circumstances of the case on hand, those decisions will not come to the aid and assistance of the respondent state, in contending that the accused persons have committed the said offences and the trial Court has rightly convicted them for the said offences.
28. I have also perused the decisions relied upon by learned counsel appearing for the appellant accused No.2 which are also referred above. Looking to the materials placed on record and also the principles enunciated in the said decisions, I am of the opinion that the trial Court has not correctly appreciated the factual as well as the legal aspect of the matter. The Trail Court has wrongly read the evidence both oral and documentary and wrongly proceeded to come to the conclusion that prosecution proved its case beyond all reasonable doubt.
29. Hence, the judgment and order of conviction passed by the trial Court is not at all sustainable in law. There is a perverse and capricious view taken by the Court below in coming to such conclusion. Hence all the above three appeals are allowed, judgment and order of conviction passed by the Court below is hereby set-aside. The appellants-accused are acquitted from the charges levelled against them.
The bonds executed by the appellants accused stands cancelled.
The fine amount said to have been deposited by the appellant accused be refunded to them.
JUDGE KMS/BSR/RHR/-