Criminal Appeal (SJ) No.798 of 2006 BALRAM SINGH-------------------------Appellant Versus STATE OF BIHAR---------------------Respondent CR. APP (SJ) No.667 of 2006 LAKHAN SAH @ LAKHAN LAL SAH---------------Appellant Versus STATE OF BIHAR------------------------Respondent CR. APP (SJ) No.747 of 2006 SAUDAGAR SAH @ SAUDAGAR KUMAR SAH---------Appellant Versus STATE OF BIHAR--------------------------Respondents) ======= For the appellant :- Sri Aaruni Singh, (Amicus curiae) (In Cr. App. No. 798 of 2006) For the State : Sri S.N.Prasad, A.P.P. For the appellant : S/Sri Ranjeet Kumar Singh, Pawan Kumar Singh, Advocates. (In Cr. App. No. 667 of 2006 & Cr. App. No. 747 of 2006) For the State : Sri Ajay Mishra, A.P.P. (In Cr. App. No. 667 of 2006) For the State : Sri J.K.Singh, A.P.P. (In Cr. App. No. 747 of 2006) ===== Against the judgment of conviction and order of sentence dated 8.8.2006 and 14.08.2006 passed by the Sessions Judge-cum-Special Judge, Katihar in G.R.Case No. 327 of 2004) ====== P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The three appellants, one in each of the three appeals, were put on trial by the learned Sessions Judge-cum-Special Judge, Katihar by being charged under Sections 2 20 of the Narcotic Drugs and Psychotropic Substances Act(„the Act‟ in short)in G.R.Case No.327 of 2004 arising out of Katihar Town P.S.Case No.115 of 2004. By judgment dated 8th day of August, 2006, the learned trial Judge found the three appellants guilty of committing the above noted offence and after hearing the appellants on sentence on 14.8.2006 directed each of them to suffer rigorous imprisonment for ten years, but did not impose the mandatory sentence of fine upon any of them. The appellants have preferred individual appeals to question the correctness of the finding and the propriety of sentence passed against each of them. 2. P.W.9, S.I. Sunil Kumar Singh was posted in Katihar town police station on the 3rd day of March, 2004 stating that he along with P.W.6, namely, S.I. Kamta Prasad Singh and others was on patrolling duty, that he received a secret information that a few smugglers were transporting ganja by a Tata Sumo vehicle bearing registration no.JH-04A-2719. Accordingly, the informant and others kept themselves on a wait on the road for the vehicle which arrived at about 17 hours. The vehicle was 3 stopped and the driver pointed out his name as Tulsi Kumar Tanti. The informant found two persons sitting on the back seat of the vehicle and they were appellants Balram Singh and Saudagar Sah @ Saudagar Kumar Sah. Two witnesses, namely, Munna Sah(P.W.3) and Anil Kumar(P.W.2) were requested to associate themselves in the search of the vehicle who agreed and P.W.9 started conducting the search of the vehicle. 3. It was stated that from just under the legs of appellant Balram Singh a deep-blue- colour-suitcase was recovered which was found containing ten packets and each packet contained ganja and the total weight of ganja kept inside the suitcase was 10 K.G. The man who was sitting behind the seat occupied by appellant Balram Singh, was found to be appellant Saudagar Sah @ Saudagar Kumar Sah and he was found carrying a big packet which was found containing three packets and the total weight of ganja contained in those three packets allegedly recovered from appellant Saudagar Sah @ Saudagar Kumar Sah was 12 K.G. A third packet was also found there in the vehicle which was found containing 8 K.Gs. of ganja in four packets. Thus, the total weight 4 of recovered ganja was 40 K.Gs. 4. The recovered ganja was seized by preparing seizure memo (Ext-2) upon which P.Ws.2 and 3 signed as witnesses. The vehicle, along with accused persons, was brought to the police station where P.W.9 wrote up his self statement(Ext-3) addressed to the officer-in- charge of the police station on the basis of which the FIR of the case was drawn up and the investigation was taken up by P.W.8, namely, S.I. Daya Nand Bishwas who inspected the place of occurrence recorded the statements of witnesses and sent the four accused persons up for trial. The trial of Tulsi Kumar Tanti, the driver of the vehicle, was separated on account of the reasons assigned by the learned trial Judge in his order dated 2.8.2006, leaving the three appellants only on trial which ultimately ended in their conviction as pointed out at the very outset of the present judgment. 5. It was contended by taking me through the evidence of the witnesses specially, P.Ws.6,8 and 9 that the provisions of Section 42 of the Act had not been complied with and there was no explanation further in that behalf. It was contended that the date of occurrence was 5 3.3.2004 at 17 hours though the information about the transportation of contraband ganja in a vehicle had been received at 4 P.M. itself. But, the FIR was drawn up after six hours of the seizure of the contraband ganja and there were no explanation as to why the police remained sitting idle for those six hours. The contention further was that there was a complete lack of evidence on sealing of the seized articles and handing the same over to the officer-in-charge of the police station in the manner as required by law and certification of the storage as per provisions of the Act by the deputation of a Magistrate. The contention next was that both P.Ws.8 and 9, i.e., the investigating officer and the officer who brought the article after sealing the same are denying that they had drawn any sample out of the seized substance and had dispatched the same to the F.S.L. for analysis and report. Their evidence further indicates that there was no explanation for the non- production of eight packets of seized ganja as P.W.9, the informant, was producing only 8 out of the 17 packets in court and that too in an unsealed state. It was contended that the above deficiencies in the prosecution case were 6 sufficient to reject the whole prosecution charges and to acquit the three appellants. 6. Sri S.N.Prasad, the learned A.P.P. appearing for the State was submitting that it could not be said that it was a case where the provisions of Section 42 of the Act had not been complied with as the same was not required to be complied with under the special circumstances of the case because the officers were already out of the police station on patrolling duty and the requirement of Section 42 that the entries in the station diary about the likelihood of the finding of evidence of commission of an offence on account of the provisions of the Act could be made only when the officer was present at the police station and during that course he had received such information. It was further submitted that even in that case, it could not be a mandate inasmuch as the very proviso appended to Section 42(1)read with its sub- Section(2) makes it abundantly obligatory, violation whereof may not be a defect, serious enough to dislodge the prosecution charges. As regards the other parts of the submission of the learned counsel appearing for the defence the learned counsel appearing for the State was 7 simply rueing the non-production of the evidence by the prosecution in that behalf before the trial court. 7. Section 42 of the Act reads as under:- “Power of entry, search, seizure and arrest without warrant or authorization.- (1)Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government including para-military 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 personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and 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 8 to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) 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 authorization 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.” 8. Sub-Section-(1) to Section 42 may indicate that any authorization after making the entry so as to proceeding to make the search and seizure or to arrest the person involved in the crime has to be obtained, but when one considers the proviso appended to Section 42(1)then only one could find that even for the purposes of making an entry into a premises or breaking it open, or for removing any obstruction to such entry or for seizing any drug or such substance or any other material the authorization must be 9 from a higher officer. The very provision of Section-(1) indicates as to who could be the officers in the rank and file of the police department who could be deemed to be authorized officers. In my considered view there might not be a necessity of issuing a formal notification or order of authorization inasmuch as the rank of police establishment as to who could be the officers who could have the authorization automatically, by virtue of the very provision of Section-42 to act as per that provisions is indicated by Sub-Section-(1) to Section 42 of the Act. The words “being an officer superior in rank to a peon or sepoy or constable” of a revenue, drugs control, excise, police or any other department of State Government itself indicate as to who could really be an authorized officer to discharge the functions of such officers as indicated by Section 42. As such, there might not be a necessity for seeking authorization, but even in case of there being no necessity of obtaining an order authorizing the entry, search and seizure of a building, vessel, etc, the law requires by virtue of sub- section-(2) to Section-42 of the Act that the information about the commission of an offence 10 or the mere receipt of the information regarding the finding of any evidence on commission or attempted commission of the offence has necessarily to be given to the superior officers of such authorized officer within 72 hours of such receipt of information. The reason may not be clearly had from the provision, but when one imagines the situation that when the Act was setting down stringent provisions with some of the severest provisions on punishment, then the legislature was also setting down some statutory mandatory compliances so that either there could not be any doubt about the performance of the official duties by the officers who are ordained to perform them or there could not be any doubt that the search, recovery and seizure had been properly made in accordance with the provisions of the Act. This is the reason that the courts have been very sharp on picking up the defects in compliance of the provisions and then judging the facts on the proof of charges on account of compliances/non-compliances of those provisions. It appears the reason that some of the laws laid down by the Supreme Court have said that even if the provision may not be mandatory and are merely obligatory, if some defect is pointed out 11 in compliance of the mandatory provisions of the Act, then in that situation the non-compliance of the obligatory provisions may also be having its effect on proof of the charges. 9. In addition to the above, it may be useful to point out that where the law has formulated some mandatory provisions, the legislature has always visualized certain situations. Unless those situations or anticipated situations occurred the question of applying the mandatory provisions or observing them in letter and spirit may not arise. We often have the arguments before us of compliance/non-compliance with the provisions of Section-50 of the Act. But, unless the contingencies which are visualized by Section-42 or 43 of the Act are not shown to exist there could not be any argument available to any one and as such no case could be discarded on that account. What I want to emphasize is that application of a provision of law is always dependent upon the factual matrix of a case and it hardly requires to be pointed out that no two cases could be similar on facts. Moreover, the mere statement in FIR could not be sufficient for agitating the question of non-compliance 12 with a particular provision; it could be agitated only when the evidence in that behalf is concretely pointed out to the court, else, it does not have any scope in ruling compliance on a particular provision even if it was obligatory. 10. Having said the above what I find from the evidence of prosecution is that P.Ws.4, 5 and 7 were simply not supporting the prosecution charges and as such they were declared hostile. The two witnesses to seizure namely, P.Ws.2 and 3 though admitted their signatures on the seizure memo, were again pointing out to the court that either they did not know the contents of the document or were made to sign the plain paper. In spite of that the main evidence of S.I. Kamta Prasad Singh who was accompanying P.W.9 Sunil Kumar Singh, the informant when considered indicates as if there were complete lack of evidence as to after recovery and seizure, who was the officer to whom and at what place the contraband ganja was delivered for storage. The law requires by virtue of Section 55 of the Act that the officer-in-charge of the police station shall take in his charge and keep in safe custody 13 pending orders of Magistrate all seized articles which have been seized under the local limits of its jurisdiction and which may be delivered to him. It further indicates that the officer-in- charge shall allow the officer who had brought the seized article for storage to him to affix his seal over the articles and further to take samples of it. If samples are to be taken then the same shall also be sealed with the seal of the officer-in-charge also in addition to the officer seizing it. The evidence of P.Ws.6 and 9, i.e., S.I. Kamta Prasad Singh and S.I. Sunil Kumar Singh, the informant of the case is quite silent as regards the compliance of the above provisions of Section 55 of the Act. So far as the evidence of P.W.8, S.I. Daya Nand Bishwas, the investigating officer of the case is concerned, it may be pointed out that in paragraph-10 he stated that he did not know whether the sample which was sent for chemical analysis, the report thereof had been received or not. In his examination-in-chief the witness did not point out that the informant had brought the seized article and had delivered the same to be kept safely in his custody. In fact the evidence of P.W.8 S.I. Daya Nand Bishwas is 14 completely silent on the above point. Likewise, there is quite absence of evidence on compliance with the other parts of the provision of Section 55 of the Act, like, as regards putting a seal so as to safely securing the seized article which was delivered to the police station for safe custody. Yet another non- compliance on other part of the provision on drawl of samples and putting seals over it also appears shown by the evidence of any of the three police officers, i.e., P.Ws.6, 8 and 9. In fact the informant of the case, P.W.9 has stated in paragraph-13 of his evidence that he did not put any seal over the seized articles nor he had drawn any samples out of the same. His evidence in examination-in-chief in paragraph-2 indicates that he had produced eight packets in Court which were allegedly seized by him at the time of searching the vehicle. I have already noted at some earlier part of the present judgment that the total number of packets which were recovered from two bags and one suitcase was 17. Thus, besides the lack of evidence on the seized articles so as to securing them, what I further find is that nine packets of ganja had not been accounted for either by P.W.8 or by the 15 remaining two witnesses, i.e., P.Ws.6 and 9. 11. The above is the state of evidence as regards the delivery of the seized articles, securing it by putting a seal over it and, thereafter, drawal of the samples for being transmitted to the F.S.L. In fact, there is no evidence as to how the samples were drawn, who were the officers who had drawn the samples because both P.Ws.8 and 9, i.e., the investigating officer and the informant did not speak a word on either drawl of the samples or sealing it for dispatching it to the F.S.L. Thus, the court doubts the very claim of the prosecution that the very article which was seized was indeed sampled which was analyzed by the F.S.L. which submitted the report marked Ext-4 in the case. 12. In addition to the above the important compliance on the other parts of Section-55 as also the provisions of Section 52A regarding the certification to be made by a Magistrate deputed for the storage and inventory of the vehicle also appears quite absent which creates a further doubt in the veracity of the prosecution case as a result of which the three appeals have to be allowed. 16 13. In the result, the three appeals are allowed. The judgment of conviction and order of sentence passed against the three appellants are hereby set aside. The appellants are acquitted of the charge under Section 20 of the N.D.P.S. Act. The other two appellants, namely, Lakhan Sah @ Lakhan Lal Sah and Saudagar Sah @ Saudagar Kumar Sah are on bail. Appellant, namely, Balram Singh is in custody. He shall be released forthwith, if not wanted in any other case. The appellants, who are on bail, shall stand discharged from the liabilities of their respective bonds. 14. Let a copy of Ist and last pages of the judgment be supplied to Sri Aaruni Singh, learned Amicus Curiae(in Cr.Appeal No.798 of 2006) so that he can get a fee of hearing from Patna High Court Legal Services Committee. Patna High Court, Dated, the 9th day of May, 2011, Brajesh Kumar/AFR ( Dharnidhar Jha,J.)