HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 277 of 2007 Sri Maksood S/o Makbool R/o Saraffa Bazar Kotwali Darbar, District Aligarh (U.P.) ……Appellant Versus State of Uttarakhand …… Respondent Mr. Abdul Wahid, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. for respondent/State. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been preferred against the judgment and order dated 09/07/2007 passed by Addl. Sessions Judge/ 1st F.T.C., Nainital in Special Sessions Trial No.26 of 2006, State Vs. Maksood, u/s 18/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as Act, 1985) whereby the accused/appellant has been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1,00,000/-u/s 20 of the Act, 1985. In default of payment of fine, the accused/appellant would further undergo rigorous imprisonment for 2-1/2 years. 2. Brief facts leading to the prosecution case are that on 26/01/2006 at about 10:00 a.m. S.I. N.R.Vishawakarma alongwith the police patrolling party was in law and order patrolling duty at Bheemtal. When they reached near Mount Alvern School, they saw a person coming from Mallital. The person was holding bag in his back. Seeing the police patrolling party coming over there, he started moving fast from there. On suspicion, the police patrolling party immediately apprehended him. After being apprehended, the accused/appellant disclosed his identity as Maksood S/o 2 Makbool and admitted that he was having charas in the bag which he was holding in his back. The accused/appellant was informed of his legal rights of being searched before the Gazzeted officer or the Magistrate as provided under Act, 1985. The accused/appellant stated that he would not like to be searched before the Magistrate or the Gazetted officer. He stated that as the patrolling party had already apprehended him, they could make his search well. On the said statement of the accused/appellant, a written consent letter (Ex.Ka.-1) was prepared and the accused/appellant has given his consent for taking his search. When search of the bag was made, 14 kgs charas was recovered from the possession of the accused/appellant from one bag and 7 kgs was recovered from another bag. After recovery, a recovery memo was prepared. The accused/appellant alongwith the recovered article was taken to the police station where a report to that effect was lodged. The matter was investigated by the Investigating Officer and after completing the investigation, chargesheet (Ex.Ka.8) was submitted before the court. 3. After submission of chargesheet, the accused/appellant was charged u/s 18/20 of Act, 1985. The accused/ appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined as many as five witnesses. PW1 S.I. N.R. Vishawakarma, PW3 Const. Madan Singh Parihar and PW5 Const. Vijay Khambhoj were on patrolling duty on the date of the occurrence and they have apprehended the accused/appellant alongwith the recovered article. PW2 Const. Harish Chandra and PW3 Const. Madan Singh are the police witnesses. PW4 S.I. Vishan Ram Arya is 3 the Investigating Officer of the case. He has submitted the chargesheet Ex.Ka.8 against the accused/appellant. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. The accused/ appellant has stated that he has been falsely implicated in this case. 6. The learned Addl. Sessions Judge after appreciation of the evidence and hearing the parties convicted the accused/appellant and sentenced him as indicated above. 7. I have heard Mr. Abdul Wahid, Advocate for the accused/appellant; Mr. Amit Bhatt, Addl. G.A. for respondent/ State; and perused the record. 8 Learned counsel for the accused/appellant contended that the recovery of the contraband is doubtful in this case. He has contended that the prosecution has failed to prove the proper custody of the seized article during the trial; the narcotics substances which was produced before the Court was not charas; and the entire evidence of the prosecution is doubtful as regards the dispatch of the narcotics which was recovered from the possession of the accused/appellant. The learned Addl. G.A. refuted the contention. It is in the evidence of Arresting Officers PW1 S.I. N.R. Vishawakarma as well as PW3 Const. Madan Singh Parihar that the accused/appellant was having 14 kgs. charas in one bag and 7 kgs. in another bag; the said contraband was recovered at the spot; PW1 S.I. N.R. Vishawakarma prepared the recovery memo of the seized articles from the possession of the accused/appellant; the evidence of the prosecution reveals that four bundles were 4 prepared at the spot; the Arresting Officer PW1 N.R. Vishawakarma took 100 gram each from two bags separately as a sample for sending it to the chemical examiner; rest of the two bags were sealed at the spot and thereafter the accused/appellant was taken to the police station where the accused/appellant as well as the seized contraband were handed over to the police station. Thus, according to the prosecution version, it is clear that four packets of the seized contraband were prepared; four packets were sealed at the spot out of which two packets were to be sent to the F.S.L. for scientific examination through court; and PW5 Const. Vijay Khambhoj has stated that he had taken the said contraband to the Court for taking it to the F.S.L., Dehradun. The said charas which was brought by PW5 Const. Vijay Khambhoj from the police station to the Court was produced by the PW5 Const. Vijay Khambhoj before the Court and the I.O. was also before the Court. The I.O. has stated that from the seized contraband, 200 gram charas was taken in presence of the Court and it was sent to the F.S.L. According to the Investigating Officer PW4 Vishan Ram Arya, the said charas was taken from the main bundle and only one packet was sent to the Court and later on it was sent to F.S.L. by the learned Addl. Sessions Judge. Thus, it is revealed that one packet of charas was sent to the F.S.L. for being examined as to whether it contains contraband or not. There is no evidence on record that any application was given to the Court for taking the sample and for sending it to the F.S.L. It is also not in the evidence as to whether the seals which were affixed at the time of the arrest and recovery were compared before the Court or not. The prosecution must have sent the seals to the Court first and then it should have been kept sealed in the Court. While sending the said charas a memo thereof should have 5 been prepared by the Addl. Sessions Judge, thereafter the said contraband would have been sealed by the seal of the Court. This fact has not been established by the prosecution to this Court. The second factor which is relevant for consideration is that if 14 kgs charas was recovered from one bag and 7 kgs from another bag and thereafter two separate samples were prepared at the spot, then what was the use to get again sample from the bundle which was to be sent to F.S.L. The sample which has already been taken should have been sent alongwith the copy of the seal and the seal of the S.O. as provided u/s 52 of the Act to the F.S.L. with the seal of the Additional Sessions Judge. It is pertinent to mention here that two samples were taken from each bundle at the spot. When the Investigating Officer PW4 Vishan Ram Arya produced the same before the Court, only one sample was taken from one bundle which was sent to the F.S.L. The report of the F.S.L. (Ex.A-7) clearly reveals that only one packet of charas approximately 300 grams was received by the F.S.L. Thus, it is in the evidence that two packets were separately prepared from each bundle which was to be sent to the F.S.L. and only one packet was sent as revealed from the report itself. It cannot be said from which bag the said samples were taken. It is pertinent to mention here that PW1 N.R. Vishawakarma and PW3 Const. Madan Singh have only stated that the said recovered articles were handed over in the Malkhana. There is no evidence that Incharge of the said police station affixed the seal on the said contraband as provided under the provision of the Act. It is also not in the evidence that the said charas recovered from the possession of the accused/appellant was kept in safe custody in the malkhana from the date when it was recovered from the possession of the accused/appellant to the date when it was sent to the F.S.L. or it was produced before 6 the Court. The seal by which PW1 N.R. Vishawakarma sealed the article was not proved before the Court. There is no iota of evidence that it was immediately sent to the Court and it was kept in the sealed cover. The Malkhana Mohrrir was also not produced during trial who can state that the said contraband recovered from the possession of the accused/appellant was kept intact in the Malkhana. It was obligatory on the part of the prosecution to prove that the said sample was kept in the safe custody; thereafter sent to the F.S.L. in safe custody; and the rest of the recovered article was kept in the safe custody till it was produced before the court. In absence of such evidence, the entire search becomes doubtful. Section 51 and 57 though are directory but the Investigating Officer cannot ignore the provisions contained in the Act, the Court can take these facts into consideration while appreciating the evidence. Non- compliance of said section would render the prosecution evidence doubtful. In absence of such evidence, the entire evidence of search, recovery and seizer becomes doubtful and link evidence is missing in this case. I am fortified with the view taken by Allahabad High Court in Shiv Charan Vs. State, A.C.C. 1999(38) p/181 in which it has been held as under:- “6. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not given link evidence. It is not known where the seized charas was kept after it was recovered from the possession of the appellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the charas in question to the Chemical Examiner. The said Charas is said to have been recovered on 11.10.1990 and the report of the chemical examiner is dated 26.8.1993 from which it appears that it was received in the office of chemical examiner by means of letter dated 5.11.1991. No evidence is given to show that the Charas in question remained intact in the sealed bag for a period of more than one year i.e. from 11.10.1990 to 7 5.11.1991. In view of this, it cannot be said that the same Charas was sent to the chemical examiner for his report which was recovered from the possession of the appellant. Hon’ble the Supreme Court in the case of Valsala Vs. State of Kerala 1993 (30) ACC 605 S.C. has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 9. It has also been held in Valsala Vs. State of Kerala 1993 Supp.(3) S.C.C. p/665 that :- “We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on 14.1.1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW6, the Officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the mahazar Ex.P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW6 does not say that he continued to keep it in his custody under seal till it was produced in the court on 14.1.1998. The evidence given by PW6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the court. As a matter of fact he did not produce it in the court. PW3, A.S.I. is supposed to have produced the same in the court. But PW3 does not say anything about this. It is only 8 PW7 the Circle Inspector who comes into the picture at a later date, who admitted in the cross examination that the seized article was sent by PW3 (A.S.I.) to the court and PW7 in his cross examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW7 that the Chemical Examiner’s report is marked. PW7 further admitted that he did not even know when it reached the court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts cannot convict.” 10. It has been held in State of Tamil Nadu & another Vs. Muniandi 2001 J.Cr. SC p/308 that :- “9. ……………………………………The I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept 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 NDPS Act. The prosecution had 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. …………… ” 11. The Hon’ble Supreme Court has observed in State of Rajasthan Vs. Gurmail Singh 2005 SCC(Cri) p641 that :- “2. ………………In the first instance, though the seized articles are said to have been kept in the 9 malkhana on 20.5.1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW6 on 5.6.1995. We further find that no sample of the seal was sent alongwith the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles.” 12. In the case of Gurbax Singh Vs. State of Haryana 2001 Vol.3 SCC Page 28, the Hon’ble Supreme Court has held as follows:- “9. ………………………………… 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 the 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 P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer incharge 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.” 13. It has also been held by this Court in Mr. Harman Chrust Vs. State 2005(1) U.D. p/736 that the prosecution cannot prove its case against the accused without the link evidene that the seized article was not tampered with during the period it remained in the custody at police station and thereafter at malkhana is completely missing. 14. It is also important to mention here that the provisions of the N.D.P.S Act are very stringent and it provides all the necessary formalities to be done before taking the accused into 10 custody in order to safeguard the accused from false implication. If the law is stringent, it is obligatory on the part of the prosecution to prove all the formalities as provided under the act, or the prosecution should adhere to the formalities, which are necessary to safeguard the interest of the accused- appellant. It is true that the provisions of Sections 52 & 57 of the N.D.P.S Act are directory in nature and violation of these provisions would not ipso fact lead to take the acquittal of the accused. At the same time the prosecution cannot ignore these provisions and if these provisions had been violated, failure would have a bearing on the appreciation of the evidence regarding arrest of the accused or seizure of the articles or safe custody of the articles so seized. 15. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has not been able to establish the guilt beyond reasonable doubt against the accused/appellant. I find that the learned trial court has erred in convicting and sentencing the accused/appellant. The judgment and order dated 09/07/2007 passed by Addl. Sessions Judge 1st, Nainital in Special Sessions Trial No.26 of 2006, is hereby set aside. The appeal is liable to be allowed and is hereby allowed. The accused/appellant is in jail. He shall be released forthwith if not wanted in any other case. 16. Let the lower court record be sent back to the court concerned for compliance. The compliance report shall be submitted within three months. (J.C.S. Rawat, J.) Dated 14/05/2009 Shiv