HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 138 of 2002 Rayees Ahmad S/o Sri Munna Lapatti R/o Moh. Jatwara, Chhipiyan Police Station Jaspur District Udham Singh Nagar ……Appellant Versus State of Uttarakhand …… Respondent Mr. Mohd. Azim, 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 19/06/2002 passed by Addl. Sessions Judge/1st F.T.C. Kashipur, Udham Singh Nagar in Special S.T. No. 132 of 2000, State Vs. Rayees Ahmad whereby the accused/appellant has been convicted for the offence punishable u/s 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as Act, 1985) & sentenced to undergo rigorous imprisonment for four years & six months and a fine of 10,000/-. In default of payment of fine, the accused/appellant would further undergo rigorous imprisonment for one year. 2. Brief facts leading to the prosecution case are that on 12/11/1999 at about 8:15 a.m. the police patrolling party was on the patrolling duty. When they reached near Nai Basti Patrampur near the mango grove of Subhash Chandra Agarwal where there was a hut, they saw a person coming out of the hut and 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 2 Rayees Ahmad and admitted that he was having opium husk in the bag which he was holding in his hand. The accused/appellant was informed of his legal right 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 by S.I. Nirvikar Singh PW2 and the accused/appellant has given his consent for taking his search. The accused/appellant alongwith the recovered article was taken to the police station where a report to that effect was lodged by S.I. Nirvikar Singh PW2. The matter was investigated by the Investigating Officer and after completing the investigation, chargesheet (Ex.Ka.6) was submitted before the court. 3. After submission of chargesheet, the accused/appellant was charged u/s 18 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 A.S.I. Bishan Lal PW1 and S.I. Nirvikar Singh PW2. Both of the witnesses were on patrolling duty on the date of the occurrence and apprehended the accused/appellant alongwith the recovered article near the grove of Subhash Chandra Agarwal, Nai Basti Patrampur. S.I. Rewat Singh PW3 is the Investigating Officer of the case. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. The accused/ 3 appellant has stated that he has been falsely implicated in this case. The accused/appellant has also denied the recovery of opium husk from his possession. 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. Mohd. Azim, Advocate for the accused/appellant; Mr. Amit Bhatt, Addl. G.A. for respondent/ State; and perused the record. 8. Now, it is to be seen whether the said 5 kgs. opium husk (doda powder) was recovered from the possession of the accused/appellant or not. The prosecution in support of its case examined S.I. Nirvikar Singh PW2 who conduced the search, seizure and arrest of the accused/appellant at the spot. A.S.I. Bishan Lal PW1 was also a member of the patrolling party with him alongwith other police officials. When the police patrolling party reached near the grove of Subhash Chandra Agarwal, Nai Basti Patrampur, the accused/appellant who was in the hut situated near the aforesaid grove came out of it on hearing of some noise and saw the police patrolling party. On seeing the police patrolling party, the accused/appellant started running fast with the bag which he was holding in his hand. S.I. Nirvikar Singh PW2 asked him to stop but he did not follow his command. The police patrolling party immediately apprehended him and thereafter the accused/appellant was informed about his right to be searched before the Magistrate or the Gazetted officer. The accused/appellant gave his consent to be searched by S.I. Nirvikar Singh PW2 and a consent letter (Ex.Ka.1) thereof was signed by him. When the 4 bag of the accused/appellant was searched 5 kgs. opium husk was recovered from the bag which he was holding. 100 grams of the recovered article was sealed in a separate wrapper whereas rest of the recovered article was sealed separately in another wrapper. The recovery memo thereof was prepared at the spot and he proved the recovery memo. Thereafter, the accused/appellant and the recovered article were taken to the police station where a report was lodged against the accused/appellant. Both the witnesses namely A.S.I. Bishan Lal PW1 and S.I. Nirvikar Singh PW2 corroborated each other about the search, seizure and arrest of the accused/appellant. 9. Learned counsel for the accused/appellant contended that the arresting Officer and the Investigating Officer could not totally ignore the provision of Section 52 and 53 of Act, 1985 and such violation would have a great bearing on the appreciation of the evidence regarding the arrest, search & seizure. The learned counsel for the accused/appellant further contended that the prosecution has not proved that the article which was recovered from the possession of the accused/appellant was ever deposited in the malkhana; no sample seal was ever produced before the court; there is no endorsement on the letter which was sent by the learned Sessions Judge to the Director, F.S.L., Agra that the said articles has been sealed with the seal of the Chief Judicial Magistrate; the Director F.S.L., Agra in its report has not stated anywhere that the said article which was received by him on 20.12.1999 with the seal of C.J.M, Udham Singh Nagar, contained the other seal of the police officer who has sealed the said article at the time of recovery. He further contended that constable Bheem Singh who took the sample from the court to Director F.S.L. had not been produced before the Court. The 5 learned Addl. G.A. appearing for the State supported the findings recorded by the learned trial court. 10. It is true that the prosecution has not proved the safe custody of the recovered article till it was produced before the Court or it was sent to the Director F.S.L., Agra. A.S.I. Bishan Lal PW1 and S.I. Nirvikar Singh PW2 had not stated even a single sentence in their evidence that the said recovered article was in the safe deposit of the malkhana. There is also no evidence to the effect where the recovered article was kept after bringing it to the police station. The prosecution should have produced the malkhana Moharrir or the S.O. concerned alongwith the malkhana register who could have stated that the said article which was handed over to them by A.S.I. Bishan Lal PW1 and S.I. Nirvikar Singh PW2 alongwith sample of the seal and thereafter, they had sealed the article with their own seal in accordance with the provisions of Act, 1985. There is no iota of evidence to the above effect from the side of the prosecution. There is no evidence of A.S.I. Bishan Lal PW1 and S.I. Nirvikar Singh PW2 regarding handing over of the said recovered article to the Station Officer or malkhana Moharrir immediately after reaching to the police station with the accused/appellant. There is no iota of prosecution evidence that the said recovered article was received by S.O. or Malkhana Moharrir at the police station. Thus, it cannot be said that the said article which was sent to Director, F.S.L. or produced before the Court were ever kept in the safe custody and this article was never disturbed by any of the person or the officials. It is also in the evidence of S.I. Rewat Singh PW3 that he was appointed the Investigating Officer of the case on 12/11/1999 and he was transferred on 14/11/1999. Thereafter, the said investigation was conducted by S.I. Suresh 6 Chandra Saxena. The letter Ex.Ka.5 which was purported to have been sent by the Sessions Judge, Udham Singh Nagar to Director, F.S.L. on 17/12/1999 was never sent while S.I. Rewat Singh PW3 was the Investigating Officer of this case. The same would have been sent during the tenure of S.I. Suresh Chandra Saxena. He was not produced before the court to state that either he took the said sample from the police station to the Court or thereafter it was sent to the Director, F.S.L. S.I. Rewat Singh PW3 could not have proved the factual aspect of sending the article on a prospective date, i.e. 17/12/1999. S.I. Rewat Singh PW3 has further proved that the said sample was taken by Constable Bheem Singh whose signature affixed on the letter Ex.Ka.5. He has frankly admitted that the said article was not sent by him. It was sent after his transfer. Thus, there is no evidence of Bheem Singh as to how he took the possession of the said sample of the recovered article and from where it was taken to Director, F.S.L. There is no any iota of evidence that the said article was taken from the police station with the sample seal which was opened before the Sessions Judge and thereafter it was again sealed with the seal of the Chief Judicial Magistrate, Udham Singh Nagar and sent to the Director, F.S.L. Now, the question arises that the sample of the recovered article was sent by the Sessions Judge and the seal of the Chief Judicial Magistrate, Udham Singh Nagar was affixed on the said recovered article. It is natural if the article would have been opened before Sessions Judge, there would have been a memo of opening the said article and thereafter sealing the said article before the learned Sessions Judge and the seal would have been affixed of the Sessions Judge not of the Chief Judicial Magistrate. If the seal of the Sessions Judge was not available, then somebody should have come forward to prove this fact that the seal of the Sessions Judge was not available 7 at the time of affixing of the seal on the sample so the seal of the Chief Judicial Magistrate was borrowed and it was affixed on the said sample. There is no endorsement of the said fact in the letter (Ex.Ka.5) sent by the Sessions Judge to the Director, F.S.L. The letter clearly contains that the said sample was sealed and thereafter it was sent alongwith the sample of the seal to the Director, F.S.L. It is apparent from the evidence that the article which was recovered from the possession of the accused/appellant was sealed in two parts. One part contains 100 grams of recovered article which was only meant for being sent to the Chemical Examiner. The seals were affixed on it at the spot and thereafter it was sent to the Director, F.S.L. There may be two possibilities either the said recovered article would have been sealed by the Sessions Judge after wrapping the article with his own seal or the other possibility would be after opening the seal, he affixed his own seal on the said bundle. There is no evidence that the said bundle was opened before the Sessions Judge or the said recovered article was produced before the Sessions Judge in sealed cover. There is no iota of evidence that the learned Sessions Judge has compared the seal affixed by the I.O. at the time of sending the said article to the Director, F.S.L. The report which reveals that there was only one seal of Chief Judicial Magistrate, Udham Singh Nagar which indicates that the seal was opened in the court before the sessions Judge and later on sealed. If there had been two seals, the Director, F.S.L. would not have indicated the above fact. It is also pertinent to mention here that S.I. Nirvikar Singh PW2 and S.I. Rewat Singh PW3 have categorically stated in their evidence that the sample seal was not available in the file of the Court. Thus, the Court/Magistrate/Sessions Judge while sending the article could not compare the seal already sent to the Court at the time of remand of the 8 accused/appellant. Thus, the said sample has not been proved by the prosecution. 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 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 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.” 11. It has also been held in Valsala Vs. State of Kerala 1993 Supp.(3) S.C.C. p/665 that :- 9 “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 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 10 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.” 12. 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. …………… ” 13. 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 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.” 14. 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. 11 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.” 15. 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. 16. 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 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 provisons 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 provisons had been violated, failure 12 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. 17. 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/appellants. I find that the learned trial court has erred in convicting and sentencing the accused/appellants. The judgment and order dated 19/06/2002 passed by Addl. Sessions Judge/1st F.T.C. Kashipur, Udham Singh Nagar in Sessions Trial No. 132 of 2000 is hereby set aside. The appeal is liable to be allowed and is hereby allowed. The accused/appellant is in bail. He need not surrender. His bail bonds are cancelled and sureties discharged. 18. Let the lower court record be sent back to the court concerned for compliance. (J.C.S. Rawat, J.) Dated 19th August, 2008 Shiv