IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 322) (b) Description of Case Criminal Appeal No. 27 of 2002 With Criminal Appeal No. 28 of 2002 Date of decision : 16th , June 2008 A.F.R. (Approved for Reporting ___________________________ Not approved for reporting Date : 16.06.2008 Initials of Judge Note : Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 27 of 2002 Satyabeer Singh Jogi, S/o Karan Singh, R/o Village: Mallar, Post Office-Bindukhera, Tehsil- Safeedoan, District- Zind (Haryana) …….Appellant Versus State …….Respondent Mr. Tanveer Alam Khan, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. With Criminal Appeal No.28 of 2002 Ram Niwas Jogi, S/o Sri Sadhu Ram, R/o Shanpur, Police Station: Shafeedoan, District:Zind (Haryana). ……Appellant Versus State ……Respondent Mr. Tanveer Alam Khan, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. JUDGMENT Hon’ble J. C. S. Rawat, J. Since both the appeals have arisen out of a common judgment and order dated 24.01.2002 passed by the First Addl. Special Sessions Judge, Udham Singh Nagar, Rudrapur in Special Sessions Trial Nos. 28 of 1998 (State Vs. Satyabeer Singh) & 29 of 1998 (State Vs. Ram Niwas), hence both the appeals are disposed of together by this common judgment. Vide the aforesaid judgment and order dated 24.1.2002, the learned First Addl. Special Sessions Judge has convicted the accused-appellants for the charge punishable under Sections 18/20 of the N.D.P.S. Act and sentenced them to undergo RI for ten years and also imposed fine of Rs.1 lakh upon each of the accused-appellants. The learned Judge further directed that in default of payment of fine, each of the accused-appellants would further undergo rigorous imprisonment for another five years. 2. The case of the prosecution, in brief, is that, on 17.9.1998, the police raiding party headed by Inspector-R.P. Singh was on a patrolling duty. At about 17 hours, when they reached near the place of occurrence, they saw that the accused-appellants are coming with a bag in their hands. On seeing the police patrolling party, the accused-appellants started moving back. On suspicion, the police apprehended them at the spot and the accused-appellants disclosed their names as Satyabeer Singh and Ram Niwas Jogi. When they informed that they were having charas in their names as Satyabeer Singh and Ram Niwas Jogi. When they informed that they were having charas in their bags, they were searched by the police and 1 kg of ‘charas’ was recovered from the bag of each of the accused-appellant. It was sealed at the spot and recovery memo was also prepared at the spot. The accused-appellants and the contraband ‘charas’ were taken to the police station where FIR was lodged against the accused-appellants whereas the sealed articles were kept in the ‘malkhana’ of the police station. After completing the investigation, separate chargesheets were submitted against the accused/appellants u/s 18/20 N.D.P.S. Act before the court concerned. 3. In order to prove its case, the prosecution examined Constable Mahipal Singh PW1, Inspector- R.P. Sharma (PW2), Head Const. Inder Singh (PW3), Investigating Officer/S.I-Kalyan Singh (PW4) & Constable Bhramanand (PW5). Constable Mahipal Singh PW1, Inspector- R.P. Sharma (PW2), Head Const. Inder Singh (PW3) were the members of the raiding party whereas S.I. Kalyan Singh was the investigating Officer of this case and Const. Bhramanand (PW5) was the person who had taken the sealed contraband to the Chemical Examiner, Agra for its chemical examination. 4. The accused-appellants were examined under Section 313 of the Criminal Procedure Code. The accused-appellants denied all the averments made in the evidence and they have stated that they have been falsely implicated in this matter. The accused- appellants did not adduce any evidence in support of their defence. 5. The learned trial court after appreciation of the evidence found the appellants guilty of the offence, and convicted and sentenced the appellants as mentioned above. 6. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 7. Now, I have to examine as to whether the accused-appellants have committed any offence or not. The prosecution in support of its case examined Constable Mahipal Singh PW1, Inspector-R.P. Sharma (PW2) and Constable Inder Singh PW3. All the aforesaid witnesses have narrated as well as corroborated the entire story as indicated in para 2 of my judgment. They apprehended the accused- appellants at the spot and recovered 1 kg of ‘charas’ from the bags of each of the accused-appellant which they were carrying in their hands at that time. The memo was prepared at the spot and the witnesses signed on it. 8. The learned counsel for the appellants submitted that the arresting officer has not followed the procedure prescribed under Section 50 of the NDPS Act i.e. informing the accused-appellants with regard to their personal search which should be carried out in presence of a gazette officer or a magistrate. Against this, the learned Add. Government Advocate for the State submitted that in the present case, there is no question of following the procedure provided under Section 50 of the NDPS Act because the bags of the accused were searched from which ‘charas’ was recovered. He placed reliance upon Banobi & Another Vs. State of Maharashtra & Others, 1999 vol. 8 SCC Page 463 and State of Punjab vs. Baldev Singh 1999 (6) SCC Page 172. It is true that the recovery has been made from the bags which they were holding in their hands. Section 50 of the NDPS Act is applicable only where recovery is made from the person of accused. If any contraband is recovered from the bag, provisions of Section 50 will not be attracted. The Hon’ble Apex Court in the State of Himanchal Pradesh v. Pawan Kumar, (2005) 4 SCC 350, has held that a bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. In common pariance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” which occurs in Section 50 of the Act.” Hence, in the instant case, it is not disputed that the appellants were carrying bags with them in which the ‘charas’, in question, was kept. Thus, Section 50 is not attracted in the case of appellants. 9. The glarifying discrepancy which is apparent from the record is that the prosecution has alleged that 1 kg. of ‘charas’ was recovered from the bag of each of the accused-appellants which they were carrying in their hands at that time and the same was sealed at the spot. According to one of the witnesses, samples of 50 grams recovered quantity were taken from each of the accused-appellants and kept separately for the purpose of sending it to the Chemical Examiner, Agra, whereas other witnesses are silent on that point. It is also in the prosecution evidence that the said articles and the accused/appellants were taken to the police station. The prosecution witnesses have only said in their evidence that the sealed articles were handed over to the ‘Malkhana Moharir’ at the police station. It is also in the evidence that the said articles which were kept in the ‘thana’/police station, were produced before the Court. The Investigating Officer has said that the entire contraband seized from the accused- appellants was sent to the chemical examiner. Constable Bhramanand PW5 has taken the ‘mal’ from the Court to the Chemical Examiner, Agra. According to the provisions of the Narcotic Act, if the articles have been seized at the spot and when it is deposited in the police station, it would be sealed by the seal of the S.H.O of the police station. It is obligatory on the part of the prosecution to show that the said articles were remained in the safe custody of the police during the period when it was kept in the ‘malkhana’. The Malkhana Moharir was not produced before the court. It is also in the evidence that the sample of the seal was not produced before the court concerned. There is no evidence that the seal which was sent to the court was compared before the court, when it was sent to the chemical examiner. It is not in the evidence that the seal, which was affixed at the time of taking of the sample, was present at the time when it was sent and opened by the examiner examiner. The evidence contra is available on record that the Chemical Examiner, Agra while opening the sealed bundle, had found the seal of the Sessions Judge only by which it was sent and the said seal was also tallied by him. He had not mentioned in his report that there were two other sealed bags containing a separate seal by which the sample has been sent to him. Thus, the prosecution has failed to prove that the articles which were seized, were remained in the safe custody and was not tampered at any stage. Apart from this, one of the witnesses has stated that 50 grams of ‘charas’ was taken from each of the recovered quantity as sample for the purpose of its chemical anyalysis. However, different quantities were found in the report of the chemical analyist. In the case of appellant Satyabeer Singh, two polythene bags containing 920 grams and 60 grams of the contraband ‘charas’ were found in it, whereas in the case of Ram Niwas, the two polythene bags containing 620 grams and 365 grams of ‘charas’ were found in it. The provisions of the Narcotic Act are very stringent. If guilt is proved under this Act, a minimum punishment of 10 years imprisonment and a fine of rupees one lakh have to be imposed upon the accused. In such cases, if the legislature makes stringent law, the implementing agency is bound to follow the strict procedure and it has to be proved before the court. Thus, I find that the prosecution has failed to prove the safe custody of the contraband. There are also discrepancies about the dispatch and the seal of the articles. 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 (3) ACC 605 S.C. has held that in the absence of link evidence, the conviction under the N.D.P.S. cannot be sustained.” 10. 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 14.1.1998 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 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 P7 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.” 11. 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 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. ………………..” 12. The Hon’ble Supreme Court has observed in State of Rajasthan Vs. Gurmail Singh 205 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 5.6.195. 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.” 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 evidence 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. 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, affixed on the muddamal article was handed over to the witness P.W1 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. In view of the foregoing discussion and on the basis of the aforesaid evidence, I am of view that it would not be safe to convict the appellants and the appellants are entitled to get the benefit of doubt. Therefore, the prosecution has not established the guilt beyond any reasonable doubt against the appellants. I find that the learned trial court has erred in convicting and sentencing the appellants. Hence, both the appeals are allowed and the conviction and sentence against the appellants awarded by the trial court are set aside. The appellants are acquitted of the charge levelled against them. 16. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of three months. (J.C.S. RAWAT, J.) Dated 16.06.2008 Shiv / V.K.