HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.154 of 2002 Bhajan Singh @ Bhajji, S/o Dedar Singh, R/o Dodipura, Police Station – Bajpur, Dist – Udham Singh Nagar. ……Appellant Versus State ……Respondent Mr.A.S. Gill, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the respondent-State. JUDGMENT Hon’ble J. C. S. Rawat, J. This is a criminal appeal filed by the appellant against the judgment and order dated 19.6.2002 passed by the then Addl. Sessions Judge, Kashipur, District Udham Singh Nagar in Special S.T. No.01/2001, (State Vs. Bhajan Singh @ Bhajji) whereby the Addl. Sessions Judge has convicted the appellant and sentenced him to undergo RI for five years and also imposed fine of rupees ten thousand only, under Section 18 of the N.D.P.S. Act. It was further directed that in default of payment of fine, the appellant would undergo rigorous imprisonment for another period of one year. 2. The case of the prosecution, in brief, is that on 04.10.2000 at about 1730 hours, the police patrolling party was on a patrolling duty. When they reached near Dodipura crossing, they saw that the appellant was coming on the road. On seeing the police patrolling party, he started going back. This conduct of the appellant created doubt on the police raiding party and consequent thereto, they apprehended the accused-appellant. The appellant admitted before them that he was possessing ‘opium husk’ in the bag which he was carrying on his back. The appellant was then informed of his legal right by the police raiding party with regard to his search which is to be conducted before a magistrate or a gazetted officer and was asked whether he would like to be searched before a magistrate or a gazetted officer. He told them to take his search without calling the gazetted officer or the magistrate. When the bag, which the appellant was holding in his back was searched, 06 kg of ‘opium husk’ in six different plastic packets was found in it. The arresting officer Shyam Narayan Mishra PW2 took out some quantities of ‘opium husk’ from each of the aforesaid six packets which was about 500 gram in weight as a sample for sending it to the Chemical Examiner, Agra for its chemical analysis and rest of the ‘opium husk’ was sealed at the spot. A recovery memo was also prepared at the spot. The accused-appellant and the seized articles were taken to the police station where F.I.R was lodged. Thereafter the matter was investigated by the police. After completing the investigation, the Investigating Officer submitted chargesheet against the accused-appellant. 3. The trial court framed charge against the accused appellant under Section 18 N.D.P.S. Act. The accused appellant denied the charge levelled against him and claimed trial. 4. The prosecution in support of its case examined as many as three witnesses namely, A.S.I. Ramesh Pal Singh PW1; S.I. Shyam Narayan Mishra PW2 and; S.I. Samar Pal Singh PW3 who is the Investigating Officer of this case. 5. In the statement recorded u/s 313 Cr.P.C., the accused-appellant denied all the averments made in the prosecution evidence. He has not adduced any oral or documentary evidence in support of his defence. 6. The learned trial court after appreciation of the evidence found the accused-appellant guilty under Section 18 N.D.P.S. Act and convicted and sentenced the appellant as mentioned above. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. Now it is to be seen as to whether the accused-appellant was having ‘opium husk’ in his bag as alleged by the prosecution or not. The prosecution in support of its case examined A.S.I. Ramesh Pal Singh PW1 and S.I. Shyam Narayan Misra PW2 who are the witnesses of the arrest and seizure. Shyam Narayan Mishra PW2 is the S.I who has stated in his evidence that at the time when the accused-appellant was apprehended, they were on a patrolling duty. He further stated that on the date of the incident when they reached near Dodipura crossing, they saw the accused-appellant coming on the road with a white plastic bag on the back. On seeing the police raiding party, the accused-appellant immediately started running back. They had a reason to believe that the appellant was having some illegal articles in his possession, as such, they immediately apprehended the accused- appellant and the accused-appellant admitted that he was having ‘opium husk’ in the said plastic bag. Thereafter, S.I. Samar Pal Singh PW3 asked him whether he would like to be searched before a magistrate or a gazetted officer as provided under the N.D.P.S Act. Upon this, the accused-appellant replied that he wanted to be searched by the police raiding party itself. A consent letter (Ex.Ka-1) with regard to the fact that he wanted to be searched by the police raiding party itself was prepared by the raiding party at the spot and his thumb impression was also taken on it. When the white bag, which the appellant was carrying on his back, was searched, six plastic packets were recovered from it, which were filled up with 6 kg of ‘opium husk’. S.I. Shyam Narayan Mishra PW2 immediately took out some quantities of ‘opium husk’ from each of the aforesaid six packets which was about 500 gram in weight, as a sample for the purpose of sending it to the Chemical Examiner, Agra for its chemical analysis and rest of the opium husk was sealed at the spot and a recovery memo was prepared. The accused-appellant was then taken into custody. Both the appellant and the seized articles were taken to the police station where F.I.R was lodged. Ramesh Pal Singh PW1 has supported the prosecution version. S.I. Samar Pal Singh PW3 is the Investigating Officer of this case. 9. The learned counsel for the appellant contended that though the provisons of Sections 52 and 57 of the N.D.P.S Act are not mandatory in nature but the Investigating Officer cannot not totally ignore these provisions and such failure will have a bearing on the appreciation of the evidence regarding arrest of the accused or seizure of the articles. The learned Addl. Government Advocate supported the findings recorded by the trial court and refuted the contentions of the learned counsel for the appellant. 10. While dealing with the case, the first and foremost fact which is revealed from the perusal of the record is that the letter of the Addl. District Judge, by which the said ‘opium husk’, recovered from the possession of the accused-appellant, was sent to the Chemical Examiner, did not contain the date of sending the said article to the Chemical Examiner. A.S.I. Ramesh Pal Singh PW1 has categorically stated in his evidence that after obtaining the letter of the Addl. District Judge regarding sending the sample to Agra for its chemical analysis, he took it to Agra on 25.10.2000. The aforesaid letter also contains an endorsement with regard to the receipt of sample article in the Laboratory at Agra on 25.10.2000. The aforesaid witness has further stated in his cross-examination that he went to Agra by train. By no stretch of imagination it can be held that a person boarding a train at Udham Singh Nagar for Agra, can reach Agra on the same day and hand over the sample article to the Officer In-charge of the Laboratory, Agra on the same day. It is pertinent to mention here that generally Office hour’s starts from 1000 hour and it is natural that A.S.I. Ramesh Pal Singh PW1 would have reached at the office of the laboratory, Agra with the letter of the District Judge after 1000 hours on the same day (i.e. 25.10.2000). Agra is far from Udham Singh Nagar and it is more than an overnight journey from Udham Singh Nagar to Agra by train. Thus, the evidence of the prosecution with regard to taking the said sample to Agra becomes doubtful. 11. The second question which arises for consideration is whether the said articles which was recovered from the possession of the accused- appellant was kept in the safe custody of the police station or not. It is provided under Section 54 of the N.D.P.S Act that the arresting officer would hand over the contraband substance seized from the possession of the accused to the Incharge of the Police Station concerned and the Incharge of the police station concerned would keep these articles in his safe custody till the orders of the Magistrate or the judge concerned. According to the evidence of S.I. Shyam Narayan Singh PW2 & S.I. Samar Pal Singh PW3, they brought the articles or contraband substance from the spot to the police station but what happened thereafter to the aforesaid seized articles, is not known to anydody neither anything is said in their evidence. Whether the seized articles was kept in the ‘malkhana’ or was kept somewhere else has not been stated in the evidence. The prosecution has also not produced either the SO of the police station or the ‘malkhana mohrir’ who could have stated before the court that the said ‘mal’ was kept in the safe custody of the police till it was produced before the magistrate or the judge in the court. Thus, there is no evidence in regard to the safe custody of the said articles, which was seized from the possession of the accused-appellant. 12. It is pertinent to mention that the SO concerned should affix his seal to such articles or take samples from them and the samples so taken shall also be sealed with the seal of the Officer Incharge of the police station but there is no iota of evidence to the fact that the said articles were ever sealed with the seal of the Incharge of the police station. There is no evidence that any sample of the seal was produced before the court. A.S.I. Ramesh Pal Singh PW1 has not stated anywhere in his evidence that the seal affixed on the said articles has been compared by him and thereafter the seals were opened before the court. It is not proved that the seal, which was affixed at the time of its seizure at the spot, was found to be the same seal on the articles so seized, while producing them in the court at the time of the evidence. It is also not in the evidence of the prosecution that some other seal was affixed by the SO as provided under Section 54 of the N.D.P.S Act and that was also found intact. It is the bounded duty of the prosecution to prove that the said articles were kept intact in the custody of the Malkhana Mohrir’ or the Incharge of the police station. The prosecution did not adduce any evidence before the trial court that from the date of the seizure to the date of production before the court, the seized articles was kept in the ‘malkhana’ or in the safe custody of the Incharge, Police Station. No malkhana register was produced before the trial court and this fact becomes more important when the sample of the seal, which was affixed on the seized article, was not produced before the court. It is incumbent on the prosecution to examine either the SO or the Malkhana Mohrir to show that the said articles was not tampered with either when it was sent to the Chemical Examiner, Agra or when it was produced before the court. The prosecution has further not produced the GD by which the fact that A.S.I. Ramesh Pal Singh PW1 who has taken the seized articles from the police station to the court, could be ascertained. 13. It is also pertinent to mention that according to the evidence of S.I. Shyam Narayan Mishra PW2, the sample article meant for chemical analysis was sealed by him with his own seal at the spot but A.S.I Ramesh Pal Singh PW1 has said in his deposition that he is not aware under whose seal the seized articles were sealed. It is a fact that the articles were sealed with the ‘Mohar’ of the police. When the articles were received at Agra, the Chemical Examiner has mentioned in his report that it contains a seal of Government Emblem + Excise Magistrate, Kashipur. The aforesaid letter of Addl. District Judge’s endorsement also indicates that a seal of the magistrate has been used in sending the said articles by the Addl. District Judge. It is not the case of the prosecution or it is not revealed from the report of the Chemical Examiner that the said articles were sealed in two clothes, one was containing the seal of S.I Shyam Narayan Mishra PW2 and the other was containing the seal of the magistrate as indicated in the letter. This fact reveals that before sending the said articles to the Chemical Examiner, it was opened before the Addl. Sesions Judge. It should have been proved by the prosecution as to who had opened the seal after comparing the sample of seal, how it was opened and why it was opened. A memorandum to that effect should have been prepared. Under these circumstances, it becomes doubtful that the same sample which was taken from the accused-appellant was actually sent to the Chemical Examiner, Agra for its chemical analysis. The doubt further strengthens with the report of the Chemical Examiner wherein it is mentioned that the said sample contraband which was sent to him for its chemical analysis was found only 255 gram in weight against of 500 gram as is alleged by the prosecution. This fact also creates a doubt in the testimony of the prosecution witnesses. 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.” 14. 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 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.” 15. 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. …………… ” 16. 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.” 17. 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.” 18. 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. 19. 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 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. 20. There is a recent judgment of the Hon’ble Apex Court passed in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau reported in 2008 (2) SCC (Cri) 558. In this case, the contraband seized from the accused-appellant was 4.07 kg whereas the purity of heroine was found 1.4% and 1.6% respectively in two samples which was sent for quantitative test at Chennai, therefore, the quantity of heroine in the possession of the appellant was only about 60 gram [(1.4 + 1.6)/2 = 1.5%; 1.5% of 4.07 kg = 61.05 gm]. Thus, the total quantity of heroine seized was below 250 gram i.e. below the commercial quantity. The Hon’ble Apex Court has held that the court would have to see the total quantity of the extract what was found in the said substance and the conviction can be based upon the said quantity. 21. The learned counsel for the appellant contended that in this case the Chemical Examiner has not stated specifically about the exact quantity of opium in the said husk. The learned counsel for the appellant further contended that the Chemical Examiner should have given the exact quantity of purity of opium in his report. As I have already observed that the prosecution version is not reliable, as such, I do not want to examine the contention of the learned counsel for the appellant in this case. 22. In view of the above, it would not be safe to convict the appellant and the appellant is entitled to get the benefit of doubt. The prosecution has also failed to establish the guilt beyond any reasonable doubt against the appellant. I find that the learned trial court has erred in convicting and sentencing the appellant. Hence, the appeal is allowed and, the conviction & sentence against the appellant awarded by the trial court are set aside. The appellant is acquitted of the charge levelled against him. (J.C.S.Rawat, J.) Dated 05th