HIGH COURT OF UTTARAKHAND AT NAINITAL. (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the Case. Crl. Appeal no. 254 of 2001 (Old no. 1436/1988 Nandan Singh. …Appellant Vs. The State. … Respondent Approved for reporting. _________________ Not approved for reporting. Date of Decision 31th March, 2008. Initial of Judge. ---------------------- Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 254 of 2001 (Old no. 1436 of 1988) Nandan Singh S/o Diwan Singh, Resident of Maina Mangoli, Police Station- Tallital, District Nainital. ------- Accused/appellant. Versus The State. -------Respondent Sri Rajendra Kotiyal, learned counsel for the appellant, Sri Nandan Arya, learned Addl. Govt. Advocate for the State. Dated: March 31, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 30th May 1988 passed by the I Addl. Sessions Judge, Nainital in Sessions Trial no. 266 of 1987 State vs. Nandan Singh, whereby the learned I Addl. Sessions Judge convicted the appellant/accused under Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to ‘in brief’ as the Act) and awarded sentence to undergo rigorous imprisonment for a period of 10 years’ and also with a fine of Rs. One Lac. It was also directed that in default of payment of fine he shall further undergo rigorous imprisonment for 2 years’. 2. In brief, the prosecution case is this that on 10.09.1986 when the S.S.I. P.C. Pant alongwith the S.I. K.S. Hayanki and Constable Suresh Pal and Constable Nanhe Babu was busy in checking of the vehicles at Barapathar, Nainital, in the meanwhile, at 01:05 p.m. a person was coming towards Mangoli and was going towards Nainital carrying one red bag on his shoulder. On seeing the police personnel the person started to move quickly towards the Himalayan Pravesh Dwar. The police personnel suspecting on his activities told him to stop but he did not stop and started running quickly. The place party, after chasing him, caught hold of him 50 steps downward from Himalayan Dwar. On inquiry, he disclosed his name as Nandan Singh. Before being searched the man apprehended, the police personnel made search of each other, but nothing illegitimate item was traced. On making search of the accused; inside the Rexine bag on his shoulder about ½ Kg. of CHARAS was recovered in a used woolen shawl in two polythene packets. The accused was taken into custody and the recovered CHARAS was sealed in the same bag alongiwh the woolen shawl and the sample seal was taken. A FARD was prepared at the spot in regard to the said recovery and signatures of the witnesses were taken. The FARD is Ext. Ka-1. On the basis of the FARD, the First Information Report Ext. Ka-2 was lodged by S.S.I. P.C. Pant in the Kotwali, Mallital on 10.09.1986 at 15:10 p.m. and a case crime no. 41 of 1986 u/s 60 Excise Act was registered. 3. The investigation of the case was entrusted to P.W.3 S.I. Sri V.K. Nautiyal. During the course of investigation; the I.O. prepared the site plan Ext. Ka-5. The CHARAS, shown to be recovered from the possession of the accused/appellant, was sent for chemical examination vide letter dated 23.09.1986 and the Assistant Director of the Lab at Agra had submitted a report dated 4th November 1986 which is Ext. Ka-7. In the report, it was informed that the article sent to the lab was examined and was found suspected CHARAS. During the course of investigation, the Investigating Officer has also recorded the statement of the witnesses and after completion of the investigation, the I.O. submitted a charge sheet against the accused/appellant on 01.12.1986 u/s 60 of the Excise Act before the Chief Judicial Magistrate, Nainital. The Chief Judicial Magistrate, Nainital registered a case on 21.02.1987 and summoned the accused/appellant. 4. On 01.12.1987, the learned Chief Judicial Magistrate, Nainital, after hearing learned counsel for the accused/appellant as well as the A.P.O., has committed the case to the Court of Sessions with the observation that the offence falls u/s 20 of the Act, hence the offence is exclusively triable by the Court of Sessions. 5. Learned Sessions Judge, Nainital after hearing the parties on 14.04.1988 framed the charge for the offence punishable under Section 8/20 of the Act against the appellant/accused. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. Thereafter the case was transferred to the Court of I Addl. Sessions Judge, Nainital, vide orders of the Sessions Judge, Nainital dated 12.05.1988, for hearing and disposal according to law. 7. The prosecution, to prove its case, has examined P.W. 1 S.S.I. Prakash Chandra Pant, P.W.2 S.I. Kishan Singh Hayanki and P.W.3 S.I. V.K. Nautiyal- Investigating Officer of the case. 8. The oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who denied the allegations made against him and has stated that he has been falsely implicated in the case. 9. After appreciating all the evidence available on record and hearing learned counsel for the parties, the learned I Addl. Sessions Judge convicted the appellant/accused under Section 20 of the Act and awarded sentence to undergo rigorous imprisonment for a period of 10 years’ and also with a fine of Rs. One Lac. It was also directed that in default of payment of fine he shall further undergo rigorous imprisonment for 2 years’. Aggrieved with the impugned judgment and order the appellant has preferred the present appeal. 10. I have heard Sri Rajendra Kotiyal, learned counsel for the accused/appellant and Sri Nandan Arya, learned Addl. Govt. Advocate for the State. 11. The prosecution to prove its case, first of all, has examined P.W.1 S.S.I. Prakash Chandra Pant who has stated that on 10.09.1986 he was posted as Senior Sub Inspector at police station Mallital. On the relevant day he was deputed at Barapathar for traffic checking alongwith S.I. Kishan Singh Hayanki and two Constables Suresh Pal and Nanhe Babu. At that moment at about 1 O’ clock one person was coming towards Mangoli and as soon as he saw the police party, he moved towards the Himalayan Pravesh Dwar. Seeing his suspicious activities, the police party told him to stop and chased him for about 50 steps. The man was apprehended on a foot track. After making search of each other, the police party made search of the person apprehended and on being inquired about his identity he disclosed his name as Nandan Singh i.e. the accused/appellant. He identified the person before the Court. On making search of the bag, which the accused was carrying, inside it ½ Kilogram of CHARAS was recovered in a white woolen shawl, in two packets, kept in a polythene paper. The arrest and recovery memo was prepared by S.I. Kishan Singh Hayanki on the spot on his dictation and signatures of the police personnel were taken on the memo Ext. Ka-1. The complete bag was sealed on the spot and the sample seal was prepared on the spot. The recovered CHARAS and the accused was taken to the police station Mallital and the FARD Ext. Ka-1 was handed over to Constable Jagdish Prasad and the accused was also kept inside the police lockup. The recovered item was deposited in the Malkhana. He also identified the signatures of the Constable Clerk Jagdish Prasad. On the basis of the FARD Ext. Ka-1 the Constable Clerk Jagdish Prasad prepared the Chik First Information Report which is Ext. Ka-2. An entry was made in the G.D. at Rapat no. 24 and the copy of the G.D. is Ext. Ka-3. He has further deposed that the recovered CHARAS is not before him in the Court. The Director, Forensic Lab, Agra vide his letter dated 06.05.1988 informed that the CHARAS has been destroyed, that letter is Ext. Ka-4 on the record. 12. P.W.2 is S.I. Kishan Singh Hayanki. He has stated that he alongwith SSI P.C. Pant and two constables Suresh Pal and Nanhe Babu were deputed for traffic checking at Barapathar. The time was 1 O’clock in the day. A person was coming towards Mangoli to Nainital who was carrying a bag on his shoulder. On seeing the police party, he started to move towards the Himalayan Dwar on a foot track. On seeing his doubtful downwards. On being inquired; he told his name as Nandan Singh. He identified the person before the Court. Before making search of the accused they made search of each other. On making search of the accused; inside a bag in a woolen shawl about ½ Kg. of CHARAS, kept in two polythene bags, was recovered. The recovery memo was written by him on the dictation of SSI P.C. Pant. The FARD is Ext. Ka-1 on the record. The accused/appellant Nandan Singh has refused to put signatures on the FARD. 13. P.W.3 is SI V.K. Nautiyal who is the Investigating Officer of the case. He has stated that on 10.09.1986 he was posted as Sub Inspector in police station Mallital. Investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses SI P.C.Pant, SI K.S. Hayanki, Constable Suresh Pal, Constable Nanhe Babu and Constable Clerk Jagdish Prasad. He also prepared the site plan of the place of occurrence, which is Ext. Ka-5. After completing the investigation, he submitted charge sheet Ext. Ka-6 against the accused/appellant. The case property was sent to Chemical Examiner, Agra. 14. After the prosecution evidence was concluded the oral and documentary evidence, in question form, was put to the accused/appellant u/s 313 Cr.P.C. who denied the allegations made against him and has stated that he has been falsely implicated in the case. 15. Sri Rajendra Kotiyal, learned counsel for the accused/appellant, first of all, has argued that the Act came into force on 14.11.1985 and the present accused/appellant was arrested by the police party on 10.09.1986. He referred the Notification No. S.O. 822 (E), published in the Gazette of India, dated 14.11.1985 which is reproduced hereunder:- “In exercise of the powers conferred by sub- section (1) of Section-42 and Section 67 of the Narcotic Drugs and Psyshotropic Substances Act, 1985 (61 of 1985), the Central Government hereby empowers officers of and above the rank of Sub- Inspector in the department of Narcotics and of and above the rank of Inspector in the departments of Central excise, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorizes the said officers to exercise the powers conferred upon them under Section 67.” 16. Learned counsel for the appellant has further submitted that The U.P. Narcotic Drugs Rules, 1986 was came into force from 08.10.1986 and published in U.P. Gazette, Extra., No. 3555-E-2/xiii-23/85 dated 8th October 1986. He referred Rule-77 of the U.P. Narcotic Drugs Rules, 1986, which is reproduced as under:- “77. Power of entry, search, seizure and arrest without warrant or authorization:- Any Officer of the Excise or Police Department not below the rank of Inspector or of the Drug Control Department not below the rank of Inspector or of the Revenue Department not below the rank of Tahsildar may exercise the powers under Section 42 of the Act.” 17. He also referred Section-42 of the Act, which is reproduced as under:- “42 Power to 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 or of the Border Security Force 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, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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 article and any animal or conveyance which he has reason to believe 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 Chapter IV relating to such drug or substance, 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 Chapter IV relating to such drug or substance; 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 forthwith sent a copy thereof to his immediate official superior.” 18. On the basis of the aforesaid proviso provided under the Notification, Rules and Act, it is contended on behalf of the learned counsel for the accused/appellant that on 10.09.1986, the U.P. Narcotic Drugs Rules, 1986 was not into existence which has came into force on 08.10.1986. He has further submitted that on the date of occurrence, as per the Notification referred above, only officers of and above the rank of Sub-Inspector in the department of Narcotics and of and above the rank of Inspector in the departments of Central excise, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau are empowered to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorizes the said officers to exercise the powers conferred upon them under Section 67 of the Act. On this basis, learned counsel for the appellant ahs submitted that as per the above Notification, the Sub Inspector of the U.P. Police was not authorized to arrest and seize the CHARAS from the accused/appellant, hence all the proceeding conducted by the Sub Inspector P.C. Pant and SI K.S. Hayanki alongwith tow Constables is against the law prevailing at that time, therefore the entire proceeding i.e. the arrest and seizer made in the instant case by the police party headed by SI P.C. Pant is entirely illegal and is not as per the law existed and the arrest of the accused/appellant and seizure of the CHARAS, which is shown to be recovered, is not as per the law. In support of his arguments, he has sited the judgment of the Division Bench of the Allahabad High Court reported in Allahabad Criminal Cases 1989 Vol. 26, page-32 Kamlesh Pratap Singh vs. Adhikshak Janpad Karagar, Lucknow and ors. and referred the second last paragraph which is reproduced as under:- ^^ fo)ku~ vij ’kkldh; vf/koDrk us ;g Hkh dgk fd vf/kfu;e dh /kkjk 42 dsoy mfYyf[kr lhuksa esa ryk’kh] fxjQ~rkjh bR;kfn ls lEcfU/kr gS rFkk lkoZtfud LFkku ls fxjQ~rkjh] tSlk bl ekeys esa gS] dk izkfo/kku /kkjk 43 esa gSA mudk rdZ gS fd iqfyl foHkkx ds vf/kdkfj;ksa ls lEcfU/kr vf/kdkjksa dk izfrcU/k dsoy /kkjk 42 dh dk;Zokgh ls lEcfU/kr gS] /kkjk 43 dh dk;Zokgh ls ugha] muds vuqlkj fu;e 77 dsoy /kkjk 42 dh dk;Zokgh ds lEcU/k esa gS] /kkjk 43 ls ughaA blesa lUnsg ugha fd /kkjk 43 esa lkoZtfud LFkku ls lecfU/kr dk;Zokgh dk izkfo/kku gS] ijUrq blh /kkjk ds vuqlkj og dk;Zokgh dsoy ,sls vf/kdkjh dks djuh gS] ftls /kkjk 42 ds varxZr vf/kdkj fn;s x;s gSA /kkjk 42 ds lEcfU/kr vf/kdkj fu;e 77 esa fn;s x;s gSa] vr% ogh vf/kdkj /kkjk 43 ds fy, Hkh ykxw gSaA fu;e esa /kkjk 43 ls lEcfU/kr vf/kdkfj;ksa dk izkfo/kku djus dh vko’;drk ugha FkhA bu ifjfLFkfr;ksa esa gekjk er gS fd vthZnkj deys’k izrki dh fxjQ~rkjh izkjEHk ls gh voS/k FkhA** 19. Learned counsel for the accused/appellant has also referred the judgment of Rajasthan High Court (Jaipur Bench) reported in 1987 Vol. 3 CRIMES, page- 629 Nand Lal vs. The State of Rajasthan and relied on para-17 and 18 of the judgment, which is reproduced as under:- “17. I have carefully gone through the cases cited above and have no hesitation in reaching the conclusion that for launching the prosecution or for initiating the proceedings the authority doing so must have a clear and unambiguous power. In criminal cases while enacting such provision the legislature puts a complete ban on the authorities beyond one mentioned in the Section to carry out the functions under the Act. In Section 42 of the Act the legislature has clearly empowered the persons mentioned therein or who are authorized to do so by notification. The legislature intended that a peon, sepoy or constable should in no case be empowered to enter search of seize or arrest a person without warrant. It also did not empower in the Act even the police officers unless there was a notification in that behalf and as quoted by me above the officers of the police department had been empowered only by notification, dated October 16, 1986 and thereto the Government authorized the Inspectors of Police and Sub- Inspectors of Police who too were posted as Station House Officers a person accused of a crime particularly like the one where the legislature provides a minimum sentence of ten years and a fine of Rs. 1,00,000,00, it is essential that the intention of the legislature must be carried out in letter and spirit. The accused has a right to expect a fair investigation and a fair trial keeping in view the basic concept that justice should not only be done but it should appear to have been done, has facing a trial by itself as an ordial. A Head constable is also a constable and is certainly not a Sub-Inspector or Inspector of Police and in the instant case PW-1 Amanulla Khan was admittedly not Station House Officer of G.R.P. Police Station, Ajmer. I have also quoted his statement in extenso where he has admitted that he had gone to the police station after ten minutes of the search of which he had no jurisdiction express or implied. Even the S.H.O. P.W. 6 Ram Chandra had no jurisdiction vested in him on November 21, 1985 and as such very foundation of the case is without proper authority of law. I need not go into other points raised as this alone is sufficient to dispose of this case. 18. For the discussions made above I accept this appeal and set aside the judgment dated February 17,1987, passed by Sessions Judge, Ajmer. He is acquitted of all the charges. He is in jail and shall be released forthwith.” 20. From the above discussions and the principle laid down in the judgments cited above, it is clear that on 10.09.1986 i.e. the date of incident, the Sub Inspector of the U.P. Police was not authorized to arrest of the accused/appellant and to seize the CHARAS u/s 42 of the Act, hence the arrest of the accused/appellant under the Act and recovery of the item is not as per the law provided in Section 42 of the Act, therefore on the basis of this arrest/seizure, conviction and the sentence awarded by the Trial Court vide his impugned judgment is not justified as per the law, and the impugned conviction and sentence awarded by the Trial Court is liable to be set-aside. 21. Learend counsel for the appellant has further submitted that the CHARAS which was shown to be recovered from the possession of the accused/appellant was not the same, which was sent for the chemical examination to Agra. He has submitted that the prosecution has not adduced any evidence that, if recovery of CHARAS was made on 10.09.1986, whether the said CHARAS remained intact upto 23.09.1986 i.e. the date when the said CHARAS was reported to be sent for chemical examination? Further, who has taken the recovered CHARAS from the police station to the Magistrate and from the Magistrate to the Agra Chemical Laboratory? He has further submitted that it was also not proved that from 10.09.1986 to 25.09.1986, i.e. when the said CHARAS was shown to be recovered and when the CHARAS was received in Chemical Lab, Agra, the CHARAS was intact and nobody had opened the sealed CHARAS. There is no link evidence in the record to prove this fact. He has further submitted that even on the spot; no sample of the said CHARAS was taken for chemical analysis, rather it is shown that some other articles with the said CHARAS were also sent for chemical analysis, which creates doubt as to whether the same goods/ items which is shown to be recovered from the possession of the accused/appellant on 10.09.1986 was sent for chemical examination or not? In support of his argument he has cited the judgment reported in (2005) 3 Supreme Court Cases, page 59 State of Rajasthan vs. Gurmail Singh, in which he relied in para nos. 3,4 & 5, which are reproduced as under:- “3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not al all satisfactory. 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 PW 6 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. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent. 4. We find no error in the judgment of the High Court. 5. This appeal is, therefore, dismissed.” 22. From the above discussions, it is evident that the prosecution has failed to prove its case beyond reasonable doubt that the CHARAS, which is shown to be recovered from the possession for the accused by the police party on 10.09.1986, was the same which was sent for chemical examination and the report Ext. Ka-7 is the same belonged to the report of the same CHARAS which was shown to be recovered from the possession of the accused/appellant. It is also not proved beyond reasonable doubt that the said CHARAS remained intact from 10.09.1986 to 25.09.1986 i.e. the dates on which the CHARAS was said to be recovered from the possession of the accused and on the day when the said CHARAS was received in the Laboratory at Agra which apparently creates doubt in the prosecution case. 23. On the facts and circumstances