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BILASPUR ’ NINDRA MOHAN SHRIVASTAVAJ: SINGLE BENCH : HONBLE SHRI MA Criminal Appeal No . 1635 of 1995 JUDGM ENT ‘ POST oWSEPr / : JKEMBER, 2og/ / V / Sad/IT, ‘; APPELLANT Mani Ram Pandey Versus ERESPONDENT a . , State of M.P. (now Chhattisgarh) HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J_I,I Criminal Apneal No. 1635 of 1995 APPELLANT Mani Ram Pandey Versus State of M.P’ (now Chhattisgarh) RESPONDENT . Present Shri Shailendra Dubey, counsel for the appellant. Shri Satish Gupta, Govt. Advocate for the State. J U D G M_ E N T (Delivered on 29%§ep‘tember, 2010) In view of the reasons mentioned in the judgment delivered in connected matter i.e. Criminal Appeal No.l634/1995, this appeal is also allowed. Sdl— ‘ Manindra Mohan Shrivastava; t :l Judge l'm UI‘H ’ J. JUDGMENT 25%’ ’/l‘ /, stava: Sdh Man'dra Mohan Shr' Judge r ZLW 9/2010 G HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HONBLE SHRI MANINDRA MOHAN SHRIVASTAVAJ ‘ Criminal Appeal No. 1634 of 1995 POST ON 8EPTEMBER, 2010 // ,/ a" s \ m N APPELLANT Narendra Bhusan Dubey , ‘ ~$ ‘ Versus RESPQNDENT‘ State of M.P. (now Chhattisgarh) IGH COURT OF CHHATTISGARH : BILASPUR ’ HAN SHRIVASTAVA . SINGLE BENCH HONBLE SHRI MANINDRA MO 95 Narendra Bhusan Dubey Versus ‘ State of M.P. (now Chhattisgarh) s V Sh Shendra Dubey, counse for the appellant Shx Sash Gupt Go Advocate for the State g (Dehvered . on KSeptember, 2010) ThH ‘iminal appeal is directed aist the judgment of conviction and order of sentence dated 20th November, 1995 passed by learned Special Je being the Sessions Judge, Bilaspur in Special Case Noi186/ 1994-, b which the appellant has been found guilty for commission of offence der Sectio 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “the N.D.P.S Act”) and has been sentenced to undergo RI. for 2 years and fine of Rs.2,§OO/—, in default of payment of fine additiona'RJ. for 6 months. 1; 2") The case of the prosecution is that on 11.10.1994, an information was received by Inspector R.K. Rai regarding arrival of contraband ganja in village Sambalpuri and on receipt of such information, head constable Lallun Singh and constable —Kumar were sent for enquiry. The said information was recorded in Rojnamcha‘ Sanha at Sr. No. 307. Thereafter, 4‘5 « Criminal‘Aggeal No. 1634 of 19 APPELLANT RESPONDENT yreuent rl all l r ‘u a vt JUDGMENT I“ i (r gan udg y un n " l (m 'l 2.10. 1994, Head Constable Lallan Singh telephonically informed to the Inspector R.K.Rai in the police station that ganjais in transit and likely to urrive, whereafter the Inspector, Investigating Officer in the present case ' ‘ G proceeded for the scene of‘occurrence and information was recorded in Nojunamclha Sanha at Sr. No.323 on 12.10.1994 and arrived at Sambalpuri Pand Road. Further case of the prosecution is that about 12:45 p.m. the accused/appellant was seen coming on a cycle, who was intercepted and (he accused was informed that he has to be searched and was also informed‘that he may get the se’arch conducted either through the police inspector or by a gazetted officer or Magistrate, whereupon. the appellant [gave his fconsent Vide Ex. P—7. Thereafter, search was carried out and 2 packets containing 4 kg. ganja found inside a bag kept in the cycle were Heized Vide seizure memo of Annexure‘ P—2 in the presence of seizure witnesses Rayi Shankar (P.W.2) and Shivkumar Tiwari (P.W.3) and for the purposes of drawing samples, 50 gm. ganja was taken out from each of the 22 packets and sealed. Dehati nalishi was recorded at the spot immediately after seizure Vide EX. P—l A. The appellant was arrested Vide arrest memo (Ex. P—15). Seized ganja, cycle, dehati nalishi and the appellant were taken to Police Station — Hirri by Head Constable Lallan Singh and after arrival, FIR was registered. Seized articles i.e’ two packets of seized ganja along a with 2 samples of 50 gm each were handed over to H.C.M. Aitwa Kujur for safe custody in malkhana vide memo (Ex. P—Q). The information regarding aeizure and arrest was forwarded to the S.D.O. (P), Kota vide Ex. P—14 on J2.l0.1994. The samples of ganja were sent for chemical examination to Ii‘orcnsic Science Laboratory (F;S\.L.) along with memo of Superintendent of Police vide Ex. P—8 which was received in FSL and an acknowledgment of receipt was issued vide EX. P-9. The F..S.L. report (EXP—11 was received with covering memo Ex. P‘lO. The FSL report disclosed a positive result lhal the samples drawn were ganja. LL After completing usual investigation, a charge sheet was flled in {he Court‘ Chargeslwere framed charges against the appellant for commission of ' offense Linder Section 20 (b) (i) of the ND.P.S. Act. The appellant abjured his guilt: and pleaded innocence. ill Prosecution, in order to prove its Case examined as many as 4 witnesses I namely B“? “L. Pandey (P.W.1), Ravi Shankar (P.W.2), Shiv Kumar Tiwari r (P.W.3) and R. K. Rai (P.W.4). A solitary witness of defence Dashrath (D.W.l) jwaSA examined by the appellant. The learned 'trial Court recorded the accused statement under Section 313 of the Cr.P.C. and asked him regarding evidence and circumstances appearing against him, which were “denied by the appellant. Vide impugned judgment and order of sentence, the learned Court below found the appellant guilty of commission of offence under Section 2O (b) (i) of the N.D.P.S. Act and has sentenced to undergo RJ . for 2 years with fine of Rs. 2,000/ — with usual default clause. Ii. Assuiling the legality and validity of the impugned’order of conviction and sentence, learned counsel for the appellant argued at length by submitting § that the impugned judgment of conviction and sentenceds unsustainable in lnw as there is non—compliance of the mandatory requirements of Section 50 of the NDPS Act. It is argued that the prosecution has failed to prove xx L J that before the appellant was searched, he was asked whether he required search to be carried out by gazetted officer or Magistrate. Next submission .-\ of learned counsel for the appellant is that there is violation of mandatory provision contained in Section 42 (2) of the NDPS Act, inasmuch as after receipt of information regarding arrival of ganja, which is said to have been a recorded in Rojnamcha Sanha No.307 dated 11.10.1994 (EX. PjS), a copy thereof was not ‘sent forthwith to the immediate superior official. Further submission of learned counsel for the appellant is that there is serious . ‘ E \Iiolution of the provision contained in Sections 55 8L 57 of the NDPS Act, in as much as there is no evidence much less proof that articles alleged to be seized from the appellant were kept in safe custody nor was it properly sealed and there was no seal of the officer in charge of the police station and further no report of arrest and seizure was sent to the immediate superiorofficial within 48 hrs. along with a full report of all the particulars 1 of such arrest and seizure. Learned counsel for the appellant also argued that the seized contraband were neither marked as article nor were they produced during trial hefore the Court. The entire case of the prosecution is highly doubtful and no credence can be attached as there is no evidence _ that the samples of the sealed articles were deposited in malkhana of the police station, as neither malkhana register showing entry of the deposit has been produced or proved nor concerned Malkhana Muharrir who is alleged to have been received the seized article has been examined and there is no explanation for non—production of Malkhana register and non examination of Malkhana Moharriri It is also argued that though the seizure ii; said to have been effected and samples drawn and allegged to be deposited on 12.10.1994, the samples were sent for chemid'al examination on \‘j 10.] 1.1994 and even the constable who had received the samples from i Mallchana and who is alleged to have deposited the same in the F.S.L. has not been examined by the prosecution and there is no explanation whatsoever for his e non—exagnination. He further submits that the prosecution has failed to prove seizure of the contraband article, as seizure witnesses have not supported the case of the prosecution and the testimony i 5 7 C9 of the Investigating Officer (P.W.4) is not corroborated on matrial aspects and therfore the conviction is illegal and unsustainable in law. . the ther hand, learned counsel for the State supported the mpugned udgmen of conviction and sentence by submitting that the prosecution m; proved its case of seizure of contraband article ganja from the appellant and. Fro various documents pred by the prosecution and the evidence of the psecution, it is proved that there is full and substantial compliance of the pvisions contained in Sections 42 (2), 50, 5 & 57 of the N.D.P.S. e of t th L l- Investigtng Officer. ai ’/. I have considered the rival submissions made by learned counsel for the par es and perused the records t i Act. Th i contraband V article was produced before the Court. The report e F.S.. proved beyond all pale of doubt that the seized article was ganja. [e further submits that the superior official was also. informed by the ma. H. The fst question which arises for consideration in this appeal is whether in he esent case, provision of Section 50 of the N.D.P.S. Act are attracted and if so, whether the provisions contained in Secon 50 with regard o search have been complied with. Provision contained in Sectibn 5O of the N‘D.P.S. are mandatory and non—compliance of the sarrfe vitiates the rial, is‘now a settled legal position as hed the Supreme Court in the case of I W ' Kalb}; Singh Vs. State of Panjabl followed by State of Paniab Vs. Baldgg §inggg and catena of decisions. ‘t. The Investigating Officers (FAA/7.4) R.K. Rai has deposed that upon receipt of information that ganja is being brought near Village Sambalpuri, he had Fa ' (1994) 3 scc 299 " AIR 1999 sc 2378 e e On o i jt h j m ov ro ro 5 s ‘ ir t pr ti t t é‘ l reached at the spot along with two witnesses Shivkuamr Tiwari 85 Ravi Shankar and at about 12:40, two persons were found coming in cycle and the appellant was intercepted on the road and he was informed that on receipt of information regarding illegal possession of ganja, a search is to be made odt and whether he required the search to be carried out by him or by any other gazetted officer or Magistrate, the appellant gave his consent for being searched by the P.W.4. Notice of search EX. P—7 prepared by R.K. Rai (P.W. 4) has been proved. The said notice contains appellant’s endorsement regarding his consent for being searched by R.K. Rai (P.W.4). i’l‘he testimony on those aspects has not been controverted in his cross— examination: and corroborated by the statement of Shivkumar Tiwari (P.W.s), who, though'declared hostile, has clearly stated in his cross— cxamination that when R.K. Rai (P.W.4) informed the appellant that he is ,3 required to be searched, he gave his consent and was searched. a Therefore, there is no reason to disbelieve the version of the prosecution, in so far as compliance of Section 50 is concerned. It has however, to be seen that in the present case as the contraband ganja, according to the story of the prosecution itself has been seized from the packets which was taken out from the bag which was kept in the cycle and ‘not recovered from thaperson of the accused, provision of Section 50 are S not. attracted and therefore the appellant could not beé‘allowed to contend that the conviction is vitiated on the ground ‘of violation of Section 50 of the N.D.P.S Act. The word ‘person’ appearing in Section 50 of the N.D.P.S Act would mean a person himself who is bodily required to be searched or a person to be searched: r , Moreover, present is not a case where the narcotics are alleged to be seized from the body or from the person i.’e. body of the accused or from his hand _ G :7 ' or somthing tied to his body. Section 50 of the N.D.P.S Act would come e into pla only in the case of search of a person as held by the Supreme y in e g Kalema Tumba Court th case of Baldev Sinh (supra), In the case of E 3 narcotics found in the bag alleged ys. State of Maharashtra and another, to be crried by the accused, it was held hat that was a case where the a t l y ‘ narcots was not found on the person of the accused. It was held that that was nt a case Where the narcotic was found from the person of the o acs and Section 5 was held not attracted. In the case of , Agg ”! narcoti was not found on the person of the i nccus but it was found kept in a bag which was which was hanging on ed the scooter on which the accused was riding. It was held that it was not a case where the person of the accused was searched and from his person, narcotics drug was found. In the case of Kanhailalal Vs. State of M.P.5 , ppium was not found from the person of the accused, but it Was found from the bag which was being carried. There also,it was held that it was not a case where on search of the person of the accused a narcotic drug or psychotropic substance was found. Therefore the trial cannot be held vitiated on the alleged ground of Violation of the N.D.P.S Act. I Shall now consider the other submission made by learned counsel for the appellant regarding non—compliance of the provision 'éontained in Section ea 42 (2) of the Act of 1985. Learned counsel for the appellant submits that an information with regard to arrival of ganja was received by the Station House Officer and the same was recorded in writing at 11:05 a.rn. under Rojnamcha Sanha No. 307 on 11.10.1994, which has been marked as Ex. PE’Fi. The Investigating Officer— R.K. Rai (P.W.4) has deposed in his 1’ 2000 CI'.L.RI SC 38: (1999) 8 SCC 257 4 200i) Cr.L.J.509: 1999 (8) SCC 508 q‘ 2001 2 EFR 10 SC : (2000) 10 SCC 380 ih cued 0 Sarjudas 8n jl‘s‘ State of Gujarat c “ . r stemet that such an information was received. It is also submitted th on the ext date i.e. 12.10.1994, S.H.O., i charge of olice station recorde information in writing at Rojnamcha Sanha No. 323 that an informaion wa received that te ganja is likely to arrive and‘ S.H.O. was infome to come immediately to village Sambalpuri. The said information recorded in Rojnamcha Sanha is marked as Ex. P—6 and the Investigating (i)fl‘icer (P.W) has also deposed that such information was received and recorde in Rojnamch Sanha whereafter he proceed to the pot for layg raid. Learned counsel for the appellant then contended that on the r aforesaid recording of information in writing proved by I.O—R.K.Rai (P.W.4) regardig arrival of ganja in village Sambalp, it was obligatory and andaory on the part of S.H.O. to forthwit ent opy thereof to his imdte Official superior which wa ot complied ith. It is submitted a o account of non-compliance of mandatory provision contained in Sectio 42 (2) of the N.D.P.S Act, the trial and conviction of the appellant is ompletely vitiated. In oer to buttress his submissn, learned counsel for th e State of ghan Vs. Shanti., State of Raiasthan Vs. Babu Lal. Baldev Singh (tudr s d_a na), Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat Narma_ !?_r_g. ‘9L _sad Vs. State of M.P. d I t n uri mt h. s c meia s n w tht n n c rd io e appllant relies upon the judgments in the matter of Izgigt 5 7, 5" § I‘i‘. I be noted that the time whe the alleged offence is said to have been committed, Section 42 prior to its amendment vide Act No. 9 of 2001 read thus: “42. Power of entry, search, seizure and arrest without warrant or auth5i%ation.—(1) Any such officer (being an i f‘ um 20m (1) 243 ’EFR 2010 (1) 442 l AIR 2000 sc 821 9 2001 C.G.L.J. 306 atn at n n p V E t s h rd l .4 d a s in .. t at n 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 H empowered inmthis 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) o'f 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 V knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic r 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; (c) seize such drug or substance and all materials (b) in case of resistance, break open any door and remove any obstacle to such entry; used article in and the any manufacture animal or conveyance thereof and wh1ch anyhe other has reason this Act to and believe any to document be liable or to other confiscation article under 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 arrest have committed any person whom any offence he has reason punishable to be ieve under to believe . Provided that a that search if such warrant officer or has authorisation reason. to (d) detain and search, and, if he ethinks roper, Chapter IV relating to such drug or substance; 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 grounTd‘s 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 send a copy thereof to his immediate official superior.” A perusal of the aforesaid provision would show that for the l H applicability thereof, where the entry into or search of the plaCe mentioned thereini is made between the sunrise and sunset or between sunset of ’ l sunrisej, such place should be a building or conveyance or an enclosed place. ’l‘he use of words, building, conveyance or enclosed place in the language of Section 42 has relevance to the expression “if he has reason to believe from personal knowledge or information given bV any person and i taken out in writing”, used in the main body of Section 42 (l). Reading the said two expressionsJogether it becomes clear that the provision contained in Section 42 would apply to those cases of search in which :— (a) The officer has reason to believe either'ffrom his personal knowledge or to information given to him by any other person and such a information has been taken out in writing by him, that an offence under the act has been committed and (b) entry into or search is to be effected in any building, conveyance or enclosed place to unearth such offence. Ill, [l' the two informations EX. P-5 8L EXP-6 and the testimony of the Investigating Officer R.K. Rai (P.W.4) is examined in the light of statutory scheme of Section 42, it cannot be said that the infprmation which was recorded in writing was one that any narcotic drug of psychotropic j substance or controlled substance in respect of which an offence punishable under the N.D.P.S Act committed or any document or other article which may furnish evidence of the commission of such offence or “any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under chapter V A of the Act is 1 \ @” 11 ept or cocealed in any building, conveyane or enclosed plce. The two formations received in the police station by the officer in charge e regarding arrival of ganja in village Sambalpuri. The case of the roscution is that the accused while going on road was intercepted and pon search made, two packets of ganja taken out from a bag ke in cye were seized. It is thus a case of seizure on a public road and theror it cannot be said that it was a case of information that either the cused was carrying ganja with him and traveling with the same or hat t‘ms kept or sealed in ’an named building or particular vehicle or a enclosed named or identified place. The only information which was receed in the polipe station was that trafficking of ganja is taking place vilage Sambalpuri. The raiding party had gone to te area and the accued person was interceptedbu on apublic rad while carrying ganja. In such a situation, in the opinion of this Court, provision of Section 42 (2) is not attracted, as the information contained in Ex. P-5 85 P—o cannot be considered as a prior information contemplated under Sectio 42 (1) of the N.D..S Act. In the case of 1° nformatio regarding the illegal transpor of Bao Vs. State of A.P., in t ganja another contraband received by the officer on duty at the chec post. It was not aninformation that any specific pearson was going to transport nor it was an information that transp‘ort of contraband material would be taken in a particular bus plying on the road. In the i case of Monadas Vs. State of West Bangalll , search of the accused l and seizure and arrest were made on a public road. In the case of Chunnilal Vs. State of Rajasthanlz, search was taken at the crossing. J "’ 2001 (2) Crimes 359 i i i995 Cum. 2990 ll 2000 CLLJ. 2355 (Raj.) k n c a in ar i pe l \ t u? pt cli l eife