HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No.67 of 2007 Dal Bahadur S/o Sher Bahadur, R/o Haldu Ghat Chandani, P.S. Chandani. District Kanchanpur, Nepal. ……Appellant Versus State ……Respondent Mr. Kailash Chandra Joshi, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. With Criminal Appeal No.360 of 2003 Arif Khan S/o Yusuf Khan @ Raees Khan, R/o Mohalla Hafizsahab Ka Mazar. Bilaspur Gate P.S. Ganj District Rampur. ……Appellant Versus State ……Respondent Mr. M.S. Pal, Senior Counsel with Mr. D.N. Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. With Criminal Appeal No.41 of 2004 Bhawani Chandra S/o Bahadur Chandra, R/o Haldu Ghat Chandani, P.S. Chandani. District Kanchanpur, Nepal. ……Appellant Versus State ……Respondent Mr. R.S. Sammal, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. JUDGMENT Hon’ble J. C. S. Rawat, J. These are the three appeals arising out of a common judgment passed by the Addl. Sessions Judge/1st Fast Track Court, Rudrapur, Udham Singh Nagar in Special Sessions Trial Nos. 40/2002 (State Vs. Dal Bahadur S/o Sher Bahadur), 37/2002 (State Vs. Arif Khan S/o Yusuf Khan @ Raees Khan) & 39/2002 (State Vs. Bhawani Chandra S/o Sri Bahadur Chandra). Vide the aforesaid judgment dated 15/11/2003, the learned Addl. Sessions Judge/1st Fast Track Court has convicted all the accused-appellants 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 Addl. Sessions Judge further directed that in default of payment of fine, the appellants would further undergo imprisonment for one year. Now, since these appeals have arisen out of a common judgment, as such, I am disposing of these appeals collectively by this common judgment. 2. The case of the prosecution, in brief, is that on 25/11/2001, S.H.O Rajendra Singh Hayanki, P.S. Khatima, received an information from the informer that a person accompanied by a lady who is his wife, is coming on a motorcycle bearing no. UP 22 C 2761 from Melaghat in the way to Rampur and are having ‘charas’ in their possession. Believing the said information, S.H.O Rajendra Singh Hayanki informed the C.O, Khatima on R.T. set and requested him to reach at Jhankaiya police out-post. S.H.O Rajendra Singh Hayanki also called a lady constable from Nanakmatta police station. The police raiding party headed by S.H.O Rajendra Singh Hayanki reached at the spot and the Circle Officer also reached at the spot at about 2 pm. Thereafter, the police raiding party took Sachin Kumar and Suraj Dev as public witnesses for the purpose of conducting the search of the accused persons. After sometime as per the information of the informer, the accused persons came from the side of the Melaghat on the motorcycle. The Circle Officer stopped the motorcycle and both the persons were apprehended by the police at about 3.10 pm at the spot. On being interrogated, they disclosed their names as Arif Khan (the present appellant) S/o Yusuf Khan @ Raees Khan and Abida W/o the present appellant-Arif Khan. (It is to be noted that I am not concerned with the case of Abida as no appeal is pending before me relating to her case). The accused/appellant-Arif Khan had a bag on his shoulder in which he was carrying 2 kgs of ‘charas’. The police seized the said ‘charas’ and was sealed in two different bundles. Out of these two bundles, one bundle was of 100 grams and was kept separately as a sample for the purpose of sending it to the chemical examiner for its chemical examination while the other was kept separately for the purpose of producing it as evidence. The appellant-Arif Khan also informed the police raiding party that two persons/napalese are also coming with ‘charas’ from the side of Melaghat. After being informed of this fact by the appellant-Arif Khan, the police raiding party also started waiting there to apprehend them. On the pointing out of the appellant-Arif Khan, the police raiding party saw that two persons are coming from the side of Melaghat at about 4.20 pm. The police raiding party immediately apprehended them. They disclosed their names as Bhawani Chandra (the present appellant in CRLA No. 41/2004) and Dal Bahadur (the present appellant in CRLA No. 67/2007). The Circle Officer conducted the search of the accused-appellants, Bhawani Chandra and Dal Bahadur. On their personal search, it was found that Bhawani Chandra had wrapped about one and a half kgs of ‘charas’ on his back in a pink coloured cloth inside the ‘kurta’ (shirt) whereas Dal Bahadur had also wrapped about one and a half kgs of ‘charas’ on his back in a purple coloured cloth inside the ‘kurta’ (shirt). The said ‘charas’ which was recovered from the appellants-Bhawani Chandra and Dal Bahadur were kept in four separate bundles. Out of these four bundles, two bundles of 100 grams were kept separately as samples for the purpose of sending it to the chemical examiner for its chemical examination. The contraband samples of ‘charas’ which were sent to the chemical examiner for its chemical examination were found to be ‘charas’. After completing the recovery proceedings, the accused-appellants were taken to the police station and FIR was lodged against them. After completing the investigation against the accused-appellants by the Investigating Officer, chargesheet was submitted before the court concerned. During the trial by the learned Sessions Judge, the case of co-accused Abida was separated from the file. 3. After submission of the chargesheet, the trial court framed charge against the accused appellants under Sections 18/20 of the N.D.P.S. Act. The accused appellants denied the charge levelled against them and claimed trial. 4. In order to prove its case, the prosecution examined Dilip Singh Kunwar as PW1 who was the Circle Officer and who had conducted the search of the accused-appellants at the spot as a gazetted officer; S.H.O Rajendra Singh Hayanki as PW2 who had received the information that accused-appellant Arif Khan alongwith a lady was carrying ‘charas’ and he was also a member of the police raiding party; S.I Shri Mor Dhawaj Singh as PW3 who was also a member of the police raiding party and; S.I Shri S.P. Singh as PW4 who was the Investigating Officer of this case. 5. 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. 6. 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. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. 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 the Circle Officer-Dilip Singh Kunwar PW1 who has stated in his evidence that he received an information from S.H.O Rajendra Singh Hayanki PW2 on the RT set to reach at Jhankaiya police out-post, Khatima. Upon receiving this information, the Circle Officer reached at the place of incident at about 2 pm. The other police party headed by S.H.O Rajendra Singh Hayanki PW2 was already present there. S.H.O Rajendra Singh Hayanki PW2 corroborated this fact. The prosecution also examined Rajendra Singh Hayanki (PW2) and S.I Mor Dhawaj (PW3) who are the witnesses to the aforesaid fact. All the witnesses have stated that after receiving the information, they reached at the police out- post, Jhankaiya and started waiting there for the accused persons. After waiting there for sometime, they saw two persons (the appellant-Arif Khan and a lady Abida who is the wife of Arif Khan) were coming on a motorcycle. On the pointing out of the informer, the police raiding party apprehended the motorcycle-riders. The appellant Arif Khan who was carrying a bag on his shoulder, was searched by the Cricle Officer and 2 kgs of ‘charas’ was recovered from the bag. The ‘charas’ which was recovered from the bag of the appellant-Arif Khan was kept in two separate bundles. Out of these two bundles, one bundle was of 100 grams and was kept separately as a sample for the purpose of sending it to the chemical examiner for its chemical examination. The appellant Arif Khan also told the police raiding party that two Nepalese are also coming from Melaghat side on foot having ‘charas’ in their possession. Upon this, the police raiding party also started waiting for their arrival. At about 4.20 pm on the pointing out of appellant-Arif Khan, both these Nepalese were apprehended by the police and upon interrogation, they disclosed their names as Bhawani Chandra and Dal Bahadur. Thereafter, their personal search was conducted and 1.5 kgs of ‘charas’ was recovered from each of them. The appellants-Bhawani Chandra and Dal Bahadur were carrying the said ‘charas’ wrapping with their bodies in cloths, inside their ‘kurtas’ (shirts). The aforesaid ‘charas’ recovered from them, were sealed at the spot and four bundles were prepared from it. Out of these four bundles, two bundles of 100 grams ‘charas’ taken from each of the accused-appellant’s recovered quantity, were kept separately as samples for the purpose of sending it to the chemical examiner for its chemical examination whereas other two bundles prepared from the remaining quantities of the recovered ‘charas’ were kept separately for producing it as evidence against the accused persons. After completing the necessary paper work, information to the said incident was sent to the higher official on RT set. 9. The learned counsel for the appellants contended that provisions of Section 50 of the Narcotic Act have not been complied with in this case. He further contended that the accused-appellants had not been informed about their valuable rights with regard to their personsal search, which is to be made before a magistrate or a gazetted officer, as has been provided under Section 50 of the NDPS Act. The learned counsel for the appellants also contended that the public witnesses who were taken by the police raiding party for the purpose of conducting raid and who were also present at the spot at the time of incident were not produced before the court as witnesses. It was further contended that there is no proper link evidence with regard to the seized articles, as to whether the seized articles were preserved and kept in the police custody intact, as provided under the Narcotic Act. The learned Addl. Government Advocate refuted the contentions and supported the findings recorded by the learned trial court. The learned Addl. G.A contended that there was no necessity of calling of a gazetted officer at the spot because the Circle Officer himself was a gazetted officer, as such, provisions of Section 50 has been complied with in letter and spirit. 10 It is not disputed that the recovery of ‘charas’ from the possession of the accused-appellant Arif Khan was made from the bag. Dilip Singh Kunwar PW1 (the Circle Officer), S.H.O Rajendra Singh Hayanki PW2 and S.I. Mor Dhawaj Singh PW3 have categorically stated that the said contraband was recovered from the bag which was on the shoulder of the appellant-Arif Khan. It is a settled position of law that if a recovery is made from a bag, provisions of Section 50 would not attract. In the case of State of H.P. v. Pawan Kumar, (2005) 4 SCC 350, at page 360, the Hon’ble Apex Court has held as follows: “11. 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. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance 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” occurring in Section 50 of the Act.” Hence, in the instant case, it is not disputed that appellant Arif Khan was carrying a bag on his shoulder in which ‘charas’, in question, was kept. Thus, Section 50 is not attracted in the case of appellant Arif Khan. 11. Now, I will deal with the case of the appellants, Bhawani Chandra and Dal Bahadur. The evidence of the prosecution i.e. Dilip Singh Kunwar PW1 (the Circle Officer), S.H.O Rajendra Singh Hayanki PW2 and S.I Sri Mor Dhawaj PW3 have categorically stated that the said ‘charas’ was wrapped with their body inside the kurta (shirt) with a cloth. Dilip Singh Kunwar PW1 (the Circle Officer) has categorically stated in his cross-examination that the accused-appellants were not informed with regard to their valuable right for being searched before a magistrate or a gazetted officer. He has categorically stated in his cross-examination that: “ eSaus eqyfteku dks /kkjk 50 narcotic drug ds ckjs esa ugha crk;kA esftLVzsV ds le{k ryk’kh ds fy, ugha crk;k FkkA” S.H.O Rajendra Singh Hayanki PW2 has also stated in his cross-examination that: “ eSaus eqyfteku dks /kkjk 50 ,u-Mh-ih-,l ,DV ds ckjs esa crk;k Fkk bldk dksbZ mYys[k eSaus QnZ cjkenxh Ex. Ka 1 esa fd;k ;k ugha eq>s /;ku ugha gSA eq>s ;g Hkh /;ku ugha gS dh blds ckjs esa eSaus foospd dks crk;k ;k ughaA” Thus, there is contradictory evidence on the point as to whether the right as provided under Section 50 of the N.D.P.S Act has been given to the appellants or not. The evidence of S.H.O Rajendra Singh Hayanki PW2 is not credible on this point because the fact doesn’t find place in the recovery memo as well as in his statement recorded under Section 161 Cr.P.C. Dilip Singh Kunwar PW1 (the Circle Officer) who is an officer, has categorically denied this fact. It is revealed from above that the important right with regard to the personal search, which should be conducted before a magistrate or a gazetted officer, as provided under the Narcotic Act, was not given to the accused-appellants. In the case of Ritesh Chakarvarti v. State of M.P., (2006) 12 SCC 321, the Hon’ble Apex Court has held as under: “22. An offence committed under the NDPS Act is a grave one. Procedural safeguards to the accused provided under a statute require strict compliance. By reason of the provisions of the NDPS Act, Parliament has reposed confidence in the gazetted officers. Shri Bajpai being a Superintendent of Bureau was a gazetted officer. If he was present, it was expected that he would disclose his identity and would invoke his power under proviso to Section 42 of the NDPS Act. 41. In a large number of cases, this Court as also various High Courts have emphasised the need of conducting a search in presence of independent persons. The law requires that such search should normally be conducted by a Magistrate or a gazetted officer. Even presence of a gazetted officer in the raiding team would not subserve the requirements of Section 50 of the Act. (See Jadunandan Roy v. State of W.B.5 and Harun Rasid v. State of W.B.6) 42. There is another aspect of the matter which cannot be lost sight of. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth.” In view of the above discussion, it is clear that the appellants-Bhawani Chandra and Dal Bahadur have not been informed about their valuable right provided under Section 50 of the NDPS Act. 12. It is in the evidence that the articles seized from the possession of the appellants were sealed at the spot. There is also contradiction with regard to the seal affixed on the seized articles, i.e. under whose seal, the said articles were sealed at the spot. Dilip Singh Kunwar PW1 (the Circle Officer) has stated in his cross-examination that the articles were seized under the seal of the police station Khatima. (But the said sample of that seal was not found on the record at the time of the evidence). Whereas, S.I Mor Dhawaj PW3 has stated in his cross-examination that the articles were seized at the spot and it was sealed under the seal of the Circle Officer. (But the said sample of the seal was also not available on the record at the time of the evidence). The prosecution has led the evidence that after seizure and arrest, the said articles alongwith the accused- appellants were taken to the police station. It is nowhere in the evidence of the prosecution which shows that the said articles were kept in safe custody in the police station. There is only one G.D entry in which it is written that the articles were kept in the ‘Malkhana’. The prosecution has failed to lay any evidence or any witness which could show that the said articles which were seized at the spot, were handed over at the police station to such and such person. The samples of seized articles were brought before the magistrate and thereafter the said articles were sent to the chemical examiner for its chemical examination. The report of the chemical examiner clearly reveals that the said bundles contain the seal of the Chief Judicial Magistrate, Udham Singh Nagar only and there is no mention with regard to any other seal. It is apparent that the said seal was opened at the time of sending the articles to the chemical examiner. It cannot be ruled out that there was some manipulation in between the recovery and at the time of sending the articles to the chemical examiner. It is also apparent that sample of seal affixed on the seized articles, was not sent to the court by which the learned magistrate could have compared the same with the seal affixed on the seized articles while sending the said articles to the chemical examiner. The prosecution has produced neither the constable nor the person who carried the said sample in the sealed cover to the court and in whose presence the seal was opened and was again sealed by the court. Thus, the prosecution failed to show that the articles were in safe custody at the police station or upto the court. It is also in the evidence that other bundles containing ‘charas’ were also in the possession of the police and the said bundles were produced before the court on 03.5.2003 i.e. after two years of the incident. There is no iota of evidence that where these sealed bundles were kept and whether these bundles were in safe custody or not. It is true that provisions of Sections 52 & 57 are not mandatory but directory in nature. Violation of these provisions would not ipso facto entitle the accused to be acquitted. However, the police raiding party and the Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on the appreciation of evidence regarding the arrest of the accused or, seizure of the articles. It is also true that the public witnesses were not produced before the court to prove the said recovery. Though in this case, the public witnesses were taken at the spot but due to the best reason known to the prosecution, they were not produced before the court. The Hon’ble Apex Court in the case of Valsala v. State of Kerala, 1993 Supp (3) SCC 665, has dealt with this aspect very liberally. The facts as well as the circumstances are also very identical to this case. In para 4 of the aforesaid case, the Hon’ble Supreme Court has held as follows: “4. 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 January 14, 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 PW 6, 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 PW 6 does not say that he continued to keep it in his custody under seal till it was produced in the court on January 14, 1988. The evidence given by PW 6 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. PW 3, A.S.I. is supposed to have produced the same in the court. But PW 3 does not say anything about this. It is only PW 7 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 PW 3 (A.S.I.) to the court and PW 7 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 PW 7 that the Chemical Examiner’s report is marked. PW 7 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.” 13. As per provisions of the Narcotic Act, the seized charas should have been sealed in the police station with the seal of the Officer-in-charge of the police station concerned. In the case of Gurbax Singh Vs. State of Haryana 2001 Vol.3 SCC Page 28, the Hon’ble Supreme