IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.138 OF 2006 (OLD NO.306/1993) Ravindra Kumar Sharma S/o Shiv Shankar Sharma, R/o House No. 244, Mohalla Ramganj, P.S. Kotwali, Alwar, Rajasthan. ……… Appellant/accused Versus State of U.P. ……… Respondent May 5, 2009 Mr. B.S. Adhikari, Amicus Curiae for the appellant Mr. M.A. Khan, Brief Holder for the State HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘Cr.P.C.’), is directed against the judgment and order dated 1.12.1992 passed by Sessions Judge, Haridwar in Sessions Trial No. 18 of 1992, State v. Ravindra Kumar Sharma, whereby the learned Sessions Judge has convicted the appellant/accused under Section 8 read with Section 18 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and vide order dated 8.12.1992 sentenced him to undergo rigorous imprisonment for a period of 10 years along with fine of Rs. 1,00,000/- and in case of default in the payment of fine, further two years’ R.I. was awarded to the appellant/accused. 2. Heard Mr. B.S. Adhikari, learned Amicus Curiae for the appellant and Mr. M.A. Khan, learned Brief Holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 3.3.1992, S.I. Harendra Pratap Singh (PW-1) along with Const. Heera Lal Shah, Const. Jay Narayan Tiwari and Const. Shyam Singh was on patrolling duty and they were checking the hotels and dharmshalas on the instruction of Inspector In-charge of Kotwali police station. In the course of checking, they reached at Peshawaria dharmashala at around 4.30 PM and took along with them Harbansh Lal (PW-5), the Manager of the said dharmshala and checked room no. 2. The appellant was lying inside that room, whose activities appeared suspicious. When he was searched in the presence of Manager Harbansh Lal (PW-5) and Prakash Dhawan (PW- 2), about 10 gm opium wrapped in polythene was recovered from the right pocket of his jerkin. He did not produce any license for keeping the said opium. Thereafter appellant was arrested and the recovered opium was sealed on the spot. Specimen of seal was prepared. Fard of recovery and arrest Ex. Ka-1 was also prepared on the spot. On the basis of fard Ex. Ka-1, an FIR was lodged in PS Kotwali, Haridwar at 5.55 PM by S.I. Harendra Pratap Singh (PW-1). Chick FIR Ex. Ka-2 was prepared by Constable Clerk Bechu Dayal Tiwari, who also made the necessary entries in the GD. Copy of GD is Ex. Ka-3. Case property was deposited in the malkhana of the police station. 4. Investigation of this case was entrusted to S.I. Ramesh Kumar Tyagi (PW-7). Lateron the investigation was transferred to S.I. D.N. Shukla. During the course of investigation, the recovered article was sent for chemical analysis and the Joint Director, Forensic Laboratory, Agra submitted the report Ex. Ka-5. During the course of investigation, the I.O. recorded the statement of the witnesses and also inspected the place of occurrence and prepared the site plan Ex. Ka-6. After completing the investigation, chargesheet Ex. Ka-7 was filed against the appellant/accused. 5. On 15.7.1992, learned Sessions Judge, Haridwar framed the charge for the offence punishable under Section 8/18 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. To prove its case, the prosecution has examined PW-1 S.I. Harendra Pratap Singh; PW-2 Prakash Kumar; PW-3 Constable Uday Veer Singh; PW-4 Head Moharrir Hari Ram Dikshit; PW-5 Harbansh Lal, Manager of Peshawaria dharmashala; PW-6 Constable Shyam Singh; PW-7 S.I. Ramesh Kumar Tyagi, I.O. of the case and PW-8 Constable Satya Kumar Tyagi. 7. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him and in reply to question no. 12, the appellant/accused has stated that he stayed at Peshawaria dharmashala on 2.2.1992, where he had booked the room for three days. Manager had told him the rent of the room to be Rs. 50/-. After keeping his luggage he went outside the said dharmashala for tea. When he returned after an hour, Manager had put a lock on his room. He asked the appellant/accused to deposit the rent, upon which he gave Rs. 50/- but the Manager had asked him to deposit Rs. 150/-. When he said no, then the Manager refused to hand over his luggage and started quarrelling with him. Thereafter Manager said something to a shopkeeper whose shop was located at the gate of dharmashala, who called the police. Manager talked something to the police. Thereafter police arrested him and a false and fabricated case was made out against him. However, in defence, the appellant/accused has not produced any oral or documentary evidence. 8. After appreciating the evidence and after hearing learned Counsel for the parties, learned Sessions Judge, Haridwar vide his judgment and order dated 1.12.1992/8.12.1992 convicted and sentenced the appellant/accused as discussed above. Against the aforesaid judgment and order, the appellant/accused has preferred the present appeal. 9. To prove its case, the prosecution has examined PW-1 Harendra Pratap Singh, who has stated that on 3.3.1992 he was posted as Sub Inspector at Kotwali, Haridwar. On the instructions of the Inspector In-charge, he along with the police force was checking the dharmashalas and hotels. He reached Peshwaria dharmshala at 4.30 PM and checked room no. 2 in the presence of Manager Harbansh Lal (PW-5) and Prakash Kumar Dhavan (PW-2). The appellant/accused was lying inside the room. When the appellant/accused was searched on suspicion, 10 gm opium was recovered from the right pocket of his jerkin, for which he failed to produce any license. Recovered article was sealed on the spot and namoona mohar was prepared. Recovery memo Ex. Ka-1 was also prepared by him. Witnesses also signed on the recovery memo Ex. Ka-1. On the basis of this fard Ex. Ka-1, chick FIR Ex. Ka-2 was prepared by Constable Clerk Bechu Dayal Tiwari. Necessary entries were made in the GD. Copy of GD is Ex. Ka-3. Recovered article along with namoona mohar was deposited in the malkhana. Nobody was allowed to interfere with the case property up to when it remained under his protection. After the chemical analysis from the laboratory, he received the case property back from the laboratory which is Ex. 1. 10. Statement of this witness PW-1 is corroborated by the deposition of PW-2 Prakash Kumar and PW-5 Harbansh Lal, the Manager of Peshawaria dharmashala. 11. PW-3 Const. Uday Veer Singh has stated that on 6.3.1992, he had taken the case property from malkhana on the order of the court for its chemical analysis at Agra laboratory and up to when the case property remained with him, nobody was allowed to touch and tamper with it. 12. PW-4 is Hari Ram Dikshit, Head Moharrir who has stated that on 4.3.1992 he had received the case property in sealed condition. This case property was sent for chemical analysis to Agra laboratory on 6.3.1992 through Const. Uday Veer Singh. 13. PW-6 is Const. Shaym Singh who has stated that on 4.3.1992 he had taken the case property from the malkhana and produced it before the court and thereafter it was deposited back in the malkhana. He has further stated that up to when the case property remained under his possession, nobody was allowed to interfere with it. 14. PW-7 is S.I. Ramesh Kumar Tyagi who has stated that on 3.3.1992 the investigation of this case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses and also prepared the site plan Ex. Ka-6 after inspecting the place of occurrence. Thereafter the investigation of this case was transferred to S.I. D.N. Shukla. 15. PW-8 is Const. Satya Kumar Tyagi, who has proved the chargesheet Ex. Ka-7. 16. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him and in reply to question no. 12, the appellant/accused has stated that he stayed at Peshawaria dharmashala on 2.2.1992, where he had booked the room for three days. Manager had told him the rent of the room to be Rs. 50/-. After keeping his luggage he went outside the said dharmashala for tea. When he returned after an hour, he found his room to be locked. Manager asked the appellant/accused to deposit the rent, upon which he gave Rs. 50/- but the Manager had asked him to deposit Rs. 150/-. When he declined to pay Rs. 150/-, then the Manager refused to hand over his luggage and started quarrelling with him. Thereafter Manager said something to a shopkeeper whose shop was located at the gate of dharmashala, who called the police. Manager talked something to the police. Thereafter police arrested him and a false and fabricated case was made out against him. However, in defence, the appellant/accused has not produced any oral or documentary evidence. 17. Sri B.S. Adhikari, learned Amicus curiae for the appellant/accused argued that prosecution has failed to prove the allegation made against the appellant/accused because 10 gm opium has been shown to be recovered from his possession after his personal search, but at the time of conducting the search compliance of the provisions contained under Section 50 of the Act was not made. I find substance in the argument put forth by learned Amicus Curiae for the appellant/accused. 18. Before any further discussion, it would be pertinent to reproduce Section 50 of the Act for the sake of convenience: “50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorized under section 42 has reason to believe that it is no possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub- section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 19. From the perusal of the record, it reveals that neither in the recovery memo Ex. Ka-1 nor in the statement of PW-1 Harendra Pratap Singh, PW-2 Prakash Kumar and PW-5 Harbansh Lal, it has come that the appellant/accused was asked that whether he required to be searched before a Gazetted Officer or a Magistrate. Thus, it is proved that this opportunity was not given to the appellant/accused. No reason has either been recorded for not affording the said opportunity to the appellant/accused. Hence, provisions of Section 50 of the Act have not been complied with and, therefore, appellant/accused is entitled to get the benefit of non- compliance of Section 50 of the Act. 20. Learned Amicus Curiae for the appellant has further argued that it has not been proved beyond reasonable doubt by the prosecution that the article said be recovered from the possession of the appellant/accused on 3.3.1992 was the same article which was sent for chemical analysis to Agra laboratory. I find force in the argument of the learned Amicus Curiae for the following reasons: (i) That it is stated in the fard Ex. Ka-1 as well as in the statement of PW-1, PW-2 and PW-5 that about 10 gm opium was recovered from the possession of the appellant/accused, but no separate sample was taken on the spot to send it for the chemical analysis. (ii) That it has come in the evidence that the entire recovered article was sent for chemical analysis in the laboratory at Agra, but the report of the Joint Director, Forensic Laboratory, Agra, Ex. Ka-5, reveals that only 7.4 gm opium was sent for chemical analysis, whereas it has been alleged that 10 gm opium was recovered from the possession of the appellant/accused. It also creates doubt as to whether the same article shown to be recovered from the possession of appellant/accused on 3.3.1992 was sent for chemical analysis or not? 21. In support of his arguments, learned Amicus Curiae placed his reliance on the judgment of Hon’ble Division Bench of this High Court in Mr. Harman Chrust v. State reported in 2005 (1) U.D.-727, wherein at para 25 it has been observed as under:- “25. Another point, which creates suspicion about the authenticity of the prosecution story, is that the recovery and seizure has not been made in accordance with the standing instruction no.1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi. Clause 1.9 of the Instructions reads as under:- “1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops should also bear the S.No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the concerned chemical laboratory.” 22. Learned Amicus Curiae for the appellant/accused has also invited my attention towards Clause 2.9 Standing Order no.1/89, which is reproduced as under:- “2.9. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelop may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked “Secret-Drug sample/Test Memo” to be sent to the chemical laboratory.” 23. Thus, from the above said discussion of evidence and legal proposition, the prosecution has not proved its case against the appellant/accused beyond reasonable doubt that the article sent for the chemical examination was the same article shown to be recovered from the possession of the appellant/accused on 3.3.1992. 24. Learned Amicus Curiae for the appellant/accused has further submitted that compliance of Section 57 of the Act was not made at the time of making the arrest. Section 57 of the Act is reproduced as under:- “57. Report of arrest and seizure:- Whenever any person makes any arrest or seizure, under this Act, he shall within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.” 25. In the documentary or the oral evidence it has not come that within the next 48 hours after the said arrest or seizure, the report of the particulars of arrest or seizure was made to the immediate superior officers. Though the compliance of this provision is not mandatory but it is directory. In this regard he has cited the judgment of Gurbax Singh v. State of Haryana reported in (2001) 3 Supreme Court Cases 28 and has relied on para-9 which is reproduced as under:- “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, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept with 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 has not led any evidence whether the chemical analyzer received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemcial analyzer. Further it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer...” 26. Thus from the evidence discussed above, the prosecution has also failed to prove the compliance of Section 57 of the Act. 27. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove the case against the appellant/accused for the offence punishable u/s 8/18 of the Act beyond reasonable doubt. As such, the impugned judgment and order dated 1.12.1992/8.12.1992 passed by the Sessions Judge, Haridwar is not justified and the same is liable to be set aside. 28. Accordingly, the appeal is allowed. The appellant/accused Ravindra Kumar Sharma is acquitted from the charge levelled against him. The judgment and order dated 1.12.1992 passed by Sessions Judge, Haridwar in Sessions Trial No. 18 of 1992, State v. Ravindra Kumar Sharma, convicting the appellant/accused under Section 8/18 of the Act and order dated 8.12.1992 sentencing him to undergo R.I. for a period of 10 years along with fine of Rs. 1,00,000/- and in case of default in the payment of fine, sentence of further two years’ R.I. awarded to the appellant/accused, is hereby set aside. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 29. Let the lower court record be sent back. (Dharam Veer, J.) 05.05.2009 PRABODH