IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Jail Appeal No. 453 of 2007 Date of decision : 20th March, 2008 A.F.R. (Approved for Reporting) _________________________ Not approved for reporting Date : 20.03.2008 Initials of Judge Note : Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No. 453 of 2007 Beem Bahadur S/o Girish Bahadur Village Ukali, Thana Chainpur District Bajang, Nepal Present Address Siyahi Devi Estate Tok Pokhardhar, District Almora ……..Appellant Versus State of Uttarakhand ………Respondent Ms. Geeta Parihar, Amicus Curiae for the appellant. Mr. Nandan Arya, A.G.A. for the respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been preferred against the judgment and order dated 10/10/2007 passed by Special Judge/ Sessions Judge, Almora in Sessions Trial No. 11 of 2006, State Vs. Bheem Bahadur whereby the appellant has been convicted u/s 20 (B) Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as Act, 1985). The appellant was sentenced to undergo rigorous imprisonment of five years and a fine of 10,000/. In default of payment of fine, the appellant shall further undergo simple imprisonment of three months. 2. Brief facts for the disposal of this appeal are that on 23.02.2006 at about 12:00 noon, the Patti Patwari Dhamas received an information from the informant that a resident of village Siyahi Devi Estate Tok Pokhardhar, namely, Bheem Bahadur is involved in the business of charas. He also advised the Patwari to immediately raid upon the residence of the appellant, before the appellant could remove the charas from his house. The Patwari had a reason to believe that if search warrant was obtained, the purpose of the raid would be frustrated. It was further alleged by the prosecution that the Patwari made a telephonic call to Platoon Commander, Home Guard Devendra Singh Bisht PW2 to accompany him for the raid. Thereafter, the Platoon Commander Devendra Singh Bisht PW2 alongwith one constable Home Guard Pooran Singh reached at the Headquarter. Thereupon, the Patwari alongwith Platoon Commandar Devendra Singh Bisht PW2 and Home Guard Pooran Singh went to the house of the appellant. The Mukhbir told the Patwari that the person who is sitting on the stairs is involved in the business of charas. The Patwari reached near the appellant and inquired him about his illegal involvement in the transaction of charas. The appellant, thereafter, brought a tin from inside his house, in which charas was kept. The Patwari recovered 550 gram of charas from the said tin. Out of 550 gram charas, 10 gram charas was kept separately as a sample for sending it to the Chemical Examiner. Thereafter, recovery memo was prepared and seized article were sealed at the spot. The Patwari arrested the appellant took him to the Patwari Headquarter alongwith recovery articles. The case was registered at the Patwari Chowki against the accused/appellant. Initially, the investigation was done by Rajendra Singh Chauhan PW1 himself and later on, the investigation was transferred to Shri Anwar Khan PW3, Patti Patwari, Khoot. The Investigating Officer after completing the investigation as usual, submitted the Chargesheet Ex.Ka.8 before the court concerned. 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charge u/s 18/20 of Act, 1985 against the accused/appellant. The accused/appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined Rajendra Singh Chauhan PW1, who conducted the raid in the house of the appellant and recovered charas from his possession. He lodged the F.I.R. Ex.Ka.-2 at Patti Patwari Headquarter. Devendra Singh Bisht PW2 is the Platoon Commander, Home Guard who was called by the Patti Patwari Rajendra Singh Chauhan PW1 from Tehsil to accompany him in the raid. Devendra Singh Bisht PW2 is also witness of the arrest and recovery. Anwar Khan PW3 is the Investigating Officer of this case. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has further stated that he has been falsely implicated in this case. The accused/appellant did not adduce either oral or documentary evidence in support of his defence. 6. The learned Special Judge/Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellant and sentenced him as indicated above. 7. I have heard the learned counsel for the parties and perused the record. 8. Now it has to be seen as to whether the recovery of charas was actually being made from the possession of the appellant, or not? In support of the said fact, the prosecution examined Patti Patwari, Dhamas Rajendra Singh Chauhan PW1, who has stated in his evidence that on 23.02.2006 at about 12:00 noon he received information that appellant Bheem Bahadur who was resident in village Siyahi Devi Estate Tok Pokhardhar, was involved in the business of sale and purchase of charas. On receiving the information, he immediately telephoned to Home Guard, Platoon Commander Devendra Singh Bisht PW2 to come to the Headquarter, to conduct a raid at the residence of the appellant. Devendra Singh Bisht PW2 alongwith Home Guard Pooran Singh came to the Patwari Headquarter. He also brought a weighing machine with him. Immediately thereafter, they proceeded to the spot and found the appellant sitting in the stairs, outside his house. On being interrogated, the appellant brought a box from inside his house containing charas. When the Patwari opened the box, he found that there was 550 gram of charas. Out of 550 gram, 10 gram was taken out separately for being sent to the Chemical Examiner. Both the bundles were sealed at the spot and recovery memo was prepared at the spot. No witness could be taken due to non-availability of any person at the spot. He proved the fard and chick F.I.R. before the Court. He also prepared the site plan Ex.Ka.3 and other documents. 9. Devendra Singh Bisht PW2, Platoon Commander has stated that after receiving the information on telephone from the Patwari, he reached to the Patwari Headquarter from where they went to the house of appellant Bheem Bahadur. He has further stated that 550 gram charas was recovered from the possession of the appellant. Out of 550 gram, 10 gram charas was separately sealed for being examined by the Chemical Examiner and rest of 540 grams was kept in another sealed cover. Thereafter, the seized articles and the appellant were taken to the Patwari Headquarter. He also proved the recovery memo of the article so recovered from the possession of the appellant. 10. Now, it has to be seen as to whether, the evidence of Rajendra Singh Chauhan PW1 and Devendra Singh Bisht PW2 is credible and cogent. Section 42 of Act, 1985 provides as under:- “42. Power of 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 department 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 other 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 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 send a copy thereof to his immediate official superior.” 11. It is obligatory on the part of the prosecution to prove that some information was received at the Patwari Headquarter, that the appellant was having charas in his house. If the officer has reason to believe from prior information received from any person that narcotic substances is kept in a house, it is imperative that the officer should take it down in writing and he should forthwith send a copy thereof to his immediate offical superior. The action of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspicious. In this case, the prosecution has not proved that such information was recorded in the diary of the Patwari. Thus, non-recording of the vital information collected by the Patwari at the first instance, can be counted as a circumstance in favour of the appellant. The Hon’ble Apex Court in the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat (2000) 2 SCC p/513 has held in para 17, 18 and 22 as under :- “17. A two-Judge Bench of this Court has considered the said question along with other questions in State of Punjab v. Balbir Singh (1994) 3 SCC p/299. In para 25 of that judgment the conclusions were laid down, of which what is relevant for this case regarding Section 42(1) is the following: (SCC p. 321, para 25) “25. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.” 18. When the same decision considered the impact of non-compliance with Section 50 it was held that “it would affect the prosecution case and vitiate the trial”. But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Baldev Singh the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding non-compliance with Section 42 also. If that be so, the position must be the following: If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused. 22. The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that he can rely on the materials available in the prosecution evidence. Next is, in addition to that, he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that the appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.” 12. The Hon’ble Apex Court in the case of State of Orrisa Vs. Laxman Jena reported in {2002 (45) ACC 311} held that the procedure and exercise of powers dealt in Section 42 is mandatory and its compliance cannot be held to be directory. The Hon’ble Apex Court has also observed that the arresting officer is under a legal obligation to comply with the mandate of Section 42 (1). If the Officer concerned has not recorded the ground for believe to make the search, the non-following the provision would result in the acquittal of the appellant. It was held in para 8 & 9 of as under:- “8. The learned counsel appearing for the appellant state could not refer to any record or evidence to show that the mandate of proviso to sub- section (1) of Section 42 was followed by the officer concerned before making the search. The High Court in the absence of cogent evidence, rightly concluded that the aforesaid provision had not been followed which entitled the accused the benefit of the acquittal. 9. We do not find any illegality or error of jurisdiction in the order or the High Court requiring our interference. There is no merit in this appeal, which is accordingly dismissed.” 13. In the instant case, the prosecution has failed to produce any document that the information that was received by the Patwri was recorded in the diary. In the case in hand, the Patwari had sufficient time to record this information immediately at the Patwari Headquarter in his diary because the Patwari had made a telephonic call to Devendra Singh Bisht PW2 after receiving the information. As such, he had sufficient time to make this entry in its record. It is not the case that he immediately rushed to the place of incident. In the facts and circumstances of the case, non-recording of the information is fatal to the prosecution. It is also obligatory on the part of the prosecution that such information recorded under Section 42 (1) should be sent to his immediate superior officer. It cannot be said by the prosecution that the Patwari had no time to send this information to his superior officer. As the Patwari made a telephonic call at Tehsil to Devendra Singh Bisht PW2, he could have also immediately send the information to the Tehsildar or any other person superior to him. The prosecution has miserably failed even after arrest of the appellant, such information was not forwarded to the superior officer. Rajendra Singh Chauhan PW1 during his cross examination had categorically stated that he had not given any information of arrest and seizure to his department. He had also submitted that he did not send any written information to his superior officer in this regard. Thus, non-compliance of the mandatory provision is also fatal to the prosecution. 14. It is also in the evidence that articles were seized from the possession of the appellant and it was taken to the Patwari Chowki. According to Anwar Khan PW3, the said recovered articles remained in the possession of the Patti Patwari till 24.02.2006. Anwar Khan PW3 took the possession of the said articles and thereafter, sample of the seized charas was sent to the Chemical Examiner. According to the Chemical Examiner’s report, the said sample was received on 05.05.2006 for its examination. Thereafter, the seized charas was produced before the Court and it was deposited in the Malkhana, Almora on 06.05.2006. The recovered charas should have been deposited in the police station immediately after its recovery. As per the provisions, the seized charas should be sealed at the police station with the seal of the officer In- charge of the police station. The Patwari has also stated that the information of the seized charas was not given to the higher officer even after the arrest of the appellant. Thus, Section 57 of the N.D.P.S. Act had not been complied with. The compliance of this provision is not mandatory but it is obligatory. In the case of Gurbax Singh Vs. State of Haryana 2001 C.A.R. 204, 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.” 15. The Hon’ble Apex Court while allowing the appeal and acquitting the accused has held in para 4 in the case of Valsala Vs. State of Kerala reported in AIR 1994 SC p/117 as under:- “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 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 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 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.” 16. It is always fatal to the prosecution, if the independent witnesses at the time of the recovery have not been taken. It depends upon the facts and circumstances of the each case. In the case in hand, the Patti Patwari has received information at about 12:00 noon on 23.02.2006 by the informer. Thereafter the Patti Patwari Rajendra Singh PW1 and Devendra Singh PW2 raided at the residence of the appellant where recovery of charas was made at 1:30 p.m. It is also in the evidence that there are 140 residents in village Siyahi Devi Estate Tok, Pokhardhar. It is in the evidence that before making the arrest and seizure, the Patwari had tried to take the independent witnesses. He has stated that the place of the incident was a lone place and witnesses were not available at that moment, as such, the witnesses were not taken. The Patwari has made a telephonic call to Devendra Singh Bisht PW2 at Tehsil, likewise, he could have also obtained the independent witnesses for the said recovery. The presence of Devendra Singh Bisht PW2 and his conduct is also doubtful. His duty was at Tehsil and he proceeded without any permission. Thus, his presence at the time of recovery is also doubtful. It is also strange that the informant informed the Patwari at about 12:00 noon on the date of the incident that the appellant was having charas in his possession. Devendra Singh PW2 told in his evidence