S.C. Vyas, J.
Feeling aggrieved by the judgment dated 21-7-1993 passed by IVth Additional Sessions Judge, Ratlam in Sessions Case No. 110/91 holding appellant guilty for the offence punishable u/s 8 read with section 18 of NDPS, Act, 1985 and sentencing him with R.I. for 10 years and fine of Rs. 1,00,000/- with a direction to undergo one year''s R.I., in default of payment of fine amount, this appeal has been preferred.
Short facts of the case are that on 14-4-1991 Krishna Kumar Upadhyaya PW-3 Station House Officer received an information from the informer that two persons were coming by Ratlam Banswada bus carrying contraband opium with them for its delivery to someone at Banswada. On this information Krishna Kumar Upadhyaya PW-3 along with other witnesses proceeded and intercepted bus bearing No. CIF 232 at bus stand village Kunda. The bus was checked in presence of witnesses Anil Kumar PW-1 and Prithviraj Singh PW-2, appellant and one more person was found in the bus in suspicious condition, their names and addresses were ascertained, and, they were informed that police officer wants to take search of them. After obtaining their consent, by consent letter Ex. P-10, they were searched, appellant Jalsingh was having a cloth bag with him, when the bag was opened then three plastic bags containing opium were found kept inside the bag. The article was smelled and tested by the police officer and witnesses and it was found to be opium, on weighment its weight was found 475g. Out of that article two samples of 50g each were drawn and the contraband article and samples were sealed separately, seizure memo Ex. P-2 was drawn on the spot appellant and another co-accused were arrested by arrest memo Ex. P-1. On taking their search therein, ticket from Sarwan to Banswada and from Banswada to Pratapgarh were found in possession of the appellant. Journey tickets were seized by seizure memo Ex. P-3 and Ex. P-5. Thereafter Krishna Kumar Upadhyaya PW-3 returned back to the police station, Sailana along with appellant and the co-accused and with sealed contraband article and their samples. He registered offence u/s 8 read with section 18 of NDPS Act by writing FIR Ex. P-9. One sample was sent for examination to Government Opium and Alkaloid Factory, Neemuch from where report Ex. P-1 1 was received stating therein that the article which was sent for examination was opium.
Appellant abjured his guilt during trial and pleaded that he had come to Sailana weekly Bazar for purchasing she goat and was going back to his village by bus. Police intercepted the bus and brought him down from the bus and arrested him, no opium or journey tickets were recovered from his possession and he has been falsely implicated in this case.
Learned trial Court after examining the prosecution witnesses and on completion of trial found appellant guilty and sentenced him as stated hereinabove.
Learned counsel for the appellant Shrichandra Sharma has assailed impugned judgment on many ground but his main ground of attack against the finding of guilt recorded by the learned Trial Judge is regarding sealing the contraband article and its safe custody before the sample was send for examination to opium factory, Neemuch.
Learned counsel for the appellant further submitted that Panch witnesses Anil Kumar Sanotiya PW-1 and Prithviraj Singh PW-2 have not supported the case of the prosecution and have been declared hostile and were subjected to cross-examination by prosecution itself. In absence of their corroboration, the entire prosecution case hinges on the sole testimony of Krishna Kumar Upadhyaya PW-3 who was seizing officer as well as investigating officer. Conductor of the bus Govind Ram PW-5 has also been declared hostile. Learned counsel submitted that Krishna Kumar Upadhyaya PW-3 admitted in his cross examination in paragraph 40 that though he gave his search to the appellant before conducting any search of the appellant, but no Panchnama of search was prepared by him. Learned counsel for the appellant further submitted that as per admission of this witness in Paragraphs 39 and 41 relevant Rojnamcha entries and documents relating sending information to the higher officers regarding seizure of contraband article from the appellant and entries of registry were not produced by the prosecution in this case. He has further submitted that in Paragraph 42 of his statement this witness has admitted that contraband sealed article and its samples were handed over by him to Head Constable Mohriyar police station Sailana for putting the same in safe custody in Malkhana, but neither the entries of Malkhana register were produced before the trial Court nor Rojnamcha entries regarding constable Laxminarayan''s journey from Sailana to Neemuch and returned Rojnamcha entries were produced. Learned counsel for the appellant further submitted that as per statement given by this witness Krishna Kumar Upadhyaya PW-3 constable Laxminarayan was sent to Neemuch along with sample on 18-4-1991. In paragraph 47 of his cross-examination he has admitted that as per Ex.P-11 the sample was received in Government Opium and Alkaloid factory, Neemuch on 26-4-1991. Learned counsel for the appellant submitted that prosecution failed to produce any evidence as to who kept the sample during the period from 18-5-1991 to 26-4-1991. No enquiry was ever made by the investigating officer in this regard. On the basis of these arguments learned counsel for the appellant submitted that the evidence regarding safe custody of this sample drawn from the seized article is totally lacking in this case and, therefore, the sole witness Krishna Kumar Upadhyaya PW-3 does not come in the category of wholly reliable witness upon whose testimony the entire prosecution case hinges.
Per contra, learned Government Advocate supported the judgment of the trial Court and argued that learned trial Court has taken into consideration all the relevant circumstances and impugned judgment calls for no interference. I have carefully examined the record of the trial Court and considered the arguments advanced by learned counsel for the appellant.
During trial prosecution examined Anil Kumar Sanotiya PW-1, Prithviraj Singh PW-2, Krishna Kumar Upadhyaya Station House Officer Police Station Sailana PW-3 and Govind Ram Conductor of the bus PW-5 as witnesses of the incident out of these witnesses only Krishna Kumar Upadhyaya PW-3 supported the case of prosecution and remaining witnesses were declared hostile because they do not support the story of prosecution.
Krishna Kumar Upadhyaya PW-3 deposed before the Court that on 14-4-1991 he received prior information from an informer at 11:15 in the morning to the effect that two persons were coming with opium by Ratlam Banswada ous and going towards Banswada and on this information he proceeded towards the place of incident. He has nowhere stated that this information of informer was reduced into writing by him and was transmitted to his higher authorities. Section 41 of the NDPS Act 1985 provides that.
Section 41. when an officer of department as police Excise Drugs Control or revenue or any other department of the State Government is empowered in this behalf by general law or special order of State Government has reason to believe from personal knowledge or information given by any person and taken in writing that any person had committed an offence punishable under Chapter IV or the Narcotics Drug or Psychotropic Substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorize any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place." Section 42 provides that:-
Section 42. when 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.
It is clear from the statement of Krishna Kumar Upadhyaya PW-3 that he received prior information from informer regarding transportation of contraband opium by two persons even then he never cared to reduce the information in writing and to send copy thereof to his immediate official or superior. In paragraph of 41 of his cross-examination this witness admitted that he send information to his superior officers only after seizure of the opium and arrest of accused persons. He specifically stated that such information was sent by him at 2:00 p.m. in the noon of 14-4-1991, but at the same time he has admitted that entry in the dispatch register of the police station was made. Record also shows that no such register was produced before trial Court. Prosecution neither produced any dispatch register of the police station nor examined any witness to prove that any information prior to search and seizure and after the search and seizure was ever sent by witness Krishna Kumar Upadhyaya PW-3 to his superior officers.
It is pertinent to mention that section 57 of the NDPS Act provides that:-
Section 57. 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 superior official.
In the present case witness Krishna Kumar Upadhyaya PW-3 did not care to send any report to his superior officers either prior to the search of seizure or after search of seizure though he has stated in his statement that such report as envisaged in section 57 of the Act was sent by him to his superior officers, but neither any documentary evidence nor any oral evidence has been adduced by the prosecution to corroborate his version, therefore, for want of any corroboration this part of his statement of Krishna Kumar Upadhyaya PW-3 becomes very much doubtful and it appears that he voluntarily failed to comply the provisions of section 42(2) and section 57 of the NDPS Act.
Apex Court in the case of
In view of the law laid down by the Hon''ble Supreme Court provisions of sections 52 and 57 of the NDPS Act might be only directory but even then at the time of considering the reliability of witness Krishna Kumar Upadhyaya PW-3 it is necessary to keep in mind that he had failed to comply the provisions of law regarding search and seizure.
Krishna Kumar Upadhyaya PW-3 in his statement further deposed that at bus stand Kunda he intercepted bus No. CIF 232 and checked it, he found two persons sitting on the back seat in suspicious condition, then he interrogated them at that time he found that appellant Jalsingh was having a white bag on his lap, then he asked appellant Jalsingh as to whether he will like to be searched by this witness or by some superior officers DSP etc. then Jalsingh gave his consent in writing, on the basis of which he was searched by this witness. Thereafter he searched that bag in presence of witness and found that it was containing opium. The opium was tested and smelled by this witness and thereafter weighment was done.
As the opium is said to have been recovered from a bag on search and not from personal search of appellant Jal Singh, therefore, if the provisions of section 50 of the NDPS Act have not been complied strictly even it cannot be said to be fatal that the prosecution in view of the law laid down in case of Gurubax Singh vs. State of Harayana (supra).
Strongest arguments of learned counsel for the appellant is regarding sealing and drawing sample from the seized article and thereafter regarding the custody of the contraband and its sample after search till its chemical examination.
Ex. P-2 is the seizure memo which was drawn by witness Krishna Kumar Upadhyaya PW-3 at the time of seizure of contraband opium. In this seizure memo it has been stated that out of the 475g opium two samples of 50g each were drawn separately and were kept in plastic bottle and thereafter the plastic bottle containing the samples of the opium were sealed separately but no impression of seal which was used for the purpose of sealing such opium and sample is there on this Panchanama. Witness Krishna Kumar Upadhyaya PW-3 has also not offered any explanation for this omission. Without any explanation given by this witness and without any impression of seal on Panchanama it has become impossible to know as to what type of seal was used for the purpose of sealing contraband article and samples at the time of their recovery. From the time of recovery till the Challan was filed article and its samples were in custody of the police. One of the sample was sent for chemical examination, as per the statement given by Krishna Kumar Upadhyaya PW-3 so it was quite easy for anyone to reopen the seized article and the samples and to reseal them from another seal. It was necessary for the investigating officer to put an impression seal on the recovery memo and thereafter to deposit the seal or put its impression along with the seized article and samples for safe custody in the Malkhana of the police station. Thereafter, it was also necessary to lead positive and cogent evidence to prove the fact that the seized article and its samples were in safe custody of some one and they were not switched or changed by some other article during their custody in the police station by anyone.
As per seizure memo Ex.P-3 samples were drawn in plastic bottle and were sealed on spot, but as per the chemical examination report Ex. P-1l when the sample which was sent for examination was opened then it was found that the sample was not in plastic bottle, but was in a plastic box (Dabba) on which a label of Dexamathazon tab. was affixed and on opening the box, soft dark coloured mass was found in it.
Joint reading of seizure memo Ex. P-2 and chemical examination report Ex. P/l 1 immediately reveals that the samples which was drawn at the time of seizure of the contraband article from the appellant was not sent for chemical examination and whatever was sent for chemical examination was either some other sample or was a sample which was drawn later on in absence of the appellant by someone else either from the same article or from some other article. In this situation it is not safe to hold that chemical examination report Ex. P-1l is pertaining to the sample of the article which was recovered from the appellant at the time of the incident.
In this situation of the matter, absence of seal impression on the recovery memo, becomes very much important and as no seal impression was made on the recovery memo, so it became possible to draw some other sample from the same article or to send some other sample for chemical examination. In any case it becomes doubtful as to whether chemical examination report Ex. P/l 1 is pertaining to the same article which was said to have been seized from the present appellant.
It will not be out of place to mention here that prosecution has not laid any evidence either by proving Malkhana register of the police station or by oral evidence of the concerning officer of the Malkhana to show that after all, who was the person, who had the custody of the seized article from the time of possession till the sample was sent for chemical examination. Even that constable Laxminarayan with whom the sample was sent for chemical examination, as per the statement given by witness Krishna Kumar Upadhyaya PW-3, has not been produced.
There is yet another matter of doubt, witness Krishna Kumar Upadhyaya PW-3 stated in paragraph 45 of his statement that constable Laxminarayan was sent along with sample to opium factory, Neemuch on 18-4-1991 and the distance from Sailana to Neemuch is about 150 km and it takes 4 to 5 hours either by train or by road to reach there. But surprisingly the sample which was sent on 18-4-1991 took as many as 8 days to reach to the Government Opium and Alkaloid Factory, Neemuch. Report Ex.P-11 shows that the sample was received in the laboratory on 26-4-1991 through constable Laxminarayan and on that date seals were checked and found intact and were tallying with specimen of seal sent separately and it again creates a doubt as to whether the sample of the article which was said to have been seized from the appellant was sent for chemical examination or some other article was sent. Witness Laxminarayan has not been produced to explanation as to under what circumstances he took 8 days to cover distance of only 150 km between places which are well connected by train as well as by road.
As per the statement of Krishna Kumar Upadhyaya PW-3 he handed over contraband article with sample to head constable Mohriyar of the police station for its safe custody in Malkhana. This witness admitted that no seal was being put on the lock of Malkhana and anybody can enter in the Malkhana as and when required. In such a situation possibility of switching sample cannot be ruled out, particularly when head constable has not entered in the witness box to give positive evidence to the effect that from the date of taking sample till it was dispatched for chemical examination it remains in his safe custody.
Learned counsel for the appellant drawn attention of this Court towards the pronouncement of Hon''ble Supreme Court in the case of State of Rajasthan vs. Gurmail Singh, 2005 Cri.L.R. (SC) 328. In that case also Malkhana register was not produced to prove that seized articles which are said to have been kept in the Malkhana on 20-5-1995, were so kept in the Malkhana till it was taken over by another witness on 5-6-1995. In that case also no sample of seal was sent along sample to Excise Laboratory for the purpose of comparing with the seal bear on the sample bottle and, therefore, acquittal in the case was found proper. The facts of that case are similar to the facts of the present case.
Learned counsel further drawn attention of this Court towards another judgment of Hon''ble Supreme Court in the case of Ouseph vs. State of Kerala, 2005 SCC (Cri) 595, in which it was held that:
under section 55 of the NDPS Act, 1985 the statutory requirement to seal the seized articles may not be mandatory, but the period of non-sealing (nearly 2 months) in the circumstances of this case does give rise to doubt that there might have been a possibility of tampering which cannot be ruled out, more so because sample sent to the Chemical examiner is a small quantity. Thus, prejudice caused to the accused is apparent if the seized articles are different from the articles sent to the Chemical Examiner. In this case it cannot be said with certainty that such manipulation has not happened.
In the present case also possibility of tampering with the seized articles cannot be ruled out as the impression of seal is not there in the seizure memo and no one has been produced to prove that seized article and samples were kept in safe custody. In the facts of the present case sample was taken in plastic bottle whereas the sample which was sent for examination was in a box.
Learned counsel for the appellant further drawn attention of this Court towards the judgment of Hon''ble Supreme Court in the case of
Learned counsel for the appellant also drawn attention of this Court toward the reported judgment of this High Court in the case of Shiv Singh vs. State ofM.P., 1981 MPWN (II)218. In that case the sole testimony of police officer was found doubtful on the basis of his own statement and it was held that statement of such police officer cannot be acted upon. In the present case also witness Krishna Kumar Upadhyaya PW-3 alone has supported the story of search and seizure of something from appellant. For the sake of argument if it is believed that appellant was really searched and he was found carrying a bag and some substance was recovered from him even that for want of any connecting evidence as discussed hereinabove it is very much doubtful as to whether samples of the same substance was sent for chemical examination by the police officer or not? Therefore, Krishna Kumar Upadhyaya PW-3 alone is not a dependable witness and his testimony alone cannot be said to be sufficient to hold appellant guilty for a serious offence punishable u/s 8 read with section 18 of NDPS Act in which minimum prescribed punishment is 10 years R.I. and fine of Rs. 1,00,000/-
In the facts of the present case the possibility of switching the sample with some other article cannot be ruled out and it is doubtful that the sample of the same article was sent for chemical examination, which is said to have been recovered from the present appellant. Therefore, this appeal succeeds and is allowed. The conviction of the appellant u/s 8 read with section 18 of the NDPS Act, 1985 is set aside and he is acquitted from the charge of this offence. He be released forthwith if not required in connection with any other offence.
