B.K. Narayana, J.@mdashHeard Sri Ravindra Rai, learned counsel for the appellant and learned AGA for the State.
None has appeared on behalf of the Union of India.
This criminal appeal is directed against the judgment and order dated 10th April 1991 passed by IInd Additional Sessions Judge, Varanasi in Sessions Trial No. 331 of 1988, State v. Chandra Bhushan Singh @ Ragghoo Singh and another, u/s 18 and 23 of N.D.P.S. Act, P.S. Baragaon, District Varanasi convicting the appellant u/s 18 and 23 of the N.D.P.S. Act and sentencing him to undergo 10 years rigorous imprisonment and fine of Rs. 1,00,000/- for his conviction u/s 18 of the N.D.P.S. Act and further 10 years R.I. and a fine of Rs. 1,00,000/- u/s 23 of the N.D.P.S. Act together with default clause. Both the sentences were directed to run concurrently. Briefly stated the case of the prosecution is that on 17th of June 1987 Sri K.K. Rai, Intelligence Officer, Narcotic Central Bureau (hereinafter referred to as the "N.C.B.") received a secret information that Sri Chandra Bhushan Singh resident of Baragaon was involved in illicit trafficking of sale and purchase of Nepali ganja and opium. Acting on the basis of above secret information, Sri Rai after the receipt of above secret information contacted his colleagues Alok Kumar Srivastava, C.L. Yadav and others and proceeded for Baragaon town at 11 A.M. On reaching Baragaon, the above team of the Officers of the N.C.B. took two witnesses of public namely Vimlesh Singh and Chandrika Prasad after disclosing them the purpose of the said raid and reached at the residential premises of Chandra Bhushan Singh with a view to carry out raid. At his residence the team found Sri Chandra Bhushan Singh sitting inside in his front room and the officers of the N.C.B. gave their introduction and told him the purpose of the raid. It is alleged that the officers of the N.C.B. offered the accused Chandra Bhushan Singh to personally search the officers of the team and the witnesses but the accused felt no such necessity, therefore, the search of the house of the accused Chandra Bhushan Singh was conducted and from the room wherein the accused was sitting 25 ''purias'' of ganja and opium kept in a polythene bag were recovered. From another room of the accused 8 kgs ganja kept in a gunny bag was recovered. The total weight of the recovered ganja kept in the gunny bag and purias was found to be 8 kgs 160gms whereas that of the recovered opium was found to be 25 gms. Also apart from above ganja and opium, three copies, one diary, four letters and a weighing machine were found in the house of the accused. The officers of the N.C.B. took three samples each from the recovered ganja and opium in presence of the witnesses and the accused in three separate envelopes which were sealed and signed by the officers and the witnesses on the spot. The remaining ganja and opium were also sealed separately in the presence of the witnesses, officers and accused. The signatures of the officers, witnesses and accused were obtained on the seal, sample and remaining recovered articles. One sample of ganja and one sample of opium was sent for chemical examination under a letter to the Central Revenue Laboratory, New Delhi. Subsequently a report was received from the examiner that the opium sent was not at all sufficient for carrying out the analysis. Thereafter another sample was drawn before the CJM, Varanasi and the same was sent to the scientist for examination. Memo of recovery was prepared on the spot in the presence of accused, witnesses and the officers who signed the same then and there and a copy of the memo was given to the accused Chandra Bhushan Singh. The accused gave his statement in writing on the spot admitting his guilt in the presence of the witnesses and the officers who in token of their presence signed the same. Also the appellant was interrogated by Sri C.L. Yadav, Intelligence Officer and his interrogation was reduced in writing of Sri Yadav in the presence of witnesses. Accused Chandra Bhushan Singh was thereafter taken into custody and handed over to the Custodian of the office of the N.C.B. on 18.6.1987. The accused Chandra Bhushan Singh was produced before the C.J.M., Varanasi on the same day. On the basis of the statement of the accused Chandra Bhushan Singh, that he was doing the business of sale and purchase of psychotropic substances at the instance of his father Rama Shanker Singh, the officers of the N.C.B. filed a complaint against accused Chandra Bhushan Singh and his father Rama Shanker Singh also alleging that he had permitted business of sale and purchase of Nepali Ganja and opium at his residence without any authority.
2. Accused Chandra Bhushan Singh and Rama Shanker Singh pleaded not guilty and alleged false implication on account of enmity. The defence of accused Chandra Bhushan Singh was that one Sub Inspector J.P. Singh who was residing in his neighbouring house and who was the owner of that house had litigations with the accused and at the instance of the above owner J.P. Singh, the officers of the N.C.B. had falsely implicated them in this case. Also the defence of Rama Shanker Singh was that he had been living separately from accused Chandra Bhushan Singh and had nothing to do with illicit trafficking of psychotropic substances if any by him.
Charge under Sections 28, 18, 23 and 25 of N.D.P.S. Act was framed against the accused Chandra Bhushan Singh whereas charge u/s 25, N.D.P.S. Act was framed against the accused Rama Shanker Singh.
3. In support of its case the prosecution examined PW-1 is C.L. Yadav, Intelligence Officer of N.C.B., PW-2 C.S. Singh, Intelligence Officer of N.C.B., PW-3 Alok Kumar Intelligence Officer of N.C.B., PW-4 Chandrika Prasad and PW-5 Vimalesh independent witnesses of the alleged recovery and PW-6 K.K. Rai Intelligence Officer of N.C.B. The accused examined Govind Madhaw Mishra, DW-1 and Laxmi Kant D.W. -2 and also filed papers in their defence.
4. Learned IInd Additional Sessions Judge, Varanasi after considering the entire facts and circumstances of the case and the evidence on record convicted the appellant and awarded the aforesaid sentences. However, co-accused Rama Shanker Singh was acquitted.
5. Learned counsel for the appellant submitted that the reliance placed by the learned Additional Sessions Judge on the confessional statement of the appellant recorded u/s 67 of the N.D.P.S. Act while holding the appellant guilty of having committed the offences u/s 18 and 23 of the N.D.P.S. Act is per-se illegal and unwarranted in as much as the aforesaid statement was wholly inadmissible in evidence against the appellant on account of the same having been made by the appellant before the officers of the N.C.B. after he had been subjected to severe beating. He next submitted that the false implication of the applicant in the present case is conclusively established from the failure of the two independent witnesses PW-4 Chandrika Prasad and PW-5 Vimlesh Singh who were examined by the prosecution to prove the search, recovery and arrest to support prosecution case and who were declared hostile. The reason given by the Court below in the impugned judgment for not drawing any adverse inference against the prosecution from the aforesaid fact is wholly untenable.
Learned counsel for the appellant lastly submitted that the appellant''s conviction in the present case is totally vitiated on account of the failure of the officers of (sic)C.B. who had entered the appellant''s residential premises and searched the same and recovered contraband articles from his residential premises to comply with the mandatory requirements of Section 42 of the N.D.P.S. Act.
Per contra learned AGA made his submissions in support of the impugned judgment.
6. I have perused the impugned judgment and considered the submissions made by learned counsel for the parties and perused the record of lower Court.
A careful scrutiny of the evidence available on the record reveals that PW-1 C.L. Yadav, Intelligence Officer had deposed before the trial Court that on 17.6.87 his colleagues Sri K.K. Rai had received secret information that the appellant Chandra Bhushan Singh was involved in illicit trafficking of sale and purchase of psychotropic substances. According to this witness he alongwith other officers, namely, Sri K.K. Rai, A.K. Srivastava and others reached Baragaon for conducting the search of the residence of the appellant for recovery of psychotropic substances and according to him in Baragaon town two witnesses, namely, Vimalesh Singh and Chandrika Prasad were also taken alongwith the raiding party after they were disclosed the purpose of raid. PW-1 further stated that after arriving at the residence of the appellant N.C.B. Officers offered the appellant Chandra Bhushan Singh to search them personally but the appellant declined to do so and thereafter the search of the first room of the appellant''s house was conducted in the presence of the witnesses, officers of N.C.B. and the appellant Chandra Bhushan Singh in which 25 packets of Ganja and 25 gms. Opium were recovered. The search of the other room of the house of the appellant resulted in recovery of one gunny bag containing 8 kgs. ganja. PW-1 has further stated in his evidence that the recovered articles were weighed and total weight of the ganja was found to be 8.160 Kgs. whereas that of the opium was found to be 25 gms. The evidence of PW-1 further goes to show that the recovered articles were taken into custody and three samples each were drawn from the recovered ganja and opium in the presence of witnesses, appellant and officers of the N.C.B.. According to PW-1 the recovery memo Ex. Ka-2 was written and prepared in the presence of witnesses, appellant and the officers of the N.C.B. on the spot itself. Appellant C.B. Singh had given his statement in writing (Ex. Ka-7) admitting his guilt. The statement of the appellant so recorded was signed by the witnesses also. After completing the formalities relating to packing, sampling and sealing of the recovered contraband, PW-1 interrogated the appellant. His interrogation was also recorded in writing in the presence of the witnesses and thereafter according to the PW-1 accused was taken into custody and brought to the NCB office on 18.6.87. He was produced before the C.J.M., Varanasi for remand. Thereafter PW-1 filed the complaint against the accused and his father Ram Shanker Singh (Ex. Ka-7). PW-1 has supported the prosecution case in his cross-examination.
The other witnesses of fact examined by prosecution namely, PW-3 Alok Kumar Srivastava, Intelligence Officer and PW-6 K.K. Rai, Intelligence Officer reiterated the same facts in their evidence which were narrated by PW-1 in his testimony. PW-2 G.S. Singh another Intelligence Officer was examined as formal witness who proved the various documents (Ex. Ka-5 and Ka-7)
7. PW-4 Chandrika Prasad and PW-5 Vimlesh Singh who according to the prosecution were examined as two independent witnesses of the search and recovery, however turned hostile during the trial did not support the prosecution case. They, however, have admitted their signatures on recovery memo Ex. Ka-3 and the confessional statement of appellant Chandra Bhushan Singh Ex. Ka-4 the other material exhibits. Apart from the evidence of P.Ws.-1, 2, 3 and 6 against the accused on the record, there is written confessional statement of the appellant Chandra Bhushan Singh Ex. Ka-3 and a his written interrogation by PW-1 in the presence of witnesses and officers of the N.C.B., Ex. Ka-4. It is relevant to note that the appellant had failed to retract his confession at the earliest and infact apart from raising a plea of false implication in his examination u/s 313 Cr.P.C., the appellant had at no stage of trial retracted his confession. Thus in view of the above, it cannot be said that the confession made by the appellant u/s 67 of the N.D.P.S. Act before the officers of the N.C.B. was not made voluntarily.
8. The issue whether the confessional statement of an accused recorded u/s 67 of the Act is admissible in evidence against him or not was considered by the Apex Court in the case of M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, 2003 (47) ACC 1151 and in paragraph 4 of the aforesaid judgment, the Apex Court held as hereinunder:
"It has been established that the Customs Office was about 20 kms. from the place were the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with accused Nos. 2, 3 and 6 were brought to the Customs Office. Further accused Nos. 1 and 2 did not know Tamil. A Hindi knowing officer had to be arranged. There was under the circumstances no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial judge u/s 313 of Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of appellants'' conviction."
9. In the present case also the record shows that the confessional statement of the appellant (Ex. Ka-3) was recorded before the officers of the N.C.B. on 17.6.1987 in which he admitted that he was dealing in sale and purchase of narcotic drugs. The appellant was produced before the competent Magistrate on 18.6.1987 and was remanded to the judicial custody. He did not make any complaint before him of torture or harassment. Even after the committal of the case to the Sessions Court, the appellant did not make any complaint or retracted his confession recorded u/s 67 of the N.D.P.S. It was only during his examination u/s 313 Cr.P.C. that the appellant for the first time alleged that his confessional statement was recorded forcibly after he had been subjected to severe beating by the officers of the N.C.B. and the same was not made voluntarily. In my opinion the appellant having failed to retract his confession at the earliest opportunity, the stand taken by him during his examination u/s 313 Cr.P.C. that the confession was not voluntarily made appears to be after thought and unacceptable.
10. Thus in view of the aforesaid, it can be safely held that the statement of the appellant u/s 67 of the N.D.P.S. Act was voluntarily made and thus rightly made the basis of the appellant''s conviction. Even otherwise the witnesses of fact examined on behalf of the prosecution, apart from the two independent witnesses, have fully supported the prosecution case and the defence despite subjecting them to lengthy cross-examination has failed to elicit anything from them which may discredit the prosecution case.
11. The second ground on which the appellant has assailed his conviction is that the Court below had manifestly erred in law in refusing to record any adverse inference against the prosecution on account of the two independent witnesses examined on behalf of the prosecution for proving the search, recovery and arrest having disowned the prosecution case and declared hostile during the trial.
12. It is true that the two independent witnesses PW-4 and PW-5 are the witnesses of the recovery, arrest and recording of appellant''s statement u/s 67 of the N.D.P.S. Act as well as his interrogation had in their evidence recorded during the trial denied that recovery of any contraband articles was made from the house of the appellant in their presence. But at the same time they have failed to come up with any satisfactory explanation for the presence of their signature on the material Ex.-1, Ex.-2 and papers Ex. Ka-3 recovery memo Ex. Ka-4, the confessional statement of the appellant. The explanation forthcoming from them in this regard that their signatures on the aforesaid papers were obtained by the police officials by using force does not appears to be believable in view of the fact, that none of the witnesses in their evidence recorded during the trial have spoken about the presence of police officials at the place of the recovery.
13. Thus no fault can be found with the view taken by the trial judge that the prosecution case was not liable be disbelieved on account of the two independent witnesses PW-4 and PW-5 having disowned the prosecution case at the trial.
14. The last ground on which the appellant has challenged the impugned judgment and order is that there was no compliance of mandatory provisions of Section 42 of N.D.P.S. Act and in view of thereof his conviction cannot be sustained and is liable to be set aside.
15. In order to properly appreciate the aforesaid ground of challenge it would be useful to extract the Section 42(1) and (2) of the N.D.P.S. and scan the evidence adduced by the prosecution in this regard. Section 42 of the N.D.P.S. Act reads as hereunder:
"42. Power of entry, search, seizure and arrest without warrant or authorisation.--(1) Any such officer (being an 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 including para-military forces or armed forces 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 persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been 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 VA of this Act 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation 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 within seventy-two hours send a copy thereof to his immediate official superior."
16. There is no dispute about the fact that P.Ws.-1, 3 and 6 who were the members of the raiding party, which had effected the entry, search and recovery had prior information that the appellant was dealing with illicit narcotic drugs.
Neither the recitals contained in the recovery memo Ex. Ka-2 nor the facts narrated by PW-1, PW-3 and PW-6 in their statements recorded during the trial indicate that the secret information which was received by Sri K.K. Rai, Intelligence Officer, PW-6 u/s 42(1) of the N.D.P.S. Act was either taken down by him in writing or he had recorded the grounds for his belief under the proviso thereto and send a copy thereof within 72 hours to his immediate Official Superior. The only fact which has come in the evidence of P.W. -6 is that upon receiving the secret information that the appellant was selling illicit contraband in his residence, he had communicated the same to his colleagues Sri Alok Kumar Srivastava and Sri C.L. Yadav who are both Officers of the same rank as PW-6.
17. I have also very carefully perused the evidence of by PW-1 C.L. Yadav and PW-3 Alok Kumar Srivastava recorded before the trial Court and I am constrained to observe that neither PW-1 C.L. Yadav nor PW-3 Alok Kumar Srivastava have spoken anything which may show that in the present case the provisions of Section 42(2) had been complied with. The question whether the Section 42(2) of the N.D.P.S. Act is mandatory or not is no longer res integra and has been finally settled by the Apex Court in the case of
"In conclusion, what is to be noticed in Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
"(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of Section 42) from, any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, the is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42 to illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
18. The evidence adduced by the prosecution in the present case clearly shows that there was no compliance of requirements of Sub-section 2 of the act, inasmuch as Section 42(2) of the act clearly mandates an officer to take down any information in writing received by him under Sub-section 1 of Section 42 or to record grounds for his belief under the proviso thereto, and send a copy thereof within seventy-two hours to his immediate official superior. There is no dispute about the settled law that where a statute prescribes a certain manner for performing any act in a given situation then the said act has to be performed in the same manner and any deviation therefrom shall vitiate such action. In the case of Karnail Singh (supra), the Hon''ble Apex Court has clearly observed that compliance with the requirements of Section 42(1) and 42(2) with regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period that is after the search, entry and seizure. The Apex Court further held that while total non-compliance of requirements of Sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. In the present case the evidence on record shows that there was neither any prompt nor delayed compliance of requirements of Section 42(2) of the Act. In view of the forgoing discussions, I have no hesitation in holding that there was total non compliance of the requirement of Section 42(2) of the N.D.P.S. Act in the present case and hence the conviction of the appellant recorded by the learned trial judge cannot be sustained and is liable to be set aside on the third and last ground canvassed before this Court by the learned counsel for the appellant. Accordingly, this appeal is allowed. The impugned judgment and order are set aside.
The appellant is on bail. His bail bonds are cancelled and sureties discharged.
