N. Kotiswar Singh, J.@mdashThe present revision petition has been preferred u/s 482 Cr.P.C. against the judgment and sentencing order dated 04.05.2012 passed by the learned Special Court, ND & PS, Manipur in Special Trial Case No. 700 of 1995, convicting the petitioner u/s 20(b)(ii)(B) of the NDPS Act, 1985, for unauthorized possession of 10 kgs. of Ganja u/s 80(c) of the NDPS Act and sentencing him to undergo five years rigorous imprisonment with fine of Rs. 10,000/- and in default thereof, to undergo one month rigorous imprisonment. The prosecution case in brief is that on 04.03.1992 at about 2.30 a.m. a house search was conducted by a Sub Inspector of Police of Border Affairs Police Station (BAPS), pursuant to the authorization for search issued to him by the Superintendent of Police, BAPS. During the search one gunny bag containing processed ganja was found concealed inside the granary, which was seized in presence of witnesses. Accordingly, a case was registered u/s 20(b)(i) of the NDPS Act on 04.03.1992 against the petitioner. Charge was framed against the petitioner on 28.02.1992 u/s 20(b)(i)(B) of the NDPS Act after the amendment of the NDPS Act in 2001.
2. In course of the trial, the prosecution examined as many as five witnesses. The petitioner did not produce any witness. The petitioner, however, in his statement made u/s 313 of the Cr.P.C., denied the allegations against him though admitting that his father, since deceased, had the habit of consuming ganja and about 250 grams of ganja was kept in the house for his daily consumption and at the time of the alleged search and seizure of the processed ganja, the petitioner was not at his home and only the father was present in the house.
3. At the time of trial, the learned Trial Court formulated three points for determination as follows:
(1) Whether the accused was in possession of 10 Kg. of contraband ganja on 04.03.1992 at about 2.30 a.m., kept in his granary, in contravention of the provision of ND & PS Act, 1985, if so, whether the same was seized by the Sub-Inspector of Police Y. Dhananjoy Singh, of BAPS from the accused person as per the provisions of law?
(2) Whether the said seized 10 Kg of ganja is a commercial quantity or not?
(3) Is the accused liable under the provision of the ND & PS Act, 1985?
4. The learned Trial Court after considering the evidence of PW-1, Sub Inspector of Police, Y. Dhananjoy Singh of BAPS, who is also the complainant/informant, who lodged the ejahar, found his evidence to be not shaken. The learned Trial Court did not find any material to doubt the veracity of the testimony of the PW-1 and also the procedure adopted in the search and seizure of the contraband article. As regards the validity of the authority of the authorized officer for conducting the search, the Trial Court held that there is no evidence to show that the concerned authority was not authorized to search and held that the mandatory provisions of Sections 41 and 42 had been duly complied with. The Trial Court observed that the accused never raised any question as to whether the authority concerned is the empowered or authorized officer to search etc.
5. The learned Trial Court relying on the decision of the Supreme Court in State of Punjab Vs. Bablir Singh : 1994 Cril. L.J. 3702 and Sajan Abraham Vs. State of Kerala : AIR 2001 SC 3190 held that provisions of Sections 52 and 57 of the NDPS Act which deal with the steps to be taken by the officer after making arrest or seizure u/s 41 to 44 are mandatory and if there be substantial compliance thereof, the same would not vitiate the prosecution case.
The learned Trial Court on examination of record was of the view that requirement of Sections 52 and 57 of the NDPS Act have been substantially complied with. The learned Trial Court also did not find any irregularity in the authorization for search u/s 41(2) issued by the Superintendent of Police, BAPS. The learned Trial Court also did not find any irregularity in the search and seizure and preparation of seizure memo. and observed that even though in the cross examination of P.W. 2, the denial of the presence of the petitioner at the time of seizure was repeated, no evidence had been tendered by the petitioner to rebut or refute the prosecution case.
The learned Trial Court also observed that one civil witness, Ningombam Naba Singh and one rifleman PW-2 were the witnesses to the search and seizure apart from PW-1, and did not find anything suspicious as the seizure was conducted at 2.30 a.m. Since Ningombam Naba Singh, had died in the meantime, Trial Court held that in the absence of civil witness, reliance can be placed on PW-1 and PW-2''s evidence as regards the seizure. The learned Trial Court held that PW-1 was authorized to conduct search under authorization by the Superintendent of Police, BAPS on the basis of the recorded information and evidence of PW-1 which was corroborated by evidence of PW-2 and that evidence of Police cannot be discarded as the same is entitled to be treated in the similar way as that of the civil witness and as such held that the seizure of 10 Kgs. of ganja from the godown of the accused person was proved beyond reasonable doubt.
The learned Trial Court also observed that as regards non examination of the Chemical Analyzer it is always open to the Court on its own or upon the demand of either party to summon the Chemical Analyzer and examine him as a witness for satisfying that report is acceptable, but in the present case the petitioner never demanded for examination of the Chemical Analyzer as a witness. It was also observed that the contents of Ext. P. 12 (expert opinion of the Chemical Analyzer) was never challenged by the petitioner nor did he cast any shadow of doubt that would require examination of the Chemical Analyzer and accordingly held that the said Exhibit has been proved beyond reasonable doubt.
Accordingly, learned Trial Court after considering the facts and circumstances of the case came to the conclusion that the petitioner had contravened the provisions of Section 8(c) for unauthorized possession of 10 Kgs. of ganja and convicted the appellant u/s 20(b)(ii)(B) of the ND & PS Act, 1985.
6. The main grievances in the present revision petition may be briefly stated as follows.
According to the petitioner the charge against the petitioner accused has not been proved beyond reasonable doubt and in the present case prosecution has failed to prove the case with the material evidence.
It has also been contended that the search conducted resulting in seizure of 10 Kgs. of ganja was not done in accordance with law and without proper search warrant or authorization in terms of the provisions of NDPS Act. Learned counsel for the petitioner contended that it has not been proved that the sample sent for chemical examination is the one collected from the plastic bag alleged to have been collected from the possession of the petitioner which was produced before the Court. The Court never examined the chemical analyst and other experts to prove the clinical result of the sample examined.
It has been also contended that the F.I.R. case against the petitioner was originally registered u/s 20(b)(i) of the NDPS Act on 04.03.1992 which was an offence punishable for rigorous imprisonment for a term which may extend to 5 years, and fine which may extend to Rs. 50,000/- only. The NDPS Act was amended in the year 2001 w.e.f. 02.10.2001 and the charge against the petitioner was framed under the amended Act u/s 20(b)(ii)(B) for an offence punishable with rigorous imprisonment for a term which may extend up to 10 years and fine which may be extended to Rs. 1 lakh which was not permissible.
7. The learned counsel for the petitioner submitted that Mr. R. Baral, Superintendent of BAPS who issued the authorization letter for the search and seizure of the contraband article was not the authorized person as the prosecution has not proved that he is the empowered authorized officer in terms of Section 41(2) of the NDPS Act to issue authorization to any subordinate officer.
It was also submitted that the seizure was not made in accordance with law and provisions of Section 50 of the NDPS Act and Section 100 of the Cr.P.C. were not complied with.
It has been contended that the authorization letter dated 3.3.92 (Ext. P/4) as well as the information submitted (Ext. P/6) for issuance of the said authorization letter were fabricated documents.
It has also been submitted that exhibit P. 8, the sample of the seized contraband article was not proved in accordance with law and it was not proved that the sample was sent from the seized article and witnesses who are involved in the sending of the sample were not examined in the Court. Further, the expert who prepared the report of the chemical analysis was not examined.
8. Learned counsel for the petitioner relying on the decision of the Gauhati High Court in Yazid Ali & Anr. Vs. State of Tripura 1996 (3) GLT 473 submitted that as no independent witnesses were examined by the prosecution even though they were available, the trial will be vitiated. The petitioner contended that all the prosecution witnesses were official witnesses and none of the independent witnesses though available were examined by the prosecution. It was also contended that the Investigating Officer of the case, P.W. 4 had mentioned the names of Ningombam Naba Singh, Sanasam Nimai Singh and Y. Tombi Singh, who were all independent civilian witnesses who have testified about the search and seizure of the contraband items, but they were not examined.
9. Learned P.P. has however argued that there was no infirmity in the procedure adopted in the search and seizure of the contraband articles. It has been also submitted that the provision of Section 41(2) was fully complied with as the information received by the complainant was reduced in writing as required u/s 41(2) of the NDPS Act before the authorization was given to the Sub Inspector to search and seize the contraband articles.
Learned P.P. also has submitted that as observed by the learned Trial Court the accused did not raise any question as to the authority of the person empowering search and seizure. Further, it was also submitted that the lack of independent witness will not vitiate the trial relying on the judgment of the Supreme Court in Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746 .
10. As evident from the above, the petitioner has raised several grounds for assailing the impugned judgment and order. These grounds relate to various stages of the investigation and trial starting with the issue of authorization letter in terms of the provisions of Section 41(2) of the NDPS Act, upon receipt of the required information, the manner of seizure of contraband article, lack of examination of civilian witnesses, non examination of expert witnesses, non examination of witnesses relating to sending of samples etc.
In view of the above we will deal first with the issue raised by the petitioner relating to authorization letter in terms of Section 41(2) , as the criminal investigation would start rolling thereafter.
In the present case, the search and seizure of the contraband article and arrest of the petitioner was carried out by an officer who was authorized by an empowered officer as contemplated u/s 41(2) of the ND & PS Act. A perusal of Section 41(2) would reveal that any officer of gazetted rank or a police or any other department as mentioned therein of the State Government as is empowered in this behalf, by general or special order of the State Government, if he has reason to Relieve from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act, may authorize any officer subordinate to him to arrest such a person or search building or place. Thus, Section 41(2) contemplates the following
(i) The empowered officer must have been so empowered in that regard by a general or specific order of the State Government
(ii) Such empowered officer must, on the basis of personal knowledge or information furnished by any person and taken down in writing, entertain the belief that a person has committed an offence punishable under the Act.
(iii) Such an empowered person having such information and having formed such an opinion, may authorize any other subordinate person to undertake search or seizure and arrest.
Therefore, in the present case, we may need to examine whether the aforesaid ingredients have been satisfied. Examination of the authorization letter (Ext. P/4) issued u/s 41(2) of the ND & PS Act by the empowered officer would show that the letter was issued by one R. Baral, IPS in a cyclostyled page, with the relevant columns regarding the particulars of the authorized person and particulars of the suspected person filled up by hand writing.
The said authorization letter was purportedly issued after receiving a written information from the informant, i.e. Y. Dhananjoy Singh on 3.3.1992 who was also authorized by the empowered officer to effect the search of the premises of the petitioner, which has been exhibited as Ext. P/6. The said authorization letter (Ext. P/4) starts with the sentence "Whereas from personal knowledge/information laid before me,......". Counsel for the petitioner has laid great emphasis on the fact that either of the two sources of information ought to have been struck off depending on the source of information. In the present case, it has been submitted that since the information was based on a written report submitted, the relevant phrase "personal knowledge" ought to have been struck off. The fact that this phrase was not struck off clearly indicates that there was non application of mind by the concerned officer. It may be noted that though the said R. Baral, had put his signature with the date "3/3/92", the date given "3rd" in respect of the "3rd day of March, 1992" written above the signature, is found to be over written.
Further, in respect of the written information, Ext. P/6 a close examination would reveal that the said information put in hand writhing has been over written in several places. The date and time and place relating to the information about the possession of the contraband ganja by the petitioner have been over written. Some of the words have been shown to be struck off by hand writing. Thus the date and time of information received, i.e. "10 P.M. on 3/3/92" is found to be over written over the words/characters "12 A.M. on 4/3/92". Similarly, the place of getting information is also found to be crossed and freshly written as "BAPS" by cancelling the words "Sekta Village". Some other words have been also crossed out.
The scanned copy of the said document, Ext. P/6 is reproduced hereunder for better appreciation.
Ext. P/6 (sic)
It may be noted that only because of the aforesaid Ext. P/6, the criminal process had been initiated against the petitioner and, therefore, is of vital importance, for if such a document is found to be not valid or is doubtful, the subsequent actions based thereon would be rendered invalid.
11. The petitioner, in course of the trial, had raised objection by contending that such documents are false and fabricated documents. The petitioner in course of the argument also has submitted that Mr. R. Baral, the officer who issued the authorization letter was never examined, neither any document shown nor produced by the prosecution to demonstrate that the said R. Baral, is indeed the empowered officer by virtue of any specific or general order issued by the State Government. Therefore, it has been contended that in absence of such an order, general or specific, empowering the said R. Baral and more particularly in absence of his examination during the trial as the author of the said authorization letter, the said authorization letter is invalid and cannot be acted upon.
While considering the aforesaid pleas of the petitioner it would be apposite to reproduce the evidence of P.W. 1, as he is the most important witness as far as these issues are concerned, since no other official or relevant witnesses have been examined relating to this particular issue raised by the petitioner.
FORM FOR RECORDING DEPOSITIONP.W. No. 1
Dated: 4.7.2005
Name: Yumnam Dhananjoy Singh,
aged about 50 years,
s/o late Y. Pakchao Singh of
Mayanglangjing.
Occupation: inspector.
Taken on solemn oath:
I have been serving in the Manipur Police Department since 1980. In the year 1992 I was posted at BAPS as S.I. of Police. I know the accused now in the dock. On 3.3.1992 about 10 p.m. while I was at BAPS received a reliable information from my own source that one Yumkhaibam Harimohon Singh of Sekta Makha Leikai has been keeping some C/ganja without any authority in his house. I recorded the information in writing. I immediately reported the matter to S.P. BAPS issued one authorization letter of search memo. Thereafter I along with a police party rushed to the house of Y. Harimohon situated at Sekta Makha Leikai. On arrival there at about 2.30 a.m. of 4.3.92 I called two local witnesses and conducted house search of the said accused. During the search one plastic packet containing C/ganja was found kept concealed inside the granary godown of the accused. I took out the ganja and weighed in presence of witnesses. During weighing it was found about 10 kgs. in weight. I seized the said contraband ganja from the unauthorized possession of Harimohon Singh in presence of witnesses. I obtained the signatures of accused and two witnesses on the weighing memo and seizure memo prepared by me. The said ganja has been packed and sealed in presence of witnesses. Thereafter the seized ganja along with the accused person have been brought to BAPS and handed over to O.C. BAPS along with a report. The O.C. BAPS issued one godown receipt to me. The O.C. BAPS after registering a case, re-seized one information recorded, one authorization letter for house search. One weighing memo, one seizure memo. on my production in presence of witnesses. I will be able to identify the seized articles if shown to me.
Ext. P/1 is the original ejahar. Ext. P/1(1) is my signature. Ext. P/1(2) is the signature of O.C. BAPS. Ext. P/2 is the seizure memo. Ext. P/2(1) is my initial. Ext. P/2(2), (3) are the signatures of the witnesses. Ext. P/2(4) is the signature of the accused. Ext. P/2(5) is the signature of the O.C. Ext. P/3 is the weighing memo. P/3(1) is my initial. P/3(2), (3) are the signatures of the witnesses. Ext. P. 3/(4) is the signature of the accused. Ext. P/3(5) is the initial of the O.C. BAPS. Ext. P/4 is the authorization letter issued by the S.P. BAPS u/s. 41(2) of ND & PS Act. Ext. P/4(1) is my signature. Ext. P/4(2) is the signature of S.P. BAPS. Ext. P/5 is the godown receipt. Ext. P/5(1) is the signature of O.C. BAPS. Ext. P/6 is the information recorded u/s. 42(1) ND & PS Act. Ext. P/6(1) is my signature. Ext. P/6(2) is the signature O.C. BAPS. Ext. P/7 is the re-seizure memo. Ext. P/7(1) is my signature. Ext. P/7(2) is the signature of O.C. BAPS.
x x x x x x x x x by the Ld. Defence counsel. I deny the suggestion that the said ganja was not seized from the direct possession of the accused. I deny the suggestion that the ganja was seized from the possession of the father of the accused namely Y. Agor Singh. I also deny the suggestion that the accused was not present at the time of the seizure of the ganja and when the accused is entered in his house later he was arrested. I also deny the suggestion that Ext. P/1 to P/7 are false and fabricated documents.
Perusal of the aforesaid deposition of P.W. 1 would show that though he had mentioned about submitting the requisite information in writing to the S.P. BAPS who issued the authorization letter to him to enable him to carry out search, he has not mentioned whether the S.P. BAPS was the authorized officer in terms of Section 41(2) , as authorized by a general or specific order of the State Government. No such order, specific or general, empowering the said S.P. BAPS to issue such authorization letter as provided u/s 41(2) has been mentioned nor produced by the prosecution.
Therefore, the contention of the petitioner that in absence of examination of R. Baral or production of any document issued by the Government showing authorization of R. Baral, the Prosecution has failed to prove that R. Baral is indeed the authorized officer in terms of Section 41(2) stands substantiated. Onus was on the Prosecution to prove this vital and material fact, which in the opinion of this Court, the Prosecution failed to discharge.
12. Coming to the issue of over writing of the document "Ext. P/6" in questioning its validity, it is well established that before the validity of any document can be challenged on the ground of over writing, such fact of over writing ought to be specifically brought to the notice of the author of the document so as to enable him to explain such over writing. Further, unless such over writing causes prejudice to the party, the party cannot have any grievance.
In the present case, though no such specific question about over writing was put to PW-1 in the cross examination, relating to the aforesaid documents, "Ext. P/4" and "Ext. P/6", it has been suggested by the petitioner that such documents were false and fabricated. Even if such specific questions were not put, perusal of the aforesaid Ext. P/6 would clearly reveal, that the date and time were over written. The date and time mentioned in the said document as "10 P.M. on 3.3.92" was clearly written over "12 A.M. on 4.3.99", thus, clearly showing two possibilities of the date and time about the receipt of information from the source as mentioned in the said document. If the said date and time, which has been over written i.e. "12 A.M. on 4.3.1999" is considered to be correct, it would change the entire complexion of the document, as the authorization letter was stated to be signed on 3.3.1992.
The date put by the informant below his signature is also found to be over written as "3/3/92" in place of "4/3/92". In other words, if the information had been furnished on 4.3.92, the authorization letter could not have been issued on 3.3.92. Thus a serious discrepancy would arise casting a serious doubt on the authenticity of the document in Ext. P/6, i.e. information reduced in writing by the informant submitted to the empowered officer, which must be prior to the issue of the authorization letter (Ext. P/4).
It may be mentioned that the provisions of Section 41(2) have to be strictly construed and if serious doubts are raised as to the authenticity of any of the documents mentioned in Section 41(2) , the entire act of search and seizure could be rendered vitiated.
13. In the present case, this Court is of view that sufficient grounds have been made out to throw doubt on the veracity and authenticity of the document more particularly, Ext. P/6 on which basis the authorization letter Ext. P/4 was issued to the informant to conduct search and seizure.
The over writing on the date and time on the document "Ext. P/6" would indicate the possibility of the said document having been executed in a time subsequent to the issue of the authorization letter "Ext. P/4" which if true, would render the execution of authorization letter "Ext. P/4" doubtful and invalid, for the authorization letter could have been issued only after receiving the information in "Ext. P/6". Thus, if the information "Ext. P/6" was furnished on 4.3.1992, the authorization letter could not have been issued on 3.3.1992. In such an event, a serious prejudice would be caused to the petitioner, as all the subsequent criminal actions against the petitioner are based on those documents.
It may be also stated that there was over writing in the document at Ext. P/4 also which could have been explained only by the author of the said document namely, Mr. R. Baral, IPS, S.P., BAPS. But since he was not examined, no such explanation would be forthcoming as the over writing could have been explained by none other than Mr. R. Baral. Therefore, this Court is of the opinion that a serious doubt exists about the authenticity and veracity of the document in Ext. P/4 on which basis the entire criminal proceeding was invoked against the petitioner.
If the initial actions are based on doubtful documents which have not been proved beyond reasonable doubt, the benefit of doubt ought to be given to the petitioner. This Court is of the opinion that the petitioner would be entitled to the benefit of doubt as regards the proof of the crucial evidences namely, Ext. P/6 and P/4. If the said documents, Ext. P/6 and P/4 which form the basis for the criminal investigation and trial against the petitioner are held to be not proved beyond reasonable doubt, the entire trial would stand vitiated and on this score only, the petitioner would be entitled to be acquitted.
It may be noted that this Court has undertaken this exercise to examine the irregularities in these documents, as these irregularities are apparent on the face of the records, which do not require any minute and elaborate examination of the documents referred to above. It may be also observed that the principle of "proof beyond reasonable doubt" as applied in criminal proceedings need not be taken to pedantic heights and a mere irregularity may not be sufficient to invoke this principle and the conviction can be sustained. But in the present case, the irregularities are so glaring and apparent on the face of the records that it cannot escape the attention of the Court, even if the petitioner has not raised any specific objection on that ground. Further, these documents are vital and go to the root of the criminal case against the petitioner as it was initiated with these documents, and the implications are so serious as discussed above that the Court is of the view that the petitioner would be entitled to benefit of doubt. The prosecution cannot evade the burden of proving the case beyond reasonable doubt on the plea that the defense has not specifically questioned the validity of the documents or the authority of the officers issuing the authorization letter or conducting the search and seizure. The onus of the prosecution to prove the essential material facts remains irrespective of the stand of the accused, unless, the accused admits to the relevant facts.
In view of the fact that the present petition can be allowed on the aforesaid grounds, this Court is of the opinion that consideration of other contentions raised by the petitioner in challenging the conviction and sentence dated 4.5.2012 may not be necessary.
Accordingly, for the reasons mentioned above, the petition succeeds and is allowed. Consequently, the impugned judgment and order dated 4.5.2012 passed in Sessions Trial No. 700 of 1995 by the Special Court, ND & PS, Manipur, stands set aside. As a result, the petitioner is entitled to be released in connection with the said case.
