Allowed

Geeta v. State of U.P.

Allahabad HC9 Jan 2018JAPL/5622/2015

Case brief

AI extract

What is this about?

Charas possession convictions were challenged for defective personal searches and deficient recovery evidence. The court found non-compliance with Section 50, deficiencies in sampling and safe custody, and prejudicial non-compliance with Section 57. It allowed all three appeals, acquitted the appellants and directed their release unless detained in another case.

What did the court decide?

All three appellants acquitted under Section 8/23 of the NDPS Act; immediate release directed unless detained in another case.

Geeta Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2018)

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A.F.R.

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Reserved on 29.11.2017 Delivered on 09.01.2018

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Court No. - 17

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Case :- JAIL APPEAL No. - 5622 of 2015

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Appellant :- Geeta Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Kalpana Singh Counsel for Respondent :- A.G.A.

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Connected with

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Case :- JAIL APPEAL No. - 5623 of 2015

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Appellant :- Sangeeta Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Kalpana Singh A.C Counsel for Respondent :- A.G.A.

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Connected with

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Case :- JAIL APPEAL No. - 5624 of 2015

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Appellant :- Suneeta Gurung Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Kalpana Singh A.C Counsel for Respondent :- A.G.A.

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Hon'ble Dinesh Kumar Singh-I,J.

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This Criminal Appeal No.5622 of 2015 has been filed against the judgment and order dated 31.10.2015 passed by Additional Sessions Judge, Court No.1, Maharaj Ganj in Special Sessions Trial No. 67 of 2011 (State Vs. Geeta) arising out of Case Crime No. 8896 of 2011, P.S. Sonauli whereby accused appellant has been convicted and awarded punishment under Section 8/23 N.D.P.S. Act ( hereinafter referred to as the Act) of 10 years R.I., fine of Rs. 1,000,00/- and in default of payment of fine, one year additional imprisonment.

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The other Criminal Appeal 5623 of 2015 has been filed by accused appellant Sangeeta against the same judgment whereby she has been awarded the same punishment under the same sections.

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The third Criminal Appeal No.5624 of 2015 has been filed by Suneeta Gurung against the same judgment whereby she has also been awarded the same punishment under the same Sections.

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Since all these three Appeals mentioned above arise out of same judgment and order, they are being taken up together.

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At this stage, it would be pertinent to mention here that the court below had passed an order dated 31.5.2012 directing all the three S.T.s namely S.T. No. 66 of 2011, S.T. No. 67 of 2011 and S.T. No. 68 of 2011 to be tried consolidatedly because all these had common recovery memo. Thereafter, the evidence was recorded by the court below in leading S.T. No. 66 of 2011 (State Vs. Sangeeta). After the entire evidence was recorded, at the stage of recording of statement of accused under Section 313 of Cr.P.C., an application No. 84 of 2009 was moved by accused appellant, Sangeeta praying for separating her case and for permitting to adduce evidence in defence. The said application was allowed by the lower court and thereafter she has examined herself as D.W.1 in defence on 27.10.2015. The arguments were heard by the leaned court below on 28.10.2015, 29.10.2015 and thereafter when the arguments were completed on 31.10.2015, the judgment was delivered on 31.10.2015 in this case.

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Record does not reveal as to whether any separate order was passed by the learned lower court with regard to other S.S.Ts being conducted jointly or separately. However, it is found that the judgment in other two S.S.T.s were also delivered on the same date. The accused Sangeeta had also examined herself in defense as D.W.1 but no reference is found thereof in the order-sheet. The third accused Geeta did not produce any evidence in defense.

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The facts of the case, in brief, are as follows:-

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On 29.9.2011, P.W. 1, S.I. Sri Ram Shabad Verma along with constable Sri Manoj Kumar Singh (P.W.2) received an information by informant when they were busy in performing their law and order duty that from the side of Nepal, some persons with illegal articles were likely to come, if search be made, they could be arrested. Believing this information, S.I., Shri Satte Singh who was performing duty on the IndoNepal border gate and S.S.B. (I) Batalion E company were apprised about it, who took along head constable Hukam Singh Constable Pintu Negi, lady constable Jahan Ara Khan, lady constable Beena Devi (P.W.3) and began the search. Right then, three ladies were noticed coming from the side of Nepal with one child each who, after looking these police personnel, took about turn. At this the police party became suspicious and the lady constable directed them to stop. On being enquired, the first lady disclosed her name to be Sangeeta, the second disclosed her name to be Geeta and the third disclosed her name as Suneeta Gurung. All the three accused stated that because they had 'charas' with them, they tried to run away in the opposite direction. After having come to know that all these three ladies had 'charas' with them, they were told that they would be searched in presence of a gazetted officer or a magistrate. On this, all of them collectively as well as individually stated that they had revealed the correct facts and in view of that, they could be searched by the lady constables who were present there. Pursuant to the written consent having been given by them, search was made by lady constable Jahan Ara Khan, thereafter from Sangeeta, five packets of 'charas' were recovered from her old salwar suit which was got weighed on a weighing machine (balance) which was brought by constable Manoj Kumar and the same was found to be 4.6 kg. The other lady Geeta was searched by Jahan Ara Khan and from her possession, five packets of 'charas' were recovered which was found to be 5.1 kg. From third lady, Suneeta Gurung, the same lady constable had recovered five packets of 'charas' which was found to be 5.1 kg. All the three ladies could not show any license to possess the said 'charas' and started apologizing. All of them were arrested at 17:00 hours after being told that they had committed offence punishable under Section 8/23 of N.D.P.S. Act. Thereafter, small quantity of 'charas', approximately (100 grams), was taken out

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from all the packets and was kept in two separate clothes and was sealed on the spot and the sample seal was also prepared. The remaining 'charas' i.e. 4.5 kg, 5 Kg and 5 kg respectively, recovered from all the three accused were separately kept in separate clothes and were separately sealed and the sample seal was also prepared. At that time, a large number of people assembled, but none of them was ready to be witness to this recovery. The recovery memo (Exhibit Ka-1) was prepared on the spot and was read out to the accused and their signatures were also obtained thereon. A copy of each of the recovery memo was given to all the three accused. Thereafter all the three accused along with the recovered contraband substance & sample of the contraband substance, sample seals were taken to the police station and Case Crime Nos. 894 of 2011, 896 of 2011 and 897 of 2011 were registered under Section 23 N.D.P.S. Act against the accused appellants Sangeeta, Geeta and Suneeta respectively and a chick F.I.R. was prepared which is Exhibit Ka 11. The entry of this case was made in G.D. dated 29.9.2011 at report No.26, time 21:30 hours. The investigation was assigned to P.W.4, S.I. Ram Saware Singh Yadav who prepared the site plan (Exhibit Ka 5) in S.T. No. 66 of 2011, State Vs. Sangeeta (Exhibit Ka-7) , in S.T. No. 67 of 2011 State Vs. Geeta (Exhibit Ka9), in S.T. No. 68 of 2011 (State Vs. Suneeta Gurung) after having inspected the place of occurrence at the instance of the first informant. Thereafter taking into consideration the F.S.L. report in S.T. No.66 of 2011 (paper No.15 Ka), in S.T. No. 67 of 2011 (paper No. 15 Ka) and in S.T. No. 68 of 2011 (paper No.14 Ka) and also taking into consideration the entire documentary evidence and the statements of witnesses P.W. 1 to P.W. 3 and the P.W.5 submitted charge-sheet (Exhibit Ka 6) in S.T. No.66 of 2011, charge-sheet (Exhibit Ka 8) in S.T. No. 67 of 2011 and charge-sheet (Exhibit Ka 10) in S.T. No.68 of 2011.

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From the side of the prosecution following witnesses were examined:-

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Sri Ram Shabad Verma as P.W.1, Manoj Kumar Singh as P.W.2, Veena Devi as P.W.3, R.S. Singh Yadav as P.W.4 and Chadu Prasad as P.W.5 were examined.

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The documentary evidence which has been brought on record is recovery memo (Exhibit Ka-1), consent letter of appellant Sangeeta (Exhibit Ka- 2) consent letter of

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accused appellant Geeta as (Exhibit Ka- 3) consent letter of Suneeta Gurung (Exhibit Ka-4), site plan (Exhibit ka-5) , charge-sheet against Sangeeta (Exhibit Ka-6) , chargesheet against Geeta (Exhibit Ka-8) and charge-sheet against Sangeeta Gurung (Exhibit Ka-10). In addition to these, material Exhibits, case property, recovered from Sangeeta which comprised white cloth (material Exhibit Ka-1), red cloth (material Exhibit Ka-2) and five packets of charas (Exhibit Ka-3) were also brought on record.

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The case property recovered from Geeta comprised white cloth (material Exhibit-4), Green Cloth (Material Exhibit -5), five packets of charas (material Exhibit6); the case property recovered from Suneeta Gurung comprised white cloth (Exhibit Ka-7), Green Cloth (material Exhibits-7-8) and charas recovered from her possession (material Exhibit 9).

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Thereafter the prosecution had closed its evidence and statement of accused were recorded under Section 313 Cr.P.C.

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All the three accused appellants have stated under Section 313 Cr.P.C. that they had been falsely implicated.

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The learned court below after having taken into consideration the entire evidence on record has found that the case is proved against all the three appellants and has awarded aforementioned punishment.

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A perusal of the impugned judgement would show that from the side of defence it was argued that compliance of mandatory provisions of the NDPS Act was not done by prosecution. Sections 50 and 57 of the Act were not complied with; no witness of public was sought. Reliance was placed upon the judgment of Hon'ble Apex Court in Ashok Kumar Sharma vs State of Rajasthan, 2013 (2) SCC 67 . The learned Court below relying upon the judgement of Navdeep Singh vs State of Haryana, (2013) 2 SCC 584 and on Gianchand vs State of Haryana, (2013) 14 SCC 420 , refuted the arguments of the learned counsel for the defence and held that compliance of Sections 50 and 57 of the Act was adequately made and found the case proved against the

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accused Appellant beyond all reasonable doubt and awarded them above-mentioned punishment.

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Aggrieved by the judgment of learned trial Judge, the appellants have preferred these jail appeals.

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Heard the arguments of learned Amicus Curiae, Ms. Kalpna Singh for the appellants and the learned AGA at length and perused the paper book as well as original documents.

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The learned Amicus Curiae has contended that compliance of Section 50 of the NDPS Act has not been made. No effort was made to take independent witness for proving recovery of contraband substance from the accused appellant. The lady constable who is alleged to have taken searches of the appellants, has not been examined by prosecution. A number of gazetted officers were available at the place of recovery but the appellants were not produced before them. There is discrepancy in the statements of witnesses as regards weighing of the contraband. On the consent letters no signatures were taken of the appellants. The prosecution has failed to prove its case against the appellants and yet the learned Court below has passed wrong conviction order which needs to be set aside and the appellant should be set at liberty.

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On the other hand the learned AGA has vehemently argued that the compliance of Sections 50 and 57 of NDPS Act has been fully made by the prosecution. The police witnesses’ statements may not be discarded only because they were police witnesses and for want of public witnesses. They have discharged their duty and in pursuance thereof police have arrested the accused appellants on account of recovery of huge contraband (charas) from them.

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First of all, the point of compliance of section 50 of the Act is being taken up. Whether the prosecution has been able to make compliance of section 50 of NDPS Act is a finding of fact which needs to be determined on the basis of evidence adduced by the prosecution in the light of cross-examination made from the side of defence. In recovery memo (Exhibit Ka 1), it is mentioned that when PW 1, Sub-Inspector, Ram

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Sabad Verma with his teammates was performing his duty of maintaining law and order, he received an information by an informant that from the side of Nepal some persons were likely to come with illegal articles, if a proper checking be held they could be arrested. Relying upon that information, the police team began intense checking and during that they noticed that 3 ladies each carrying one child were coming from the side of Nepal, who having seen police, took U-turn which made the police suspicious about them and a lady constable of S.S.B. stopped them. On being enquired, appellants Sangeeta, Geeta and Suneeta Gurung revealed their names and disclosed that they were trying to flee because they had 'charas' with them. On coming to know that they had 'charas', they were apprised that they would be searched in presence of gazetted police officer or Magistrate. Hearing this all of them jointly as well as severally stated that they were ready to be searched by lady constables who were in the team of search party and after having given consent letters, they were searched by lady constable Jahan Ara Khan. She recovered five packets of 'charas' strapped to the waist of Sangeeta which were weighed after calling for a balance from constable Manoj Kumar Singh and was found to be 4.6 Kg. From Geeta, five packets of 'charas' were recovered which also strapped to her waist and on being weighed, were found to be 5.1 Kg. and from the third lady, Suneeta also 5 packets of 'charas' were recovered in the same manner which weighed 5.1 Kg. All the 3 could not show any license to possess the said contraband and started apologising. PW 1 who is a witness of arrest and recovery has stated in examination-in-chief that on these ladies revealing that because they had charas, their search would be made in presence of a gazetted police officer or a Magistrate, whereon all of them separately and collectively stated that they had revealed what was the truth and that they could be searched by the lady constables accompanying them. The consent letter of Sangeeta is Exhibit Ka 2, of Geeta is Exhibit Ka 3 and of Suneeta is Exhibit Ka 4. In cross-examination this witness has stated that in Exhibit Ka-1, it is not written that it was ‘your’ right to give search before Magistrate or a gazetted officer. In the said Exhibit it was written that “your search would be made in presence of a gazetted police officer or Magistrate”. In consent letter it was not written that Suneeta Gurung did not

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want to be searched in presence of a gazetted officer or a Magistrate nor was it mentioned therein that she could get herself searched in presence of a Magistrate or a gazetted officer and that such a search was her right. On the consent letter his small signature is made and accused Suneeta Gurung has made full signature. There was no signature of the lady constable who had taken her search on the consent letter nor her name is mentioned thereon. On the said consent letter no signature is available of any companion police officer/official of PW 1 or that of any officer or official of S.S.B. nor that of any public witness. PW 2, constable Manoj Kumar Singh in this regard has stated in examination-in-chief that when all the 3 appellants revealed that they had 'charas', they were told that they would be searched in presence of a gazetted officer or a Magistrate of which they had a right. After hearing this all of them jointly as well as singly stated that they could be searched by the lady constables who were accompanying the police raiding team and also executed consent letter separately in that behalf. In cross-examination, this witness has stated that in S.S.B. Camp, there were gazetted officers. All the 3 appellants had been produced before gazetted officer. It was not written in the recovery memo that it was their right that they could be taken before a Magistrate or a gazetted officer for being searched. There was no mention made in Exhibit Ka 3 that appellant Geeta had this right of being searched before a gazetted officer or a Magistrate if she so opted. There is no mention made in Exhibit Ka 3 that she was apprised of such a right. There was no signature on the said Exhibit, of PW 2 or any other constable witness. Further this witness has stated in cross-examination that the consent letter of Suneeta Gurung was written before him, on which she had put her signature but it does not bear his signature on that. After the recovery of 'charas' and the consent letter having been written, S.I. had told Sunita Gurung that search could be made in presence of a Magistrate or a gazetted officer. In recovery memo it was not written that it was her right to be taken before the Magistrate or a gazetted officer for being searched. Accused Sangeeta was not presented before any gazetted officer. After recovery of 'charas' and execution of consent letter, S.I. had told Sangeeta for search in presence of Magistrate or a gazetted officer. PW 3, Bina Devi in this regard has stated in

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examination-in-chief that when all the 3 appellants were caught, S.I. Ram Sabad Verma had told them that they had charas and hence they had a right if they so desired to be taken before a gazetted officer or a Magistrate, but all the 3 told that they had already revealed the truth and hence they could be searched by the lady constables with them and they did not want to be searched in front of any other person. They had voluntarily given their consent, whereafter 'S.I. Sahab' had recorded their statements separately and prepared their consent letters which were signed by them, pursuant to which search was made by Jahan Ara Khan. In cross-examination this witness has stated that consent letter was not got written from any accused or by her. Whether the accused had written consent letter on their own, she does not recollect. She also does not recollect whether consent letter was signed by her or not. She was shown Exhibit Ka 3, whereon her signature was not found. PW 4, S.I. Ramsaware Singh Yadav who is investigating officer of this case has stated in this regard that on the consent letter of the accused persons, only signatures of accused were made and not of any witness, neither a police nor a public witness. He did not verify during investigation as to who had written consent letter on behalf of the accused persons. In Exhibit Ka 2, recovery memo it is mentioned that “therefore your search would be made in presence of a gazetted police officer or Magistrate”. Nowhere is it mentioned in it that accused were to be taken before a Magistrate or a gazetted officer. In statement under section 161 Cr.P.C. it was stated by the complainant/first informant that they had not apprised the accused persons that they had a right of their search to be made in front of a gazetted police officer or a Magistrate. No witness had stated under section 161 Cr.P.C. that they were told about their search to be made in presence of a gazetted officer or a Magistrate. In Exhibit Ka 3, consent letter of Geeta nowhere it was mentioned that she was apprised about her right to be taken to a Magistrate or gazetted officer for her search. He did not try to find out as to who had written Exhibit Ka 3 and that no witness had signed this. Further he has stated that in recovery memo it was written, “therefore, your search would be made in front of gazetted officer or Magistrate”, but it was not recorded therein that it was

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their right to be searched in presence of a gazetted officer or a Magistrate. Simultaneously in consent letter also word ‘right’ has not appeared.

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From the above statements of all the relevant witnesses of fact as well as investigating officer, it has become crystal clear that the accused appellants had not been apprised about their right to be taken before a Magistrate or a gazetted officer to be searched, when it was revealed by them that they possessed 'charas'. In consent letters allegedly signed by all the 3 accused appellants also, it has not been mentioned that they had a right to be searched in presence of a gazetted officer or a Magistrate. The evidence has emerged on record that soon after the accused revealed that they had 'charas', it was told that they would be searched before a gazetted officer of police or Magistrate. Nowhere was it mentioned that they had a right to be taken to a gazetted officer or a Magistrate for being searched if they so opted. It cannot be presumed as to what would be the reply of the accused appellants had they been given such an offer. Till such an offer was made and the reply was obtained and if the same would be in negative, then only the police could go ahead with search at their end. Therefore it is apparent that the police has failed in this case to make compliance of the mandatory provisions of section 50 of NDPS Act.

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The learned Amicus Curiae has placed reliance upon Nirmal Singh Pehalwan alias Nimma vs Inspector, Customs, Customs House, Punjab (2011) 12 Supreme Court Cases 298 , the relevant paragraphs of this judgement are reproduced herein below for the sake of convenience: –

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“6. The trial court, on a consideration of the evidence, held that the case against the appellant had been proved beyond doubt more particularly as he had made a confession to PW.4 which was admissible in evidence as PW.4 was not a police officer. It was also found that the provisions of Section 50 of the Act had been complied with as Ext. PA, a consent memo, had been drawn up prior to the search. The trial court accordingly convicted and sentenced the appellant, as already mentioned above. The conviction and sentence has been confirmed by the High Court.”

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"7. Before us, Mr. Sanjay Jain, the learned counsel for the appellant, has raised primarily two arguments based on the judgments of this Court. The first is Vijaisinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609. In this case it has been observed by the Constitution Bench that the provisions of Section 50 of

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the Act postulated that before a search was made of a person suspected of carrying a narcotic he should be informed of his right that he had an option of being searched in the presence of a gazetted officer or a Magistrate and that merely because a consent memo had been drawn up whereby he had chosen to be searched before the Magistrate or a gazetted officer (on the option given to him by an authorized officer) would not amount to full compliance with the aforesaid provision.”

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“10. We have examined the facts of the case in the light of the arguments raised by the learned counsel for the parties and the case law cited. Ext. PA is the consent memo under which the appellant had opted to be searched in the presence of a gazetted officer. This memo is in the Gurmukhi script and has been read to us and we see that it cannot by any stretch of imagination be said to be informing the appellant of his right to be searched in the presence of a gazetted officer or a Magistrate as he was only given the option to be searched before one or the other.”

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“11. In Vijaisinh case (supra) the Constitution Bench crystallized the issue before it in para 1 as under: (SCC p.612)

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“1. The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section?"

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This was answered in paragraph 29 in the following terms: (Vijaysinh case, SCC p. 622)

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" 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorized officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."

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“13. It is therefore apparent that the precise question that was before the Constitution Bench in Vijaysinh case was as to whether a consent memo could be said to be information conveyed to an accused as to his right under Section 50 of the Act. The Constitution Bench clearly stated that a consent memo could not be said to be such information as the provisions of Section 50 of the Act were mandatory and strict compliance was called for and any deviation therefrom would vitiate the prosecution. It was further held that it was not necessary that this information should be in a written form but the information had to be conveyed in some form or manner which would depend on the facts of the case.”

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“14. We have accordingly gone through the evidence of PW 4 Prem Singh. He did not utter a single word as to whether he had informed the appellant of his right and he merely took his option as to whether he would like to be searched before a gazetted officer or a Magistrate as noted in Ext .PA. In the light of the judgment in Vijaisinh case (supra) we find that there has been complete noncompliance with the provisions of Section 50 of the Act.”

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It is clear from the above ruling that the Apex Court found in this case that the appellant was only given an option of being searched in presence of either a gazetted officer or a Magistrate and the same was not found to be full compliance of section 50 of the Act in the light of law laid down in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609 . In the case at hand though the facts are little different from the above citation, but it is absolutely clear that from the entire evidence which has been narrated above that all the 3 accused appellants had not been apprised of their legal right to be taken before a gazetted officer or a Magistrate if they so opted for being searched and hence compliance of section 50 of the Act was deficient.

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Even the investigating officer had made it clear that none of the witnesses had stated before him that the appellants were apprised about their right to be taken to a Gazetted Officer or a Magistrate, therefore the statement of PW 2 and PW 3 to the effect that the appellants were apprised of the above right would be treated nothing but an improvement on their earlier statements made before the police wherein they did not tell him that the appellants were apprised of their above right.

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Next this Court would take up the point as to whether the prosecution has been successful in proving that alleged contraband substance was recovered from the appellants and the same was properly sealed on the spot; whether its sample was taken and sealed on the spot; whether the seal which was used in sealing the contraband and its sample was safely kept; whose seal was affixed on the spot and whether the sample of said seal was sent to Forensic Science Lab; whether the sample seal was presented before Court at the time of exhibiting the case property after comparing the seal thereon with the sample seal. All these are the steps which would be necessary for this Court to build opinion that transparency was observed by the prosecution in proving the recovery of alleged contraband substance from the appellants. All these points are matters of fact

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which need to be determined on the basis of evidence adduced by the prosecution and the defence. Therefore, a meticulous analysis is required to be made of the evidence which has been brought on record by both the sides. It would hardly be necessary to mention here that determining above facts would fall under section 55 of the Act, provisions of which, though, may not be mandatory but they certainly give added weight to the prosecution case if all the above steps are proved to have been taken by the prosecution to eliminate false implication of the accused.

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The recovery memo reveals that from Sangeeta five packets of charas and weighing 4 KG 600 grams, from Geeta five packets of charas weighing 5 KG 100 gram and from Suneeta 5 packets of 'charas' weighing 5 KG 100 gram, strapped to their waist are alleged to have been recovered and from all these packets, a small quantity of charas was taken out, about 100 – 100 grams by way of sample and the same was sealed separately and the sample seal was prepared while the remainder 4 KG 500 gram, 5 KG and 5 KG each respectively were separately sealed and sample seal was prepared. This 'charas' was weighed by calling for a weighing machine through constable Manoj Kumar Singh. In this regard Ram Sabad Verma, PW 1 has stated in examination-inchief about the said quantity to have been recovered from the appellant as mentioned in the recovery memo verbatim. He stated further that the case property was brought in Court and was opened before it. From one bundle which was opened before Court after being found properly sealed bearing case crime number 895 of 2011, section 8 and 23 NDPS Act P.S. Sonauli which bore signature of Sangeeta and his own signature with date and it was also contained signature dated 30/9/2011 of S.I. Maharajganj, upon opening which five packets of 'charas' were found and from these, small quantity taken out from each totalling 100 gram was sent as sample to FSL. Similarly the second and third packets were also found in sealed condition bearing case crime number 896 of 2011 and 897 of 2011, upon which name of Geeta and Suneeta were written respectively and were similarly signed as was found the first one. They were also similarly opened and were found to contain five packets of 'charas' each. In cross-examination made by Sangeeta, this witness had stated that out of the five packets, 1 packet was found open

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while the remaining 4 were not found open. From the one which was open 'charas' was appearing to have been taken because the same had reduced to approximately half. It was further stated that it did not contain the name of the accused nor did it contain the signature of any constable or his own signature or of any witness. The seal which it bore was not clear. The said packet was not sealed by him, rather was sealed by companion police constable. There was no signature or seal of SHO Sonauli on it. In crossexamination made by Geeta it is stated in cross-examination that from out of five packets of charas, four were in a proper condition which were not open and were covered by plastic. One packet was open which was almost half in comparison to others. None of the packets bore signature of accused or any officer/Official or witness. On the white cloth in which it was sealed, the seal of constable was not clear. There was no seal or signature found on the said cloth of SHO Sonauli. There was no mention made of date when the same was entered in Malkhana nor that of serial number of the Malkhana register nor was there any signature of Incharge Malkhana. There was no description on the cloth about the said material having been taken out from Malkhana. The cloth in which the said substance was sealed did not bear signature of any witness or police official not that of a lady constable of S.S.B. Smt. Jahan Aara. Similarly upon being cross-examined by Suneeta, he stated in cross-examination that out of five packets, the material of one packet was found broken to a certain extent. None of these five packets bear mark or signature, crime number or name of the accused. All the 5 packets were rectangular and did not contain name of the substance or its weight. Further he stated that in each District there is a Malkhana. The Malkhana was in Maharajganj District. The case property was brought by perokar of PS Sonauli. Whenever any case property is taken out of Malkhana or kept in it, an entry to that effect is made in Malkhana register. Material Exhibit 8 did not contain any description of case nor did it contain signature of accused or police official. Material Exhibit Ka 7 was a cloth of Markeen and the seal affixed on that was unclear. On Exhibit 7 crime number, police station, name of accused were written by a sketch pen but they were not clear nor did it contain any signature of public or police witness. He has further stated that whatever contraband was recovered,

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its entry was made in Malkhana register at which serial, he could not tell. PW 2 constable Manoj Kumar Singh has stated in examination in chief that from Sangeeta, Geeta and Suneeta 4 KG 600 gram, 5 KG 100 gram and 5 KG and 100 gram charas was respectively recovered and out of this small quantity 100 – 100 gram was taken by way of sample and was sealed in separate clothes. In cross-examination this witness has stated that no numbering was done on sample of contraband nor could he tell as to from which packet what quantity was taken out as sample. He does not recollect in whose name sample seal was prepared. PW 3 constable Bina Devi in this regard has stated in examination in chief that from 'charas' recovered from all the 3 ladies, 100 gram each was taken out as sample. They were separately sealed and sample seal was prepared. The remainder 'charas' was sealed in the same clothes separately and were sealed. In cross-examination from the side of Suneeta this witness has stated that 'charas' was sealed on the police station and sample was also taken from it. She does not recollect as to how many bundles were there of 'charas'. She does not know about preparing the seal nor could she tell about it. She could only tell that the bundles of 'charas' had seal on it but whose sealed was it she could not tell. From all the three ladies five packets each were recovered of ‘khaki’ colour, which were all taped. This packet was of cloth which was tied to the waist. She had not seen the packets after opening them. In each packet same number in solid form was kept and sample was taken out after cutting open each packet. She could not tell the length, width and thickness of the packet. How much longer in inches the solid substance was taken out for sample she could not tell. All the packets were sealed and the portion which was cut were taped back by the same tape. In one cloth only all the five packets were sealed. She does not recollect whether she had signature on it. In cross-examination made by the counsel for Sangeeta she stated that 'charas' was not sealed on the police station, rather it was sealed where the accused was apprehended. PW 4, S.I. Ram Saware Singh has stated in cross-examination made from the side of Sunita that at the time of remand of the accused he had taken out the case property from the Malkhana to be produced before Court, entry of which was made in Malkhana register. At the time of first remand the sample was not sent to the Forensic

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Science Lab. During investigation he had not sent the sample to Forensic Science Lab for being tested. The entire case property was presented by him before Court for the first time at the time of remand. During entire investigation, no permission was obtained by him from Court for sending the sample to Forensic Science Lab. At the time of first remand when he had brought the case property before Court, the Court had not got the packets opened and seen what was in it, rather only signature was made on the packet. In cross-examination made from the side of Geeta he has stated that he had taken out the case property from Malkhana on 30.9.2011. It was not taken out by him rather was got produced through the Diwan but he does not know the name of said person. This substance was kept in Malkhana which was placed there on 29/9/2011 at 11:30 hours, i.e. when the accused and the case property was brought to P.S. After writing the report the case property was kept in Malkhana. He had not written anything on it after he had taken it out at the time of first remand nor had he made his signature thereon. He had not got it opened to see what was kept inside. S.H.O. had not affixed his seal on the contraband substance or its sample nor had he signed upon it. S.H.O. had not put his signature seal on it at the time when he had taken this case property out from Malkhana at the time of first remand. He has denied the suggestion that at the time of first remand the case property and its sample was not deposited in Malkhana and that he had not taken out that substance from Malkhana. Further he has stated that the occurrence is of 29/9/2011 of 17:00 hours while the said substances appear to have been sent on 16/10/2011. Why this delay happened, he did not take anybody’s statement about this under section 161 Cr.P.C.. At which serial of the Malkhana register the case property was recorded when the same was brought by him before Court, he does not know. There was no CFSL proforma along with the case property available in Malkhana. Regarding this he further clarified by saying that there does not exist any CFSL proforma in Malkhana of police station.

¶77

From the above cited relevant statements, it is not very clear five packets each of charas are stated to have been recovered from each accused appellant namely Sangeeta, Geeta and Suneeta weighing 4 KG 600 grams 5 KG 100 gram and 5 KG 100 gram each

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and out of all the packets of 'charas' a small quantity that is 100 gram each was taken as sample. There is ambiguity that if 100 gram 'charas' from each packet was taken, it would mean that from each appellant the total quantity of sample taken would come to five packets × in 100 gram = 500 gram. While it is recorded in FSLs report that 99.35 gram, 99.75 gram and 100.50 gram were found recorded to be the quantity received in F.S.L. of the samples taken from the contraband recovered from Geeta, Sangeeta and Suneeta respectively. But from the side of learned AGA, it was explained that the said endorsement in this regard in the recovery memo and the statements of the witnesses of prosecution cited above would be interpreted that out of the whole quantity recovered from each accused appellant i.e. 4 KG 600 gram contained in 5 packets, 5 KG 100 gram contained in five packets and 5 KG 100 gram containing five packets, 100 gram each was taken out by way of sample and after the said sample having been taken the quantity of remainder left was 4 KG 500 gram, 5 KG and 5 KG each and that the 3 samples of above quantity and the remainder of above quantity were separately sealed and sample sales were prepared which is supported by the statement of PW 1. There seems to be substance in the argument of learned A.G.A., but in case this above-made interpretation be taken to be true, the question would arise as to how much quantity from each packet was taken, has not been clarified. If there were five packets and from each some quantity was taken so that the entire quantity of sample taken from out of the contraband recovered from one accused appellant would constitute 100 gram, the quantity taken from each packet would come to 20 grams. But none of the witnesses has deposed so, that 20 grams quantity was taken from each packet. Though PW 1 – PW 3 have tried to prove that the sample was taken from each packet of 'charas', but that does not stand proved in the light of statement reproduced above of PW 1 in cross-examination where he has clearly stated that from out of five packets each recovered from the possession of all the accused appellants, 4 each were found not open and only one each was found open, in which the quantity was reduced to almost close to half. This would suggest that the quantity of 'charas' was taken as sample from only one packet out of the 5 recovered from each and that too not 100 gram rather much more than 100 gram, otherwise the

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open packet could not have been stated to have been found just close to half filled. The statement of PW 1 who is a witness of fact/arresting witness generates tremendous doubt in the mind about the procedure adopted in taking the sample. It may also be mentioned here that the seal on the spot ought to have been affixed by PW 1 of his name who is arresting witness if he was authorised by the in-charge of the police station or when the recovered contraband along with accused and sample were brought to the police station, the S.H.O./in-charge police station must have affixed his seal on the sample as well as remainder and the sample seal should also have been placed at a safe place such as Malkhana. In the case in hand the Forensic Science Lab’s report indicates that the seal affixed on the sample was found to be of “Signature U.P.P.” but there is no evidence brought on record from the side of prosecution to prove that the said seal was used at the spot in sealing the recovered contraband as well as its sample. There is also no evidence brought on record to the effect that the sample seal, contraband substance and its sample were all deposited in Malkhana after accused and these items were brought to the police station by showing an entry to that effect in Malkhana register. It may also be mentioned here that, though the prosecution has got the case property exhibited as material Exhibit by producing the same in presence of PW 1 who in examination-in-chief, stated that the seal thereon was found intact but in the crossexamination this witness has given absolutely contrary statement by saying that the seal affixed thereon was not clear, it was not his seal nor that of seal of S.H.O. Sonauli. Seal was fixed by companion constable. That constable who put the seal has not been examined to establish that seal of which description was fixed by him on the spot. It is mentioned here that by not affixing the seal by arresting officer or the seal of the SHO/in-charge police station on the recovered contraband substance and the sample, there is clear violation of the provisions of section 55 of the Act which provides that:-

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“55. Police to take charge of articles seized and delivered.- “An officer-in-charge of a Police Station shall take charge of and keep in safe custody, pending the orders of the magistrate all articles seized under this Act within the local area of that Police Station and which may be delivered to him, and shall allow any officer who may accompany such articles to the Police Station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and of samples so taken shall also be sealed with the seal of officer in-charge of the Police Station.”

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The object of this Section is to preserve the sanctity of the case property. Before any inference can be drawn in favour of the appellant, it has to be established on the record that there was officer-in-charge of the Police Station other than the Investigating Officer. It may equally be possible that the seizing officer may himself be the in-charge of the Police Station and in that eventuality it is not necessary for seizing officer to produce the case property before some other police officer.

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It would be pertinent to refer here to the law laid down in State of Rajasthan

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Vs. Gurmail Singh (2005) 3 SCC 59 wherein the Apex Court has held as below:

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“3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20-5-1995, the malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW 6 on 5-6-1995. We further find that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.”

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Above interpretation of law makes it absolutely clear that in the event Malkhana register not being produced to prove that the contraband substance recovered was kept in Malkhana till it was taken over by witness P.W. 6 and also that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. The case of the prosecution was found doubtful and the accused was acquitted. The case at hand, though, has different facts but it is evident that in this case also, it has also not been proved by the prosecution that the contraband substance recovered from all the three accused was taken to the Malkhana and was entered therein along with the samples and the sample seals till the sample of the recovered contraband was sent to the F.S.L. for being tested, till the remainder was produced before Court for being exhibited with sample seal for comparing that the said remainder was of the same contraband which was sealed on the spot by the arresting officer. This important link is missing in this case. It is true that as

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per various interpretations made by the Supreme Court as well as other High Courts, the compliance of Section 55 of N.D.P.S. Act, is held not to be mandatory but only directory but where the matters goes to the root of the recovery and in important areas, the prosecution is found deficient in taking full steps, it may prove detrimental to the case of prosecution as is the case in the present matter.

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Next point which this Court is taking up is related to the prosecution not taking public witnesses at the time of recovery of the alleged contraband. In recovery memo, it is recorded that at the time of making the said recovery, there were few persons assembled there who were told to be witnesses of said recovery but none gave his consent and without disclosing their names, they left the place. P.W.1 has also repeated these facts in examination in chief. In cross-examination, he has stated that at the time of making search, there was no independent witness present other than the official witnesses. He could not tell name of any person whom the police had asked to be witness but who would not become the witness and went away. P.W.2 in examination in chief stated in this regard that at the time when proceeding were going on, lot of public had assembled there but none of them there was ready to be a witness and they went away without disclosing their names. In cross-examination, this witness has repeated this version but has further added that they were not requested in writing to be a witness of recovery. P.W. 3, Kumari Meena Devi has stated in examination in chief that large number of people had assembled there but no-one was ready to be a witness of recovery, in cross-examination no reason has been disclosed as to why none of them could be made a witness. P.W.4 ( Investigating Officer) has stated that during entire investigation process, he did not make any inquiry from owner of the shops which were situated near the place of recovery for verifying the fact of recovery.

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Thus, from the above statements which are on record, it may be fairly concluded that the version of the prosecution may not be believed that despite so many public witnesses being available on the spot as large crowd is said to have been gathered there but none of them even disclosed his name. It would indicate that an endeavor was not

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made by the prosecution to take any public witness to substantiate the recovery of alleged contraband from the accused appellants.

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The next, this Court would like to take up the point as to whether the compliance of Section 57 N.D.P.S. Act was made by the prosecution in this case. In this regard, P.W.1 stated in examination-in-chief that it is not recorded in his statement under Section 161 Cr.P.C. as to when he gave information of this occurrence to his higher authorities or whether he did not transmit the information at all. In cross-examination, he has stated that he had given information of the occurrence immediately to the higher authorities and had brought the accused to the police station and filed the case and also got the recovered material deposited in Malkhana. Apart from giving this information through R.T. Set, he had not given information separately of this occurrence to any higher authority. Further, he has stated that no written report regarding arrest of the accused and recovery of contraband was prepared by him to be sent to higher authorities.

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P.W.2 has stated in this regard that he did not give any such information to higher authorities, however, S.I. Mohodaye might have given the said information to the higher authorities.

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P.W.3 has stated that whether the information of recovery was given to the officer S.S.B. in writing or oral, she does not recollect. Further, she has stated that Jahan Ara khan had got it written during search that oral information was passed on to the higher authorities.

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P.W.4 (investigating officer) has stated in this regard that during arrest and recovery of contraband whether any report was prepared in that regard which was sent to the higher authorities of the department, no such report is available on file nor the same was given to him during investigation nor did he ask any of the witness in this regard in their statement recorded under Section 161 Cr.P.C. Thus from the evidence reproduced above culled out in this regard, it is evident that the prosecution did not prepare any written report with regard to the search having been made of all the three

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accused appellants & thereafter different above mentioned quantity of contraband substance was recovered from them and they were arrested subsequently after being told the reasons.

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Hence, since, the said report was not prepared at all there was no question of the same having been sent to higher authorities. In this regard it would be pertinent to refer to the provision of Section 57 of the Act. It says that whenever any person makes any arrest or seizure under this Act, he shall within 48 hours next after such arrest or seizure make a report of all the particulars of such arrest or seizure to his immediate official superior.

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In this regard, the position of law laid down in Dilbagh Singh Vs. State of Punjab 2017 (98) ACC 686 would be pertinent to be mentioned here.

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“(15) The decision in Mohinder Kumar (supra) not only is distinguishable on facts, as the search therein was of the petitioner's premises, the investigation was afflicted as well by several other omissions on the part of the authority conducting the same. Though in this rendering, it was observed that in State of Punjab vs. Balbir Singh – (1994) 3 SCC 299 the provisions of Sections 52 and 57 of the Act had been held to be mandatory in character, it is pertinent to note that this Court in Sajan Abraham vs. State of Kerala – (2001) 6 SCC 692 had exposited that Section 57 was not mandatory in nature so much so that if a substantial compliance thereof is made, it would not vitiate the case of the prosecution. Incidentally the decision rendered in Balbir Singh (supra) was rendered by a Coram of two Hon’ble Judges whereas the one in Sajan Abraham (supra) was by a three Judge Bench.”

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“(16) In Balbir Singh (supra), a Bench of two Hon'ble Judges of this Court had enunciated, adverting to Sections 52 and 57 of the Act that these provisions contain certain procedural instructions for strict compliance by the officers, but clarified that if there was none, such omission by itself would not render the acts done by them null and void and at the most, it may affect the probative value of the evidence regarding arrest or search and in some cases, it may invalidate such arrest or search. That the non-compliance had caused prejudice to the accused persons and had resulted in failure of justice was necessary to be demonstrated, was emphasised. It was ruled that these provisions, which deal with the steps to be taken by the officers after making arrest or seizure under Section 41 and 44 are by themselves not mandatory and if there was noncompliance or any delay was involved with regard thereto, then it has to be examined, to ascertain as to whether any prejudice had been caused to the accused and further whether, such failure would have a bearing on the appreciation of evidence regarding arrest or seizure as well as on the merits of the case.”

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It is apparent from the above citation that though non compliance of Section 57

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would by itself not render the acts done by them (police) null and void and at the most it

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may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. What is important is that, the Court has to see whether non compliance of such provision would cause any prejudice to the accused.

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In the case at hand, this Court has after detailed discussion of evidence has already held that provision of Section 50 of N.D.P.S. Act has not been complied with in letter and spirit, besides that the evidence with regard to description of seal which was used on the spot has also not been given nor the evidence has come on record as to when the contraband substance was actually deposited in Malkhana by placing before the Court concerned Malkhana register showing entry therein of the contraband substance, its sample and sample seals kept so that it could be held proved beyond doubt that they were kept there in safe condition beyond any access to be tampered, therefore, to substantiate recovery of the contraband from the accused, it becomes all the more important in this case that the prosecution ought to have sent a report of arrest of the accused as well as seizure of the contraband substance in writing to their higher authorities, if not, within 48 hours, even beyond that by justifying reasons, which has not been done and it has definitely caused prejudice to the accused appellants.

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In view of the above detailed discussion, this Court is of the view that the prosecution has failed to prove beyond doubt that the accused appellants were found in possession of illegal 'charas' of the quantity described above. Due to the above infirmities in this case which the learned court below has over-looked by making inappropriate appreciation of the evidence on record, prosecution case is not liable to be held proved beyond doubt against all the three accused appellants.

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Charge against all the three accused appellants under Section 8/23 of N.D.P.S. Act does not stand proved and they deserve to be acquitted. Consequently all the Appeals are allowed and the accused appellants Geeta, Sangeeta and Sunita Gurung are held not guilty of charges under Section 8/23 of N.D.P.S.Act. They shall be released

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forthwith in these cases, if not, detained in any other case.

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The case property shall be destroyed after period of Appeal is over or if the law permits otherwise.

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The Amicus Curiae Ms. Kalpna Singh shall be paid Rs.10,000/- for assisting the Court in deciding these Appeals.

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Let a copy of this order be sent to the court below for necessary compliance at once and also the L.C.R. be remitted back to the court concerned promptly.

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Order Date :- 9.1.2018 A. Mandhani

Geeta v. State of U.P.

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Geeta v. State of U.P.

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