Arif Khan @ Agha Khan vs State of Uttaranchal

J.C.S. Rawat, J.—This is an appeal against the judgment and order dated 9-11-2004 passed by the learned Additional Sessions Judge/II Fast Track Court, Udham Singh Nagar in Special Sessions Trial No. 20 of 2003.convicting and sentencing the appellant to 10 years rigorous imprisonment and a fine of Rs. 1,00,000.00 (one lac) u/s 20/22, of the Narcotic Drugs & Psy-chotropic Substances, Act (for the short N.D.P.S. Act). It was further directed that in default of payment of line to further undergo rigorous imprisonment for 3 years.

Brief facts for the disposal of this appeal are that the raiding party headed by Harish Mehra, S.H.O. P.S. Kichha and other police officials were on patrol duty at Pul Bhatta Chovvki. The secret informant gave an information that a person has got down near the railway crossing and he had some illegal articles and he is going towards Chowki Pul Bhatta. Thereafter the police raiding party immediately proceeded towards the place of incident. When they reached near the Pul Bhatta the informer pointed out the appellant to the raiding party. Thereafter the head of the raiding party Harish Mehra, the In-charge of P.S. Kichha approached towards the appellant and disclosed their identity to the appellant and he was apprehended by the raiding party and he stated to the raiding party that he was carrying the CHARAS, a narcotic substance with him. After he was apprehended the appellant was informed that if he so desired he could be searched in presence of a gazetted Officer or be taken to the nearest Magistrate. The appellant declined to be searched in presence of the Magistrate or a Gazetted Officer and agreed to be searched by the police raiding party. A written consent was obtained by the raiding party, signed by the appellant which is Ext. Ka. 1. The appellant was searched and it was found from his person that he was having 9 slabs of CHARAS weighing 21/2 Kg. When the police party satisfied that it was a CHARAS, they took 10 grams from each slab and the substance was sealed on the spot and a Fard (Ext. Ka. 2) was prepared at the spot and the accused appellant along with the raiding party taken to the police station where the report was lodged by the Incharge S.O. Harish Mehra and the said contraband was handed over to the A.S.I. Ram Singh who was having the charge of Malkhana at the relevant time. Thereafter the investigation was conducted by the S.I. Ummed Singh posted in Kichha police station which culminated into the submission of the charge sheet against the present appellant.

The appellant was charged u/s 20/22 of N.D.P.S. Act. He denied the charge and claimed the trial.

The prosecution, in support of its case, has examined head constable Dev Ram Tamta who was a member of raiding party. The prosecution also examined Harish Mehra, Incharge of the police station Kichha as P. W. 2 who was heading the raiding party at the time of the arrest and the recovery of the contraband. PW 3 A. S.I. Ram Singh was examined before the Court who had recorded the FIR and who also kept the contraband in his possession and he also handed over the sample of the contraband to constable Bahadur Singh to carry it to the Court and from the Court to Public Analyst, Agra. He also proved the General Diary by which the case was registered against the appellant. PW 4 constable Bahadur Singh was examined by the prosecution to state that he was posted in Kichha police Station and he took the sample of the contraband and the sample of the seal to the Court of Sessions Judge, Udham Singh Nagar from where he took the letter along with the contraband for the chemical examiner and lie handed over it to the chemical examiner, Agra on 28-11-2002 and he also handed over the said contraband along with the ''other documents to the Chemical examiner. PW 5 S.I. Ummed Singh was examined before the trial Court who had submitted the charge sheet before the trial Court and he made the investigation of the case.

In the statement recorded u/s 313 Cr.P.C. the appellant denied the prosecution case and stated that he has been falsely implicated in this case.

I have heard the learned Counsel for the parties and perused the entire evidence on record.

PW 1 Dev Ram Tamta and PW 2 Harish Mehra are the witnesses of the fact. They have stated the entire story as has been indicated in paragraph 2 of the judgment.

The learned Counsel for the appellant contended that the informer had given the information to the raiding party about the appellant and also that he had some illegal substance with him. It was further contended that Sri Harish Mehra (PW 2) was under the obligation to record the said in formation in writing as provided u/s 42 of the N.D.P.S. Act. It was further contended that the prosecution had not recorded the information of the informant in writing, as such, the compliance of Section 42 of the N.D.P.S. Act had not taken place. The A.G.A. refuted the contentions of the learned Counsel for the appellant and contended that it was a sudden arrest and there was no requirement that PW 2 should have reduced it into writing. To attract the provisions of Section 42. it is to be proved that the person who is going to arrest the appellant or the accused, he may be authorized by the Government. In this case the In-charge of the police station is authorized to make the arrest and search of the appellant Such empowered person should have the personal knowledge or from the information given by any person arid taken in writing (i) that any narcoticdrug or psychotropic substance in respect of which an offence punishable under Chanter IV of Sections 15 to 30 that if any contraband is kept or concealed in any building, conveyance and enclosed place. In this case this ingredient is lacking. The informer had given the information that the appellant was coming vilh sonic illegal thing. He had not specifically staled that he was bringing the. narcotic substance with him. I hold thai the raiding patty had no knowledge that the appellant was bringing the narcotic substance, as such. Section 42 is not attracted in this case.

There are two provision under the N.D.P.S. Act which deals with regard to the information which had been received by the raiding party about the narcotic substance. The first provision is Section 42 and the other provision is Section 43 of the N.D.P.S. Act. if assuming that the raiding party had an information that the appellant was bringing the narcotic substance wild him even then the said provisions would not be attracted. A plain reading of Section 43 will show that no recording of reasons in writing for belief that an offence under Chapter IV having been committed is necessary. Section 42 of N.D.P.S. Ac I speaks about search and seizure from any building, conveyance or enclosed place while Section 43 speaks about the search and seizure from a public place or in transit. It is important, to note that the word in Sections 41 and 42 with regard to the informal ion taken in writing have been deliberate omitted by the Legislature in Section 43 and in my view that has been done so advisably in as much as the Police Officer empowered u/s 42 may got information with regard to a person in any public place or in transit at the last moment and if ho has to undergo the procedure of taking that information in writing and recording the reasons for his belief forcibly, such information may not be useful. When that, is so any search or seizure is to be made in any public place or even in the vehicle in grant it or any person is to be arrested or detained from a public place it need not be intended by the Legislature to take down the said information in writing. To me there, appears to be a logic behind it. If an Officer suspects that offence had been commuted under Chapter IV of N.D.P.S. Act in public place there can be hardly any time to record any reason in writing for his belief or to obtain warrant. See 1994 (1) 4 18 Aziz alias Kallu Azi and Another Vs. State of Kerala, . In view of the above discussion I am of the view that the search was made from the person of the appellant on a road which is a public place and Section 42 is not attracted in this case. The provisions of Section 43 would be attracted in this case. I do not find any substance in the contention raised by the learned Counsel for the appellant.

It was contended on behalf of the learned Counsel for the appellant that the learned Additional Sessions Judge had failed to appreciate that the compliance of the provisions of Section 50 of the N.D.P.S. Act was not a mere formality and its strict compliance was essential before holding the appellant to be guilty under the provisions of N.D.P.S. Act. He further contended that the evidence as adduced of the consent letter is highly improbable. It was further contended that the said letter only bear the signature of the appellant and it does not contain the signature of the raiding party. Me further contended that the raiding party had not complied with the provisions of Section 50 of the N.D.P.S. Act, as such the appellant was entitled to he acquitted.

The document (Ext. Ka. 1), the consent letter bears the signature of the appellant and he had admitted in his statement recorded u/s 313 Cr.P.C. that he made signatures on blank papers. It means that the signature of the appellant is admitted on the paper. The said paper was not a bilateral act. The consent was to be given by the appellant and it is supposed to be a voluntary act. The evidence of PW. 1 Dev Ram Tamta and Harish Mehra that the appellant was informed that if he so desired he could be examined in presence of the gazetted Officer or in presence of a Magistrate is credible and cogent. Nothing has been elicited in the cross examination of the statement of the witnesses adduced in support of the prosecution case.

It has been held in the Constitution Bench of the Apex Court in the State of Punjab Vs. Baldev Singh, etc. etc., that such information need not be reduced into writing. It was further observed that orally conveying such information is sufficient. It has also been held in the case of Krishan Mohar Singh Dugal Vs. State of Goa, and in Sajan Abraham Vs. State of Kerala, that what is required, is substantial compliance and, thus, informing the accused that if he wants the search to be carried out. in presence of a Magistrate or a gazetted Officer is suflieirnt compliance of Section 50 of Narcotic Act. The same view has been reiterated in Joseph Fernandez Vs. State of Goa, Prabha Shanker v. State of Madhya Pradesh 2004 SCC (Criminal) 420 : AIR 2004 SC 486.

I have gone through the impugned judgment of the learned Additional Sessions Judge. The learned Additional Sessions Judge has dealt with this aspect of the matter. The provisions of Section 50 of the Act had been carried out in Hit; letter and spirit of the act. The evidence of PW 1 and PW 2 is credible and cogent. The. document which is said to have been written cannot be discarded. In the evidence, if it was written under the coercion, the appellant had an opportunity to make the complaint to their higher Officers but the appellant had not sent any communication from jail to any of the authorities as such. In these circumstances I am of the view that the arguments advanced by the learned Counsel for the appellant had no force. It was further pointed out that in the examination-in-chief of PW 2 Harish Mehra it was staled (hat he apprehended the accused and he searched the appellant and thereafter lie was informed about the valuable right of Section 50. The learned A.G.A. refuted the contention and contended that the statement of PW 2 can not be read in isolation. The evidence of the witness had to be read as a whole. The perusal of the evidence of PW 1 also explains this aspect in the examination-in chief also. He had also stated that in the next sentences that the search was made after he was informed about the valuable right. In view of above discussion, I do not find any force in the contention of the learned Counsel for the appellant.

It was further contended that there was difference in the weight, of the contraband. He further pointed out that according to the evidence of the prosecution about 21/2 kg. contraband was recovered which was not weighed. It was further pointed out that according to the prosecution that their were 9 slabs of CHARAS of which 10 grams of each slab was taken away from the sample. This leads to an inference that this would have been reduced to the weight which had been taken for carrying out the analysis by the chemical examiner. It was contended that the said article when it was deposited in the Malkhana, it is stated in the G.D. that it was 21/2kg. It was further pointed out that the prosecution had not proved that at any point of time that the said contraband was weighed by the prosecution. As I have pointed out above that the prosecution has proved that what has been recovered and what has been sent for chemical examiner. If there is any doubt that what was received by the chemical examiner is not the same, even then any benefit of doubt could be given to the appellant but in cases where it is proved that the substance was sent to the chemical examiner was the same what was recovered. Minor difference in the weight would not vitiate the trial. The learned A.G.A. refuted the contentions of the learned Counsel for the appellant. The perusal of the record clearly reveals that the said substance of contraband was entirely deposited in the police station. It contains the sample as well as the contraband which was seized for the production before the Court. This carries the same weight of 21/2 kg. It is also pertinent to mention here that approximate weight has been given in the Fard recovery. See State v. Dilbagh Singh 2006 I SCC (Criminal) (sic). In the instant case also there was little more than the recovery. The Hon''ble Apex Court while dealing this issue had held that the difference in weight the Court is not supposed to give the benefit of doubt to the respondent. It was held that the difference, in weight did not support the appellant that he had been falsely implicated in the case. The High Court acquitted the appellant on this ground but the Hon''ble Apex Court convicted the appellant by observing the above observation. It was contended that the prosecution has failed to prove that the recovered substance was kept in the Malkhana in the same condition in which if was recovered from the possession of the accused-appellant. It was further contended that the head of the raiding party was the In-charge of the police station. He should have ensured that the said substance had been sealed by any other higher officer so that it may be proved that it was kept at the same custody at the police station. It was further contended that the seal was not sent to the Court as well as to the chemical examiner. The perusal of the statement of PW 2 Harish Mehra reveals that he had sealed the substance at the spot and he had stated that he took the sealed substance along with the sample to the police station and he handed over the accused appellant and the recovered substance to the A.S.I. Ram Singh (PW 3) and P.W. 3 had stated in his evidence that he received the said substance from P.W. 2 and he is In-charge of the Malkhana and he lodged the report and thereafter he kept the said substance in the Malkhana. PW 3 Ram Singh had further stated in his evidence that the said sample along with the seal was given to Bahadur Singh (PW 4) who had taken it to the Court of Sessions Judge, Udham Singh Nagar. Thereafter PW 4 Bahadur Singh has stated that he took the said sample from A.S.I. Ram Singh to the Court from where he obtained a letter and got it sealed and he took this sample from the Court on 26-11-2002 and he also handed the same to the Public Analyst, Agra and it was not tempered during that period. The report of the chemical examiner (Ext. Ka. 10) also reveals that the said 9 small packets containing 100 grams of CHARAS was found in the said sample along with the seal and he opined that it was a contraband substance of CHARAS. The evidence of the prosecution on this point is clearly credible and cogent. In this case the prosecution has ensured that what was recovered and what has been sent for chemical analysis was the same and if the prosecution has proved this fact even the difference of the weight cannot be counted of any avail to the defence. I do not find any force in the contention of the learned Counsel for the appellant.

It was further contended that the I.O. Ummed Singh was junior to the Station Officer of the police station and the Investigating Officer should have ensured that the article which has been kept in the Malkhana under the supurdgi of Ram Singh it should be sealed by any other person than the In-charge. Section 55 of the N.D.P.S. Act clearly lays down that the 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 all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. This provision merely deals with regard to the keeping in the custody of the S.H.O. It is also provided that he will seal the said articles if the provisions provides that only the seal of the S.H.O. would be fixed. The said contraband was kept in the Malkhana by A.S.I. Ram Singh (P.W. 3). The provisions of Section 55 are not mandatory in nature but they arc directory in its from. I do not find any force in the contention of the learned Counsel for the appellant.

It was further pointed out that the I.O. had not indicated the date and time when he proceeded to investigate the matter and the investigation was hurriedly carried out at the instance of S.H.O. It was further pointed out that under the Police Regulations he had to mention the date and time when he started the investigation. He also pointed out that he had made the violation of Section 172 Cr.P.C. as such, such investigation cannot be relied upon. The learned A.G.A. refuted the contention of the learned Counsel for the appellant. It is settled position of law that the testimony of the witnesses if found credible and cogent the defect on the part of the Investigating Officer cannot be taken into account. This is a re-missness on the part of the Investigating Officer, which does not help the appellant, liven if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquit ting an accused person solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer if the investigation designedly defective. See Dhanaj Singh @ Shera and Others Vs. State of Punjab, .

In view of the above discussion, I am of the view that the prosecution has established the guilt beyond any reasonable doubt against the appellant. I find that the learned trial Court has rightly convicted and sentenced the appellant and there is no infirmity in the judgment passed by the trial Court. Hence, the appeal is dismissed. The conviction is maintained and the sentence awarded by the trial Court against the appellant is confirmed.

Let the lower Court, record be sent back to the Court, concerned for compliance. Compliance report be submitted within one months from the date of receipt of order.