JOGINDER SINGH vs THE UNION OF INDIA

1.Both these appeals are directed against the judgment and order dated 15.05.2014 passed by the learned Addl. Sessions Judge, No.2, Kamrup (M) at

Guwahati in NDPS Case No.33/2013. By the said judgment, learned Addl. Sessions Judge convicted both the appellants under Section 20(b)(ii)(C)

read with Section 29 of the NDPS Act and sentenced them to RI for 10 (ten) years and to pay a fine of Rs.1,00,000/- with default stipulation.

As per the prosecution case, on 05.03.2013, Shri B.P. Jaisi, the Superintendent (Anti Smuggling), Guwahati Customs Division received a secret

information that a truck bearing registration No.JK-02-AS-7135 loaded with ganja concealed under the bamboo chips was proceeding from Jiribam

towards Kolkata via Tezpur, Mangaldoi and Baihata Chariali. Accordingly, Shri B.P. Jaisi reduced the secret information in writing and sent a copy of

the said information to his superior officer being the Deputy Commissioner of Customs, Guwahati Division. A team of custom officials was constituted

to pursue the information. On the next day in the early morning, the team of NCB headed by Shri BP Jaisi reached Baihata Chariali and kept watch

on the road to intercept the said truck. At about 10’o clock, they noticed the truck mentioned in the secret information coming from Mangaldai

side and stopped the truck. The accused/appellant Kartar Singh was the driver of the truck and the accused/appellant Joginder Singh was travelling in

the said truck as occupant. The team of the custom officials introduced themselves and wanted to check the truck. The truck was covered with

tarpoline. On removal of the tarpoline sheets they noticed, that the truck was loaded with bamboo cut piece and after removal of some of the bamboo

cut pieces, they found some rectangular shaped packets covered with polythene. On removal of the polythene cover of the packets, it was noticed that

those packets contained suspected ganja. Thereafter, for further checking they brought the truck to Guwahati Customs Office, where they got the

bamboo cut piece and also the packets wrapped with polythene off loaded and 48 packets of suspected ganja were found to be carried in the truck.

All the packets were weighed in presence of the witnesses and the total quantity of suspected ganja carried in the truck was found to be 571 kgs. On

being satisfied that the packets contained ganja, the inspector Bhabataran Basumatary (Pw-1) seized all the packets of ganja following the procedure

laid down by the NDPS Act and Rules. The seizing officer took some quantity of ganja from all the packets and after mixing them for making it

homogenous, collected samples therefrom in presence of the witnesses and the accused/appellants. The samples were sent for chemical examination

and the report of the chemical examination gave positive test for cannabies. On receipt of the FSL report, a complaint was lodged, on the basis of

which, the learned trial Court took cognizance of offence and eventually both the appellants stood trial for offence under Section 20(b)(ii)(C)/29 of the

NDPS Act.

In the course of trial, charges were framed under Section 20(b)(ii)(C)/29 of the NDPS Act against both the appellants, to which, both the appellants

pleaded not guilty.

10 witnesses were examined by the prosecution to establish the charge. After completion of evidence, both the accused/appellant were examined

under Section 313 Cr.P.C. and all incriminating evidence were put to them. Both the accused/appellants in their examination under Section 313

Cr.P.C. took the plea of innocence. The accused/appellant Kartar Singh stated in his examination under Section 313 Cr.P.C. that he was the driver of

the truck in question and was coming from Jiribum by driving the truck loaded with bamboo, and at a place called Lalshullong the accused/appellant

Joginder Singh boarded his vehicle to come to Guwahati. The accused/appellant Joginder Singh also stated in his examination under Section 313

Cr.P.C. that he was also a driver by proffession of another truck and he boarded the vehicle of Kartar Singh for coming to his residence at Guwahati.

On appreciation of evidence, learned trial Court convicted both the accused/appellants under Section 20(b)(ii)(C) read with Section 29 of the NDPS

Act and awarded sentence as indicated above.

Aggrieved by the impugned judgment of conviction and sentence, the appellants have preferred the appeal individually.

I have heard Mr. B Prasad, learned counsel for the appellant Joginder Singh, learned amicus curiae Mrs. MB Borah for the appellant Kartar Singh

and Mr. SC Keyal, learned Asstt. SGI for the state respondent and also considered the evidence and materials brought on record.

Mr. B Prasad submits that the appellant Joginder Singh was not in anyway connected with the contrabands seized in the instant case, as he was

travelling in the vehicle as occupant for coming to Guwahati and he was also not aware of the contraband being carried in the truck.

Learned counsel for both the sides assailed the impugned judgment on the following three common grounds:

Non compliance of the provisions of Section 42 of the NDPS Act.

Absence of independent witness at the time of search and seizure.

Sample taken was inadequate and not as per the procedure.

Out of 10 witnesses examined by the prosecution, except Pw-9, all the other witnesses were officials of the Customs Department. Pw-1 was the

seizing officer and Pw-2 has been shown as the Investing Officer. Pw-6 only instructed the disposal unit to receive the seized contraband. Pw-10

recorded the statement of the accused. Therefore, basically Pw-1, 3, 4, 5, 7 and 8 were associated with the search and seizure. Pw-1, 3, 4, 5, 7 and 8

stated that as per information received by Pw-4, Shri B.P. Jaisi, they were waiting at Baihata Chariali for intercepting the vehicle and at 10’o

clock they noticed the vehicle mentioned in the secret information, coming. The vehicle was stopped by them and after removal of the tarpoline cover

of the truck, it was found that bamboo cut piece were carried and under the bamboo cut piece there were some packets of rectangular size covered

with polythene. After removal of the polythene they found, that the packets contained suspected ganja and thereafter the truck along with the

appellants were brought to the customs office at Guwahati, where the entire process of search and seizure were carried out. Thus, evidently and

admittedly, search and seizure was not done at Baihata Chariali where the truck was caught on the basis of a secret information. According to the

appellants as stated in their statement under Section 313 Cr.P.C., the truck was brought to customs office from Beltola and not from Baihata. They

stated that while they were sleeping in the truck at Beltola, they were awaken by the Customs Officials and the truck was taken to Amingaon for

checking, wherefrom they were brought to Customs Office in a Bolero vehicle and the truck was also brought to the Customs Office.

Both the accused/appellants in their statement under Section 313 Cr.P.C. stated that the search, seizure and taking of sample were not done in

their presence. Thus, the stand of the accused/appellants was that they were not present at the time of search and seizure of the articles in the instant

case. Evidently, according to prosecution story, vehicle was caught at Baihata Chariali where complete search was not carried out. The truck was

brought to Guwahati, Customs Office, where only after downloading the goods, search was made and thereafter finding 48 packets of contraband, the

custom officials seized the same.

What therefore is apparent from the prosecution story and also from the version of the accused/appellant is that the factum of search and seizure

of contraband is by and large not in dispute. The stand of the appellants was that no search and seizure was made in their presence. Having held that

the complete search and seizure was done at the customs office at Guwahati and not at Baihata Chariali, the place where the truck was caught, let

me advert to the submissions made by the learned counsel and the questions raised to assail the judgment.

Learned counsel for the appellant referring to Exhibit-1 and Exhibit-4, proved by the prosecution to show compliance with the provisions of Section

42 NDPS Act, submitted, that the secret information alleged to have been reduced to writing was not sent to the superior officer as per the mandate

of sub-section (2) of section 42 of the NDPS Act and there were also discrepancies in between Exhibit-1 and Exhibit-4. Learned counsel for the

appellant in support of his submission placed reliance on a decision of the Hon’ble Supreme Court in State of Rajasthan Vs. Jagraj Singh Alias

Hansa reported in (2016) 11 SCC 687. Refuting the submission of the learned counsel for the appellant, learned Asstt. SGI, placing reliance on a

decision of the Apex Court in the State of Haryana Vs. Jarnail Singh and Others reported in (2004) 5 SCC 188 contended, that compliance of section

42 was not necessary in the instant case and therefore, non-compliance of the provisions of section 42 would not vitiate the trial in the instant case.

Pw-4 B.P. Jaisi, Superintendent of Customs deposed in his evidence that on 05.03.2013 at about 16 hours he received a secret information from

his sources regarding transportation of cannabies by a truck bearing registration No.JK-02-AS-7135 and immediately he reduced such information into

writing and send a copy of information, so reduced to writing, to his immediate superior, Deputy Commissioner. He also proved Exhibit-1 being the

said secret information. He further stated that after seizure of the contraband, a report as required under section 57 of the NDPS Act was send in

FORM DRI-1 to Director General, DRI, Delhi, Commissioner of Custom NE region Shillong and to Deputy Director Customs Guwahati on

06.03.2013. He also proved the same as Exhibit-4. Exhibit-1 appears to be a hand written letter written by the Superintendent Customs addressed to

the Deputy Commissioner Custom Division, Guwahati. The contents of the Exhibit-1 are as under:

“To,

The Deputy Commissioner, Customs Divisions, Guwahati.

Madam,

Sub : information regd cannabies

Today at about 1600 hrs I have received a specific information from a informer that a Tata Truck with a load of cannabies (ganja) concealed under

the load of bamboo chips is coming from Jiribam side will proceed via Nowgong, Tezpur, Baihata Chariali for onward way to Kolkata. The

Registration No. of the truck is JK-02-AS-7135. For apprehending the said truck, the informer suggested me to lay Naka on Baihata Chariali-

Mangaldoi road, this night till morning tomorrow. This is for favour of your kind information & n/a pl.â€​

Exhibit-4 is the report in FORM DRI-1, which according to PW-4 was sent to the Director General Intelligence and Commissioner of Customs as

well as Deputy Commissioner as per requirement of Section  57.

Section 42 of the NDPS Act reads as under:

“ 42. Power of entry, search, seizure and arrest without warrant or authorization â€

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue

intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by

general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the

revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the

State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic

drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any

document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other

article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of

this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-

(a) Enter into and search any such building, conveyance or place;

(b) In case of resistance, break open any door and remove any obstacle to such entry;

(c) Seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or confiscation under this Act

and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or

furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) Detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this

Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the

concealment of evidence of facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time

between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall

within seventy-two hours send a copy thereof to his immediate official superiorâ€​

Section 57 reads as under: “57. Report of arrest and seizure â€" Whenever any person makes any arrest or seizure, under this Act, he shall,

within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official

superior.â€​

Sub-section (2) of section 42 of the NDPS Act requires that when an information is reduced to writing by the officers under sub-section (1) of

section 42 of the NDPS Act, it shall be sent to the immediate superior officer within 72 hrs. Section 57 provides sending of complete report in respect

of search and seizure or arrest within 48 hrs. The information reduced to writing under Section 42(1) is required to be sent to the immediate senior

officer before the search. Whereas, section 57 contemplates a full report of search, seizure, arrest etc to be sent to such senior officer after

completing the process. Thus, as per the requirement of sub-section (2) of Section 42, the copy of information reduced to writing requires to be sent to

the superior officer within 72 hours of its being reduceds to writing. The contents of exhibit-1 shows that it was not the copy of the information

reduced to writing under Section 42(1). It was apparently an information given to the Deputy Commissioner with regard to receipt of secret

information. Exhibit-4, though stated to be a report as contemplated under Section 57 of the NDPS Act, the same contained the information alleged to

have been taken down under section 41(1) as would appear from the caption “information recorded.†When the information quoted in Exhibit-4 is

compared with Exhibit-1, it becomes abundantly clear that these two differ materially. Apparently, the secret information reduced to writing has not

been produced. If it is assumed that the information quoted in Exhibit-4 was the actual information reduced to writing under Section 42(1), then

Exhibit-1 does not contain the full text of such alleged information as mentioned in Exhibit-4. As already indicated above, Exhibit-1 was not the copy of

the information reduced to writing in terms of sub-section (1) of Section 42. What therefore, evident is that contents of the alleged information reduced

to writing as mentioned in Exhibit-1 and Exhibit-4, materially differs. If information quoted in Exhibit-4 is accepted to be information reduced to writing

then it would be abundantly clear that copy of such information was not sent to the superior officer vide Exhibit-1 as per mandate of Section 42(2) of

the NDPS Act. By Exhibit-1 only an information to the effect of receiving a secret information was given, but the copy of the secret information

reduced to writing under Section 42(1) was not sent to the superior officers as required under Section 42(2) of the Act.

In The State of Rajasthan Vs. Jagraj Singh (supra), noticing difference between information reduced to writing and the information sent to the

superior officer, Hon’ble Rajasthan High Court held that there was non-compliance of the provisions of Section 42(2). The Apex Court approving

and upholding the findings of the High Court held in paragraphs 13 and 14 as under: “13. The High Court came to the conclusion that there is

breach of mandatory provisions of Section 42(1) and Section 42(2) and further section 43 which was relied on by the Special Judge for holding that

there was no necessity to comply with Section 42 is not applicable. We thus proceed to first examine the question as to whether there is breach of

provisions of Section 42(1) and Section 42(2). The first part is that there is difference between the secret information recorded in Ext.P-14 and Ext.P-

21 and the information sent to the Circle Officer, Nohar by Ext.P-15. It is useful to refer to the findings of the High Court in the above context, which

is quoted below: “From the above examination, it is not found that Ext.P-14 the information which is stated to be received from the informer under

Section 42(2) of the Act or Ext.P-21, the information given by the informer which is stated to be recorded in the roznamcha, copy whereof has been

sent to C.O., Nohar, who was the then Senior Officer, rather, Ext.P-15, the letter which was sent, it is not the copy of Ext.P-14, but is the separate

memo prepared or their own. From the above examination, it is not found in the present case that Section 42(2) of the Act, 1985 is complied with.â€​

What Section 42(2) requires is that where an officer takes down an information in writing under sub-section (1) he shall send a copy thereof to his

immediate senior officer. The communication Ext.P-15 which was sent to the Circle Officer, Nohar was not as per the information recorded in Ext.P-

14 and Ext.P-21. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2).

The difference between information mentioned in Exhibit-4 and the letter written to the Deputy Commissioner, Exhibit-1,, makes it clear that the

copy of information reduced to writing as per the provisions of sub-section (1) of Section 42 was not sent as per mandate of Section 42(2), in the

instant case and therefore, the facts of the present case appears to be covered by the case dealt by the Apex Court in State of Rajasthan Vs. Jagraj

Singh (supra). The Apex Court in Sukdev Singh Vs. State of Haryana reported in (2013) 2 SCC 212 held that total non-compliance of the provision of

Section 42(2) of the NDPS Act is incurable illegality. Similar view was taken by the Apex Court in State of Rajasthan Vs. Babulal reported in (2012)

14 SCC 215. Â

One must not lose sight of the fact, that the NDPS Act provides for stringent punishment for commission of offence in respect of contraband

articles and at the same time, the statute also provides certain procedural safeguards with the object of avoiding any harm to innocent persons or

abuse of the process of law by the officers, which are obviously intended to be followed strictly. With regard to the necessity of strict compliance of

such procedure entailed to safeguard the interest of the citizens, the Apex Court in State of Punjab Vs. Balbir Singh reported in (1994) 3 SCC 299

made the following observations:

“15... The object of the NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances.

At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in

the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an

information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso

to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and

therefore vitiates the trial.â€​

The discrepancies and the difference between Exhibit-1 and 4 as well as the absence of any cogent evidence with regard to sending the copy of

the information reduced to writing as envisaged in sub-section (2) of Section 42, in the instant case, clearly demonstrates the non-compliance of the

mandatory statutory provisions laid down by section 42(2) of the NDPS Act. Sending copy of the report reduced to writing being mandatory as held

by the Apex Court in State of Punjab Vs. Balbir Singh (supra), non-compliance of such provisions is certainly fatal for the prosecution.

The decision in State of Haryana Vs. Jarnail Singh (supra) relied by Mr. SC Keyal, learned Asstt. SGI is of no help in the instant case to the

prosecution inasmuch as, the facts of the said case was totally different and distinguishable. In the said case, the search and seizure was made in a

public place during the routine check in the normal course. Neither any information was reduced to writing nor the search and seizure were conducted

on the basis of such secret information reduced to writing. Therefore, in the said case, the search and seizure were held to be under Section 43 of the

NDPS Act and not under Section 42 and therefore, the said decision in Jarnail Singh’s case is of no help to the prosecution in the present case.

Another important aspect, as submitted by learned counsel for the appellant was that, there was no independent witness to the search and seizure

in the instant case. Section 100 sub-section (4) of the Cr.P.C. provides that before making a search, the officer conducting the search has to call upon

two or more independent and responsible inhabitant of the locality, in which the place to search is situated or of any other locality, if no such inhabitant

of the said locality is available or is willing to be witness to the search, to attend and witness the search and the search is required to be made in

his/their presence.

In the instant case, Pw-9 was shown as independent witness to the search and seizure. Pw-1 the seizing officer stated in his evidence that during

search and seizure, he has not procured the presence of any local witness. According to him, only the team members and a witness taken with them

from Guwahati were present. The PW-4 also stated in his evidence that the PW-9 was taken by them from Guwahati. Evidently, the vehicle was

apprehended at Baihata, which is situated at a distance of nearly 32 kms from Guwahati and admittedly, no witness of the locality was called, to

witness the search and seizure. What is to be noted from the testimony of PW-1 is that the witness was taken with the custom officials’ team

from Guwahati. It was further elicited during cross-examination, that labels on the seized ganja packets proved as material Exhibits did not bear the

signature of the accused persons. This statement appears to be very significant in the context of absence of any independent witness at the time of

search and seizure and the specific stand of the accused persons taken during examination under Section 313 Cr.P.C., that they were not present at

the time of search and seizure. Evidently, the vehicle was apprehended at Baihata Chariali, where no search and seizure was made and entire process

of search and seizure was carried out in the Office of the Customs Department at Guwahati after bringing the vehicle from Baihata.

Pw-9, the so called independent witness, who was taken by the NCB team from Guwahati, admitted in his deposition, that at the place, where the

truck was apprehended, there were some small shops and there were also people moving on the road. Admittedly, the truck carrying suspected

contraband was caught at 10’o clock. Therefore, it was not the case that search and seizure was made at some isolated place or at any odd time,

where independent witness was not available. But the seizing officer did not opt for seeking an independent witness from the locality rather he took a

witness from Guwahati with them.

This Court in Raju Ali Vs. Union of India (2014) 3 GLT 304 in the circumstances, when the concerned officer did not call any independent witness

from the locality, rather took two witnesses with them from Guwahati to the place of occurrence at a distance of 30 kms from Guwahati, on the plea

that the local and independent witness may not cooperate with them, doubted the veracity of the search and seizure and held that “Hence PWs-12

and 13 cannot be said to be independent and respectable inhabitants of the locality, as required under Section 100(4) Cr.P.C. On this ground also the

prosecution case is not above board.â€​

In the instant case, there is no whisper even that any attempt was made to procure any independent witness from the locality to witness the search

and seizure. Although, admittedly, there were independent persons moving at the place of occurrence and there were also some shops, when the truck

was caught. It should be borne in mind that presence of independent person to witness the search and seizure is intended to lend transparency and

credibility to the process of search and seizure and also to protect innocent person from false and frivolous accusation. Therefore, the procedure

provided by the statute is required to be followed in order to keep the process above board. In the facts and circumstances of the present case, PW-9

cannot be considered as independent witness. Absence of any independent witness and no effort on the part of the seizing officers for procuring any

independent witness from the locality as contemplated by Section 100(4) of the Cr.P.C. to witness the search and seizure, coupled with the fact that

signature of the accused persons were not available in the material exhibits, being seized ganja, and the stand of the accused persons in their

examination under Section 313 Cr.P.C. that search and seizure were not made in their presence certainly shrouds the process of search and seizure in

the instant case, and casts a reasonable doubt on the credibility of the process of search and seizure.

Submission of the learned counsel for the appellants that quantity of sample taken in the instant case was inadequate and not as per requirement of

law, inasmuch as, each sample contained 25 grams of contraband, which according to learned counsel it should have been 24 grams. Evidently sample

taken in the instant case contained 24 grams. Clause 2.3 of the Standing Order No.1/89 of the Government dtd. 13/06/1989 provides the procedure for

taking sample and it lays down as under:-

“2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic

substances save in the case of opium, ganja and charas (hashish). Where quantity of 24 grams in each case is required for chemical test, the same

quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and

representative before the sample (in duplicate) is drawn.â€​

Contraband article in the present case being ganja, quantity of each sample (24 gms) was as per the standing order and therefore, I do not find any

force in the submission of the learned counsel.

As to the status of accused/appellant Joginder Singh, it was stated by all the witnesses that the driver of the truck was Kartar Singh, Pw-1 stated

in his evidence that Joginder Singh was travelling in the truck as occupant, Pw-3 also stated that there was one more person sitting in the truck who

introduced himself as Jodinger Singh. Pw-5 stated that Joginder Singh was the co-passenger who came with the driver of the truck. Pw-8 also stated

that Joginder Singh was the occupant in the truck. During examination under Section 313 Cr.P.C. the accused/appellant Kartar Singh, the driver of the

vehicle categorically stated that he was coming from Jiribum by driving the truck loaded with bamboo and Joginder Singh boarded the truck at

Lalshullung for coming to Guwahati. The accused/appellant Joginder Singh also in his statement under Section 313 Cr.P.C. stated that he was also a

driver by profession and he boarded the truck of Kartar Singh at Lalshullung for coming to Guwahati. Thus, the evidence of the prosecution witness

coupled with the statement made by both the accused in their examination under Section 313 Cr.P.C. clearly reveals that Joginder Singh did not

accompany the driver from the origin wherefrom the truck was moving with the goods and he only boarded the truck in mid way at Lulshullung for

coming to Guwahati. Besides, the above evidence, there was no other material on record for attributing any knowledge to the accused/appellant

Joginder Singh regarding any contraband being carried in truck. Evidently the contraband was concealed under the bamboo and the truck was also

covered with tarpoline sheets. Thus, from the above evidence of the prosecution witness as well as the statement of the accused under Section 313

Cr.P.C. it is loud and clear that accused Joginder Singh had no nexus or relation with the contraband alleged to have been carried in the truck driven

by accused Kartar Singh.

Be that as it may, when there was non-compliance of the mandatory provision of Section 42(2) vitiating the trial, both the appeals filed by the

appellants deserves to be allowed on that count alone. Moreover, as already indicated above prosecution case is also not above board for not having

conducted the search and seizure in presence of any independent witness. Accordingly, both the appeals are allowed and the conviction and sentences

are set-aside. The accused/appellants be released forthwith, if not required in any other case.

Send down the LCR.