Liyakat Khan vs State of C.G.

Hon''ble Shri Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 24-06-2004 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth ''the Act, 1985''), Durg in Special Case No. 12/2003. By the impugned judgment, accused/appellant Liyakat Khan has been convicted u/s 20(b)(ii)(B) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 40,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 2 years. Case of the prosecution, in brief, is as under :--

Sub-Inspector S. David (PW-1) was posted in Crime Branch Durg. On 18-07-2003, he was on patrolling duty. During the patrolling duty, he received secret information that the appellant was selling Ganja. He prepared Mukhbir Suchana Panchnama (Ex. P-1) and transmitted the same to Deputy Superintendent of Police, Crime Branch. Durg vide Ex. P-3. Sub-Inspector S. David (PW-1), along with police personnel and witnesses, reached at Dr. Rajendra Prasad Square, Supela. The appellant, carrying a bag, was coming from Masjid. Sub-Inspector S. David (PW-1) stopped the appellant and gave him notice (Ex. P-4) u/s 50 of the Act, 1985 about his right. The appellant gave his consent regarding search vide Ex. P-5. The police personnel gave their search to the appellant and prepared panchnama vide Ex. P-6. Thereafter, the bag of the appellant was searched in which one jute bag and polythin packets were found and search panchnama (Ex. P-7) was prepared. The seized articles were recovered vide Ex. P-8 and identification of the articles was conducted on the spot. Identification Panchnama of the substance, i.e., Ganja was prepared vide Ex. P-9. After physical verification, it was found that the recovered articles seized from the possession of the appellant were Ganja. Ganja was weighed on the spot. Jute bag was containing 10 Kgs. and each of the polythin packets were containing 4 Kgs. of Ganja. Total 18 Kgs. of Ganja was recovered from the appellant and panchnama was prepared vide Ex. P-11. Ganja was seized vide Ex. P-13. The appellant was arrested vide arrest memo (Ex. P-14). Dehati Nalishi (Ex. P-15) was recorded on the spot by Sub-inspector S. David (PW-1). Three samples of 50-50 grams of Ganja were prepared from jute bag and polythin packets and sealed. Thereafter, Sub-Inspector S. David (PW-1) came back to police station and First Information Report (Ex. P-15A) was registered in Police Station, Supela. The property was handed over to Malkhana Moharrir for its safe custody and action taken report was sent to superior officer. The three samples of the seized Ganja were sent to Forensic Science Laboratory, Raipur vide Ex. P-18. Report (Ex. P-23) was received therefrom in which test of Ganja was found positive.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Special Judge under the Act, 1985, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Smt. Fouzia Mirza, learned Counsel for the appellant argued that the evidence led by the prosecution lacks requisite proof required to convict the appellant u/s 20 of the Act, 1985. The independent witnesses did not support the case of the prosecution. She further argued that in the seizure memo (Ex. P-13), it is mentioned that samples were marked as A1, B1 and C1 and original packets were marked as A, B and C. In Malkhana register (Ex. P-16A), it is also mentioned that original Ganja was marked as A, B and C and samples were marked as A1, B1 and C1. According to the prosecution, the samples were sent to the FSL, Raipur, but in Ex. P-23, it is mentioned that A, B and C were sent to Raipur. This shows that the samples were not sent to the FSL, Raipur. In Memo (Ex. P-18) of the Superintendent of Police, it is mentioned that the samples were sent for chemical test, therefore, there is possibility of tampering of the samples. She further argued that the Investigating Officer did not prepare sealed panchnama and specimen of seal was not affixed on the seizure memo and other requisite documents. Hence, the appellant deserves to be acquitted. She placed reliance on Jugalkishore Vs. State of Punjab (2008) 17 SCC 747, Union of India (UOI) Vs. Bal Mukund and Others, State of Rajasthan Vs. Bher Singh (2009) 16 SCC 293 and Ramji and Others Vs. State of Chhattisgarh,

On the contrary, Shri R.R. Sinha, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court.

I have heard learned Counsel for the parties and have also perused the record of Special Case No. 12/2003. The prosecution examined SI S. David (PW-1), Head Constable Bhikhamchand (PW-2), Head Constable Yusuf Khan (PW-3), Mohammed Ahmed (PW-4), Mohammed Sameer Ahmed (PW-5), Inspector Ajit Yadav (PW-6), The appellant examined Dr. H.S. Bhanwara, Scientific Officer, FSL, Raipur (DW-1) in his defence.

Now, I shall examine whether provision of Section 42 of the Act, 1985 has been substantially complied with or not?

Sub-Inspector S. David (PW-1) deposed that on 18-07-2003, he was posted as Incharge of Crime Branch, Durg. On 18-07-2003, he was on patrolling duty. During the patrolling duty, he received secret information that the appellant had Ganja in his possession and he was carrying Ganja from Supela Square to Dr. Rajendra Prasad Square, Supela. He prepared Mukhbir Suchana Panchnama (Ex. P-1). He further deposed that he transmitted the Mukhbir Suchana Panchnama to Deputy Superintendent of Police, Crime Branch, Durg vide Ex. P-3.

Looking to the evidence of Sub-Inspector S. David (PW-1), Ex. P-1 and Ex. P-3, it appears that S. David (PW-1) was on patrolling duty. He received the secret information during the patrolling duty and he recorded the secret information vide Ex. P-1 and he transmitted the same to the Deputy Superintendent of Police, Crime Branch, Durg. The same is also mentioned in Rojnamcha Sanha No. 1437 (Ex. P-21A). It is, therefore, clear that Sub-Inspector S. David (PW-1) complied with the provision of Section 42 of the Act, 1985.

Now, I shall examine whether the provision of Section 50 of the Act, 1985 is mandatory in the instant case, and if mandatory, whether the same has been substantially complied with by Sub-Inspector S. David (PW-1).

Sub-Inspector S. David (PW-1) deposed that before making the search, he had given a notice to the appellant and informed him about his right vide Ex. P-4. Consent of the appellant was recorded in Ex. P-5 which bears signature of the appellant. On making search of the appellant after giving him notice before witnesses, Ganja was found in his possession which was seized before the witnesses. Ex. P-4 is a notice u/s 50 of the Act, 1985. In Ex. P-4, it is mentioned that --

and the appellant gave his consent vide Ex. P-5. In Ex. P-5, it is mentioned that--

The appellant was informed of his right u/s 50 of the Act, 1985 vide Ex. P-4. In Ex. P-5, consent of the appellant was recorded. It is clearly established that substantial compliance of the provision of Section 50 of the Act, 1985 was also made by Sub-Inspector S. David (PW-1).

Sub-Inspector S. David (PW-1) deposed that the appellant was carrying the bag and after giving him notice, he searched the bag in which one jute bag and polythin packets were found and panchnama (Ex. P-7) was prepared and Ganja was found in possession of the appellant. The same was seized before witnesses vide Ex. P-13. This shows that the search of the bag was to be made and it was not a personal search.

In Jarnail Singh Vs. State of Punjab, the Hon''ble Supreme Court observed as follows:

A. ... This Court in the case of Kalema Tumba Vs. State of Maharashtra and Another, discussed the provisions pertaining to ''personal search'' u/s 50 of the NDPS Act and held as follows:

...if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person.

Similarly, in the case of Megh Singh Vs. State of Punjab, this Court observed that:

A bare reading of section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises.

The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh Vs. Pawan Kumar, ." In paragraphs 10 and 11, this Court observed as follows:

We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most, appropriate meaning of the word "person" appears to be -- "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilized society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one''s home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.

A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some, extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance, it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.

....

In Madan Lal and Another Vs. State of Himachal Pradesh, and Megh Singh Vs. State of Punjab, the Hon''ble Supreme Court observed that a bare reading of Section 50 of the Act, 1985 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicle or articles. The position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh, etc. etc.,

In view of the above settled legal position, Section 50 of the Act, 1985 would not be applicable when search is made in a house or a vehicle or a container or a bag or premises. In the instant case, the search was made of a bag which was being carried by the appellant, therefore, Section 50 of the Act 1985 is not applicable to this case.

Sub-Inspector S. David (PW-1) deposed that the Ganja was recovered from the bag of the appellant. Recovered Ganja was kept in jute bag and polythin. Identification of recovered article was conducted and identification panchnama (Ex. P-9) was prepared. After physical verification, it was found that the recovered articles were Ganja. He further deposed that the Ganja was weighed on the spot. The jute bag was containing 10 Kgs and each of the polythin packets were containing 4 Kgs of Ganja. Total 18 Kgs of Ganja was recovered from the appellant and weight panchnama was prepared vide Ex. P-11. Ganja was seized vide Ex. P-13. He further deposed that three samples of 50 grams each of Ganja were prepared on the spot and sealed. He further deposed that he arrested the appellant vide Ex. P-14 and Dehati Nalishi (Ex. P-15) was recorded on the spot. Thereafter, he came back to the police station and regular First Information Report (Ex. P-15A) was registered in Police Station, Supela. The seized property and the samples were handed over to Malkhana Moharrir for their safe custody.

Head Constable Bhikhamchand (PW-2) deposed that on 18-07-2003, he was posted as Thana Moharrir in Police Station, Supela. He further deposed that on 18-07-2003, he received the property and the samples for their safe custody in Malkhana and entry of the same was made in Malkhana register (Ex. P-16) and its copy is Ex. P-16A.

Looking to the evidence of Sub-Inspector S. David (PW-1), Head Constable Bhikhamchand (PW-2) and Ex. P-16A, it is clear that the seized Ganja and the samples were handed over by Sub-Inspector S. David (PW-1) to Malkhana Moharrir for their safe custody.

Section 55 of the Act, 1985 envisages that before entrusting the Ganja and the samples packets in Malkhana, the Station House Officer shall affix his seal on those articles.

Now, I shall examine whether Sub-Inspector S. David (PW-1) or the Station House Officer affixed their seal on the seized property and the samples?

Sub-Inspector S. David (PW-1) deposed that it is true that he had not written in the seizure memo that the property was sealed. Ex. P-16A is a photo copy of Malkhana register, in which it is not mentioned that the property and the samples were sealed and the samples were kept in sealed condition. Ex. P-13 is the seizure memo. In Ex. P-13 also, it is not mentioned that the seized articles and the samples were sealed on the spot. Even specimen impression of seal was not affixed in Ex. P-13. Ex. P-15 is the Dehati Nalishi. In Dehati Nalishi (Ex. P-15) also, it is not mentioned that the property and the samples were sealed. Malkhana Register (Ex. P-16A) also does not show that the contraband article and the 3 samples packets entrusted for their safe custody were in a sealed condition and no evidence is on record to show that after the seizure, Sub-Inspector S. David (PW-1) had prepared specimen of seal for being sent along with the samples packets to the FSL, Raipur.

Head Constable Bhikhamchand (PW-2) deposed that the samples were sent to FSL, Raipur for analysis. In Malkhana register (Ex. P-16A) also, it is mentioned that three sample packets were sent to the FSL, Raipur through Constable 891 Holsingh. Ex. P-23 is the report of the FSL, Raipur, in which, it is mentioned that articles A, B and C were received from Constable 891 Holsingh, P.S. Supela for chemical examination.

In seizure memo (Ex. P-13), it is mentioned that the samples were marked as A1, B1 and C1 and the original Ganja packets were marked as A, B and C. Head Constable Bhikhamchand (PW-2) specifically deposed that the samples were sent to the FSL, Raipur for chemical examination. It was the duty of the prosecution to establish the shadow of doubt that the samples taken from the quantity of Ganja seized from the appellant were sealed and the specimen impression of the seal was prepared. It was also necessary for the prosecution to establish that at the time of entrusting the samples, seal of the Malkhana Moharrir or the Station House Officer was affixed on the samples as also on the remaining quantity of the seized Ganja. The prosecution must establish beyond reasonable doubt that the seal was affixed on the sample packets not only at the time of seizure, but also at the time of entrustment in Malkhana and the same remained intact till the sample packets were delivered at FSL, Raipur for chemical analysis.

In State of Rajasthan Vs. Bher Singh (2009) 16 SCC 293 (supra), the Hon''ble Supreme Court observed that failure by prosecution to prove that the seized opium sample had remained intact till its examination in FSL - Held, this being a mandatory requirement, no interference with High Court''s order reversing the conviction is called for.

In the instant case, the prosecution did not examine the Constable 891 Holsingh. Even Sub-Inspector S. David (PW-1) did not state anything in Ex. P-13 about sealing of the property and the samples on the spot. FSL report (Ex. P-23) also does not mention about specimen impression of the seal. It is also not mentioned in the FSL report (Ex. P-23) that the articles A, B and C were received along with specimen impression of the seal of the officer-in-charge of the police station.

After having considered the evidence led by the prosecution in its entirety, 1 am of the considered opinion that there is non-compliance of Sections 52 and 55 of the Act, 1985, therefore; the report (Ex. P-23) of the FSL cannot affirm the basis of conviction of the appellant u/s 20 of the Act, 1985.

In view of the above, the impugned judgment deserves to be set aside. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are set aside. The appellant is acquitted of the charge framed against him after giving him benefit of doubt. His bail bonds are cancelled and sureties stand discharged.