Mangluram vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment dated 11-3-2004 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances (Amended) Act, 2001 (henceforth ''the Act''), Durg in Special Case No. 19/2002. By the impugned judgment, accused/appellant Mangluram has been convicted u/s 20(b)(ii)(B) of the Act and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 20,000/-, in default, to further undergo rigorous imprisonment for one year. Case of the prosecution, in brief, is as under:

On 06-08-2002, Inspector Rajiv Sharma (PW-7) was posted as Station House Officer at Police Station Gurur. On that date, he received information from a Mukhbir that two persons were bringing Ganja in Motor Cycle Moped No. MP 029 4152 towards Gurur Sanaud Road. He recorded Mukhbir Suchana Panchnama vide Ex. P-6 and also entered the information in Rojnamcha Sanha (Ex. P-1C). He transmitted the said information to superior officer Deputy Superintendent of Police, Balod vide Ex. P-23. He called for witnesses and thereafter proceeded to Gurur Sanaud Road where the appellant and Ramkhilawan, coming on the above motor cycle being driven by the appellant, were stopped by him. The appellant had kept a bag between his legs on the motor cycle. The appellant was informed about his right u/s 50 of the Act vide Ex. P-7 and consent of the appellant regarding search was recorded in Ex. P-7 itself. Thereafter, Rajiv Sharma (PW-7) searched the bag of the appellant. Ganja, kept in the bag, was seized from possession of the appellant. The Ganja was weighed at the spot vide Ex. P-11. The Ganja was found to be 9 Kilograms and 200 Grams. The Ganja was seized vide Ex. P-12. Sample of the seized Ganja was also prepared separately. The appellant was arrested on the same day vide arrest memo (Ex. P-15). The motor Cycle and its papers were also seized. Dehati Nalishi (Ex. P-20) was recorded on the spot. After the seizure and arrest, Investigating Officer Inspector Rajiv Sharma (PW-7) came back to police station and registered the crime vide First Information Report (Ex. P-21). Specimen seal impression was also prepared. Complete details of the action taken were prepared u/s 57 of the Act vide Ex. P-30. The sample of the Ganja and the seized Ganja were handed over to Malkhana Moharrir for safe custody in the Malkhana. The samples were sent for examination to Forensic Science Laboratory, Raipur. Report (Ex. P-33) was received therefrom, in Ex. P-33, the test of Ganja was found to be positive.

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

Shri Sunil Sahu, learned counsel for the appellant argued that there was no compliance of provisions of Sections 42, 50, 55 and 57 of the Act. He further argued that there is nothing on record to show that the bag was containing Ganja and samples taken from the bag were sealed and specimen impression of the seal was prepared. The seizure from the appellant was not in accordance with law. Possibility of tampering of the seal of the bag sent to the FSL cannot be ruled out. Therefore, the appellant is entitled to be acquitted of the charge framed against him.

Smt. Madhunisha Singh, 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.

Having heard rival contentions of the parties, I have perused the record of Special Case No. 19/2002.

The prosecution examined Head Constable Fekuram Bharti (PW-1), Mohd. Anis (PVV-2), Manish Soni (PW-3), Mohd. Ahmed Khan (PW-4), Iqbal Khan (PW-5), A.S.I. S.K. Dwivedi (PW-6), Inspector Rajiv Sharma (PW-7). The appellant examined Assistant Chemical Examiner-cum-Senior Scientist Dr. M.K. Verma (DW-1) in his defence.

Rajiv Sharma (PW-7) deposed that on 6-8-2002, he was posted as Station House Officer at Police Station Gurur. On that date, at about 10:45 P.M., he received information from Mukhbir that two persons were bringing Ganja in Motor Cycle Moped No. MP 029 4152 towards Gurur Sanaud Road. He recorded Mukhbir Suchana Panchnama vide Ex. P-6 and also entered the information in Rojnamcha Sanha (Ex. P-1C). He transmitted the said information to superior officer Deputy Superintendent of Police, Balod vide Ex. P-23.

Head Constable Fekuram Bharti (PW-1) deposed that he was posted as Thana Moharrir-cum-Officer-in-Charge of Malkhana at Police Station Gurur. On 6-8-2002, Rajiv Sharma (PW-7) recorded the Mukhbir Suchana and entered it into Rojnamcha Sanha No. 201. The original Sanha is Ex. P-1 and its copy is Ex. P-1C. He further deposed that the Mukhbir Suchana was transmitted to superior officers.

In Karnail Singh Vs. State of Haryana, the Hon''ble Supreme Court held thus:

In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham Vs. State of Kerala, hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith information the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer, But in special circumstances involving emergent situations, the recording of the information in writing-and sending a copy thereof to the superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police-officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.

Looking to the evidence of Inspector Rajiv Sharma (PW-7) and Head Constable Fekuram Bharti (PW-1), it appears that Rajiv Sharma (PW-7), on receiving the secret information, recorded it in Rojnamcha Sanha and prepared Mukhbir Suchana Panchnama separately and communicated the same to his superior authorities, which is corroborated by the documents Ex. P-1A and Ex. P-6. It is, therefore, clear that Rajiv Sharma (PW-7) complied with the provisions of Section 42(2) of the Act.

Now, I shall examine whether provisions of Section 50 of the Act have been substantially complied with by the Investigating Officer or not? u/s 50(1) of the Act, the officer, who is to search the accused, is required to inform the person about his right to be searched by a gazetted officer or by a Magistrate. If the person opts to the search before a gazetted officer or a Magistrate, he shall immediately be taken to the said officer or Magistrate. Otherwise, the search can be made by the concerned officer. The requirement of law has been held to be mandatory in nature and non-compliance thereof vitiates the trial.

Rajiv Sharma (PW-7) deposed that he called for witnesses and thereafter proceeded to Gurur Sanaud Road where the appellant and Ramkhilawan, coming on the above motor cycle being driven by the appellant, were stopped by him. The appellant had kept a bag between his legs on the motor cycle. The appellant was informed about his right u/s 50 of the Act vide Ex. P-7. He informed the appellant that he had right to be searched before a Gazetted Officer or before a nearest Magistrate. Consent of the appellant regarding search was recorded in Ex. P-7 itself. Thereafter, Rajiv Sharma (PW-7) searched the bag of the appellant. Ganja, kept in the bag, was seized from possession of the appellant. The Ganja was weighed at the spot vide Ex. P-11. The Ganja was found to be 9 Kilograms and 200 Grams. The Ganja was seized vide Ex. P-12. He further deposed that the Ganja was identified by burning and smelling and by which it was found to be Ganja. Sample of the seized Ganja was also prepared separately. Sample Panchnama was also prepared. The appellant was arrested on the same day vide arrest memo (Ex. P-15). The motor Cycle and its papers were also seized. Dehati Nalishi (Ex. P-20) was recorded on the spot.

Vide Ex. P-7, the appellant was informed of his right u/s 50 of the Act. Consent of the appellant regarding his search was recorded in Ex. P-7 itself.

In Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Customs, Customs House, Punjab, the Hon''ble Supreme Court observed thus:

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. P.A. 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 of the other. In Vijaisingh''s case (supra) the Constitution Bench crystallized the issue before it in para 1 as under:

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?

It is therefore apparent that the precise question that was before the Constitution Bench was as to whether a consent memo could be said to be information conveyed to an accused as to his right u/s 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. 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 Ex. P.A. In the light of the judgment in Vijaisingh''s case (supra) we find that there has been complete noncompliance with the provisions of Section 50 of the Act.

I have gone through the evidence of Rajiv Sharma (PW-7). Rajiv Sharma (PW-7) deposed that he informed the appellant about his right that he was entitled to be searched before a Gazetted Officer or before a Magistrate or before him vide Ex. P-7. The appellant gave his written consent vide Ex. P-7 itself to be searched by the Investigating Officer himself. From the evidence of Rajiv Sharma (PW-7), it is clearly established that substantial compliance of the provisions of Section 50 of the Act was also made by Rajiv Sharma (PW-7).

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 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 the bag of the appellant, therefore, Section 50 of the Act is not applicable.

Learned counsel appearing for the appellant argued that evidence of Rajiv Sharma (PW-7) is not supported by independent witness. Therefore, on the basis of evidence of Rajiv Sharma (PW-7) conviction of the appellant cannot be based.

In Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, , the Hon''ble Supreme Court observed thus:

In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.

It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in Aher Raja Khima Vs. The State of Saurashtra, Venkatarama Ayyar, J. stated; ( AIR 230, 40)

40 The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.

In Tahir Vs. State (Delhi), , dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: (SCC p. 341, para 6)

6.... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.

In the instant case, Panch Witnesses Mohd. Anis (PW-2), and Manish Soni (PW-3) turned hostile and did not support the case of the prosecution, but they deposed that they had accompanied Rajiv Sharma (PW-7) to Sanaud-Gurur Road and Rajiv Sharma (PW-7) had stopped the motor cycle and searched out the bag kept on the motor cycle. They further deposed that after the search, they were told that the bag contained Ganja. Looking to the evidence of above two Panch Witnesses, it appears that Rajiv Sharma (PW-7) had gone to Sanaud-Gurur Road, stopped the motor cycle and searched out the bag. Looking to the evidence of Inspector Rajiv Sharma (PW-7) and documents Ex. P-1C, Ex. P-6, Ex. P-7, Inspector Rajiv Sharma (PW-7) has substantially complied with the provisions of Sections 42 and 50 of the Act. Therefore, his evidence is taken for consideration without corroboration by the evidence of Panch Witnesses.

Now, I shall examine whether provisions of Sections 55 and 57 of the Act have been complied with?

In Gurbax Singh Vs. State of Haryana, , the Hon''ble Supreme Court observed thus:

9... It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required u/s 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemical analyser. Further, it is apparent that the IO has not followed the procedure prescribed u/s 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer.

In the instant case, Rajiv Sharma (PW-7) deposed that the Ganja was found to be 9 Kilograms and 200 Grams. The Ganja was seized vide Ex. P-12. Sample of the seized Ganja was also prepared separately. The appellant was arrested on the same day vide arrest memo (Ex. P-15). The motor cycle and its papers were also seized. Dehati Nalishi (Ex. P-20) was recorded on the spot. After the seizure and arrest, Investigating Officer Inspector Rajiv Sharma (PW-7) came back to police station and registered the crime vide First Information Report (Ex. P-21). Specimen seal impression was also prepared vide Ex. P-22. Complete details of the action taken were prepared u/s 57 of the Act vide Ex. P-30. The sample of the Ganja and the seized Ganja were handed over to Malkhana Moharrir for safe custody in the Malkhana.

Fekuram Bharti (PW-I) deposed that he received the property of the case from Rajiv Sharma (PW-7) on 7-8-2002 and it was kept in Malkhana. He further deposed that an entry was made to that effect in Malkhana Register. The original entry is Ex. P-5 and its copy is Ex. P-5A. Ex. P-5A is a copy of the Malkhana Register in which at Serial No. 92, the entry was made regarding the property and sample of the instant case. Rajiv Sharma (PW-7) deposed that he prepared Specimen Seal Panchnama vide Ex. P-22.

It is clear from the above evidence that the seized articles and samples were sealed by Rajiv Sharma (PW-7) and he affixed the seal on those articles. There is no such legal requirement that the sample which is already sealed by the seizing officer and which has been deposited in the Malkhana should again be sealed by the officer-in-charge of the police station.

Rajiv Sharma (PW-7) and Fekuram Bharti (PW-1) deposed that the samples were sent to Forensic Science Laboratory, Raipur for chemical examination.

Dr. M.K. Verma (DW-1) deposed that he was posted as Assistant Chemical Examiner-cum-Senior Scientist at Regional Forensic Science Laboratory, Raipur. He further deposed that on 12-8-2002, he received four sealed packets relating to Crime No. 185/02 of P.S. Gurur from Constable 334 Jagdish Tiwari, P.S. Gurur for chemical examination. He further deposed that the samples were intact. He also received specimen seal separately. He compared the seal affixed on the samples with the specimen seal and found both of them to be similar. He further deposed that he had received the property and the specimen seal in proper condition. After examination of the samples, he found that the same were Ganja.

Rajiv Sharma (PW-7) deposed that he sent the information to his superior officers regarding seizure, arrest and detailed action taken by him vide Ex. P-26 and P-30. Looking to the evidence of Inspector Rajiv Sharma (PW-7) and documents Ex. P-26 and P-30, it appears that Rajiv Sharma (PW-7), after seizure of the contraband article and arrest of the appellant, sent the detailed action taken report to his superior officers. It is, therefore, clear that Rajiv Sharma (PW-7) complied with the provisions of Section 57 of the Act.

Therefore, in the instant case, from the above, it is apparent that provisions of Sections 42, 50, 55 and 57 of the Act are substantially complied with. I find no infirmity in the impugned judgment of conviction and sentence passed by the learned Special Judge. For the foregoing reasons, the appeal is dismissed.