Mohd. Yusuf and Others vs State of C.G.

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 17-02-2004 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth ''the Act, 1985''), Durg in Special Case No. 13/2003. By the impugned judgment, accused persons/appellant No. 1 Mohd. Yusuf, appellant No. 2 Mohd. Sajid Khan and appellant No. 3 Smt. Arti Nayak have been convicted u/s 20(b)(ii)(B) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 10,000/- each, in default of payment of fine, to further undergo simple imprisonment for 2 years. Case of the prosecution, in brief, is as under:--

On 30-07-2003, ASI Jagannath Giri (PW-1) was posted in Police Station Saja. On that date, he received secret information telephonically that appellant No. 1 Mohd. Yusuf was carrying Ganja in a Maruti Van. He recorded the secret information vide Ex. P-1 and thereafter proceeded towards Village Mohgaon along with witnesses and police force. One Maruti Van bearing registration No. CG 04 ZD 1413 was coming from Saja. He signaled for stopping the Maruti Van but the driver of the said vehicle did not stop the van. ASI Jagannath Giri (PW-1) overtook the van and stopped it. The van was being driven by appellant No. 1 Mohd. Yusuf and appellant No. 2 Sajid Khan and appellant No. 3 Smt. Arti Nayak were seating in the Maruti Van. A 5 years old child was also present with them in the van. The appellants were informed about their right u/s 50 of the Act, 1985 vide Ex. P-3 and consent of appellant No. 1 Mohd. Yusuf regarding search was recorded in Ex. P-3 itself. The Maruti Van bearing registration No. CG 04 ZD 1413 was searched. Appellant No. 2 Sajid Khan and appellant No. 3 Smt. Arti Nayak were seating inside the van and they were carrying bag and polythin in Ataichi (suitcase). The Ganja was recovered from the Ataichi and identification of the recovered article was conducted on the spot. Identification Panchnama of the substance, i.e., Ganja was prepared vide Ex. P-6. The appellants and seized articles were taken to the Police Station Saja, where the Ganja was weighed. On weighing, it was found to be 13.750 Kgs. and 1.650 Kgs. Weight Panchnama is Ex. P-8. The Ganja was seized from the appellants vide Ex. P-7 and verified by SDO (Police), Berala. The appellants were arrested vide Ex. P-9, Ex. P-10 and Ex. P-11. ASI Jagannath Giri (PW-1) recorded First Information Report (Ex. P-12) and its copy was sent to concerned Court at Bemetara and SDO (Police), Berala vide Ex. P-13. Action taken report was also prepared and sent to SDO (Police), Berala vide Ex. P-18. Seized Ganja and two samples each containing 75 gms. of Ganja were handed over to Malkhana Moharrir for their safe custody. Samples were sent to Forensic Science Laboratory, Raipur vide Ex. P-21. Report (Ex. P-31) was received therefrom vide Ex. P-30. In Ex. P-31, test of Ganja was found positive. After completion of the investigation, charge sheet was filed against the appellants in the Court of Special Judge under the Act, 1985, Durg who conducted the trial and convicted and sentenced the appellants as mentioned above.

Shri Y.C. Sharma, Shri Vivek Rathore and Shri Pushkar Sinha, learned counsel for the appellants contended that the evidence led by the prosecution lacks requisite proof required to convict the appellants u/s 20 of the Act, 1985. Independent witnesses did not support the case of the prosecution. There is nothing in the testimony of the Investigating Officer Jagannath Giri (PW-1) to show that Ganja was found in conscious possession of any of the appellants. The Malkhana Register did not show that samples were entrusted in sealed condition. The specimen impression of seal, which is used to seal the sample packets and the remaining Ganja, was not prepared. The samples were taken on 30-07-2003 and was sent to the FSL, Raipur on 01-08-2003, i.e., after 3 days. There is no explanation for delay of 3 days in sending the samples to FSL, Raipur, therefore, the seizure from the appellants was not in accordance with law. Hence, the conviction of the appellants cannot be sustained.

On the contrary, Shri Sandeep Yadav, learned Deputy Government Advocate and 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.

Having heard rival contentions of the parties, I have perused the record of Special Case No. 13/2003. The prosecution examined ASI Jagannath Giri (PW-1), SDO(P) S.R. Salaam (PW-2), Head Constable Dudhnath Shukla (PW-3), Neeluram (PW-4), Sumermal (PW-5), SHO V.K. Sharma (PW-6), Ramkumar (PW-7), Shatruhan (PW-8) and Farida Begum (PW-9). The appellants did not examine any witness in their defence.

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

Jagannath Giri (PW-1) deposed that on 30-07-2003, he was posted as Assistant Sub-Inspector at Police Station, Saja. On that date, he received secret information that appellant No. 1 Mohd. Yusuf was carrying Ganja in a Maruti Van. He recorded the Mukhbir Suchana Panchnama vide Ex. P-1 and called the witnesses vide Ex.-P-2. He further deposed that he sent the information to SDO(P), Berala and the information was recorded in Rojnamcha Sanha.

SDO(P) S.R. Salaam (PW-2) deposed that he was posted as Sub-Divisional Officer (Police) at Berala. Police Station, Saja was within his jurisdiction. On 30-07-2003, he received information from Police Station Saja by wireless message. In cross-examination, he deposed that the information was received by him at Nandani and then he went for Police Station, Saja at about 7.00 p.m.

Dudhnath Shukla (PW-3) deposed that Mukhbir Suchana was received on telephone. Its entry was made in Rojnamcha Sanha No. 924 (Ex. P-15) and its copy is Ex. P-15A. He further deposed that the Mukhbir Suchana was sent to SDO(P), Berala through wireless message. The same is also mentioned in Rojnamcha Sanha (Ex. P-15A).

Looking to the evidence of ASI Jagannath Giri (PW-1), SDO(P) S.R. Salaam (PW-2), Dudhnath Shukla (PW-3), Ex. P-1 and Ex. P-15A, it appears that ASI Jagannath Giri (PW-1) had received the secret information, he prepared Mukhabir Suchana Panchnama and communicated the same to SDO(P), Berala. It is, therefore, clear that ASI Jagannath Giri (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 the Investigating Officer or not?

The officer, who is to search a person, is required to inform the person about his right to be searched by a nearest Gazetted Officer or by a nearest Magistrate. If the person gives consent to be searched before a Gazetted Officer or before a Magistrate, he shall, without unnecessary delay, 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.

ASI Jagannath Giri (PW-1) deposed that before making search, he had given notice to the appellants before witnesses for search by him and he informed the appellants as follows:--

Appellant No. 1 Mohd. Yusuf gave his consent in Ex. P-3 itself. In the instant case, ASI Jagannath Giri (PW-1) did not depose that the appellants were informed that they were entitled to be searched before a nearest Gazetted Officer or a nearest Magistrate. In Ex. P-3, it is only mentioned as follows:--

From bare perusal of Ex. P-3, it reveals that ASI Jagannath Giri (PW-1) did not inform the appellants that they were entitled to be searched before a nearest Gazetted Officer or a nearest Magistrate.

Now, I shall examine whether non-compliance of Section 50 of the Act, 1985 is fatal to the case of the prosecution or not?

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

12.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 above settled legal position, Section 50 of the Act, 1985 would not be applicable when search is made of a house or a vehicle or a container or a bag or premises. In the instant case, the search is made of a vehicle, i.e., the Maruti Van, which was being driven by appellant No. 1 Mohd. Yusuf, therefore. Section 50 of the Act, 1985 is not applicable in the instant case.

ASI Jagannath Giri (PW-1) deposed that the Maruti Van bearing registration No. CG 04 ZD 1413 was being driven by appellant No. 1 Mohd. Yusuf and appellant No. 2 Sajid Khan and appellant No. 3 Smt. Arti Nayak were seating inside the van. The Mauka Panchnama (Spot-Panchnama) was prepared vide Ex. P-5. He further deposed that the bag, polythin and Ataichi were kept in the Maruti Van and the smell of Ganja was coming out from those articles. The identification was conducted on the spot and panchnama was prepared vide Ex. P-6. The articles were seized from appellant No. 1 Mohd. Yusuf vide Ex. P-7. He further deposed that he took the appellants along with the van and seized property to Police Station Saja and the seized contraband articles were weighed. The bag and the Ataichi were containing 13.750 Kgs. And the polythin was containing 1.650 Kgs. of Ganja. Samples were prepared separately and sealed vide Ex. P-8. He further deposed that he recorded the FIR (Ex. P-12) and copy thereof was sent to concerned Court. Its acknowledgment is Ex. P-13. He also sent the information to SDO(P), Berala. He further deposed that he handed over the property to the Malkhana Moharrir for safe custody.

Head Constable Dudhnath Shukla (PW-3) deposed that on 30-07-2003, he had also gone along with ASI Jagannath Giri (PW-1) to Mohgaon and after completion of proceedings, they returned to Police Station Saja. He further deposed that on 30-07-2003, he received the property for safe custody in Malkhana and gave its acknowledgment vide Ex. P-14.

Shri Y.C. Sharma, learned counsel for the appellants submitted that the samples were not taken in accordance with law. In the Malkhana Register, it is not mentioned that the seized property or the samples were sealed on the spot.

ASI Jagannath Giri (PW-1) deposed that he prepared the samples and sealed them. He further deposed that he handed over the property to Malkhana Moharrir for its safe custody. Head Constable Dudhnath Shukla (PW-3) deposed that on 30-07-2003, he received the property for safe custody in Malkhana and entry of the same was made in Malkhana Register (Ex. P-24) at serial number 41.

Looking to the evidence of ASI Jagannath Giri (PW-1) and Head Constable Dudhnath Shukla (PW-3), it is clear that the seized Ganja and samples were handed over by ASI Jagannath Giri (PW-1) to Malkhana Moharrir for their safe custody. Ex. P-7 is the seizure memo. In Ex. P-7, it is mentioned that the samples were prepared and Ganja and samples were sealed. In Ex. P-7, the endorsement of SDO (Police) is also mentioned. In seizure memo (Ex. P-7), it is mentioned that the seized articles were sealed on the spot but this document does not bear specimen impression of the seal. In Rojnamcha Sanha (Ex. P-17A), the acknowledgment (Ex. P-14) and photo copy of Malkhana Register (Ex. P-24A), it is not mentioned that samples and property were sealed and samples were kept in sealed condition.

The law is well settled that heavy burden lies on the prosecution to prove the sanctity of the samples that they were sealed after the seizure and preserved from the time of their preparation till they reach to the Forensic Science Laboratory and they were kept in Malkhana in sealed condition. Acknowledgment (Ex. P-14) and photo copy of Malkhana Register (Ex. P-24A) do not show that the samples and the property were handed over to Malkhana Moharrir in sealed condition.

In the instant case, the prosecution did not examine Constable Prakash Barua who handed over the samples to FSL for chemical examination. The prosecution must have produced the evidence of Prakash Barua beyond all reasonable doubt that endorsement of the seal on the samples were present not only at the time of seizure but also at the time of handing over the same to the Malkhana Moharrir till the samples packet were delivered at the FSL for their chemical examination.

In the instant case, in Rojnamcha Sanha (Ex. P-17A), the acknowledgment (Ex. P-14) and photo copy of Malkhana Register (Ex. P-24A), it is not mentioned that samples and property were sealed and samples were kept in sealed condition in Malkhana. In view of endorsement in the Malkhana Register that samples were prepared on 30-07-2003 before entrusting them to Constable Prakash Barua, the possibility of tampering with the samples and sealing them in the Malkhana before sending them for chemical analysis to the FSL cannot be ruled out.

The prosecution has failed to prove that the sealed samples were preserved till they reached the FSL, therefore, the FSL Report (Ex. P-31) cannot be formed basis for conviction of the appellants u/s 20(b)(ii)(B) 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 appellants u/s 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are set aside. The appellants are acquitted of the charges framed against them after giving them benefit of doubt. Their bail bonds are cancelled and sureties stand discharged.