Palash Mondal vs The State of West Bengal

Aniruddha Bose, J.—The appellant was apprehended on 4th February, 2013, at about 16.35 hours by a police team from a location near Baruidaha Rail Gate under Kotwali Police Station in the district of Nadia on the allegation of having unlawful possession of heroin. Upon trial, he was convicted of offence punishable under the provisions of Section 17(b) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (the 1985) by the Judge, Special Court, N.D.P.S. Act, Nadia and sentenced to suffer Rigorous Imprisonment for ten years and to pay fine of rupees one lac, in default of which simple imprisonment of one year has been prescribed. The judgment of the Trial Court was delivered on 27th May 2014. The prosecution case is that on receiving information from secret source that clandestine and illegal business of heroin was being run from that place, Tapan Chatterjee, a sub-inspector of police attached to the said police station made a General Diary, and along with two constables Dipak Ghosh and Sankar Prasad Chakraborty left the police station to pursue the matter. Said Tapan Chatterjee has deposed as Prosecution Witness (P.W.1) in the trial whereas Sankar Prasad Chakraborty and Dipak Ghosh have also deposed on behalf of the prosecution as the P.W. 4 and P.W. 5. The prosecution version of the case, as it appears from the written complaint forming the basis of the FIR and also from the depositions of the Prosecution Witnesses, is that upon reaching the location referred to above as per source information the appellant was intercepted. Then two local witnesses who had assembled at the place of occurrence, being Madhab Chakraborty and Somnath Ghosh were asked to remain with the raiding team as witnesses. Alok Ranjan Munshi, who at the material point of time was Inspector-in-charge of the same police station had reached the said location for observing the procedure of search and seizure. On his arrival, he had offered the witnesses and the appellant to search him, disclosed to them his identity and informed the appellant that he was at liberty to get himself searched by any other Gazetted Officer other than him. In the F.I.R, what has been recorded as the response of the appellant to such offer is that "he need not". Thereafter, on service of notice, the appellant was searched and one small packet containing white powder was recovered from his left side pocket of the trousers (referred to in the F.I.R. as "full pant"). The content of the packet was tested on government supplied kit, which confirmed the content of the packet to be heroin. Alok Ranjan Munshi deposed for the prosecution in the trial as P.W. 6 whereas Madhab Chakraborty and Somnath Ghosh were examined as P.W.7 and P.W. 10. Both of them, however, were declared hostile.

The content of the packet, according to the prosecution, was weighed by one Biplab Karmakar, a goldsmith (P.W. 3) and such weighment revealed the weight of the same to be 24 gms. As per prosecution case, the seized article forms more than small quantity but less than commercial quantity. From the main content, two samples, were individually packed, and labelled and all these articles were then seized. The sample was later sent for chemical examination, and pending the result of the chemical examination charge-sheet was filed specifying the offences therein under Sections 21 /27 of the 1985 Act. The said charge-sheet is dated 31st March, 2013. Subsequently, the Forensic Examination Report was prepared on 2nd July, 2013 by the Central Forensic Science Laboratory and the result of the examination specified:--

"Using suitable chemical tests and instrumental methods of chemical analysis (GC-MS technique), of the exhibit marked here as Chem 51/13 the following results were obtained: 1. Diacetylmorphine (Heroin) (2) Acetyl Codeine, (3) 6-monoacetylmorphine, (4) Morphine-3-acetate, (5) Morphine, (6) Codeine, (7) Noscapine, (8) Papaverine, (9) Acetaminophen (Paracetamol), (10) Diclofenac alongwith (11) N.N''-diacetyldianisidine (a dye) were detected in the content of the exhibit marked here as Chem 51/13. Note : 1. Results relate only to exhibits tested.

After examination, the remnant of the exhibit marked here as Chem 51/13 weighing 1.1127 gram (without self-adhesive plastic packet & polythene wrapper) has been sealed with the seal impression given below and is being returned herewith."

After receiving the said report, Section 27A of the 1985 Act was also introduced as an offence in addition to the earlier provisions and a supplementary charge-sheet was filed on 9th July, 2013. Both the original and the supplementary charge-sheets have been made Exhibits 7 and 9 respectively, while the Forensic Examination Report has been made Exhibit 8. Charge was framed on 14th August, 2013, under Section 17(b) of the 1985 Act as the Trial Court found that a prima facie case for commission of an offence punishable under the aforesaid provision of the 1985 Act had been made out. The appellant pleaded not guilty to such charge. In the trial, the prosecution altogether examined ten witnesses. Apart from Prosecution Witnesses Nos. 1, 3, 4, 5, 6, 7 and 10, to whom we have briefly referred to in the earlier part of this judgment, three other witnesses were also examined, who were part of the investigating agency. Prabir Saha (PW 2) deposed as the driver, who had taken the raiding team to the place of occurrence. Krishnadhan Chatterjee (PW 8) had received the written complaint and drew the formal F.I.R which has been made Exhibit 5. Sukanta Saha (P.W. 9) had taken up the investigation and also had submitted both the charge-sheets. He also had sent the sample for chemical examination and received the report.

Considering the evidence adduced and the materials on record the Trial Court found that the accused-who is the appellant before us - was apprehended at a public place. The Trial Court held that in such a situation, the protective measures for an accused contemplated in Section 42 of the 1985 Act was not applicable in the case, but it was the provisions of Section 43 which was applicable. On the aspect of compliance of the provisions of Section 50 of the 1985 Act, a point on which elaborate arguments have been advanced before us, the Trial Court found that the accused had exercised his option of being searched in presence of Gazetted Officer, and the Gazetted Officer in this case was the P.W. 6. It was held by the Trial Court that there was proper compliance of the provisions of Section 50 of the 1985 Act. So far as the depositions of P.W. 7 and P.W. 10 are concerned, relying on certain authorities, the Trial Court held that a witness who had admitted his signature on a document could not deny knowledge of the content of the document. A judgment of the High Court of Orissa in the case of Pilli Dilli Dora Vs. State of Orissa, was cited on the same point. Referring to a judgment of the Allahabad High Court (Lucknow Bench) in the case of Mahadeo Vs. The State, the Trial Court held that there cannot be any presumption that the police officials are not trustworthy. Testimony of police officials ought to be treated in the same manner as the testimony of other witnesses and testimony of police officials ought not to be rejected solely on the ground that it has not been corroborated by any other witness.

The Trial Court found the appellant guilty of the offence he was charged with, and we have already referred to the sentence imposed on him. This judgement is assailed before us by the appellant. Mr. Prabir Mitra, learned counsel appearing for the appellant has argued mainly on three points in support of his client''s case. His first submission is on non-compliance of the provisions of Section 50 of the 1985 Act. The second limb of his argument is that no independent witness had supported the prosecution case as regards search and seizure and conviction of the appellant solely on the basis of depositions of police witnesses was improper, as the police witnesses in this case are not reliable. Thirdly, he has submitted in relation to the provision of law under which the appellant was convicted and sentenced. The F.I.R and the initial charge-sheets referred to offences under Sections 21 and 27 of the 1985 Act with allegation possession of heroin. Section 27A was added on the basis of the supplementary charge-sheet. But charge was framed under the provisions of Section 17(b) of the 1985 Act, which relates to possession and certain other ancillary activities in respect of prepared opium. Contention of Mr. Mitra is that the chemical examination report did not mention percentage of individual ingredients found in the sample, though the report disclosed presence of 11 chemicals altogether. On this point, his submission is that no case for his conviction under section 17(b) of the Act has been made out, as the report did not disclose presence of prepared opium. It has also been contended on behalf of the appellant that the certain crucial circumstances appearing against him were not put to the appellant in his examination under Section 313 of the Code of Criminal Procedure 1973 and the accused was prejudiced by that factor. Lastly, he argued that the "Malkhana Register" was not produced in Court to prove that the seized articles were kept in the Malkhana and the process for sending the sample to the Forensic laboratory was faulty. Argument was also advanced on non-production "alamat" at the time of trial. We, however find from deposition of the P.W. 1 that the mother "alamat" along with signatures of the witnesses and the accused was made Material Exhibit I, and two sample packets with labels, marked as Material Exhibits II and III were also produced. From the judgment impugned we find that the P.W. 1 had proved the said Material Exhibits. Thus, we do not find any strength in the argument made on behalf of the appellant on this particular point.

Mr. Subir Banerjee, learned Additional Public Prosecutor sought to defend the judgement impugned on behalf of the prosecution. As regards appellant''s case on non-compliance of the provisions of Section 50 of the 1985 Act he has primarily relied on the deposition of the P.W. 1. Taking us through his deposition, he submitted that a notice was served upon the appellant giving option of search before a Gazetted Officer and the provisions of Section 50 stood duly complied with. Dealing with the report of the chemical examiner, which has been made Exhibit 8, he argued that this report was admitted without any objection raised on behalf of the appellant and in terms of the provisions of Sections 293 and 294 of the Code of Criminal Procedure, 1973, this report is an admissible evidence. Moreover, no application was filed before the Trial Court asking for examination of the chemical examiner. On the point of depositions of the Prosecution Witnesses 7 and 10, who were declared hostile, submission on behalf of the State is that these two independent witnesses had proved their signatures on the seizure list before they were declared hostile and seizure of heroin from the appellant after searching him was corroborated by other witnesses.

Referring to the provisions of law under which the appellant was convicted by the Trial Court, it was submitted that punishments prescribed in Section 17(b) and Section 21(b) of the 1985 Act are the same. It was also urged on behalf of the State, drawing our attention to the provisions of Section 2(xv) , (xvi) and Section 17(b) of the 1985 Act that framing of the charge and conviction under the aforesaid provision of the 1985 Act was justified. Mr. Banerjee also submitted that all the incriminatory circumstances were put to the accused by the Trial Court in course of examination under Section 313 of the 1985 Act and as such there was no flaw in such examination.

We shall first deal with the contention of the appellant that the provisions of Section 50 of the 1985 Act were not complied with in the case of the appellant at the time of search and consequential seizure of the offending article. The Trial Court found that the search was made on a public place and provisions of Section 42 of the Act would not apply in the instant case. We do not find any flaw in this finding. The search and consequential seizure was conducted in this case at Baruihuda Rail Gate. From the inquest report, we find that the place of occurrence is on the road and there has been no suggestion on behalf of the appellant to any of the prosecution witnesses in course of trial that the place of search, seizure and subsequent arrest of the appellant was from any private building or enclosed place, or otherwise a private location. We concur with the finding of the Trial Court that provisions of Section 43 of the 1985 Act would apply in this case. Now comes the question as to whether the provisions of Section 50 of the 1985 Act were duly complied with or not. The necessity of informing the accused of his right to be subjected to search has been recognized in a series of authorities, and before us the Constitution Bench judgment of the Supreme Court in the case of State of Punjab Vs. Baldev Singh, etc. etc., has been relied upon. On the same point, other authorities in which the principles laid down in the case of Baldev Singh (supra) have been followed, being the decisions of the Supreme Court in the cases of K. Mohanan v. State of Kerala [ (2000) SCC (Cri) 1228], Pandurang Kalu Patil v. State of Maharashtra (2003 CRI.L.J. 1006), Vinod v. State of Maharashtra [(2003) SCC (Cri) 14 ] and Gurjant Singh @ Janta Vs. State of Punjab, have also been cited. The mandatory implications of the provisions of Section 50 of the 1985 Act has been elaborately explained in these cases and the Constitution Bench Judgement in the case of Balbir Singh (supra) lays down in clear terms the consequence of violations of specific requirements of the aforesaid provisions.

The written notice informing the appellant of his right to be searched in front of a Gazetted Officer had been made Exhibit 2. The notice bears the signature of the appellant. This notice informs the appellant that there is information obtained from a reliable source that he is in possession of unlawful heroin and for that purpose there is necessity of search of his body (person). It is further recorded in this notice that accordingly he can have the search conducted in front of an Executive Magistrate or Gazetted Officer. Thereafter it is specified in that notice that "at this moment Gazetted Officer IC Kotwali Police Station Alok Ranjan Munshi is present. If you have no objection, then, such search process can be conducted in his presence". (The actual notice is in bengali, and we have made translation of our own of the relevant portion of the notice.)

In the F.I.R it is, inter alia, recorded:--

"I, SI Tapan Kr. Chatterjee of Kotwali PS, Nadia do hereby lodged a written complaint against the above noted arrested accused persons to the effect that today (04/02/13) at 16.25 hrs I received a secret information that a clandestine and illegal business of Heroine is running near Baruihuda Rail Gate under PS Kotwali, Nadia. I diaries the matter vide Kotwali PS GDE No. 258/13 dt. 04/02/13 and after due intimation to Shri Alik Ranjan Munshi I.C. Kotwali P.S. and superior officers and obtaining their permission over phone. Then myself along with C/1268 Dipak Ghosh, C/630 Sankar Prasad Chakraborty left the PS vide Kotwali PS MCC No. 539/13 dt 04/02/13 and Kotwali PS GDE no 259 Dt 04/02/13 to pursue the secret information.

Today (04/02/13) dt 16.35 hrs myself and above noted force reached near Baruihuda Rail Gate and as per source information we intercepted a person. On interrogation the apprehended persons disclosed his name as Palash Mondal (27) S/o Haran Ch. Mondal of Junior Don Bosco Para, PS Kotwali, Nadia. I called two local witnesses who were assembled at the spot namely 1) Madhab Chakraborty (26) S/O Shyamal Chakravorty of Simanta Pally, Saktinagar PS Kotwali Nadia 2) Somnath (28) S/o Mahadeb Ghosh of do to remain present with us as witness.

We guarded him and Shri Alok Ranjan Munshi I.C Kotwali P.S. reached at the spot at 17.55 hrs. for observing procedure of search and seizure. On arrival he offered the witnesses and the rounded up person to search him and also disclosed his identity to said Palash Mondal (27) and offered him that he is at liberty to get himself searched by any other Gazetted officer other than him but he need not at 18.05 hrs issued notice to the above noted accused persons for holding inspection and search of him. After observing all legal formalities I searched the above noted accused person and recovered one small plastic packet containing white powder like substance which he stated as Heroine from his left side pocket of full pant. After holding proper confirmation test by Govt. Supplied chemical kit of Narcotic Drug and after weighing by one Biplab Karmakar S/o Gurudas Karmakar of R.N. Tagore Road PS Kotwali, Nadia who was called by issuing notice I found 24 gm Heroine was inside the plastic packet which is marked as Exhibit-A. I took two numbers of sample from the mother Exhibit A each contains 2 grams of Heroine which are marked as Exhibit A-1, Exhibit A-2. Then in presence of above noted witnesses, accompanying Police and accused seized all Exhibits marked A, A-1. A-2 after preparing proper seizure list. I sealed and labeled all the seized articles. The entire seizure and above process was completed in between 18.25 hrs to 19.05 hrs. Then I arrested the above noted accused person."

In his deposition the P.W.1 has not indicated any act of refusal or negative statement by the appellant on the aspect of being searched before an Executive Magistrate or a Gazetted Officer. Nor has he stated of any consent given, or willingness expressed by the accused-appellant to be searched before the P.W.6. The P.W. 1 in his examination-in-chief, on the point of search and seizure at the place of occurrence, has deposed:--

"On completion of all formalities as to search and seizure in presence of I.C., Kotwali P.S., we served a notice upon the accused giving option of search. This is the copy of notice prepared in my own hand and it bears my signature. The total notice is marked Ext. 2. On search, we recovered one small packet containing white powder from the left side pocket of his full pant for which he could not produce any valid paper. We seized the said substance (heroin) as per seizure list and on taking sample, packed, sealed and labelled. On weighment the same it was found to be 24 grams. This is the seizure list prepared in my own hand and it bears my signature. The total seizure list is marked Ext. 3."

No evidence has been adduced by the prosecution to suggest that the appellant had agreed to be searched without being taken to a Gazetted Officer or an Executive Magistrate. Moreover, though in the written complaint it has been indicated that P.W.6 had offered the appellant to get himself searched by any other Gazetted Officer, in the depositions of P.W.1 and P.W.6 the said offer is not reflected. In the search notice, (Exhibit 2), the P.W. 6 has been projected as a Gazetted Officer, and the appellant has been informed that he could get himself searched before him. The prosecution has proceeded on the basis that the presence of Inspector-in-charge of the concerned police station, who has deposed as P.W. 6 satisfied the requirement of search before a Gazetted Officer under the provisions of Section 50 of the 1985 Act.

The object of having search conducted before a Gazetted Officer or a Magistrate under the 1985 Act is to ensure impartial supervision at the time of search. This is an additional safeguard in the 1985 Act because in the trial relating to offences under the 1985 Act, an accused does not enjoy the benefit of being presumed innocent, having regard to the provisions of Section 54 of the 1985 Act. Thus, to meet the object of the aforesaid statutory provision, ordinarily the Gazetted Officer ought not to be from the same prosecuting or Investigating Agency. Even if a Gazetted Officer from the same agency is required to perform the duty as envisaged in Section 50 of the Act, such Officer ought not to have played a role in the search and seizure operation and should be totally detached from such operation. On behalf of the appellant the decisions of the Supreme Court in the cases of State of Haryana Vs. Vikram Singh, and Gurjant Singh (supra) have been relied upon to contend that it is mandatory on the part the investigating body to inform the accused of his right to be searched in front of a Magistrate or a Gazetted Officer. In this case service of notice to the appellant in that regard has been proved. But there is no evidence, as we have already observed, that he declined to exercise his right to be searched before a Gazetted Officer or a Magistrate. Now the question arises as to whether search, and consequential seizure conducted in presence of the Inspector-in-Charge of the concerned police station satisfied the requirement of being searched before a Gazetted Officer.

There is nothing before us, in the form of evidence or any other material forming part of records that the raiding team tried to contact any independent Gazetted Officer or Executive Magistrate. There is no evidence either that the P.W. 6 was requested by the raiding team for fulfilling the role of a Gazetted Officer as envisaged in the aforesaid provision of the 1985 Act.In the written complaint forming the basis of the F.I.R., the P.W.1 has stated that he had reached the spot for observing the procedure of search and seizure. From the deposition of P.W. 6, being the Inspector-in-charge of Kotwali Police Station it becomes apparent that he was acting as a member of the raiding team and he had directly participated in the search and seizure operation. In his examination-in-chief he has stated:--

"On 4-2-2013 I was posted as I.C., Kotwali P.S. On the day, on receiving an information from S.I. Tapan Chatterjee that an illegal business of selling heroin was going on at Baruihuda Railway gate under Kotwali P.S., I went to Baruihuda Railway gate to work out the said information. Then, as per identification by source, we apprehended one person who gave his name as Palash Mondal (identified as dock). Then, on completion of all formalities as to search and seizure we served notice upon the accused giving him potion. On search, we recovered one small packet containing white powder (heroin) from the left side pocket of his full pant for which he could not produce any valid paper. Then, S.I. Tapan Chatterjee seized the said heroin and prepared a seizure list and on taking sample, packed, sealed and labelled. This is my signature on the seizure list. The signature of the witness on the seizure list is marked Ext. 3/1. Mother ''alamat'' is not produced in court today. Then we returned to the P.S. along with arrested person and the seized ''alamat'' and S.I. Tapan Chatterjee filed a written complaint with Kotwali P.S."

In the Constitution Bench decision of the Supreme Court in the case of Baldev Singh (supra) the position of law as regards compliance with the provisions of Section 50 of the Act of 1985 has been summarized in paragraph 55 of the report referred to the preceding paragraph. It has been held in this judgment:--

"On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.

(5) that whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 , and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial;

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50 , may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;

(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50 . An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.

(9) That the judgment in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;

(10) That the judgment in Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, correctly interprets and distinguishes the judgment in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, and the broad observations made in State of Himachal Pradesh Vs. Shri Pirthi Chand and another, and Jasbir Singh''s case are not in tune with the correct exposition of law as laid down in Pooran Mal''s case."

In our opinion, the procedure followed in respect of search has been defective in this case. The seizure of contraband article as claimed by the prosecution, from such search and consequential seizure process forms foundation of the case of the prosecution. Applying the principle of law summarized by the Supreme Court in State of Punjab Vs. Baldev Singh, etc. etc., , with particular reference to sub-paragraph (7) thereof, we find the search process in this case was faulty, conducted under the supervision of the Inspector-in-charge of the police station whose officers had undertaken the investigation. From the depositions of the P.W. 1 and P.W. 6, it is clear that the P.W. 6 acted as a member of the raiding team only. There is no evidence that the accused-appellant had agreed to dispense with the requirement of being searched before an independent Gazetted Officer. Neither there is evidence that the appellant had expressed his willingness to be searched before the P.W. 6. The offer contained in the notice given by the P.W. 1 that the appellant could agree to be searched before the P.W. 6 itself was faulty, as he was supervising the entire process of search and seizure. In the case of State of Rajasthan Vs. Parmanand and Another, , the Supreme Court dealt with a case where a member of a raiding party was projected as a Gazetted Officer, and it was held in that case that such an option to an accused was impermissible under the said provision of the 1985 Act. Such faulty search process renders the judgement of conviction and sentence of the appellant bad and unsustainable in law, as barring claim of recovery of contraband article from such search process, there is no other material on the basis of which the appellant could be convicted.

Argument was also advanced before us in relation to the chemical identity of the contraband article, which is the subject of this case. The provision of law under which the Trial Court has found the appellant guilty is possession of prepared opium, under Section 17(b) of the 1985 Act. Section 17 of the said Act stipulates:--

"17. Punishment for contravention in relation to prepared opium-

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses prepared opium shall be punishable-

(a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; or

(b) Where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; or

(c) Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

The chemical analysis report, which we have reproduced in the earlier part of this judgment does not specify "prepared opium" as an ingredient of the sample tested by the laboratory. The expression "prepared opium" is a subgenre of "opium derivative". Section 2(xvi) of the 1985 Act defines "Opium derivative" as:--

"(xvi) "Opium derivative" means-

(a) Medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other Pharmacopoeia notified in this behalf by the Central Government whether in powder form or granulated or otherwise or mixed with neutral materials;

(b) Prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;

(c) Phenanthrene alkaloids, namely, morphine, codeine, thebaine and theirs salts;

(d) Diacetylmorphine that is, the alkaloid also known as diamorphine or heroin and its slats; and

(e) All preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine;"

"Prepared opium" has a specific legal attribute and the chemical examination report does not indicate presence of the said item out of the eleven chemical compounds found in the sample, which seems to form a concoction. No evidence has been led before the Trial Court that any of the existing chemical compounds revealed in the said Report, in isolation or in combination of each other, comes within the definition of "prepared opium". No such argument was advanced before us also. The chemicals which have been revealed by the analyst in the said report might have had come within the definition of manufactured drug, since morphine, heroin and codeine come within the definition of "opium derivative". In such a situation, provisions for punishment contained in Section 21 of the 1985 Act would have been attracted. From records, we do not find any justification for removing Section 21 of the said Act from the list of offences, which were one of the Sections referred to in the charge-sheet. In the event we had found the search process to be valid, we might have had remanded the matter to the Trial Court. But considering the fact that we have found the search process itself to be illegal, striking at the root of the prosecution case, that would be a futile exercise.

On behalf of the appellant, it was also argued that non-production of "Malkahana Register" was a fatal flaw to the prosecution case. On this point, the judgment of the Supreme Court in the case of State of Rajasthan Vs. Gurmail Singh, has been relied upon. In this case, the Supreme Court did not support the prosecution version in a case arising out of the 1985 Act only, inter alia, on the ground that the "Malkhana Register" was not produced at the trial. The Supreme Court found in that case, which was an appeal against a judgment and order of acquittal, that link evidence adduced by the prosecution was not satisfactory. The subject of seizure in that case appears to have had been kept in bottles and in that case, as it has been recorded in the judgment, and no sample of the seal was sent along with the sample to the excise laboratory for the purpose comparing with the seal appearing on the sample bottles. In this case seizure is alleged to have been made from the place of occurrence and there has been no suggestion in course of trial to any of the witnesses that there was improper sealing of the sample. In the event we were to come to a decision in this appeal solely on the basis of non-production of "Malkhana Register", we might not have had set aside the impugned judgment. The mother alamat and label on the mother alamat have proved by the P.W. 1. The P.W. 9 in his deposition has stated that he had sent the sample for chemical examination. But in this case, our opinion is that the search process suffers from fatal procedural breach and we are setting aside the impugned decision on that count.

Several judgments were cited on behalf of the appellant as regards reliability of police witnesses. The judgments of the Supreme Court delivered in the cases of Bhagwan Singh Vs. The State of Rajasthan, , Aslam Parwez etc. Vs. Govt. of NCT of Delhi, , Jagadish v. State of M.P. [ 2004 SCC (Cri) 1171] and Jitendra & Anr. v. State of M.P. [2004 SCC (Cri) 1171] have been relied upon by Mr. Mitra to contend that conviction based solely on testimony of the police witnesses is unsafe in cases where such testimony appears to be unreliable to the Court. It is not an absolute proposition of law that the testimony of police officials ought to be disbelieved straightaway. None of the authorities cited on behalf of the appellant lays down such absolute proposition. In the event, however, Court finds such testimony not to be trustworthy, then in the absence of corroboration of such evidence by independent witnesses, finding of guilt ought to be avoided. In the instant case the two independent witnesses have turned hostile. We do not accept the finding of the Trial Court that by mere signing of documents, independent witnesses shall be deemed to have accepted the content of the documents. The decisions referred to in the judgment under appeal does not lay down this proposition as absolute in law. In the instant case such a finding of the Trial Court cannot be accepted as the witnesses have specifically stated in their depositions that they had put their signatures upon being asked by the police and the police did not interrogate them in connection with that case, and both these witnesses denied the act of recovery in their presence. When this factor is considered in conjunction with the faulty search process, serious doubt arises in respect of the prosecution case.

We have already held that the search process was unlawful. We also find that P.W. 1 has given a more detailed version of the incident in the F.I.R., when compared with his deposition, particularly on the point of search. In the F.I.R., it has been written that the appellant had been told by the P.W. 6 that he had the liberty to get himself searched by any other Gazetted Officer. But making of such offer has not been stated in the depositions of either the P.W. 1 or the P.W. 6. In such circumstances in our opinion, it is not possible in this case to rely solely on the evidence of police witnesses and on that count also, finding of guilt of the appellant by the Trial Court ought to be set aside.

It has also been argued on behalf of the appellant that the incriminating circumstances were not put to the appellant while examining him under Section 313 of the Code. In this regard, the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, was relied upon. It has been laid down by the Supreme Court in this case that the circumstances appearing against an accused which are not put to the appellant in course of examination under Section 313 of the 1973 Code would have to be altogether excluded from consideration. Two other decisions were cited on behalf of the appellant on the scope of examination under Section 313 of the Code, being the cases of Noor Aga Vs. State of Punjab and Another, and a Bench decision of this Court in the case of Mainul Haque Vs. The Union of India--> .

In our view, though the questions put to the appellant in course of examination under Section 313 of the Code of Criminal Procedure, 1973 have been rather cryptic, the evidence adduced by the prosecution against the appellant has been summarized on the whole by the Trial Court and the Trial Court cannot be faulted on this count. But having regard to our opinion on the aspect of search, and reliability of the police witnesses, this factor alone would not sustain the prosecution case.

For the reasons discussed above, we set aside the impugned judgment and allow the appeal. The appellant is directed to be set free forthwith from the correctional home, if he is not wanted in connection with any other case.

Let the Lower Court Records be sent back immediately with a copy of this judgment.

Urgent Photostat certified copy of this judgment and order be given to the parties expeditiously, if applied for.

Sankar Acharyya, J.

I agree.