Pardeshi Ram vs State of M.P. (Now State of C.G.)

Maninder Mohan Shrivastava, J.—This appeal is directed against judgment of conviction and order of sentence dated 10.7.1997 passed by the Additional Sessions Judge, Mahasamund in Special Criminal Case No.17/ 1996 whereby appellant has been held guilty of commission of offence u/s 20(b)(i) of the Narcotic Drugs and Psychotropic Sub-stances Act, 1985 (hereinafter referred to as "the Act") and sentenced to undergo R.I. for two years with a fine of Rs.2,000, in default, additional simple imprisonment for three months.

Case of the prosecution is that upon receiving information on 4.10.1995 that the appellant is engaged in cultivating ganja and selling from his own house in village Aamgaon. information was recorded in writing and the Investigating Officer along with his team proceeded to the scene of occurrence, where in presence of panch witnesses, enquiry was made and ganja trees alleged to be cultivated in the Kitchen Garden of the appellant were seized. 190 Grams of ganja was also seized from the house of the appellant. Proceedings of search and seizure were drawn and after recovery of ganja, followed by seizure, dehati nalishi was recorded and appellant was arrested and FIR was lodged in Police Station Tumgaon against the appellant, alleging commission of offence u/s 20(b)(i) of the Act. Investigation was completed; charge-sheet was filed in the Court of Judicial Magistrate First Class, Mahasamund, who committed to the Court of Additional Sessions Judge. Charges were framed against the appellant alleging commission of offence by the trial Court. The appellant abjured his guilt. In order to prove its case, the prosecution has examined Ram Swarup. PW1, Bansh Ram, PW2, Uddhav Soni, PW3, Patras Kerketta, PW4, Ram Niwas Kerketta, PW5, Joginder Singh, PW6 and Hemchand Verma, PW7.

The trial Court examined the appellant u/s 313 of the Cr.P.C. regarding evidence and circumstances appearing against the appellant and the appellant denied circumstances and the incriminating evidence and stated that he has been falsely implicated. No defence witness was examined.

Assailing the correctness and validity of the judgment of conviction and order of sentence, Learned Counsel for the appellant submitted that there is violation of mandatory provisions contained in Section 42(2) of the Act, as information has not been sent to the next superior officer. Learned Counsel for the appellant further contended that there is a violation of statutory mandate of Section 50 of the Act. as the appellant was not informed of his right to be searched by a Gazetted Officer or by a Magistrate. Learned Counsel for the appellant argued that compliance of mandatory provisions with regard to sealing and safe custody of the ganja and sample drawn therefrom could not be proved by the prosecution beyond reasonable doubt and therefore possibility of tampering of the sample of ganja could not be ruled out in the facts and circumstances of the case. Moreover, there is no evidence led by the prosecution with regard to safe deposit of contraband in Malkhana. It has been strenuously urged by Learned Counsel for the appellant that as the entire case of the prosecution suffers from serious discrepancies, violation of mandatory provisions contained in Section 42(2), 50, 55 as also Section 57 of the Act and that the testimony of Investigating Officer is also not trustworthy and not corroborated from other circumstances, and further that the independent witnesses have not supported the case of the prosecution with regard to seizure of contraband from the possession of the appellant, the appellant is entitled to be acquitted by giving him benefit of doubt. Learned Counsel for the appellant has relied upon decisions in the cases of Govind Ram Vs. State of Chhattisgarh, Karan Singh Vs. State of Chhattisgarh, , Hariram and Others Vs. State of Madhya Pradesh, Shiv Kumar Vs. State of C.G., State of M.P. v. Ramchandra Jaiswal 2005(1) C.G.L.J.15 . Ashok Kumar Vs. State of C.G., Bhola Ram Vs. State of C.G., Ganga Singroule Alias Akhilesh Singroule v. State of C.G 2009 (2) C G.I.J. 382, Sidhartha Gautam v. State of C.G 2009(2) C.G.I. J. 250. Domaru @Miti v. State of C.G. 2009(2) C G.I.J. 143. 2001 (2) C.G.L.J.18.

On the other hand, learned State counsel supported the judgment of conviction and order of sentence and submitted that there has been proper, valid and substantial compliance of the provisions contained in Section 42(2), 50, 55 and 57 of the Act. Learned State counsel argued that the Investigating Officer has fully proved not only the compliance of mandatory procedure prescribed under the law with regard to search, seizure and sealing of the sample of ganja but also duly proved that the same were kept in a safe custody till received by the Forensic Science Laboratory. Learned State counsel submitted that whatever contradictions have been pointed out by the appellant are not so material as to disbelieve the case of the prosecution with regard to search and seizure of contraband from the possession of the appellant. It is further argued that other witnesses including independent panch witnesses have proved compliance of the mandatory provisions of law with regard to search and seizure as also proved seizure of contraband from the possession of the appellant. Learned Counsel for the respondent/State relied upon decision in the case of Karnail Singh v. State of Haryana, 2010 (88) A.I.C. 28 (S.C.).

Joginder Singh, who is the Investigating Officer, PW6, has deposed that upon receipt of information on 4.10.1995 at Police Chowki Patewa, information was recorded in Roznamchasana-78. In the cross-examination also, he has admitted that the name of the appellant was disclosed to him, by the informant. Thus, it is clear that information received by Joginder Singh, PW6 was that the appellant is cultivating and selling ganja from his house at Village Aamgaon. It has been stated that such information was recorded in Roznamchasana-78 on 4.10.1995 and the same was produced and proved as Ex. P7(C). The Investigation Officer does not depose that information as required u/s 42(2) of the Act was sent to the immediate official superior. It is clear that the information was of the nature as specified in Section 42(1) of the Act. The said information was received by the Investigating Officer, Joginder Singh, PW6, when he was present at Police Outpost Patewa. It be noted that at the time of alleged commission of offence. Section 42(2) of the Act, as it stood before its amendment by Act 9 of 2001, read thus:

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

(2) Where an officer takes down any information in writing under sub-section(1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.

The aforesaid statutory requirement of sending copy forthwith has been held to be mandatory, total non-compliance of which, itself would vitiate the conviction in view of the law laid down by the Supreme Court in the case of State of Punjab Vs. Balbir Singh, and Abdul Rashid Ibrahim Mansuri v. State of Gujrat. 2002(2) SCC 513. The decision in the case of Abdul Rashid (supra) was followed in Koluttumottil Razak v. State of Kerala 2004(4) SCC 165. The Supreme Court in the aforesaid decisions has clearly laid down that total noncompliance of the mandatory provisions contained in Section 42 of the Act is fatal to the prosecution. The Investigating Officer has neither deposed nor proved that any information as required u/s 42(2) of the Act was sent forthwith or within a reasonable period. In fact, sending of information u/s 42(2) of the Act has not at all been proved by the prosecution.

Learned State counsel has argued that as information with regard to search and seizure was sent by the prosecution on 4.10.1995 under a radio message to the Superintendent of Police, Raipur, Ex. P4. proved by Uddhav Soni, PW3, there is substantial compliance of the provision. The same cannot be accepted. Firstly, for the reason that it was not an information with regard to the receipt of the information as specified u/s 42(1) of the Act. That was an information sent in purported compliance of provisions contained in Section 57 of the Act, after search and seizure was made and the appellant was arrested and thereafter brought to the Police Station. It does not even record that the house of the appellant was raided by the Police on the information received by the informant, which is alleged to be recorded in writing.

Learned State counsel also argued that in view of the recent decision of the Constitution Bench of the Supreme Court in the case of Karnail Singh (supra), only in a case of total non-compliance of Section 42 of the Act, the case of the prosecution would be adversely affected. He submits that there is a mere delay and the facts and circumstances of the case so speak, compliance of Sections 41, 42(1), 42(2) of the Act within a reasonable time would not vitiate the conviction The Constitution Bench of the Supreme Court in the case of Karnail Singh (supra), while resolving conflicting opinions regarding the scope and applicability of Section 42 of the Act and after taking into consideration the amendment in Section 42 of the Act while amending Act 9 of 2001, held thus:

In conclusion, what is to be noticed in Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham 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 concerned Register 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 inform 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 official 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 of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of 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 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.

If the principles laid down by the Supreme Court in the aforesaid decision of the Constitutional Bench are applied in the present case, it is established that present is the case of total non-compliance of Section 42(2) of the Act. Present is not a case where the information was received when the officer was not in the police station but was on the move either on the patrolling duty or otherwise. The Investigating Officer, Joginder Singh, PW6 himself has deposed that he received information when he was at Police Outpost Patewa. There is no iota of evidence regarding compliance of Section 42(2) of the Act. It cannot be forgotten that at the time of commission of offence, the relevant provision required sending information forthwith. In the decision of the Constitution Bench of the Supreme Court, referred to above, it has been held that in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. It has also been held that in aforesaid decision that total non- compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. It has also been held that 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. It has been concluded by observing that whether there is adequate or substantial compliance of Section 42 of the Act or not, is a question of fact to be decided in each case. The prosecution has completely failed to lead even an iota of evidence that the information was sent as required under sub-section (2) of Section 42 of the Act. Thus, present is a case of total non-compliance of Section 42(2) of the Act.

Though, it has been argued that provisions of Section 50 of the Act has not been complied with, a perusal of the testimony of Investigating Officer, Joginder Singh, PW6 would show that the appellant was informed of his right to be searched by a Magistrate or a Gazetted Officer and the document Ex. P3 has been proved by him. The said document contains the legal requirements of Section 50 of the Act.

As far as proof of seizure of 190 grams of ganja and 17 sticks of ganja tree are concerned, independent witness Ram Swarup, PW1 states that in the platform of the house adjacent to the house of the appellant. 17 trees of ganja were kept at the time when he reached to the spot and he was informed by the police that the same has been seized from the house of the appellant. He has also deposed that 100-150 grams of ganja were also kept there and it was also said to have been recovered from the house of the appellant. He has not been declared hostile. In his cross-examination, he has stated that when he reached the spot, ganja and trees of ganja were kept at platform in a packet of polythene. He has also deposed that when he was taken to the place wherefrom the trees were uprooted, that was a place belonging to Jagsingh Gond. Therefore, from the testimony of Ram Swarup, PW1, it cannot be said that any seizure was made in his presence. His version is that when he reached the spot, seizure was already made and the ganja and trees of ganja were kept on the platform of house adjacent to the house of the appellant. Bansh Ram. PW2 has deposed that ganja was seized from the Gully (corridor). He has not been declared hostile. In his cross-examination, he has stated that when he reached at the corridor, trees of ganja were kept in a polythene packet and he has informed by the police that it was a ganja tree. He further deposed that he was taken by the police to the place wherefrom it was uprooted, that was a place belonging to Jagsingh Gond. From the testimony of the aforesaid two prosecution witnesses, it cannot be said that any seizure was made from the appellant in the presence of independent witness. On the contrary, evidence which has come on record is that trees of ganja were uprooted from the badi (courtyard) of one belonging to Jagsingh Gond. Therefore, the prosecution has failed to prove beyond reasonable doubt that trees of ganja and dry ganja was seized either from the house or from the possession of the appellant.

There is also force in the submission of Learned Counsel for the appellant that the statutory mandate with regard to sealing and safe custody of ganja and sample thereof has not been complied with. From the testimony of Investigating Officer, Joginder Singh, PW6, though it found that samples were drawn and sealed, the Investigating Officer has failed to prove that he affixed his own seal of Officer-in-charge of the Police Station as required u/s 55 of the Act. A perusal of Panchnama Ex. P1 also does not show that the Investigating Officer, who is the Officer-in-charge affixed his own seal. It is nowhere been stated by the Investigating Officer, PW6 that even in the Police Station at any point of time, search, seizure and arrest was made and he affixed his seal. There is no evidence led by the prosecution that the sealed samples and the specimen impression of the seal and seized articles were deposited in the Malkhana of the police station for safe custody. Neither the Mohamir of the Malkhana was examined nor Malkhana Register has been produced in evidence by the prosecution in order to prove that after seizure, the articles of ganja and ganja tree along with sample were kept in the safe custody. There is no evidence as to where seized ganja and sample thereof etc were kept, from the date of seizure till the date it is alleged to be received in the Forensic Science Laboratory. The mandate of Section 55 of the Act obliges the Investigating Officer to ensure safe custody of the ganja to rule out every possibility of tampering. The prosecution is surreptitiously silent with regard to the place and the condition in which seized articles were kept. Though, the prosecution has examined Patras Kerketta, PW4, who has deposed that he had taken memo Ex. P5 of the Superintendent of Police, Raipur addressed to the Forensic Science Laboratory, Raipur, in his cross-examination, he makes a contradictory statement with regard to place from where he collected the sample and at one place, he has stated that it was received at Thana Tumgaon and another place, he stated that it was received at Police Chowki Patewa, falling under jurisdiction of Thana Tumgaon. The prosecution has neither examined Malkhana Mohamir nor Malkhana Register has been produced in order to prove that the samples were handed over to the safe custody of Patras Kerketta, PW4 for being taken to Forensic Science Laboratory. From the report of the Forensic Science Laboratory Ex. P11, it is revealed that the sealed packets bore seal of the Police Station, which clearly shows that the Station House Officer, PW6, who had investigated the matter and alleged to have seized and sealed the contraband, did not affix his own seal. The prosecution has also failed to prove that the physical evidence in the form of 17 trees of ganja said to be kept in the sealed packets were produced during the course of trial. Thus, the prosecution has failed to prove compliance of provisions contained in Section 55 of the Act. Similar view has been taken by this Court in the case of Govind Ram, Shiv Kumar, Bhoh Ram and Ganga Singroule Alias Akhilesh Singroule (supra).

Thus, the prosecution has failed to prove seizure of ganja and ganja tree either from the house of the appellant or from the possession of the appellant beyond reasonable doubt. Other discrepancy with regard to safe custody resulting in violation of Section 55 of the Act renders the case of the prosecution highly doubtful and tampering of the sample also cannot be ruled out in the absence of proper sealing and total absence of the evidence of keeping the seized contraband in a safe custody till it reached Forensic Science Laboratory. Therefore, conviction of the appellant cannot be sustained in the eye of law.

In the result, the appeal is allowed. Judgment of conviction and order of sentence passed by the trial Court is set aside. As the appellant is on bail, his bail bonds stands discharged and he need not surrender.